Tuesday, June 30, 2015
In Obergefell v. Hodges, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in Obergefell?
This brief paper (here) is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in Obergefell. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.
In her opinion, Justice Nemo relies on an insight of the celebrated Jesuit theologian John Courtney Murray, who is no doubt familiar to the five Catholic justices of the Supreme Court.
I posted, in America, some thoughts about the Supreme Court's Glossip decision on lethal-injection drugs. A taste:
This case and, more dramatically, this exchange highlight—as did Friday’s decision constitutionalizing same-sex marriage—one of the most important questions in constitutional law: Which divisive and difficult questions of morality and policy does the Constitution leave to the democratic process and which ones has it removed from politics? For about a century, this question has sharply divided citizens and justices alike. When the Court strikes down as unconstitutional a policy that we think is justified, or at least debatable, we are likely to cry “activism!” or “overreach!” When the Court lets stand a policy that we embrace, or at least think is reasonable, we tend to praise it for its “humility” and “restraint.” When it comes to the role of judges and the power of “judicial review,” few of us achieve perfect and principled consistency.
It is possible to think that, for example, abortion should be generally legal while at the same time believe that the Court got it very wrong, in Roe v. Wade, when it declared that the Constitution—rather than elections, legislation and compromise—answers all questions about abortion’s legality and regulation. The same can be said—indeed, Chief Justice Roberts underscored this point in his dissent in Friday’s ruling—about same-sex marriage. And, similarly, one can firmly oppose capital punishment as a failed and unjust policy while believing that, in our system, its abolition depends on persuading our fellow citizens and not five justices of the Supreme Court.
I had not been following the Arizona redistricting-by-commission case very closely, but I've been reading the Supreme Court's opinions from beginning to end the past couple of weeks (the joy!), and yesterday brought the Court's decision in that case. It is a very bad decision. I don't mean bad as a matter of policy; I don't know enough to have an informed opinion on that. But bad, very bad, as a matter of law.
The bad law exemplified by the case is what one might call adverb law--law about how to do law lawfully. The Justices in the majority adopted an approach to the text of the Constitution that defeats a central purpose for having a written Constitution--to determine and to fix the rules so that people can hold the government (and themselves) to those rules later.
The legal text at issue was the "Elections Clause" of the U.S. Constitution: "The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." (emphasis added)
Arizona voters, acting via initiative, found a way to bypass redistricting by the Arizona legislature; they vested redistricting authority in an independent commission instead.
The Arizona legislature lodged the obvious legal objection: The Elections Clause says that redistricting is to be done "in each State by the legislature thereof," but the Arizona initiative places redistricting authority outside the state legislature.
The legislature lost. The same five-Justice majority that redefined civil marriage last Friday redefined "Legislature" yesterday. In an opinion for the Court by Justice Ginsburg, the Supreme Court held that redistricting by an independent commission counts as redistricting "by the Legislature" under the Elections Clause. Chief Justice Roberts wrote the main dissent, which interprets as well all the majority interprets as poorly.
While the willingness of one Justice to write and four others to sign on to loose legal analysis like the majority's is disheartening, a comparison of Justice Ginsburg's opinion for the Court with Chief Justice Roberts's dissent illustrates another virtue of a written Constitution: We can more easily identify when the Justices approve unlawful law by twisting our written Constitution than by operating outside the constitutional text entirely.
This is cold comfort, I know. But at least it provides the basis for warm condemnation.
So go, read the Chief's dissent. Don't be a chump.
Yesterday, I was in contact with Erika about her posting on the Obergefell decision and what seemed to be Justice Kennedy’s decision not to cite the “mystery of life” passage from Planned Parenthood v. Casey. During Sunday’s chemo session, I had the time and a little energy to read carefully the majority opinion in Obergefell—after all, as the old Soloflex advertisement used to say, “No pain; no gain!” Only Justice Thomas in his dissent cites Casey, but he does not address the “mystery of life” language.
Upon returning home, I studied the citations to Lawrence that appear in Obergefell and discovered something that robs Erika, me, and others of the hope that liberty is no longer defined by the “mystery of life” passage of Casey.
In the Court’s opinion of Obergefell, Justice Kennedy refers a fair number of times to Lawrence v. Texas. No surprise there. In two of his Lawrence citations on page 12 of the Obergefell slip opinion, he refers to 539 U.S. at 574. That is where he, Justice Kennedy, discussed the liberty passage of Casey in Lawrence. I hasten to add that on page 12 of Obergefell, Justice Kennedy is discussing the underlying substantive principle of liberty. So, indirectly he does rely on the problematic language of Casey without having to mention the specific language in Casey that formulates the definition of liberty discussed by Erika. Whether this was Justice Kennedy’s intention or not, I cannot say. But some readers of Obergefell may wish to take the time to examine all the citations to Kennedy’s previous decisions cited in Obergefell and discover that the Casey formulation is indirectly discussed by the two citations to “at 574.” Hence, the flawed definition of liberty discussed by Erika has been given an extension on its life. The sliver of the silver lining is a phantasm. While Casey is not specifically mentioned in Obergefell, Justice Kennedy introduces its liberty formulation in stealthy fashion by citing Lawrence’s discussion of it.
Monday, June 29, 2015
It's difficult to find a silver lining in the case decided last Friday, but I'm going to try to offer just one: in Kennedy's discussion of substantive due process, he dropped neither Roe nor Casey in his citations. Casey's "sweet mystery of life" passage would have seemed particularly apt, given that Obergefell's definition of liberty builds upon that phrase's postmodern quest for identity-creation more than anything we've seen since. "At the heart of liberty is the right to define one's concept of existence, of the universe, and of the mystery of human life"...and, according to Obergefell, to "define and express [one's] identity." Kennedy cited Griswold (6 times) and Eisenstadt too, but neither Roe nor Casey. Yes, both cited cases concern privacy within the marital state, but Obergefell wasn't at all about privacy within the marital state.
From the Opinion of the Court:
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972)
Gives one a bit of hope that Kennedy's "better informed understanding" of liberty no longer includes the right for a mother to end the life of her unborn child...
Sunday, June 28, 2015
I mean, is this cool or what? Our Constitution is a living, breathing document! It evolves to stay in sync with Anthony Kennedy's moral and political beliefs. It's like magic!
June 28, 2015 | Permalink
This portrayal of Thomas More's trial for high treason is something upon which Catholic legal theorists may wish to reflect in light of Friday's marriage decision:
Some organizations which received the decision they sought in the litigation have suggested they will now disband. I am skeptical of their claim. As was the case with Henry VIII and his Parliament, will those having rational arguments to present that conflict with the majority decision find themselves in the difficult position of Thomas More? Time will tell.
Saturday, June 27, 2015
Three recommendations for religious reaction to the Supreme Court's legal redefinition of civil marriage
In thinking about the general topic of religious reactions to the Supreme Court's redefinition of marriage, I continue to find that the strongest religious reactions are among those evangelizing the five-Justice majority's decision as if it should be revelation for the rest of us. Consider, for example, this CNN report of a speech by Hillary Clinton in northern Virginia last night:
Clinton read the last paragraph of Justice Anthony Kennedy's opinion from the stage on Friday, ending with, "And to that I say, amen, thank you."
"This morning, love triumphed in the highest court in our land," Clinton said. "Equality triumphed, America triumphed."
There's more where this came from, of course, from the relighting of the White House to the rainbow-ization of corporate logos and profile pictures on social media. (And let's not forget the Supreme Court demonstrator proclaiming "Anthony Kennedy is My Spirit Animal." Or the reaction to the decision: "Cries of joy rang out when the decision was announced. A gay men's chorus began to sing.") Everyone wants to "spread the good news," it seems.
But that's not true. Not everyone thinks what the Supreme Court has done is legally permitted, much less legally compelled. So what about the rest of us, who take what comfort we can from the symbolism and the substance of the Chief Justice of the United States dissenting from the bench?
A few suggestions, in increasing specificity:
1. Pray. We all need grace to be prudent, temperate, just, and courageous, as well as faithful, hopeful, and charitable.
2. Insist that all in government act lawfully. People of faith must insist that our legislators and judges be people of the law rather than prophets of a false faith--whether in "progress" or in "history" or in a new understanding of "the central meaning of the fundamental right to marry."
3. Engage in concrete acts of self-government. Congress should pass legislation using its authority under Section 5 of the Fourteenth Amendment to ensure that marriage remains a two-person enterprise.
Here is a short reaction-piece I did for America, and here is one I did for National Review Online. Here's a bit from the America piece, which touches on an issue that I don't think most commentators have been talking about:
Today’s ruling raises many questions, and not only about the “next steps” with respect to marriage-related rules and nondiscrimination laws. For example, the reasoning in Justice Kennedy’s opinion is in significant tension with the opinion—which Justice Kennedy joined—in the Court’s 1997 decision that upheld the right of governments to outlaw physician-assisted suicide. In that case, Washington v. Glucksberg, Chief Justice Rehnquist had insisted that a “liberty interest” had to be deeply rooted in our country’s history and traditions before it could be treated as the kind of “fundamental right” that is protected against state regulation. The asserted right to doctor-assisted suicide did not, the Court concluded, have that kind of pedigree. In Obergefell, however, Justice Kennedy did not follow Rehnquist’s example in allowing history and tradition to constrain judicial power. And, as the pressure in some states to embrace physician-assisted suicide increases—in the name of “dignity” and “compassion”—it is not clear that the Court’s wise refusal in Glucksberg to constitutionalize a right to that practice will stand.
Here, just as a reminder, is how the late Chief Justice Rehnquist ended his opinion for the Court in Glucksberg:
Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.
Friday, June 26, 2015
Justice Kennedy's opinion as a religious reaction to same-sex marriage, and President Obama on "justice that arrives like a thunderbolt"
A few weeks back, I agreed to participate in an AALS panel next January on "Religious Reactions to Same-Sex Marriage." So I've been thinking about and observing and reflecting on the phenomenon, and will continue to do so.
Reading Justice Kennedy's opinion in Obergefell v. Hodges, it seems to me that the opinion itself can be understood as a religious reaction to same-sex marriage. Among other things, it purports to remedy an injury of being rendered "strangers even in death."
The religious reactions I've seen so far have been from the opinion's enthusiastic adherents. President Obama, for example, has described this 5-4 ruling as bringing "justice that arrives like a thunderbolt."