The Chief Justice’s Obergefell Dissent and His View of the ‘Judicial Role’

     Obergefell is now in the books, and same-sex marriage is the law of the land. In this post, I lay out a few of my thoughts, not on Justice Kennedy’s majority opinion, but on the lead dissent in the case, written by Chief Justice Roberts.

First, the dissent is classically the Chief’s, representing the sort of concern for the Court’s legacy and role that we would rightly expect from a Chief Justice. For instance:

• “Those who founded our country would not recognize the majority’s conception of the judicial role.” (Op. at 25);
• “When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate.” (Op. at 26); and
• “[A] Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of ‘due process.’” (Op. at 22).

Second, compared to the Chief’s dissent in Windsor, his Obergefell dissent takes a decidedly different approach to dissenting opinions. Whereas in Windsor the Chief attempted to argue that the majority opinion did not resolve future questions about gay marriage (it was Justice Scalia’s dissent that forecast the demise of anti-same-sex marriage laws), in Obergefell he has taken the opposite approach, arguing that the majority’s opinion paves the way for “plural marriage.” The Chief writes:

•   “One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.” (Op. at 20);
•   “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” (Id.); and
•   “Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.” (Id.).

The Chief ultimately suggests that there may be “relevant differences that compel different legal analysis.” (Op. at 21). But he makes no attempt to say what those differences may be, and indeed, the tenor of his opinion suggests he thinks Obergefell removes the bulwarks that would otherwise prevent some 500,000 polyamorous American families (id.) from enjoying the due process right to marriage the majority establishes.

Third, the Chief observes, correctly I think, that there is a difference, for equal protection purposes, between the right to the title of “marriage” and the rights to the benefits marriage has traditionally conveyed upon its members. The challenged laws in Obergefell were not laws that deprived same-sex couples of the many benefits of marriage (spousal hospital visitation; adoption; trusts & estates; tax incentives), but merely deprived them of the right to “marriage.” A law depriving same-sex couples of tax benefits presents a far greater equal protection concern than a law that tells same-sex couples only that they are not entitled to call themselves “married.” As the Chief says, “[t]he equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits.” (Op. at 24).

That thought mirrors one I’ve had: that the same-sex marriage movement has done a masterful job of eliminating the term “civil union” from our national discourse. A state providing for same-sex civil unions—so long as those unions conveyed all the same benefits as marriage, while withholding only its title—would present a much closer equal protection challenge, and might even survive such a challenge. But by pretending that there was but one choice (marriage or non-marriage), the challengers teed up a challenge that really was never there. That is, it presented the Court with a false choice between rights or no rights. But that choice needn’t have been made.

While the “psychic harm” or stigma of not being permitted to “marry,” despite the fact that a couple enjoys all the traditional benefits of marriage, may nonetheless offend the equal protection clause, that is far from clear. That issue probably should have been decided.