“Americans, whatever their thinking on [same-sex marriage], should worry about what the [Obergefell] majority’s claim of power portends.”
–Justice Alito dissenting in Obergefell v. Hodges
Obergefell v. Hodges, which struck State prohibitions on same-sex marriage, establishes a troubling precedent for democratic institutions and limited government. Through the “reasoned judgment” of five of its nine justices, the Supreme Court bypassed traditional democratic means to establish the issuance of public benefits for same-sex marriages as a fundamental right under Fourteenth Amendment substantive due process. Though many libertarians now celebrate the decision, a careful reading should temper any jubilation. This decision promotes the Cult of the Court, which may now work to restrict rights and actually expand government.
While same-sex marriage enjoys widespread support among the American people, a significant minority opposes it. The democratic process provides the fairest way to forge a lasting consensus among the people. It allows the debate over same-sex marriage to continue until one side prevails by referendum or legislation. The judiciary stands only as a guard to ensure equal protection and preserve fundamental rights. State failure to provide benefits for same-sex marriages may implicate the former but certainly not the latter.
Before last month’s ruling, in certain states, only opposite-sex couples could receive public recognition and benefits for their marriages. The exclusion of same-sex couples likely violated equal protection under rational review basis as is appropriate for sexual orientation discrimination. Nevertheless, the Obergefell Court felt obliged not to stop analysis at equal protection to strike the prohibitions. Rather, it also employed substantive due process in determining that the States violated a fundamental right in refusing to recognize or provide benefits for married same-sex couples.
When considering the flaw here, it is important to recall what the Court defines as a fundamental right. In Washington v. Glucksberg, which Alito cites in his dissent, the concept has been defined as a right “objectively, deeply rooted in this Nation’s history and tradition,” that is “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”
Justice Kennedy writes in the majority that the fundamental right Obergefell upholds is marriage itself, referencing Loving v. Virginia, which struck a Virginia statute criminalizing inter-racial marriage. But did the statutes failing to recognize same sex marriages actually disturb the fundamental right of marriage? In actuality, before Obergefell, same-sex couples in states that did not recognize same-sex marriages were still free to marry in other states and return home and live unencumbered as married couples. The difference was in the rights government bestowed upon the couples, which those not recognizing same-sex marriages denied. This was easily an equal protection violation, but now under the Obergefell precedent the bestowing of marriage benefits stands a fundamental right.
Kennedy makes this clear in writing that he deems the fundamental right of marriage to include the public “pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union.” Before listing some rights and benefits, Kennedy adds that “States are in general free to vary the benefits they confer on all married couples.” (emphasis added) Use of “in general” implies there are certain benefits States may not vary but must confer on married couples.
Many libertarians see the decision only as an expansion of individual rights and nothing else. But this view misses the ramifications of an imperial judiciary using the Fourteenth Amendment concept of substantive due process not only to protect cherished rights but to invent rights as it does in Obergefell, which actually expands the scope of government. If you applaud the Court for using “reasoned judgment” to create the rights you like, would you be consistent by attacking it for using the same “reasoned judgment” to create rights that restrict the freedom of others? Would libertarians cheer if the Court used its “reasoned judgment” to make fundamental the so-called “right not to be offended?” What about the “right to free health care?” Or the “right to income equality?”
Some may say this is far-fetched, but these “rights” are popular. And in fact, the Court has used substantive due process in this manner before. In his dissent, Chief Justice Roberts explains that Dred Scott v. Sanford, was actually the first time the Court used the concept of “substantive due process” to strike a statute. The Missouri Compromise could not deprive slave owners of their property rights just because they moved from a slave state to a free state. Here “substantive due process” was used to restrict the fundamental right to be free of slavery.
Furthermore, Obergefell may increase the growing disregard for the First Amendment in encouraging the belief that certain speech is not to be tolerated, as Justice Alito enigmatically professed:
“I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”