New Essay: Obergefell’s Second Decade

Happy June 26th everyone, or as I call it, Justice Anthony M. Kennedy Day. On this day in history, Justice Kennedy decided Lawrence, Windsor, and Obergefell. This is a fitting moment to reflect back on the first decade of Obergefell, and look ahead to that precedent’s future. My new essay in Law & Liberty is titled Obergefell’s Second Decade.

Here is the introduction:

It has become received wisdom by the legal intelligentsia that the Supreme Court is illegitimate. They charge that the conservative justices are engaging in politicized decisions that advance Republican causes, which have no grounding in law. Critics blast the Court for not following procedural regularity and deciding important issues on the so-called “shadow” docket. This mantra is repeated so often that jurisdiction stripping, Court packing, or worse seems like a fait accompli when progressives regain power. Yet, these Court critics seem to have forgotten much of the past century. During the most convulsive days of the Warren Court, progressive elites raised no alarms. Rather, they celebrated as Chief Justice Earl Warren and his colleagues rewrote virtually every aspect of our legal order, from criminal law to religion to sexual privacy to election law and more. And all of this was done without even the slightest pretense of legal justification, beyond the justices’ personal preference for what would make a more just society.

Perhaps it is unfair to attack contemporary critics on this front, as they simply were not around during that bygone era. But a ten-year time horizon is fair game. Just over a decade ago, Obergefell v. Hodges (2015) invented a constitutional right to same-sex marriage, without even the slightest pretense of legal justification. To be sure, there were legal arguments that marriage laws amounted to unconstitutional forms of sex discrimination. But Justice Anthony Kennedy, the author of that decision, was never one for legal formalism.

When Obergefell was decided, the same legal intelligentsia that excoriates the present-day Court celebrated Justice Kennedy’s ruling, while ignoring the countless faults used to get the case there. Their failure to even acknowledge these problems disqualifies such critics from charging the present-day Court with illegitimacy. This double standard is especially apt for Justices Sonia Sotomayor and Elena Kagan. They joined Justice Kennedy’s majority opinion, yet now they have the audacity to criticize their colleagues for opinions that aren’t even in the same realm as Obergefell.

The journey to Obergefell took seven fateful steps. First, before there was Obergefell, the Supreme Court was asked to strike down the Defense of Marriage Act (DOMA). But the entire case was a setup. The Obama Administration agreed that DOMA was unconstitutional, but still insisted on enforcing the law so as not to moot the legal challenge. Second, given the lack of adversity between the challengers and the government, the federal courts had no business deciding the case. Yet, the Supreme Court plowed through all procedural hurdles, even while promising the public that this case did not disturb marriage laws. Third, almost immediately after DOMA was gone, federal courts began to strike down state marriage laws. Moreover, these judges did not put their rulings on hold to permit an appeal, so there was a simultaneous race to the altar and to the Supreme Court. Fourth, after some delay, the Supreme Court put same-sex marriage rulings on hold, only temporarily. But the Justices silently allowed marriage laws to fall in a dozen states through the “shadow” docket without the benefit of oral argument or a reasoned decision. Fifth, when the issue finally arrived on the Supreme Court’s merits docket, the focus was not on the law, but instead on an issue that was not presented: how children would feel if their gay parents could not get married. The original meaning of the Fourteenth Amendment, ratified in 1868, was irrelevant, as the Justices wielded the greatest act of judicial hubris in American history. Sixth, the outcome in Obergefell was never in doubt. Justice Kennedy had single-handedly built an entire judicial edifice for gay rights on his conception of “dignity.” Kennedy issued the three leading decisions about gay rights on the same day over the course of twelve years: June 26. Obergefell was almost certainly timed to coincide with Pride Weekend 2015.

The entire progressive public and private ecosystem united with a single purpose: to bring this case to the Supreme Court’s door while making it as hard as possible for a defense to be mounted.

Seventh, and finally, the Court took all of these actions without regard for stare decisis, the venerable principle that the Court should stand by precedent. Justice Kennedy blithely dismissed a ruling from 1971 that (correctly) recognized that the Constitution was silent about same-sex marriage. The precedential value of this case was in doubt, but the deeply rooted tradition of traditional marriage was universal. The Court rejected the received wisdom of countless civilizations from every corner of the globe over the course of millennia. Why? Because of insights revealed over the past two decades by the legal intelligentsia. Stare decisis, apparently, is for suckers.

In Obergefell‘s first decade, the decision stood as a tribute to judicial supremacy. But in its second decade, Obergefell should be seen as a low-water mark of judicial craft and the measuring stick by which all other decisions should be compared. Anything the post-Trump Roberts Court has done pales in comparison with the contrived legal arguments and procedural shenanigans to constitutionalize same-sex marriage.

And the conclusion:

As we enter Obergefell‘s second decade, I do not yet see the sort of groundswell of opposition that could lead to the decision’s reversal. There is nothing like the five-decade-long backlash to Roe v. Wade, which culminated in the Dobbs decision. On the current Court, only Justice Thomas seems willing to revisit the decision, and even he did not publicly vote to grant review in Kim Davis’s challenge to Obergefell. But my purpose here in recounting the path to Obergefell is not to make the case for overruling the precedent. Indeed, even if Obergefell were overruled, the positive laws in nearly every state would continue to protect same-sex marriage. Plus, with virtual wedding officiants, gay couples in all fifty states could easily get married. Despite the fear-mongering from the Court’s progressive wing, the world would not look much different in a post-Obergefell world.

Rather, my purpose here is to highlight a painful double standard. When progressives can effect a revolution through the courts, no procedural or substantive rule will stand in the way. Cultural elites will celebrate that ruling and rebut any charges of illegitimacy. And conservatives, perhaps due to their Burkean nature, never even considered retaliation with remedies like jurisdiction stripping or court expansion. But starting in 2018, before the Court issued any landmark conservative decisions, liberals preemptively felt compelled to delegitimize the Court. So when conservative decisions came, the Court was already tainted with the brush of corruption.

Did progressives simply contract a case of selective amnesia, such that the entire run-up to Obergefell was simply forgotten? Or is “legitimacy” merely a function of who stands to benefit from a ruling? The left insists that Roe and Obergefell, which removed contentious issues from the political process, were legitimate. But the left maintains that Dobbs, which restored the contentious issue of abortion to the political process, was not legitimate. In the end, charges of illegitimacy are artificial and merely serve as a means to an end. Obergefell should be held up not only as a tribute to judicial supremacy and hubris, but as the measuring stick for all exercises of judicial legitimacy. Nothing the Roberts Court has done comes even remotely close to what the Kennedy Court did in Obergefell.

There is a lot here, which I hope you take the time to consider. I am also thankful to Law & Liberty for publishing this piece, which takes a strong issue on a contentious issue of social concern.