JURIST Guest Columnist Amaury A. Reyes-Torres, of Ibero-American University, discusses the recent Supreme Court decision on same-sex marriage in the US…

The Supreme Court of the United States (“SCOTUS”) issued its anticipated opinion on Obergefell v. Hodges [PDF]. Regardless of what your view on the decision might be, Obergefell v. Hodges is historic. It is worth to mention that Obergefell v. Hodges was authored by Justice Kennedy, and it was released on June 26th, the exact same day when Lawrence v. Texas and United States v. Windsor were decided. These opinions were written by Justice Kennedy as well.

The holding of Obergefell is very simple. Under the Constitution same-sex couples have a fundamental right to marry as opposite-sex couples do. Nevertheless, the opinion of the court presents a lot of issues that will be open to discussion for a long time. I would like to comment on the most important topics that the decision presents.

I. Federalism and Its Limits Under the US Constitution

One of the important issues raised by scholars and court analysts is how the power of the states to regulate domestic relations within their jurisdiction can be harmonized with the right to marry that same-sex couples seek. Sadly, the court did not spend a lot of time on this as Chief Justice Roberts and Justice Scalia did. Both Justices argued, relying on Windsor, that the states have the prerogative to regulate domestic relations such as marriage and how the Framers of the Constitution entrusted them to carry on that task.

It is correct to argue that the states were entrusted by the Framers to regulate domestic relations such marriage and divorce. Both justices, however, missed a particular and important assertion made by the majority in Windsor. The majority of the court in Windsor stated that “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia; but, subject to those guarantees, ‘regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States[…].'” What the Supreme Court did in Windsor was draw a logical conclusion from the rationale of Loving, that is that the power of the states on certain matters are subject and limited by the Constitution, namely the respect of fundamental rights such as the right to marry.

But, to be fair to the dissenting justices, the majority did not explicitly ground its rationale on Windsor; in fact, it did not devote as much attention as we expected on the federalism concerns of the states. Nevertheless, the court did not disregard the power of states in Windsor or in Obergefell. The court only reached a conclusion based on how the Constitution protects the right to marry and how the same-sex couples are entitled to it as opposite-sex couples are. Even when it was desirable for the court to address this issue properly, it was implicit in Obergefell that fundamental rights constitute a limitation on the prerogative of the States to regulate marriage.

Holding otherwise could have affected the current constitutional scheme. First, the power of states will be unlimited, and that could easily disregard the supremacy of the federal Constitution. Second, in the particular case of marriage and same-sex couples, holding that unlimited prerogative of states to regulate marriage will significantly undermine the core essence of Loving v. Virginia. If the respondents and the dissenters wanted to argue (as they did) that marriage concerning same-sex couples is a question exclusively reserved to the States, overruling Loving and Lawrence would have been the first step. At the very least, the court could have neutralized the issue by narrowing its rationale as much as possible. Therefore, the holding of Obergefell is consistent with the federalist structure and the limitations on the regulation of domestic relations by states as established by the Constitution.

II. Right to Marry and Substantive Due Process

The second aspect to consider is related to the central holding in Obergefell and the fundamental right to marry. Chief Justice Roberts and Justice Alito argued that the petitioners were asking for the recognition of a new right and that this the right to same-sex marriage.

It is worth mentioning that, unlike other opinions issued by the court, the Obergefell majority does not expressly respond to any of the dissenters’ objections. But without any specific mention, Justice Kennedy, writing for the majority, addresses Chief Justice Roberts’ and Justice Alito’s concerns by concluding that what the court inquired under the substantive due process clause was “the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right (…).” We can confirm this by the way the holding is written: the court reaffirmed the right to marry as fundamental under the court’s precedents, but also held that the right to marry is not limited to opposite-sex couples.

In addition to this point, the language used by the majority to describe and then hold that same-sex couples are entitled to marriage is interesting. The majority began its inquiry by analyzing the right to marry and not the existence of a right to same-sex marriage. In fact, the court uses the term “same-sex marriage” in a descriptive manner more than a normative one. Therefore, the court was not doing a careful description of a new fundamental right but instead was doing an inquiry on how same-sex couples benefit from a right that already exists.

Another appealing aspect of the opinion in relation to the substantive due process doctrine is whether Washington v. Glucksberg was still relevant for cases related to the right to marry and intimacy. In one hand, while Chief Justice Roberts heavily grounds his objection on the lack of appropriate adherence to Glucksberg; the majority concluded that Glucksberg was only appropriate for the subject of discussion in that particular case. In other words, Glucksberg is only appropriate when there is a discussion on the existence of a new fundamental right or with the question of physician-assisted suicide. In Obergefell, SCOTUS was not discovering a new right covered by the word “liberty,” but an interest protected by a right that already exists as rooted in the tradition and history of the nation, like the right to marry.

On the other hand, because of Obergefell, it is clear that Glucksberg suffered a significant blow. I agree with Professor Jack Balkin when he says that Glucksberg is not the leading case in substantive due process and implied fundamental rights (if it ever was). The problem with this case is that it heavily relies on tradition and history for implied rights, and this view might be itself a contradiction in terms. How could an implied right is in itself be new if it was exercised in the past? We could rely on certain practices related to the liberty in question, but we will never find the liberty by looking exclusively into the past without understanding the liberty under the glass of our present times. In the words of Justice Harlan in Poe v. Ullman, “the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.”

III. Right to Marry and the Equal Protection Clause

It is not difficult to agree with Chief Justice Roberts on one point and that is the way the majority dealt with the equal protection argument. However, the way the majority dealt with this argument does not render it invalid. At least, it held that there is an undeniable connection between equal protection and the right to marry. However, it could have been better, because ever since Lawrence the court has dodged an important issue: the status of LGBTI individuals under the Equal Protection Clause as a class or as a protected group and, eventually, what the proper standard of review would be in any given case.

I believe, along with Prof. K. Yoshino, that the court has denied constitutional protection to new groups and has moved to individual liberty claims under the due process clause [PDF]. But, the court could have construed an argument without creating a “new class” under the equal protection clause. By resorting to Justice O’Connor’s concurrence in Lawrence , the court could have construed an argument based on the harm that same-sex couples have suffered because of the state laws enacted with the “the purpose to harm an unpopular group based on moral disapproval.” The opinion of the court in Obergefell makes a compelling case on the significant harm suffered by same sex couples.

However, in her opinion, Justice O’Connor believed that there is a state interest in preserving traditional marriage. Nevertheless, the “animus” approach as developed by the court in Windsor could offer a new way to reshape the rational basis review with a “bite” to question that interest and to hold that same-sex couples were discriminated against as a result of states laws that were issued to harm an unpopular group. Also, by having an institution available solely to opposite-sex couples, the court also could have resorted to its analysis in United States v. Virginia when it when it found that it was unconstitutional to have a male-only admission policy that did not extend the same opportunities to women.

IV. The Countermajoritarian Difficulty and Equal Marriage

Finally, there is the countermajoritarian argument advanced by the dissenting justices, in particular by Chief Justice Roberts. Chief Justice Roberts, in his compelling dissenting opinion, argued that the issue of same-sex marriage belongs to the people and that five lawyers had decided to end this debate, even when the proponents of same-sex marriage were convincing their opponents. However, the majority concluded that, even when there is an ongoing debate and discussion, the issue under examination is a question of law. The court stated that the question before the court is whether the Constitution protects the right of same-sex couples to marry. If so, when an unlawful action of the government tends to abridge fundamental rights, the Constitution requires the situation to be redressed by the courts.

But, in terms of political theory, the assertion made by the Chief Justice is not quite accurate in a democracy. If a democracy contends to be a deliberative democracy, then there cannot be closed issues nor topics, even if they were decided by a court of justice. If we take the sensitive topic of abortion, we can see that the debate’s still going on after Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were delivered by SCOTUS. It is more accurate to say that a decision of the court might settle the issue, but it doesn’t necessarily close it. The debate, now, will move to another scenario, and only time will tell us what will come from this.

Besides, in one of its most politically sensitive cases, Bush v. Gore, the court said that “[n]one are more conscious of the vital limits on judicial authority than are the members of this Court […]. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” That is why the debate will continue and people will go to courts to continue the debates. People rely on the Constitution and its principles as a powerful argument, even when the courts already have spoken.
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There is a lot to say about Obergefell v. Hodges, hence the difficulty to condense the totality of views and objections to the majority and dissenting opinions. It will be naive to think that this decision by itself resolves all the problems that LGBTI individuals are facing. But, we can all agree that Obergefell is only the first step on the long road that the LGBTI individuals have before them to defend their rights under the Constitution. The right to (equal) marriage is only one aspect of what it means to be free and equal with dignity. The debate is far from over, just like the fight for equal justice under the law is far from being over.

Amaury A. Reyes-Torres is a lecturer on Constitutional Law and Comparative Constitutional Law at Ibero-American University (UNIBE) Dominican Republic. The author is grateful to Olivia Gonzalez for the idea of how United States v. Virginia could have been a good approach in this case.

Suggested citation: Amaury A. Reyes-Torres, Obergefell and Equal Marriage: A Few Points for a Long Debate , JURIST – Forum, July 9, 2015, http://jurist.org/dateline/2015/07/Amaury-Reyes-Equal-Marriage.php