Brief Thoughts on Obergefell, the Same-Sex Marriage Case

I don’t have time right now for a comprehensive analysis like with the Obamacare case.  So here are some quick thoughts and I may follow up with more details at a later time.

1.  I agree with the result.  I think the Constitution does protect a right to same-sex marriage.  And I think the result in this case is the natural extension of existing precedent.  There were multiple analytical bases to get to this result, all of which I find persuasive.

2.  However, I think the issue is a close call.  Thus, a 5-4 result is both unsurprising and justified.  In my view, the majority is correct, but by a small margin.  The dissenters are on very firm ground in disagreeing with the result, and even firmer ground in raising concerns about Kennedy’s  interpretive methodology.

3.  Kennedy has become quite a master at the use of sweeping language.  Much of what he wrote is beautiful.  But beauty needs to be backed up with analytical rigor.  And in the latter department, Kennedy’s opinions is lacking.  Not like in Lawrence v. Texas (the 2003 sodomy case), but it is still too all-over-the place.  In addition, Kennedy appears to have finalized his rejection of the long-established framework for addressing due process and equal protection issues (at least in “family privacy” cases).  I wish he had been more explicit about the fact that he was doing so.  

4.  Roberts’s dissent is very solid.  He is a terrific writer.  And much of his analysis is excellent (though he does overstate the case in a number of places).

5.  As I said above, I do think the dissents make important points about the dangers of Kennedy’s sweeping language and the interpretive methodology it suggests.  However, I ultimately think their worries for democracy are somewhat misplaced.  The Court will never go as far as they fear, even with Kennedy’s broad rhetoric available as a tool.  Moreover, the result today is not as extreme as Roe, which remains at the outer boundary of “substantive due process”—the source of the constitutional right to privacy/liberty/autonomy.  But the dissenters’ concerns are certainly understandable.  An honest reading of Kennedy’s opinion could easily justify some pretty dramatic results.  Nonetheless, the better reading is a more circumscribed view of constitutional liberty.  In other words, Kennedy’s sweeping language must be read in the context of the history of “family privacy” cases—marriage, contraception, abortion, initiate relations.  Limiting his language to that domain, today’s case does not create quite the danger that the dissenters contend.  Again, though, there are legitimate bases to stretch the case beyond family privacy, and then the dissenters fears could, in theory, be realized.

6.  Some news reports have questioned how Roberts can be “on both sides” in these two cases--the Obamacare case and this one.  But there is nothing contradictory about what Roberts did.  In each case, he took the side of judicial restraint based on extremely plausible interpretive arguments.  Roberts may be wrong in one, both, or neither of the cases.  But his approach was deeply principled.

7.  I think this is a very good day for constitutional liberty generally and a truly great day for GLBT rights specifically.