Liberty loses
Posted: Tue Jul 21, 2015 7:33 pmObergefell Threatens U.S. Democracy
By Deseret News, (UT) July 21, 2015 11:42 am
In Obergefell v. Hodges, a bare majority of the Supreme Court upended the millennia-old meaning of marriage, invalidated the marriage laws of more than half the states, disenfranchised millions of American voters and sidestepped decades of constitutional law. It's little wonder that Chief Justice John Roberts asked rhetorically in dissent: "Just who do we think we are?" Or that Justice Antonin Scalia wrote separately to "call attention to this court's threat to American democracy."
Obergefell v. Hodges is a case about who decides what constitutes "marriage," and it intersects two of America's most profound institutions - marriage and republican government. The majority's decision transformed both, sparking four vigorous dissents. Since the definition of marriage is a policy issue, the dissenting opinions do not discuss the social ramifications of redefining marriage, but they do detail the threat to republican government caused by the majority's decision to take that power from the people. Here are four lessons from those opinions:
Rule of law should not be "rule of lawyers." Justice Anthony Kennedy's majority opinion is based on the discovery of an unwritten constitutional right to same-sex marriage under the doctrine of "substantive due process." That doctrine has a checkered past, having first been applied, as Roberts reminds us, in the infamous Dred Scott case. That decision invalidated the Missouri Compromise (which prohibited slavery in certain federal territories) on the grounds that there was an implied constitutional right to property in slaves.
Quoting a prescient dissent to Dred Scott, Roberts warns that when personal opinions govern what the Constitution means, "we have no longer a Constitution; we are under the government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of what it ought to mean." That turns the rule of law, as one commentator puts it, into the "rule of lawyers." (One lawyer told The New York Times, apparently quite seriously, that gay marriage was winning legally because, well, "lawyers can see the truth.")
Having earned a reputation for judicial restraint by upholding the Affordable Care Act despite his conservative credentials, Roberts' vote could have legitimized a gay marriage ruling, but instead the even-tempered Roberts picks apart the decision as "an act of will, not legal judgment," that effectively "steal(s) this issue from the people."
Scalia is, unsurprisingly, even more direct: "This practice of constitutional revision by an unelected committee of nine ... robs the people of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves." For good reason, Scalia intones, "no social transformation without representation."
Liberty is not entitlement. No one disputes that the Constitution protects marriage as a fundamental liberty, but that begs the question of which marriages the government must subsidize. Same-sex couples were already free to live together, engage in intimate conduct, raise children and solemnize their relationships as marriages in religious or other ceremonies. Obergefell v. Hodges was not about a right to marital privacy, but rather an asserted right to public benefits. The latter, however, is not a "liberty." Properly understood, "liberty is only freedom from governmental action," as Justice Clarence Thomas explains, "not an entitlement to governmental benefits." But if the Constitution did entitle same- sex couples to governmental benefits, the majority offers no explanation why polygamists would not be similarly entitled. Constitutional rights to marital subsidies open Pandora's box and should be rejected. Simply put, there's no liberty to entitlement.
Liberty cannot expand with the loss of religious freedom. Unlike the implied right to same-sex marriage that the majority "imagined" (Roberts' description) in the 14th Amendment, the right to the free exercise of religion is spelled out in the First Amendment. All four dissenting justices foresee threats to religious liberty. They warn of conflicts with married student housing, adoption policies and tax exemptions. They predict inevitable "demands to participate in and endorse" civil same-sex marriages. Most chilling, they write that the majority's decision will be used to "vilify" those who disagree, "exploit" those who dissent and label as "bigots" those who speak publicly in the halls of government, employment and schools. The majority praises the expansion of "liberty," but true liberty cannot expand with the loss of religious freedom.
Dignity is self-evident, not bestowed by government. The majority says it advances "the 'dignity' of same-sex couples," but Thomas deplores the notion that government can bestow dignity. The majority, he laments, "rejects the idea - captured in our Declaration of Independence - that human dignity is innate and suggests instead that it comes from government." That is a dangerous precedent, both for same-sex couples and adherents of the traditional definition of marriage. Dignity is self-evident, not discovered by five judges.
Regardless of how one feels about the policy of same-sex marriage, Obergefell v. Hodges is dangerous to American democracy. As Roberts concludes, it has "nothing to do with" the Constitution.
Michael Erickson is an attorney who lives in Salt Lake City.
By Deseret News, (UT) July 21, 2015 11:42 am
In Obergefell v. Hodges, a bare majority of the Supreme Court upended the millennia-old meaning of marriage, invalidated the marriage laws of more than half the states, disenfranchised millions of American voters and sidestepped decades of constitutional law. It's little wonder that Chief Justice John Roberts asked rhetorically in dissent: "Just who do we think we are?" Or that Justice Antonin Scalia wrote separately to "call attention to this court's threat to American democracy."
Obergefell v. Hodges is a case about who decides what constitutes "marriage," and it intersects two of America's most profound institutions - marriage and republican government. The majority's decision transformed both, sparking four vigorous dissents. Since the definition of marriage is a policy issue, the dissenting opinions do not discuss the social ramifications of redefining marriage, but they do detail the threat to republican government caused by the majority's decision to take that power from the people. Here are four lessons from those opinions:
Rule of law should not be "rule of lawyers." Justice Anthony Kennedy's majority opinion is based on the discovery of an unwritten constitutional right to same-sex marriage under the doctrine of "substantive due process." That doctrine has a checkered past, having first been applied, as Roberts reminds us, in the infamous Dred Scott case. That decision invalidated the Missouri Compromise (which prohibited slavery in certain federal territories) on the grounds that there was an implied constitutional right to property in slaves.
Quoting a prescient dissent to Dred Scott, Roberts warns that when personal opinions govern what the Constitution means, "we have no longer a Constitution; we are under the government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of what it ought to mean." That turns the rule of law, as one commentator puts it, into the "rule of lawyers." (One lawyer told The New York Times, apparently quite seriously, that gay marriage was winning legally because, well, "lawyers can see the truth.")
Having earned a reputation for judicial restraint by upholding the Affordable Care Act despite his conservative credentials, Roberts' vote could have legitimized a gay marriage ruling, but instead the even-tempered Roberts picks apart the decision as "an act of will, not legal judgment," that effectively "steal(s) this issue from the people."
Scalia is, unsurprisingly, even more direct: "This practice of constitutional revision by an unelected committee of nine ... robs the people of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves." For good reason, Scalia intones, "no social transformation without representation."
Liberty is not entitlement. No one disputes that the Constitution protects marriage as a fundamental liberty, but that begs the question of which marriages the government must subsidize. Same-sex couples were already free to live together, engage in intimate conduct, raise children and solemnize their relationships as marriages in religious or other ceremonies. Obergefell v. Hodges was not about a right to marital privacy, but rather an asserted right to public benefits. The latter, however, is not a "liberty." Properly understood, "liberty is only freedom from governmental action," as Justice Clarence Thomas explains, "not an entitlement to governmental benefits." But if the Constitution did entitle same- sex couples to governmental benefits, the majority offers no explanation why polygamists would not be similarly entitled. Constitutional rights to marital subsidies open Pandora's box and should be rejected. Simply put, there's no liberty to entitlement.
Liberty cannot expand with the loss of religious freedom. Unlike the implied right to same-sex marriage that the majority "imagined" (Roberts' description) in the 14th Amendment, the right to the free exercise of religion is spelled out in the First Amendment. All four dissenting justices foresee threats to religious liberty. They warn of conflicts with married student housing, adoption policies and tax exemptions. They predict inevitable "demands to participate in and endorse" civil same-sex marriages. Most chilling, they write that the majority's decision will be used to "vilify" those who disagree, "exploit" those who dissent and label as "bigots" those who speak publicly in the halls of government, employment and schools. The majority praises the expansion of "liberty," but true liberty cannot expand with the loss of religious freedom.
Dignity is self-evident, not bestowed by government. The majority says it advances "the 'dignity' of same-sex couples," but Thomas deplores the notion that government can bestow dignity. The majority, he laments, "rejects the idea - captured in our Declaration of Independence - that human dignity is innate and suggests instead that it comes from government." That is a dangerous precedent, both for same-sex couples and adherents of the traditional definition of marriage. Dignity is self-evident, not discovered by five judges.
Regardless of how one feels about the policy of same-sex marriage, Obergefell v. Hodges is dangerous to American democracy. As Roberts concludes, it has "nothing to do with" the Constitution.
Michael Erickson is an attorney who lives in Salt Lake City.