John Roberts' dissent in Obergefell v. Hodges, PART TWO................
We know the history of Lochner-era jurisprudence. Does Chief Justice John Roberts?
Roberts begins with a three-page long rant about judicial restraint and how male-female marriage underlies the concept of marriage everwhere, thoughout time. Leaving aside from the hundreds of cultures throughout history which have accepted same-sex marriage, what you'll hear over and over from commentators and news sources is how Roberts' dissent is all about judicial restraint. And it is. But what's unsaid is just how revolutionary Robert's approach is.
Over in the Scalia dissent, we get the same frothing-at-the-mouth that Scalia is famous for. There's little in the way of legal analysis, but a lot of hoo-hah about "tradition" and "religion". Over in the Thomas dissent, what little there is of it, we get a Justice of the Supreme Court attempting to explain that the Holocaust and slavery were not demeaning. (What planet does he live on?) Over in the Alito dissent, we get a wild legal tangent that Roberts cannot bring himself to join.
The whole "judicial restraint" idea is nice and all. But how in the world does one actually determine that X is judicial activism and Y is judicial restraint? Up to now, all we've had are fits from Scalia/Thomas/Alito appealing to "tradition". But tradition itself is hardly an appropriate measure of constitutionality, is it? For it has long been traditional to discriminate against blacks, Asians, and Latinos in this country. It has long been traditional to deprive criminals of their rights. It has long been traditional to discriminate against women, and traditionally this country never permitted uncontrolled weapons ownership and display of the type authorized by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).
There has long been a tension between what is right, and what is tradition. In America, rights have evolved as society has revolved, and it has long been a legal maxim that "justice delayed is justice denied." Thus, at times, the courts have gotten ahead of the democratic process, and established rights which have only recently emerged or gained currency with the public. Brown v. Board of Education, 347 U.S. 483 (1954), is one such case. MANual Enterprises v. Day, 370 U.S. 478 (1962), in which the Supreme Court held that nude photographs of men are not per se obscene is another. Griswold v. Connecticut, 381 U.S. 479 (1965), in which the Supreme Court overtuned a ban on condom sales after finding a right to privacy, is another. Roe v. Wade, 410 U.S. 113 (1973), in which the Supreme Court found that the right to privacy included the right to an abortion, is another.
We immediately encounter another tension, however: Just how far out in front can the Supreme Court get? The "rule of law" is the idea that we all agree to respect a court's decisions. After all, a court does not have an army to enforce its rulings. As President Andrew Jackson, ignoring a Supreme Court decision, once said, "If the Supreme Court wants to enforce its ruling, it can come on down here and do so." The legitimacy of courts must remain above question if the rule of law is to remain intact.
Legal scholars have long worried about the effect of Brown v. Board of Education. To judges and legal scholars, it was clearly coming: For three decades, the NAACP had been winning court cases which desegregated law schools... then all professional schools.... then all graduate schools.... then all undergraduate schools.... It was just a matter of time before the Supreme Court barred segregation in elementary and secondary school. To the public, however, Brown v. Board of Education was shocking and new. It created a huge backlash against the civil rights movement which undoubtedly led to the death of the movement in the late 1960s. Roe v. Wade is another example. This was a decision that was way, way ahead of its time. To this day, there is a roiling national debate over abortion, and even the courts have been whittling the right down to next to nothing.
If you're a "judicial restrainer", you have a pat answer: The Court never gets out ahead of the public. It waits for broad, unassailable consensus, and then acts.
But "justice delayed is justice denied". The role of the courts is not, and never has been, to protect the rights of the majority. It has been to protect the rights of the minority, the downtrodden, the oppressed, the dispossesed, those to whom justice -- as an abstract principle, not a vote by majority rule -- has been denied.
So let's see how John Roberts deals with this.
* * * * * * * * *
Section I(A) of the Roberts dissent begins with unsubstantiated claims about how marriage has only been between a man and a woman "for millennia", and how it arose merely to encourage procreation and the raising of children in a stable home. "Society...," he claims, even goes so far as to encourage "men and women to conduct sexual relations within marriage rather than without." Roberts quotes several sources, all several hundred years old, as to the importance of male-female, procreative, child-rearing marriage.
It's fallacious, of course. The term "marriage" is only of somewhat recent vintage in the long history of mankind, and its meaning and form have varied immensely "for millenia" and across the world. Similarly, procreation has also occurred far outside the distinctly Western European Judeo-Christian tradition of marriage, and the acceptance of adoption and the development of a vast array of medical procedures to allow single people to procreate have fundamentally changed what it means to "have children".
Roberts acknowledges that changes to the definition of marriage have occurred in the past two centuries. He claims none of these -- such as treating women as property, or miscegenation (interracial marriage) were central to the definition of marriage as one man, one woman. That's nonsense, of course: Ask the state of Virginia in 1967 whether same-race-only marriage was "core" to the definition of marriage (Loving v. Virginia, 388 U.S. 1 ), and they'd have said yes. Roberts is fond of asking, "If you had asked a person on the street how marriage was defined, no one would ever have said, 'Marriage is the union of a man and a man'". But then, prior to 1865, no one would have said "Blacks are people" or "slavery is wrong".
But notice how there's no legal analysis here? Just whining. Just pontificating.
* * * * * * * * *
Section I(B), Roberts briefly reviews the recent history of the gay marriage debate, including how many states banned it (statutorily and constitutionally) while others did not. Roberts ignores the effects of the Supreme Court's own ruling in Lawrence v. Texas, 539 U.S. 558 (2003), which gave impetus to the movement toward approval of gay marriage. And he ignores the larger question as to whether it is appropriate, in a democracy where rights are constitutionally protected, or seemly to have states voting on the human and civil rights of a large minority of its people.
* * * * * * * * *
Section II(A) of the Roberts dissent is the craziest, but it's the one where he lays out the core of his new conservative ideal.
Roberts acknowledges that certain rights -- like freedom of association -- are enumerated in the constitution, but are useless with other, unenumerated rights (such as the right to privacy). Identifying these unenumerated rights is what's called "Substantive Due Process", and Roberts doesn't like it one damn bit.
Roberts correctly decries Supreme Court cases like Dred Scott v. Sandford, 60 U.S. 393 (1857) (holding that a slave-owner does not relinquish his property interest in slave merely by taking that slave into a state where such property rights are barred) and Lochner. He even notes that, in the three decades after Lochner, the Supreme Court struck down nearly 200 laws using its "freedom of contract" theory.
But now Roberts grossly misconstrues Lochner. Lochner was about the application of a single right ("freedom of contract") generated by Substantive Due Process. Even assuming that right existed, the application of that right was routinely held to trump every other right in the Constitution. There was no balancing of rights; there was no possible way for the right to be burdened. "Freedom of contract" won every time. That's why Lochner is so vilified today.
Since NLRB v. Jones & Laughlin Steel, the Supreme Court has understood that Substantive Due Process still has a role to play. But the Court has fashioned two rules to ensure that any rights identified using Substantive Due Process are balanced with other rights. When it comes to economic liberty, the Court has applied a "rational basis test" to any burden on the right. When it comes to civil and human rights, the Court has fashioned a "strict scrutiny" test. Under strict scrutiny, the burden is on the government to prove that the infringement was based on a compelling governmental interest, the policy was narrowly tailored to achieve that goal, and the policy is the least restrictive means for achieving that interest.
Roberts ignores all of that.
Instead, Roberts relies almost exclusively on a single phrase found in Washington v. Glucksberg, 521 U.S. 702, a 1997 case in which the Supreme Court found that there was not constitutionally guaranteed right-to-die. Justice Samuel "NO! NO! NO!" Alito wrote that Substantive Due Process protects only those rights "objectively, deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Interestingly, the first, and critical, part of Alito's test is not integral to the ruling in Glucksberg. It's nice phraseology, but not important to the ruling itself. It's what legal scholars call dicta, and can't be relied on to guide future legal reasoning. Yet, Roberts blatantly violates this rule, and relies once more on an indefinable, unrecognizable, tainted view of what constitutes "tradition".
* * * * * * * * *
In Section II(B)(1), Roberts whines that the majority in Obergefell v. Hodges fails to acknowledge his flawed analysis. He correctly observes that the majority opinion relies heavily on three cases: Loving v. Virginia; Zablocki v. Redhail, 434 U.S. 374 (1978); and Turner v. Safley, 482 U.S. 78 (1987). Loving overturned a state's prohibition on interracial marriage. Zablocki said Wisconsin could not stop a person (in arrers on child support) from marrying. Turner said a prison could not prevent an inmate from marrying. Roberts claims these three cases "require a State to justify barriers to marriage as that institution has always been understood." But that's not what they say at all. They mere require a State to justify barriers to marriage PERIOD. Not "as that institution has always been understood."
Roberts consistently reads into the cases something that is not there. He argues that these three cases define marriage as a certain way, and that government's barriers to marriage did not challenge the "core" definition of marriage as a man and a woman.
But he's just dead-wrong. The cases said NOTHING about the definition of marriage. They merely addressed whether government's burden on the right to marry passed the "strict scrutiny" test. In none of the three cases could that burden be justified.
Roberts claims "These precedents say nothing at all about a right to make a State change its definition of marriage", and yet that's exactly what was at issue in Loving. He's dead, straight, outright incorrect and in error.
* * * * * * * * *
In Section II(B)(2), Roberts tries to attack the right to privacy. His bald-faced claim is that "the marriage laws at issue here involve no government intrusion." But they do. Roberts conceives of governmental burden only in terms of crime and punishment. He cannot see that marriage pre-existed the state and its laws, and that state regulation of marriage expressly burdens that right.
Roberts denies that Obergefell at al. sought privacy from state intrusion. Rather, Roberts sees only greedy, grasping fags trying to snuffle into the trough of government largesse.
* * * * * * * * *
Section II(B)(3) of the Roberts dissent returns to Glucksberg, which Roberts horribly mischaracterizes as the "leading" case on modern Substantive Due Process. Roberts tries to tie the majority's ruling to Lochner, accusing the majority (once again) of engaging in unrestrained Substantive Due Process. The problem for Roberts (which he can't bring himself to acknowledge) is that the majority quite clearly applied the strict scrutiny test -- as outlined in prior marriage cases -- and found the government's intrusion into marriage offensive to the Constitution. The problem for Roberts is that Lochner applied only one specific kind of liberty -- "freedom of contract" -- to government intrusion, and then misapplied that liberty to find the governmental intrusion unconstitutional. The majority in Obergefell did not apply "freedom of contract", nor did it apply it without restraint (e.g., it used the strict scrutiny standard).
Roberts then goes on to argue that gay marriage will lead to polygamy. It's claim even Roberts then admits is nonsense, but he raises the bugaboo anyway.
* * * * * * * * *
Section II(B)(4) of the Roberts dissent addresses the issue of harm. Remember how, in Section I(A), Roberts talked about how the sole purposes of marriage were to (i) encourage procreation and (ii) encourage the raising of children in a stable environment? He forgets this now, but in fact religious conservatives said in their amicus briefs that gay marriage would, in fact, lead to a drop-off in procreation and lead to the raising of childre in unstable gay environments. These two goals could be a "compelling governmental interest" (as defined by the "strict scrutiny" test), but the majority found that no harm existed.
Roberts, however, pooh-poohs the "strict scrutiny" test by calling "this assertion of the 'harm principle'...more...philosophy than law."
Roberts essentially rejects the "strict scrutiny" test. To his peril.
* * * * * * * * *
Section III of the Roberts dissent addresses the issue of the "Full Faith and Credit Clause" (FFCC) of the Constitution. Article IV, Section 1 of the Constitution reads: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." Thus, a marriage recognized in one state should be recognized by another.
Now, oddly, right at the top of Section I(A), Roberts says, "There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally." Loving not only struck down interracial marriage as an impermissible burden on the right to marry, but ordered states to recognize interracial marriages made in other states.
Yet, here, Roberts ignored both Loving and his own assertion about the FFCC. Instead, he relies on a concurrence by Sandra Day O'Connor in Lawrence in which she asserts, in a conclusory fashion, that preserving the traditional definition of marriage was a legitimate state interest. This "conclusory" statement was something Roberts snarled at just three sentences earlier, but I guess it's OK when someone does it in a way that justifies his own line of thinking... Huh.
* * * * * * * * *
In Section III of his dissent, Roberts goes on a long, five-and-a-half page rant about how the Supreme Court can't too far out ahead of the public without undermining its legitimacy and the rule of law. Roberts characterizes the majority decision as "drastic", "extravagant", undemocratic, "demeaning", close-minded, and more. He never establishes a legal, policy, or even constitutional -- much less common sense -- rule for deciding when a court goes too far.
Instead, Roberts establishes a view of civil rights in which society creates rights by mob rule, and just as easily destroys them. He has a vision of the debate over gay marriage as one that is serious, deliberative, and thoughtful. He characterizes the homophobic activities of Russia and several African dictatorships engaged in gay-bashing and the executiion of homosexuals as "democratic". Judges should act.... well, he never quite says when they should act. The courts, in his conception of things, is utterly reactive and merely ratifies what mob rule has established (or dis-established).
Roberts excoriates the majority for opening up new avenues for lawsuits over the "new right" established by the majority. Somehow, that's a bad thing, this expansion of freedom...