Obergefell: Judicial Activism or Judicial Putsch?

A commentary on the U.S. Supreme Court’s decision on same-sex marriages by Janice Tay and Kok Chee Kheong.
On 26 June 2015, the US Supreme Court by a 5:4 majority ruled in Obergefell et. al. v Hodges et. al. 576 U.S. ___ (2015)* that same-sex marriage is a right conferred under the United States Constitution.
In this article, we will examine the reasons for the majority opinion as well as those given by the dissenting justices in this landmark decision.
This decision arose from the disposal of 16 consolidated petitions, 14 of which were brought by same-sex couples and the remaining two by two men whose respective same-sex partners had passed away.
The petitioners claimed that government officials in Michigan, Kentucky, Ohio and Tennessee who denied same-sex couples the right to marry or refused to recognise same-sex marriages lawfully performed in another State had violated the Fourteenth Amendment of the Constitution. 
The Supreme Court ruled that the Fourteenth Amendment required a State to license a marriage between two people of the same sex and to recognise a marriage by two persons of the same sex when their marriage is lawfully licensed and performed out-of-State.
The provisions of the Fourteenth Amendment relied upon in the majority opinion are the “Due Process Clause” which provides that no State shall “deprive any person of life, liberty, or property, without due process of law” and the “Equal Protection Clause” which provides that no State shall “deny any person within its jurisdiction the equal protection of the laws”.
Kennedy J delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor and Kagan, JJ joined.
According to Kennedy J, the right to marry is protected by the Constitution. Loving v Virginia 388 U.S.1 (which invalidated bans on interracial marriages) and Turner v Safley 482 U.S. 78 (which held that prisoners could not be denied the right to marry) were cited in support of this proposition. According to the judge, the force and rationale of these cases apply to same-sex couples and lead to the conclusion that same-sex couples may exercise the right to marry.
He then laid down four principles and traditions to demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples:
1.      The right to personal choice regarding marriage is inherent in the concept of individual autonomy; decisions about marriage are among the most intimate that individuals can make, whatever their sexual orientation;
2.      The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. Same-sex couples have the same right to enjoy intimate association - a right which extends beyond freedom from laws that criminalise same-sex intimacy;
3.      The right to marry safeguards children and families and draws meaning from related rights of childrearing, procreation and education. Laws that prohibit same-sex marriage or refuse recognition of such marriage harm and humiliate the children of same-sex couples;
4.      Marriage is a keystone to the nation’s social order. There should not be any difference between same and opposite sex couples with respect to this principle, but same-sex couples are denied the benefits (such as rules of intestate succession, hospital access, workers’ compensation benefits, health insurance and child custody and support rules) that are accorded to opposite-sex couples by the State.
In the opinion of Kennedy J, the fundamental liberties which are protected by the Due Process Clause of the Fourteenth Amendment “extend to certain personal choices central to individual dignity and autonomy, including choices that define personal identity and beliefs.” The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.
When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim of liberty must be addressed” said the Chief Justice. As same-sex couples seek in marriage the same legal treatment as opposite-sex couples, the judge concluded that it would disparage their choices and diminish their personhood to deny them this right.
According to the majority, the right of same-sex couples to marry is also derived from the Equal Protection Clause of the Fourteenth Amendment. While the Due Process Clause and the Equal Protection Clause set forth independent principles, the majority justices were of the view that the two Clauses are connected in a “profound” way and in certain instances, may be instructive as to the meaning and reach of each other. The justices acknowledged that in some instances, one Clause may capture the essence of the right in a more accurate and comprehensive way, and in other instances, the two Clauses may converge in identifying and defining the right.
The majority justices were of the view that the laws under challenge burden the liberty of same-sex couples and curtail precepts of equality. These laws are in essence unequal: same-sex couples are denied all benefits accorded to opposite-sex couples and are barred from exercising a fundamental right. The Court concluded that the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.
The Court then declared invalid the relevant State laws to the extent that they exclude same-sex couples from marriage on the same terms as opposite-sex couples. The Court also held that there is no legal basis for a State to refuse to recognise a lawful same-sex marriage performed in another State on the ground of its same-sex character.
The dissenting justices, Roberts CJ and Scalia, Thomas and Alito JJ each filed a dissenting opinion.
The common ground in the dissenting opinions is that the majority justices have usurped the power of the legislature to determine what constitutes marriage. Some of the views articulated by the dissenting justices are highlighted below.
Chief Justice Roberts
The real question in the appeals, according to Roberts CJ, is what constitutes “marriage” or, more precisely, who decides what constitutes marriage. In his opinion, this is a matter to be decided by the people acting through their elected representatives, and not by five lawyers who happen to hold commissions authorising them to resolve disputes according to law.
Whilst acknowledging that the policy arguments put forward by the petitioners for extending marriage to same-sex couples is compelling, the Chief Justice cautioned that the Court is not a legislature and should not have the right to make a State change its definition of marriage.
According to the Chief Justice, “Under the Constitution, judges have power to say what the law is, not what it should be ... Accordingly, courts are not concerned with the wisdom or policy of legislation.” He added that as a result of the neglect by the majority of this restrained conception of the judicial role:
Today, however, the Court has taken the extraordinary step of ordering every State to license and recognise same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening … Five lawyers have closed the debate (on what constitutes marriage) and enacted their own vision of marriage as a matter of constitutional law.”
Roberts CJ also forewarned that “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”
Justice Scalia
Scalia J agreed wholly with the opinion of Roberts CJ but was less restrained in his criticism of the majority opinion.
The learned judge described the majority opinion as one which makes the majority of the nine lawyers on the Supreme Court the ruler of the 320 million US citizens and robs them of the most important liberty – the freedom to govern themselves.
The judge was astounded by the hubris reflected in the majority opinion, which he criticised as “judicial Putsch”. The majority “have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”
He also lambasted the opinion as pretentious and its content egotistic and often profoundly incoherent.
Justice Thomas
Thomas J expressed, albeit briefly, concern that the majority had apparently disregarded the political process as a protection for liberty.
The main thrust of the judge’s dissenting opinion was the erroneous application of the “Due Process Clause” by the majority. According to Thomas J, it is necessary for a party to identify a deprivation of life, liberty, or property in order to invoke protection under the Due Process Clause.
The expression “liberty” refers to the right to freedom of “locomotion” (movement) and from the restraint thereof except by due course of law. Based on this understanding of “liberty”, Thomas J was of the view that the petitioners were not in any way deprived of this right.
The judge argued that even if “liberty” encompasses something more than freedom from physical restraint, it would not extend to the types of right claimed by the majority, i.e. a right to a particular governmental entitlement. Receiving of governmental recognition and benefits has nothing to do with any understanding of “liberty” that would have been contemplated by the draftsmen of the Constitution. According to him, “As a philosophical matter, liberty is only freedom from government action, not an entitlement to government benefits. And as a constitutional matter, it is likely even narrower that that, encompassing only freedom from physical restraint and imprisonment”.
The cases cited by Kennedy J, namely Loving and Turner, were distinguished as precedents that involved absolute prohibitions on private actions associated with marriage, and not with the denial of governmental recognition and benefits associated with marriage.
Thomas J postulated that the majority’s assertion that the decision will advance the “dignity” of same-sex couples may be a tacit recognition by those justices that the cases did not involve liberty, as traditionally understood. According to the judge, the flaw in this assertion is that the Constitution contains no “dignity” Clause and even if it did, the government would be incapable of bestowing dignity.
Justice Alito
Alito J said that the Supreme Court had held in Washington v Glucksberg, 521 U.S. 701 that “liberty” under the Due Process Clause should be understood to protect only those rights that are deeply rooted in the history and tradition of the United States. The rationale, according to the judge, was to prevent five unelected justices from imposing their personal vision of liberty upon the American people.
In the opinion of the judge, it is beyond dispute that the right to same-sex marriage is not among those rights. The majority justices had, in Alito J’s opinion, disregarded the fact that this right lacks deep roots or even that it is contrary to long established tradition, and claimed the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.
Further, the majority had attempted to circumvent the problem presented by the newness of the right by claiming that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority had argued that a State has no valid reason to deny that right to same-sex couples.
The judge reiterated the views in his dissenting opinion in United States v Windsor 570 U.S. ___ (2013)* that any change on a question that is so fundamental should be made by the people through their elected officials. Instead, the majority had usurped the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.
Alito J echoed the sentiments expressed by Roberts CJ and Scalia J, that:
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority can invent a new right and impose that on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriages should worry about the scope of the power that today’s majority claims.”
Prior to the Supreme Court’s decision in Obergefell, 36 States and the District of Columbia had already recognised same-sex marriages. As a result of this decision, the remaining 14 States will no longer be able enforce their State laws that prohibit same-sex marriages. These States will also have to recognise same-sex marriages solemnised in States that permit such marriages.
Barely three months after the Supreme Court’s decision, the New York Times reported that Kim Davis, a county clerk in Rowan County, Kentucky, was jailed for contempt of court for defying a court order to issue marriage licences to same-sex couples. Davis asserted that her religious beliefs precluded her from recognising same-sex marriages.
As with Obergefell, this decision drew much controversy. Texas Senator Ted Cruz, in condemning the incarceration of Davis, said, “Today, judicial lawlessness crossed into judicial tyranny.”
The decision by Judge Bunning to imprison Davis went beyond the punishment sought by the same-sex couples, who had only requested that she be fined.
The judge defended his decision, stating that imposing a fine “would not bring about the desired result of compliance.” According to CNN.com, Judge Bunning said that he too was religious, but when he took his oath to become a judge, that oath trumped his personal beliefs.
The judge released Davis after five nights of imprisonment and directed the deputy clerks in Rowan County to issue marriage licences to all legally eligible couples. He also ordered Davis not to interfere in any way with the issue of marriage licences by her deputy clerks.
This controversy is by no means resolved as Davis maintains that marriage certificates issued without her consent as county clerk are not valid. It is unclear whether there are any merits in her contention.
It is evident from the opinions rendered that the case has created a schism amongst the justices of the Supreme Court. On the one hand, the majority may be commended for adopting an innovative approach which ensures that the Constitution is a living instrument that can be adapted to accommodate the evolving values and outlook of society.
On the other hand, the dissenting judges have expressed in no uncertain terms, their concern that the majority had stepped beyond the traditional role of the Court and had waded into the realm of the legislature by creating a fundamental right which had hitherto been non-existent under the Constitution. In the words of Scalia J, “This is a naked judicial claim to legislative – indeed, super-legislative – power.
Regardless of the jurisprudence involved, the Supreme Court’s decision in Obergefell has been welcomed by many as a step which alleviates the plight of same-sex couples and their children. For the detractors of same-sex marriage in the affected States, the institution of marriage will never be the same again.
The question as to whether the majority decision represents the zenith of judicial activism or blatant and outright judicial Putsch may rage on for years to come.
* The full citation for Obergefell and Windsor were unavailable from the US Supreme Court’s website at the time of publication of this article.