IV. Scalia's Dissent in Obergefell and The Rule of Law
"Just who do we think we are?"[1]
Recently, Justice Kennedy spoke at Harvard Law School and, in answer to
a question from an audience member, said that under the Rule of Law a public
official who cannot in good conscience obey a Supreme Court decision, such as
its same-sex marriage decree in Obergefell,
must either enforce the law or resign from public office.[2]
This exchange was obviously a reference to Kim Davis, the Kentucky county clerk
who was recently jailed for refusing to issue marriage licenses to same-sex
couples in violation of a federal court order requiring her to do so.[3]
Rather than focus on Kim Davis and her disobedience of the Court's
decree in Obergefell, I want to ask a
different question. Is Justice Kennedy's opinion in Obergefell a legitimate exercise of the Rule of Law? In other words,
is it a valid application of the Written Constitution, or is it an illegitimate
exercise of raw judicial power?
Obergefell, of course, held that same-sex couples have a fundamental right to
marry under the Due Process Clause of the Fourteenth Amendment, and that
therefore, "there is no lawful basis for a State to refuse to recognize"
same-sex marriages.[4] Of
course, in Obergefell Justice Kennedy
made absolutely no effort to root the right to same-sex marriage in the
original meaning of the Written Constitution. Instead, he relied on his "reasoned
judgment" and a "new insight," and his "understanding of
what freedom is and must become," and on "a better informed
understanding of how constitutional imperatives define a liberty that remains
urgent in our own era.”[5]
Or, in the words of Chief Justice Roberts, Justice Kennedy's Obergefell decree is based merely on his
personal belief "that the Due Process Clause gives same-sex couples a
fundamental right to marry because it will be good for them and for society.”[6]
Justice Kennedy's majority opinion in Obergefell is not law; it is full of moral philosophy and bad
poetry, but not a speck of constitutional law. As both Chief Justice Roberts
and Justice Scalia made clear in their dissenting opinions, Justice Kennedy's
"judicial policymaking...is dangerous for the rule of law.”[7]
Or, in the words of Justice Scalia, Kennedy’s opinion constitutes a “judicial
Putsch,” lacks "even a thin veneer of law," and amounts to “a naked
judicial claim to legislative...power...fundamentally at odds with our system
of government.”[8]
Although the Written Constitution is silent about homosexuality and
same-sex marriage, it is not silent about which level of government is
entrusted with the power to define and regulate "all the objects which, in
the ordinary course of affairs, concern the lives, liberties, and properties of
the people, and the internal order, improvement, and prosperity of the State.”[9]
Under the Tenth Amendment, the power to define and regulate marriage is
"reserved to the States respectively, or to the people."[10]
Indeed, even Justice Kennedy, in his opinion in U.S. v. Windsor,[11]
recognized that under the Constitution: ‘”The whole subject of the domestic
relations of husband and wife, parent and child, belongs to the laws of the
States and not to the laws of the United States.”’[12]
Moreover, as Chief Justice Roberts' principal dissent in Obergefell made absolutely clear: "There is no dispute that
every State at the founding—and every State throughout our history until a dozen
years ago—defined marriage in the traditional, biologically rooted way...as the
union of a man and a woman."[13]
Chief Justice Roberts and Justice Scalia, dissenting in Obergefell, did not hesitate to declare
the Majority's decree in the case a clear violation of the Rule of Law. Justice
Scalia joined Chief Justice Roberts' dissent in full. He also wrote a separate
dissent "to call attention to this Court's threat to American
democracy."[14]
The Roberts' dissent brought the light, and the Scalia dissent brought the
thunder to Kennedy's nonoriginalist majority opinion in Obergefell. Here are just a few of the points Roberts and Scalia
made:
·
“’[W]e
have no longer a Constitution; we are under the government of individual men,
who for the time being have power to declare what the Constitution is,
according to their own views of what it ought to mean.’”[15]
·
“If an
unvarying social institution enduring over all of recorded history cannot
inhibit judicial policymaking, what can?”[16]
·
"The
majority's decision is an act of will, not legal judgment.”[17]
·
"Those
who founded our country would not recognize the majority's conception of the
judicial role. They after all risked their lives and fortunes for the precious
right to govern themselves. They would never have imagined yielding that right
on a question of social policy to unaccountable and unelected judges.... The
Court's accumulation of power does not occur in a vacuum. It comes at the
expense of the people.”[18]
·
And
finally, Justice Scalia leaves not a hint of doubt as to his view that Obergefell is not a legitimate part of
the Rule of Law: "Today's decree says that my Ruler, and the Ruler of 320
million Americans coast-to-coast, is a majority of the nine lawyers on the
Supreme Court."[19]
If "this" Written Constitution is not only law, but the
supreme "Law of the Land," as Article VI explicitly prescribes,[20]
then Justice Kennedy's lawless opinion in Obergefell
does not follow the Rule of Law. As Roberts said it so well in his dissent, if
you like the results in Obergefell,
by all means celebrate those results: "But do not celebrate the
Constitution. It had nothing to do with it."[21]
If the Constitution had nothing to do with the doctrine of Obergefell, then the Rule of Law had
nothing to do with it either. Here is a way to think about Obergefell and whether it is an activist, extra-constitutional
decision by the Supreme Court. Think about this—was there ever a time in
American history when threefourths of the States—38 of the 50 states today—would
have ratified a constitutional amendment proposing to redefine marriage as
decreed by the Court in Obergefell?
Remember the Constitution is supposed to represent a consensus among we
the people in the States; not a national democratic vote or poll, not the
policy preferences of unelected judges, but a strong consensus among the
states.[22]
So was there ever a time in American history when three-fourths of the states
would have ratified a proposed constitutional amendment redefining marriage as
including same-sex marriage? 1789? 1868 (when the Fourteenth Amendment was
ratified)? 1920? 1973? 2015? Ever?
If your answer is "no"—never—that tells you something about Obergefell and whether it is legitimate.
How can same-sex marriage be a legitimate constitutional right if we all agree
it could never have been ratified as a legitimate part of the Written
Constitution?
Thus, perhaps it is Justice Kennedy, not Kim Davis, who is guilty of
violating the Rule of Law. And Justice Scalia is surely correct when he
concludes that The Living Constitution is a clear and present danger to the
precious right of we the people to democratic self-government in the several
states. As he put it as no one else could, in what was his last, great dissent:
"[T]o allow the policy question of same-sex marriage to be considered and
resolved by a select, patrician, highly unrepresentative panel of nine is to
violate a principle even more fundamental than no taxation without
representation: no social transformation without representation.”[23]
Scalia should have dropped the microphone when he published this truth about
the threat of the Living Constitution to liberty and democratic
self-government. His voice on the Court will be missed more than we can
quantify.
[1] Obergefell v. Hodges, 576
U.S. ---, [2] (2015) (Roberts, C.J., dissenting). Justice Scalia joined this
opinion "in full." Id. at
[l] (Scalia, J., dissenting). [page references are to the slip opinions].
[2]See Justice Kennedy Speech at Harvard Law School, Oct. 22, 2015, available
at: https://www.youtube.com/watch?v=ZHbMPnA5n0Q. The particular discussion
occurs at around 50:42. Here is the transcript of Justice Kennedy's response:
"Great respect, it seems to me, has to be given to people who resign
rather than do something they think is morally wrong in order to make a point. However,
the rule of law is that, as a public official, in the course of performing your
legal duties, you are bound to enforce the laws." John Riley, Justice Kennedy: Public Officials can't
ignore Supreme Court rulings, Oct. 28, 2015, Metro Weekly, http://www.metroweekly.com/2015/10/justice-kennedy-public-officials-cant-ignore-supreme-court-rulings/
[3]
Alan Blinder & Tamar Lewin, Clerk in Kentucky
Chooses Jail Over Deal on Same-Sex Marriage, N.Y. Times, Sept. 3, 2015, http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html.
[4]
576 U.S. at [28].
[5]
Id. at [10, 11 & 19].
[6] Id.
at [10] (Roberts, C.J., dissenting). Or to put it another way, "The
majority's driving themes are that marriage is good and petitioners desire
it." Id. at[15].
[7]
Id. at [22].
[8]
Id at [6, 4, 5] (Scalia, J.,
dissenting).
[9]
The Federalist No. 45 (J. Madison).
[10]
U.S. Const. amend. X.
[11]
570 U.S. at----, 133 S. Ct. 2675 (2013).
[12]
Id. at----, 133 S. Ct. at 2691
(quoting In re Burrus, 136 U.S. 586, 593-594 (1890)).
[13]
Obergefell, 576 U. S. at---- [6] (Roberts, C.J., dissenting).
[14]
Id. at --- [1] (Scalia, J.,
dissenting).
[15]
Id. at --- [12] (Roberts, C.J.,
dissenting) (quoting Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis,
J., dissenting)).
[16]
Id. at --- [22].
[17]
Id. at --- [3].
[18]
Id. at--- [25-26]
[19]
Id. at --- [2] (Scalia, J.,
dissenting).
[20]
U.S. Const. art. VI .
[21]
Obergefell, 576 U.S. at --- [29]
(Roberts, C.J., dissenting).
[22]
U.S. Const. art. V.
[23]
Obergefell, 576 U.S. at --- [6] (Scalia, J. dissenting).
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