Liberty, with a Side of Equal Protection: Kennedy and Same-Sex Marriage

In 1976, a year after he joined the Supreme Court, Justice John Paul Stevens wrote in a gender discrimination case, Craig v.Boren, “There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases.”

"Only one Equal Protection Clause, you say..."

Though our dear Justice Stevens no longer serves on the Court, Justice Anthony Kennedy may well follow his words if Kennedy ends up writing the majority opinion striking down same-sex marriage bans in Obergefell v. Hodges. The Court will be hearing oral arguments in the case tomorrow, and observers and journalists (and bloggers!) will be paying close attention to anything Kennedy may say. At the same time, few close observers doubt that Kennedy will rule for the plaintiffs in these cases. The big questions will be whether the majority will include more than five justices (see these other posts on this blog) and what rationale the majority opinion will adopt in striking down same-sex marriage bans.

If the Court does divide 5-4, Kennedy will undoubtedly assign himself the majority opinion. What constitutional basis will Kennedy use to side with same-sex couples? Kennedy was maligned by some for his opinion in U.S. v. Windsor, the 2013 precursor to Obergefell which struck down the main section of the Defense of Marriage Act, for failing to articulate and apply a clear Equal Protection standard to DOMA. Unsurprisingly, Justice Scalia criticized Kennedy’s reasoning, calling it “an opinion with such scatter-shot rationales...federalism noises among them,” but even some liberal observers were disappointed or confused that Kennedy declined to adopt a clear level of scrutiny. Rather, Kennedy writes that DOMA “violates basic due process and equal protection principles,” without offering much more by way of explanation (other than the aforementioned “federalism noises”). Yet, as Justice Stevens pointed out in 1976, there is only one Equal Protection Clause, and nothing requires a majority to use the previously articulated standards in making a judgment. Kennedy may have been adhering to that concept to avoid getting to the more complicated question of scrutiny.

Looking back a decade before Windsor, Kennedy largely avoided the Equal Protection argument in his majority opinion in Lawrence v. Texas (2003), which struck down state sodomy bans. Instead, he ruled on the basis of substantive due process, stating that any private consensual sexual conduct between adults is protected from criminal sanction by the word "liberty" in the Fourteenth Amendment. To be sure, his opinion in Lawrence focused on the harm such statutes did to gay people, writing that the “State cannot demean their existence or control their destiny” by criminalizing their sexual conduct. Even in making this major liberal ruling, though, Kennedy seemed hesitant to abandon his conservative instincts, choosing simply to expand what is covered by “liberty” under the Due Process Clause, rather than expand Equal Protection to include an additional group.

What's he thinking? And should we care?

In Romer v. Evans (1996), the Court struck down a Colorado constitutional amendment which prohibited anti-discrimination laws or policies protecting gays, lesbians, or bisexuals at the state or local level. The amendment had passed in response to several localities passing such anti-discrimination laws. Writing for a six-member majority, Kennedy vaguely applies a rational basis test to the Colorado amendment and finds it unrelated to any legitimate governmental interest. But he does not clearly adopt the rational basis test; instead, he writes that even if the Court were to adopt this most lenient standard of review—rational basis review—the amendment would be struck down. As he would later do in Windsor, Kennedy is invoking the concept of Equal Protection in striking down the amendment, yet he does not make clear whether a higher level of Equal Protection does or should apply to classifications based on sexual orientation in general. This may point to a tension between Kennedy’s personal feelings toward gay people—whom he likely believes deserve equal treatment—and his judicial leanings—not to expand areas of the law too far, particularly when it comes to Equal Protection.

What does this mean for Obergefell? Both questions presented mention the Fourteenth Amendment generally, without specifying clauses, though most of the cert petitions invoked Equal Protection and/or Due Process. So the door is open to different possibilities. Having avoided adopting a clear Equal Protection standard for nearly 20 years, it seems unlikely Kennedy would do so now. Yet, it would be almost irresponsible to strike down state statutes or amendments on this major issue by merely invoking Equal Protection “principles.” Might Kennedy opt for Stevens’ “one Equal Protection Clause” idea? Perhaps. But Kennedy loves freedom. And liberty. Thanks to his love of freedom, we now have presidential campaigns that cost billions of dollars. And because “[l]iberty finds no refuge in a jurisprudence of doubt,” he voted not to overturn Roe v. Wade in 1992. Assuming he stakes out some kind of clear position in Obergefell, I suspect it will be under the guarantee of "liberty" in the Due Process Clause.

In Hollingsworth v. Perry (2013), the companion case to Windsor dealing with California’s Prop 8, Kennedy dissented from the majority’s ruling that the plaintiffs did not have standing to sue and argued that the Court should reach the merits of the case. In his dissent in Hollingsworth, Kennedy writes, “Freedom resides first in the people without need of a grant from government.” Though he was referring directly to the issue of standing, that line could just as well have been from his imagined majority opinion striking down same-sex marriage bans. If his past opinions, on both gay rights and other issues, are any indication, Kennedy will feel compelled to rule that the “liberty” of the Due Process Clause includes the freedom of two adults to marry, irrespective of their sexual orientation or gender. As a conservative, Kennedy will hesitate to recognize gays and lesbians as a new class under the Equal Protection Clause, yet he will be happy to righteously bestow liberty upon them through the Due Process Clause.

All of that being said, I personally hope that Chief Justice Roberts joins the majority and writes the majority opinion (or hands it off to Justice Ginsburg?), because as I’ve expressed on a different blog, Justice Kennedy is, um, not my favorite person in the world and I’m a little tired (okay, very tired) of him getting all the credit on gay rights. And if that happens, everything I wrote above will be largely irrelevant. We'll find out soon enough!

I'll use this image whenever I possibly can.

Same-Sex Marriage and the Constitution, According to John Roberts

John Glover Roberts

I’m still fairly convinced that Chief Justice Roberts will write the majority opinion in Obergefell v. Hodges. Whether that opinion will actually contain a wholesale endorsement of same-sex marriage throughout the United States, I am still debating, but here are some thoughts on the issue that have been swirling in my head.

The Supreme Court, when it granted cert, revised the Questions Presented to the following: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

When I first read this, the word require leaped out at me. I thought it was disturbing. Nowhere does it show up in the Petitioners’ original questions. It could be the Court's way of ruling in the middle and saying yes to Question #2 but not Question #1. I think the Court is more clever than that, however.

The new framing begs the question, Does the Constitution really require something that may not have even remotely crossed the Framers’ mind? (Since when? “At the time that the Equal Protection Clause was adopted,” if I may turn Justice Scalia’s own words against him.)

The Chief Justice provides some answer to this during oral arguments in Hollingsworth v. Perry, the Prop 8 case: “When the institution of marriage developed historically, people didn't get around and say let's have this institution, but let's keep out homosexuals. The institution developed to serve purposes that, by their nature, didn't include homosexual couples.”

The Chief Justice understands societal evolution and progress! Shocking. Unfortunately, he made this comment in the context of, “as [the institution of marriage] pursues additional interests, you don't have to include everybody [such as homosexuals] just because some other aspects of it can be applied to them.”

This recognition of the "evolving understanding of equality" and marriage, however, is important because what same-sex couples want, according to their briefs, is to be able to enter the long-established institution of marriage. It’s not about creating a new, separate right -- like what the Court was accused of doing with the issues of privacy and abortion during the time of Roe v. Wade. I expect Roberts to understand, even appreciate, this argument-- especially in the current state of same-sex marriage being legal in 36 states, an unprecedented development that he played a major hand in by denying to stay the petitions in October (His vote is not on the record, but it’s virtually undisputed).

Cunning.

Obergefell’s Questions Presented also shift the focus from states violating the Fourteenth Amendment into the Fourteenth Amendment requiring -- aka mandating -- states to license SSM. The 14th Amendment is part of the Federal Constitution, and Roberts believes that this is a federalism issue (something I wrote about here). The last time there was a high-profile case before the Supreme Court in which the Federal government required something from states and citizens  (individual health insurance), Roberts famously approached it with “full measure of deference” and allowed the government to prevail.

For same-sex marriage, it's similar. We know he cares about the position of the United States. The current framing of Obergefell already came out of his own mouth two years ago, in the same Hollingsworth oral arguments: “Is it the position of the United States that same-sex marriage is not required throughout the country?”

Of course, at the time, the government position was: “We are not -- we are not taking the position that it is required throughout the country.” Now, in their amicus brief supporting the petitioners in Obergefell, the government has categorically declared that same-sex marriage bans “cannot be reconciled with the fundamental constitutional guarantee of “equal protection of the laws.”

Will Roberts give the government the same “large measure of respect” as he did in the Obamacare case?

Why not? Look at this paragraph in his majority opinion: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” (Emphasis added). To me, this is classic Roberts giving himself a ticket to rule in favor of an issue that goes against his own beliefs or jurisprudence.

The Constitution permits same-sex marriage, but does it require its licensing across the United States?

Based on the Chief’s dissent in Windsor, and his subsequent vote not to hear the cases in October, it could very well be a Yes. In Windsor, he said: “Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.” With about 3/4 of states now licensing same-sex marriages, those interests in uniformity and stability now weigh in favor of same-sex marriage.

When it publicly agreed to hear the Obergefell cases in January 16, the Chief Justice and the Supreme Court effectively answered its own questions. Quietly revising the questions behind closed doors -- with its appeal of anonymity -- was very clever that way. When his majority opinion comes out in June, like what he did in Obamacare, John Glover Roberts just needs to paint himself as the neutral, objective umpire he’d always claimed to be.