The opinions in Obergefell v. Hodges have been much discussed. The dissents claim that Justice Kennedy’s majority opinion violates principles of self-government by imposing its subjective will to resolve an issue that should be resolved in the democratic process. Much commentary rightly observes that the dissenters believe in self-government except when they don’t, e.g., when they override the will of elected representatives who pass affirmative action programs or campaign finance legislation.
The dissenters would respond that those instances are different because fundamental constitutional rights were at stake in those cases. But the majority in Obergefell also concluded that fundamental constitutional rights of due process and equal protection are implicated in the state’s denial of same-sex marriage. The dissents deny the existence of a liberty right because same-sex marriage is not deeply rooted in the nation’s traditions. The majority argues that this is the wrong standard. According to Justice Kennedy, the Due Process Clause includes most of the Bill of Rights and in addition certain personal choices central to individual dignity and autonomy including intimate choices that that define personal identity and beliefs. In support of Justice Kennedy’s position, it must be said that when the Court determined that birth control was constitutionally protected, it did not ask whether a right to birth control was constitutionally protected. It asked whether the Connecticut law in question violated a right to privacy. And when the Court found that a legislature could not criminalize abortion in Planned Parenthood v. Casey and could not criminalize same-sex relations in Lawrence v. Texas, it did not ask whether the right of abortion or the right of same-sex relations was deeply rooted in the nation’s traditions. Instead it essentially asked whether the choices at stake were central to personal dignity and autonomy.
To be sure, the Court in other cases has asked whether a particular right is deeply rooted in the nation’s tradition instead of a more general right, but the shrill claims by Chief Justice Roberts that the approach taken in Obergefell is supported only by Lochner v. New York (maximum hour statute unconstitutional denial of due process) lack integrity. It is simply preposterous. Lack of integrity in Supreme Court opinions is not unusual. But Justice Scalia’s rhetoric in his dissent was over the top even for him. Nonetheless, I do not join with one commentator (Eric Segall) who apparently thought this was the final straw and called for his resignation. It seems to me that disrespectful dissents are less sinful than hypocritical opinions.
Jonathan Turley worries that the use of the term dignity as a basis for constitutional rights could be used to limit First Amendment rights. See here. He supposes that hate speech might be limited in ways that are currently unconstitutional. I wish he were right. If he were, we would not automatically assume that speech should be privileged not only over racial equality, but also over privacy or the right to a fair trial. Free speech flows from human dignity, but so does racial equality, privacy, and the right to a fair trial. The rights should be balanced against each other; the outcome should not be presupposed in favor of free speech. I do not expect this to follow from Obergefell, but our law would be better if it did.