2015-06-28 – Until Friday, I was of the opinion that gay lovers might have more legal success cementing their union by forming a corporation than by getting married. But on Friday, the people-have-rights justices beat the corporations-have-rights justices (Obergefell v. Hodges).
Marriage it is!
You could see this most clearly in the dissent of Chief Justice John Roberts. Unlike some of his conservative colleagues (Justice Antonin Scalia, as a prime example), Roberts was respectful of the gay marriage movement and seemed perfectly willing to accept same-sex marriage if adopted by the states. Robert’s ire was directed instead at the majority’s analysis of the 14th amendment written by Justice Anthony Kennedy.
The 14th amendment was adopted shortly after the Civil War to give former slaves full rights of citizenship but was drafted broadly to grant these rights to “All persons,” not just former slaves. Here is the text of Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This was the operative text in Friday’s decision (click here to see the other sections, not relevant to this case).
Although this seems to be a lovely provision—and necessary after the Civil War, it fell into immediate disuse for its intended purpose during Reconstruction and, for nearly a century after the Civil War, the Supreme Court ignored it as a source of rights for African Americans.
They did, however, seize on the due process clause as a way of expanding the rights of business versus the government (corporate rights). This reached its height in 1905 in a case called Lochner v. New York, which invalidated a New York law that limited the number of hours a baker could work to 10 a day and 60 a week.
Huh? How did that come out of the 14th amendment? No rulings about lynchings or segregation or voting suppression, but the Supreme Court was using the 14th amendment to squash a business regulation? The court was pretty shameless in those days. (But, should that surprise? It’s often shameless these days—but not last Friday.)
This business-only “view” of the 14th amendment persisted into the early days of Roosevelt’s New Deal, when the Supreme Court backed away from this extreme position. Still, it wasn’t until the 1950s when the amendment was finally applied for its intended purpose in a school desegregation case (Brown v. Board of Education (1954)) or to support other people-oriented rights (the right of privacy prohibits states from banning contraceptives in Griswold v. Connecticut (1965)).
If this history seems muddled to you, join the club. If you read Kennedy’s opinion in Friday’s gay marriage case, you’ll find yourself wading through pages in which he struggles with all the contradictory and nonsensical precedents to reach the conclusion that gay citizens have a right to marry that is equal to straight citizens.
And this drives Justice Roberts wild. (Check out his expansive discussion of the Lochner case.)
Could it be that he is jealous that the 14th amendment is so vibrant in protecting the rights of people who are not corporations? And so dead as a tool for business in their fight against government regulation?
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Roberts’ strongest point in his dissent has nothing to do with Lochner, of course. The Lochner discussion is just lawyer’s jibber-jabber. His strongest point has to do with the success gay-marriage advocates have had in winning over voters across the country. Why, he asks, don’t we just let them keep doing what they are doing and have the court stay out of it? That’s the argument that could have won over Justice Kennedy, if anything, and has a certain amount of appeal. Winning at the ballot box is always better than winning by judicial fiat. (Think about Bush v. Gore, if you don’t believe this.)
But this would have forced Roberts to face the second issue in the case, which was this: If same-sex marriage were available in only some states, would the other states have had to recognize it? The answer would have had to be: yes they have to recognize it. But the result of such a ruling would have been very weird indeed. Folks in Ohio (where same-sex marriage was prohibited) would have been able to go to Illinois (where it was allowed) and bring their marriage back to Ohio and have all the benefits of being married recognized in Ohio. Ohio would have had gay couples like it or not.
So a national rule makes more sense. Roberts “got” that idea in the Obamacare case on Thursday (King v. Burwell). Obamacare was a national healthcare plan and it made no sense to read that statute otherwise. The result of Friday’s case is that same-sex marriage is national, as well.
We are one country, not two.
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One more observation. And it’s probably applicable to both the gay marriage case and the Obamacare case.
Opponents of both do not compromise. They do not play well with others. It’s their way or the highway. Even when they lose, they do not give up.
What if they did? Would they have had more influence on the outcome if they had been more willing to deal? (And I’m not going to talk about Obamacare here because their opposition was entirely based on personalities and parties. Obamacare was Romneycare. The opposition had nothing to do with the terms of the plan.)
Could they have come up with a solution that would have given full government benefits to same-sex couples that are giving to straight couples? There was an attempt to do that with domestic partnerships, but it didn’t go far enough. Households rather than couples as the beneficiary of government rights? Not much discussion of that one, though it could have benefited folks living with parents or siblings or cousins or even long-term relationships with friends, as well as lovers. There was even a last-ditch suggestion that government get out of the marriage business altogether, but it was a rejectionist idea—not an attempt to work together.
I guess we’ll never know what it might have been like if people had gotten together in good faith to work something out. I’m just suggesting that people set themselves up for disaster when they call their opponents Satan.
Fortunately, their “disaster” is everyone else’s win.