Tuesday, June 30, 2015

Just Who Do We Think We Are?

That was the jarring question posed by Chief Justice John Roberts in his vehement Obergefell dissent (one of the court cases I discussed in my earlier post). The question punctuated his argument that since he could not find for the plaintiffs on constitutional grounds, their fate ought to be left with the states. In his conclusion, Roberts forcefully distinguished between public policy and constitutional law:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Those last two sentences appeared gratuitous to some observers, and I have to agree, if only because it seemed to me that Roberts never really tackled Kennedy's core argument head-on. Instead of dismantling the majority's approach, he championed alternatives to it and raised concerns about its implications. Points taken—and the dissent may live on in some fashion in Fourteenth Amendment jurisprudence. But without a more direct assault on Kennedy's reasoning, the dissent doesn't fully earn such a categorical conclusion.

While I've been following the legal back-and-forth pretty closely over the past year or two, I realize that same-sex marriage isn't just a question of the finer points of law. Obergefell has major life implications for real people. As far as that goes, I understand why progressives are happy about the decision. What I don't understand is why more conservatives aren't happy about it. Andrew Sullivan has been making the conservative case for marriage equality for decades. And there is a "live and let live" aspect to the Obergefell decision that makes it a victory for small-government conservatives, too; see, for example, this essay on the libertarian website Reason.com. (Maybe anti-government conservatives actually have a soft spot for government power after all, as long as it's state and local goverments that are wielding it.)

The elephant in the room for the Obergefell decision is bias. Bigotry against gay people is widespread, even among elected officials. A state senator in North Dakota, Rep. Dwight Kiefert, recently posted this to his Facebook page:

The article continues:
Kiefert said in the interview that his post was not a "public statement," but merely a request that people to look into the issue.
"There's a lot of question marks," he said."Was what I read true? I don't know.
"The bottom line is: Through my faith, I have to oppose it," Kiefert, who is Christian, said of homosexuality.
He added that his viewpoints have earned him threats in the past.
"I just hope people respect me for who I am," he said
Ironic, that last. In any case, I haven't addressed hatred or bias at any length because the Supreme Court in Obergefell didn't address it either. The plaintiffs weren't alleging bias, the states weren't admitting to bias, and the justices didn't explore the issue in any depth. However, some of the lower court decisions did consider the issue of bias; here is the blunt language of the Seventh Circuit:
Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.
(The author of this decision was judge Richard Posner; he offered his take on the Obergefell case here.)

As Rep. Kiefert helpfully reminds us, the other major consideration here is religion. Probably a fair number of conservative politicians are saying what they're saying about same-sex marriage not because same-sex marriage particularly bothers them, but because they can't afford to lose the support of people who vote on the basis of religious views.

In the wake of Obergefell, I suspect we'll be seeing more court cases about the limits of religious freedom under the Constitution. Like all rights, First Amendment rights are not absolute, but enumerated rights in the constitution do receive a lot of deference in law. Some county clerks are currently refusing to issue marriage licenses for reasons of religious conscience. The First Amendment guarantees the free exercise of religion, and many of the people quoted in the linked article sound sincere. Nevertheless, it seems to me that those clerks aren't freely exercising their religion—they're forcing their religion on others using the power of the State. I don't think that will hold up legally under the First Amendment.

Some people seem to feel that we Americans means us Christians. That concept doesn't make us a country, though—it makes us a folk. For myself, I think that what we are as countrymen has less to do with cultural things like religion or language, which we inherited from Europe, and everything to do with the Constitution, which set us apart from Europe.

Who do we think we are? The question Roberts posed to his brethren applies to the rest of us as well. Since the Obergefell decision was handed down, I haven't been able to get this question out of my mind. With due respect to the Chief Justice—and applying only the capacities for reason and reflection that all citizens must use to make up their minds—I'm pretty well convinced on the merits that the Supreme Court has just overthrown an unconstitutional law. That is worth celebrating.

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