The Court's Conservatives are Lying About Gay Marriage
But it's not clear which part of their story is a lie
Are Supreme Court justices high-minded philosophers who interpret the law in a neutral fashion? Or are they a bunch of dweebs in funeral ponchos who claim objectivity while shaping the law in whatever way tickles their metaphorical pickle? I’m not cynical enough to say that it’s definitely the latter, but I am cynical enough to say that it’s absolutely not the former.
The Court’s conservatives seem to want us to believe the “neutral philosophers” view. The central tenet of their judicial philosophy is that judges are too involved in lawmaking and should butt out. Chief Justice Roberts is reportedly very concerned with the court’s credibility; I wonder how he feels about the fact that public confidence in the court is at a 50 year low. That’s a stunning failure; it’s as if Roberts set himself the goal of getting six-pack abs, but ended up on My 600-lb Life getting hoisted into his bathtub with a hydraulic lift.
As much as the Court’s conservatives might want us to believe that they’re neutral arbiters, they seem to also want us to believe that they’ll make politically expedient decisions when the chips are down. This is the conclusion I’m forced to draw from their recent actions. Roberts et al. are mixing paeans to above-the-fray judicial detachment with wink-and-nod assurances that they won’t follow their judicial philosophy to its logical end point. They seem to expect us to believe that both things are true; I find it logically impossible to believe that both things are true. And that’s why I think that we need a law protecting gay marriage.
Let me explain.
“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Translation: The Court doesn’t have its sights set on gay marriage,1 which became legal after the 2015 Obergefell v. Hobbes decision. It’s worth noting that Clarence Thomas has made it abundantly clear that he doesn’t agree that the precedents underpinning gay marriage and other sexual freedoms are not under threat. So, uh…credit to Justice Thomas, I guess? I suppose the accusations of duplicity that I’m making in this article apply only to the other conservative justices. Justice Thomas, meanwhile, seems to be willing — eager, even — to follow his convictions wherever they lead, even if that’s to Crazy Town, USA. So…kudos, Justice Thomas?
The other justices — led by Alito — seem to understand that going after same-sex marriage would be extremely unpopular. 71 percent of Americans support gay marriage. Liberals are pissed about Dobbs in a way that can’t be expressed in English, and they’ll shit an entire Chrysler Building worth of bricks if Obergefell is struck down. If the Court were to suddenly invalidate scores of same-sex marriages, the Court’s reshaping of American life will have reached Godzilla-rampaging-through-Tokyo-sized proportions.
This is surely why Alito’s felt the need to assure us that Dobbs is only about abortion, and that the Court’s conservatives are done taking big swings now. But why would they be done? What judicial principle separates Dobbs from Obergefell and other cases about personal liberty? The answer — as far as I can tell — is “none”. The logic used in Dobbs all but requires overturning Obergefell.
The Fourteenth Amendment is at the center of both cases. The Fourteenth Amendment — you may recall from civics class — is one of the big ones; it’s not some crap amendment like the Third or Twenty-Seventh (come at me, Twenty-Seventh Amendment Twitter!). The Fourteenth Amendment is one of the post-Civil War amendments that seeks to ensure that all Americans enjoy equal rights. You can’t deprive someone of their life, liberty, or property for some completely stupid fucking reason, like their race. You have to have a good stupid fucking reason, like finding a small amount of marijuana in their glove box.
The Fourteenth Amendment’s “Due Process Clause” prohibits states from depriving “any person of life, liberty, or property, without due process of law.” Which raises the question: What the hell does that mean? Most relevant here: What does “liberty” encompass? The right to reproduce? The right to run on the field naked at a baseball game? The right to yell “Save some for the fish!” when someone’s taking too long at a water fountain? The answers — obviously — are yes, no, and yes. But after that, things get complicated. Obergefell and Dobbs both address the parameters of the Due Process Clause.
In Obergefell, three of the four justices seem to believe that “liberty” does not include the freedom to marry. Thomas and Alito each wrote dissents in which they forcefully defend a narrow conception of the word “liberty”.2 Justice Scalia — who has assumed a role in conservative jurisprudence that I would describe as “Obi-Wan Kenobi-esque” — calls the expansive reading of the Due Process Clause by liberals a “threat to American democracy”. All four conservative justices who ruled on that case took the opportunity to write a dissent; they were like a rap group recording a diss track, each trying to one-up the others as they took turns spitting fire at the object of their disdain.
The one justice who might be able to argue that he created room to say “marriage is a right but abortion is not” is Roberts. He makes it clear that he sees marriage (though not gay marriage) as a fundamental right. In his Obergefell dissent, he writes: “There is no serious dispute that, under our precedents, the Constitution protects a right to marry”.
My uncharitable reading of Roberts’ argument after that point is that it’s basically gibberish. I feel that it essentially amounts to an internally-conflicted Roberts gasping “but come on!” In the course of searching for an explanation as to why marriage is a right, but not a right possessed by everyone, Roberts sings the praises of opposite-sex marriage as “…a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” Well — if the Aztecs did it, then I’m convinced! It’s good to know that if I ever engage in human sacrifice like the Aztecs, or child abandonment like the Carthaginians, John Roberts will have my back.
A more charitable reading of Roberts’ argument is that he has a broad aversion to establishing rights via the Fourteenth Amendment. This puts him in line with the other Obergefell dissents; the four conservatives just don’t think that the Court should be in the rights-defining business. Their dissents express the belief that by finding new rights in the Due Process Clause, it is, in fact, the liberals who are engaging in a Godzilla-style rampage. Or maybe they think that the liberals are Mothra. I’m not quite sure — the question of who, exactly, is which Japanese movie monster has yet to be established by the Court.
It seems clear that Roberts, Alito, and Thomas would give gay marriage the thumbs-down if the question was litigated again. To not nix it would be to basically say: “We totally blew it way back in 2015.” It’s hard to imagine what event might change their minds short of a Christmas Eve visit from Gay Jacob Marley and his husband, Ghost Scrooge. (Side note: Would you watch a Netflix series called The Adventures of Gay Jacob Marley and Ghost Scrooge? I’ve got a pitch meeting next week.)
The big question, then, is where Gorsuch, Kavanaugh, and Barrett stand. Justices’ opinions on not-yet-litigated cases are always a coquettish fan dance, but by backing Dobbs, the three Trump-appointed justices endorsed the same skepticism of Due Process Clause-derived rights that animates the Obergefell dissents. Dobbs repudiates the logic of Roe and Obergefell; in his opinion, Alito speaks of the abortion right that the Court derived from the Fourteenth Amendment with the same disdainful tone that I’ve used on this blog to talk about George Clooney’s The Midnight Sky. Alito writes:
In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution.
Gorsuch, Kavanaugh, and Barrett joined Alito’s opinion. Though Alito allows that the Fourteenth Amendment protects rights with deep roots in the nation’s traditions, he made it clear in Obergefell that he doesn’t believe that same-sex marriage meets that test.3
So: What evidence exists that Gorsuch, Kavanaugh, and Barrett believe that the Fourteenth Amendment doesn’t protect the right to abortion, but does protect the right to gay marriage? In their short time on the Court, they’ve joined in their colleagues’ Due Process Clause bashing and shown no signs that they favor a broader interpretation of the Fourteenth Amendment. If they did hold that view, it would make them outliers in the conservative movement; being a conservative judge with a broad view of the Fourteenth Amendment is like being a Mennonite who’s highly active in the orgy scene. Probably only two of Gorsuch, Kavanaugh, and Barrett would be needed to overturn Obergefell, so observing their actions thus far makes the ruling seem anything but safe.
And yet, some Republican Senators are act like Obergefell faces no threat whatsoever. Bill Cassidy of Louisiana called same-sex marriage “obviously settled law right now.” Roger Wicker of Mississippi flatly stated: "I do not believe the Supreme Court is going to touch this issue." Marco Rubio called Democrats’ efforts to protect the rights enshrined in Obergefell “a stupid waste of time,” which — coincidentally — is exactly how I would describe the entire existence of Marco Rubio. Gay marriage is a wedge issue for Republicans, so they don’t want to vote on it, so they’re acting like Democrats are pushing a bill purely for messaging reasons. And I know that Democrats have been known to advance legislation for identity-based messaging reasons — how could any living organism not know that? — but if you trace the logic of the Court’s recent decisions, the threat to Obergefell seems very real.
The only way that the threat could not be real is if the conservative justices are lying about being neutral arbiters. The logic of their recent rulings presents an obvious threat to Obergefell. I find Alito’s insistence that the arguments made in Dobbs won’t influence other decisions about as reassuring as a waiter who leans in while I’m eating and whispers: “There is absolutely no semen in your soup.” For some reason, the clarification has not put my mind at ease!
The final act plot twist here is that I think that Senate Republicans are probably right: I don’t think the Court will touch gay marriage. Of course, I only feel that way because I think the “we just call balls and strikes” posture is mostly bullshit. I think the Court will find a way to avoid ending gay marriage because legally splitting up married couples is a very bad look. If anything is the judicial equivalent of crashing a wedding, throwing the cake on the ground, and honking the bride’s boobs, overturning Obergefell would be it.
But, because I Might Be Wrong (dot Substack dot com), I think we should absolutely pass a law protecting same-sex marriage. The House already has; the Senate should follow suit. This is way too important of an issue to risk. The Court’s conservatives keep insisting that these issues should be settled by Congress, so…settle it, Congress. It’s pathetic how conservatives on the Court and in Congress — who know that their stance on gay marriage is unpopular — keep looking to the other branch to be the bad guy. The Court is supposed to be above that type of consideration. But the good news and the bad news is that they’re probably not.
This assurance from Alito obviously also applies to rulings other than Obergefell, but Obergefell is the one I’m most interested in here.
In his Obergefell dissent, Thomas writes: “I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” Similarly, Alito says: “The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term ‘liberty’ in the Due Process Clause of the Fourteenth Amendment encompasses this right.” And those are just two illustrative samples; each as a LOT to say about the Due Process Clause.
It seems worth noting that the argument for Constitutional protection of same-sex marriage draws from both the Due Process Clause and the Equal Protection Clause (which is also found in the Fourteenth Amendment). The argument is that the Due Process Clause confers the right to marry, generally, and the Equal Protection Clause makes it illegal to deny this right to gay people.