The Vindication of Same-Sex Marriage, and the Chief Justice’s Cautionary Note

[For a post on what may, in the long run, be far more important issues, click here. For brief comment on the Supreme Court’s decision upholding Obamacare’s subsidies, click here.]

Although not gay myself, I was overjoyed at the Supreme Court’s vindication of same-sex marriage throughout our nation. A significant minority of us Yanks now will feel more accepted and welcomed, able to live their lives as they wish, with due public recognition of their loves, aspirations, economic and human value, children, and families.

It always seemed unconscionable to me that a gay or lesbian soldier could die fighting for my freedom yet not have freedom to the same degree as I. And it seemed all the worse that the reasons for the difference were doctrines of ancient Scriptures and particular religions in which far from all of us Yanks believe.

If there’s a constant theme in our national history, it’s this: when individuals in general and minorities in particular are better off, we are all better off. The more we Yanks respect and honor each other, and the more we treat each other equally, the closer we come to Paradise on this Earth. Isn’t that just the Golden Rule?

But I have to admit I got it wrong. Several weeks ago, based on questioning in oral argument, I predicted that Chief Justice Roberts and Justice Kennedy would both vote to uphold a same-sex marriage right, for a 6-3 majority. I was wrong. Only Justice Kennedy did, leaving the right hanging precariously by the thread of a 5-4 majority.

John Roberts is not only our Chief Justice, but, in my view, among the smartest and most original of all. He’s also the second youngest, after Justice Kagan. So he’s going to be with us for a long time. He will have the power to shape the docket and (within voting blocs) assign opinion writing for the foreseeable future. With his powerful intellect and his pragmatism, he’s a force to be reckoned with for a long time to come.

So when Justice Roberts, who I thought would vote with the majority, didn’t, and also read a blistering dissent from the bench, it’s worth while to ask “why?” What moved him to dissent so vehemently from expanding civil rights?

The first thing to note is that Justice Kennedy’s thoughtful and inspiring majority opinion did not go Justice Roberts’ way. Here, in its entirety, is the question in oral argument that made me think Justice Roberts would see a right to same-sex marriage:

“I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

That’s a straightforward equal-protection argument: Tom is being treated unequally because of his gender. But, as Roberts noted in his dissent, Kennedy’s majority opinion did little with the equal-protection argument. It relied almost entirely on the idea that marriage is a fundamental right of “liberty,” which gays and lesbians cannot be denied.

So was the loss of Justice Roberts’ vote just a failure of judicial diplomacy—a failure to reason the way Roberts wanted to reason? Probably not.

The dirty little secret of equal protection, which few but lawyers know, is that it doesn’t apply to everyone. There’s a valid practical reason for that. We may all, in Tom Jefferson’s words, be created equal, but we are all self-evidently not equal. A high-school dropout would have tough time doing the job of a Ph.D. in engineering or economics, and I would have a tough time playing basketball with LeBron James.

So constitutional equal-protection doctrine doesn’t assume that all individuals are equal. It looks to see whether the law treats definable groups of people differently without just cause.

And then there’s another qualifier. A group asking for equal protection has to be one that deserves it. Why is that? Because we humans form innumerable groups and groupings. Would you want bankrupt people to be able to sue every time the law treats them differently from others? bakers? vegetarians? white supremacists?

Probably not. So constitutional equal-protection doctrine focuses on so-called “protected groups.” At the moment, these are defined by race, ethnicity, national origin, and religion (which is also protected by our First Amendment). Even women, as a gender, don’t quite make the cut. They are different because their biology is different—men can’t get pregnant or bear children—so they are treated as a group of their own, with special protections all their own, but not quite the same as other protected groups.

Now you can see how hard it would have been to answer Justice Roberts’ simple question with changes in the law. The good Justices would have had to admit gays and lesbians into the highly selective list of groups already acknowledged as having equal protection under our Constitution. Apparently, that was a bridge too far.

Such a ruling would ipso facto have invalidated numerous state laws that permit or require discriminating against homosexuals in such varied fields as employment, housing, medical care, teaching, families, adoption, etc. While such a masterstroke might be desirable as a matter of justice, this case was about the specific subject of marriage. The Supreme Court never sweeps that broadly, and it never will, let alone on a subject, like this one, is which society is self-evidently immersed in a difficult and incomplete transition.

Anyway, it’s not clear whether more attention to equal protection would have garnered Roberts’ vote. He did state explicitly, in his dissent, that disparate legal treatment of gays or lesbians, with regard to specific practical and economic benefits (which might include hospital visitation rights and intestate succession) could get his attention. But he devoted barely more space to equal protection than did Kennedy.

The thrust of Justice Roberts’ dissent was different. He felt that, by changing the definition of marriage to include same-sex couples, the majority had vastly overstepped the bounds of proper judging. Although expressing some sympathy for excluded gays and lesbians, he would have preferred to leave such culture-changing decisions to voters and legislatures. His vehement dissent was an impassioned plea for judicial restraint.

That plea was not entirely practical. There’s no such thing as a national referendum, and there’s no legal mechanism for having one. If polls of public opinion are correct, advocates of same-sex marriage would win such a referendum by a substantial majority, and we would be done with this issue, once and for all, entirely without the Supreme Court’s intervention.

But that cannot be. As both the majority and Robert’s dissent acknowledged, and as is fact, marriage is a matter of state law, not federal law. So rule by legislatures means rule by state pols. The result, today, is eleven states accepting same-sex marriage by popular or legislative vote, five by judicial fiat in state courts, and the other 34 accepting it not at all. Now the Supreme Court’s decision will force all to accept it.

In reality, as distinguished from theory, creeping acceptance without that decision would have taken decades, maybe a century or more. A majority of the justices, and a majority of the nation—with no hope of a national referendum—do not want to wait. In a nation that is just now thinking of taking down the Stars and Bars, 150 years after the Confederacy’s unconditional surrender at Appomattox, that is understandable. Sometimes, at least, cultural progress ought to flow faster than molasses in winter.

But no one should minimize or ignore Justice Roberts’ warnings. Expansion of so-called “substantive due process”—the fundamental rights that no legislature can take away—will indeed cause a backlash, just as Justice Roberts predicted in his dissent.

A few years ago, I might not have believed this. But in the past few years I have discussed politics at length with two women, both of whom cast their votes for president primarily on the issue of abortion, for “pro life” candidates. One is a brilliant professor of law, a “graduate” of a major federal regulatory agency. The other is a dear friend. Both cast their votes on abortion, ignoring the nation’s welfare, needless and terrible foreign wars, and their own economic interests as members of the middle class.

Now that gay marriage, like women’s right to an abortion, is a fundamental right recognized by the Supreme Court, it will be a political gift for the right wing that keeps on giving. Right-wing pols will use it, persistently and profitably, when their economic, social and practical policies are bankrupt, just as they have used abortion in opposing “Obamacare” and the Obama presidency generally.

Justice Roberts’ specific legal admonitions are, in my view, overblown. He likened the Supreme Court’s decision on gay marriage to the infamous Lochner decision—the most notorious of several by which our pre-war Supreme Court overturned and tried to block FDR’s New Deal reforms.

But in analogizing Lochner, Roberts left his pragmatism and common sense behind. In that case, the Court had struck down limits on workers’ weekly hours, saying that those limits infringed the workers’ liberty: their freedom to bargain.

That view, of course, was not only impractical; it was diabolically cynical. Workers then, like many now, had little “freedom” to bargain without the law’s help; the business owners who employed them held all the cards and all the bargaining power.

Today, gays are among the ones without power. They are the ones outside, in the cold, looking in the window at the warmth and benefits of marriage that the rest of us enjoy. No one, least of all the Kennedy majority, would have the temerity to suggest that, by giving up their “rights” to be discriminated against, they are losing something. In short, no one today would be so cynical as to turn gays’ supposed “rights” against them as did the Court’s majority against the workers in Lochner.

So, too, was Roberts’ analogy to abortion weak. As I’ve analyzed before, abortion is a unique issue because it involves the supposed right to life of a putative human being: the fetus. The most difficult cases of abortion, especially those involving rape, incest, or the life or health of the mother, pit the rights of an incontrovertible human being, the mother, against the fetus’ less clear rights. Therefore most people’s antipathy to abortion varies in direct proportion to their belief that the fetus is alive and a human being, and that life begins at conception.

Medical science can tell us whether the fetus is viable outside the mother, although even that conclusion changes regularly with advances in medical science and technology. Only philosophy or religion can tell us whether the fetus is “alive” in a way that law and society ought to recognize, and when. Since there is no consensus on those issues—and should not be in any society that values freedom of religion and belief—we don’t have consensus on abortion and likely never will.

The same-sex marriage question is entirely different, and much less fraught. There is no arguably separate person, like the fetus, whose rights same-sex marriage violates. There are only two consenting adults who want the same rights to public and legal recognition of their love, dignity, stability and continuity that opposite-sex couples have.

What drives most opposition to same-sex marriage is a simple desire to control others’ behavior and legal status because of one’s own personal religious or other beliefs. That is a pallid cause in general, let alone compared to trying to prevent an allegedly sentient and helpless human being from being murdered.

We can hope that, with time, men and women of good will will recognize these points and not insist that others live by their own beliefs. Isn’t the thing that makes our nation work so well, and the essence of our Bill of Rights, the notion of “live and let live”?

It’s surprising, to say the least, that as smart and practical a man as Roberts did not recognize these distinctions. He is, after all, the only one among the justices to have recognized the “mandates” of Obamacare as a tax, not a penalty, a method designed from the very beginning to raise revenue and lower premiums for health insurance.

But however inept and impractical Roberts’ analogies to Lochner and to abortion may have been, his warning of a backlash is both sound and prescient. As much as we might like to, we progressives cannot dismiss the needs or the votes of religious people. We should now bend over backwards to accommodate their legitimate religious beliefs, even, perhaps, to let a few small businesses discriminate, at least where gays and lesbians have real market alternatives.

Don’t get me wrong. Big businesses like Apple, Google, Verizon and Southwest Airlines cannot be allowed to discriminate because they are part of the fabric of daily life. Although law doesn’t treat them all equally as such, they all serve as public utilities in very real ways. But if there are three family-owned bakeries in a small town, and only one is uncomfortable serving weddings of gays and lesbians, it would be politic not to force it to do so. “Live and let live” works both ways.

If we don’t show such tolerance, the right wing will demagogue this issue effectively, as they have done so brilliantly with other “social” issues at the dawn of this new century. They will use it to elect leaders who will steal the substance of our nation, demean our traditions of genuine liberty, and take us into wars that we have no legitimate need to wage. We should never forget Dubya or how that execrable president got elected.

The last thing the gay and lesbian community, or their sympathizers like me, should want to do is to gloat over this justifiable but still controversial victory. We should be satisfied that justice has been done, and move on, with humility, love and sympathy, even for those who think their beliefs have been assaulted.

We should live and act the truth: Friday’s decision assaulted no one’s liberty. It restricted only the authority of some to impose their religious beliefs on others. It recognized that yet another group, long subject to misunderstanding, oppression and discrimination, has the right to live as they want, and as God made them.

It’s worth noting that nowhere in Justice Roberts’ vehement dissent did he contest the majority’s view that homosexual orientation is genetic and involuntary. Nor could he. As Justice Kennedy noted, “sexual orientation is both a normal expression of human sexuality and immutable.”

Although not moral judgment in itself, sometimes good science, aka close contact with reality, must serve as the basis for proper moral judgment. So Pope Francis recently advised us with respect to global warming—perhaps the greatest threat to our species’ health, happiness and survival that it has ever faced.

The Supreme Court is a unique institution. Alone among the branches of our government, its members must write voluminous opinions, on various subjects, and sign them, every year. Of course their highly educated, elite clerks help them. But the justices themselves write or review the opinions, circulate them, negotiate them, amend them, sign them and must stand behind them.

No other branch of government is like that. No other branch of government requires leaders to lay bare the essence and details of their reasoning in such a public and permanent way.

In that branch, Chief Justice Roberts stands above the rest. His opinions are more cogent, more original, and often more brief—a mere 21 pages to uphold Obamacare’s subsidies. Although his pragmatism may come and go, as in his analogies to Lochner and abortion, he has what may be the High Court’s most incisive and original mind. We ignore his warnings, and his vehement dissents, at our peril.

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