Obergefell Reaches the Right Result via the Wrong Process

Anthony Kennedy

For understandable reasons, most of my fellow front pagers at RedState are opposed to same sex marriage in principle, and are thus dismayed by today’s Supreme Court opinion in ObergefellFor reasons I have set forth before here, I’m in favor of same sex marriage in principle, but I am equally or more dismayed by what the Supreme Court has done today. Many, many shortsighted people who are in favor of same sex marriage are rejoicing at today’s ruling, either because they are unfamiliar with the inherent mischief in allowing the courts to decide policy arguments that are better left to the legislature or because (if they are liberals) they view this as a feature, not a bug. It is especially injurious to the rule of law as a whole that today’s opinion was authored by Anthony Kennedy, unquestionably the dimmest Supreme Court judge and least well-reasoned author on the Court since at least Justice William Douglas.


The reasons for this are manifold. First and foremost, judicial opinions are notoriously terrible guideposts for setting intelligible policy, especially as compared to statutes. Whereas a statute (at least theoretically) sets forth exactly what is binding in an organized manner, a judicial opinion by design is intended to be more or less narrative and to a not insignificant degree persuasive. The general public has a terrible time understanding what the Supreme Court is even saying 90% of the time, and judging by the number of times issues commonly have to be brought back to the Supreme Court over and over again, even lower level appellate courts do a terrible job of interpreting what SCOTUS wanted done in the first place.

The endless morass of completely contradictory appellate results in abortion-related cases that have dotted the Federal landscape since Roe v. Wade are conclusive, case-ending evidence of this point, if any is needed. The abortion line of cases (especially since the Kennedy-authored Planned Parenthood v. Casey opinion) also illustrates another truth – the higher the Court reaches for rhetorical flair to mask a lack of legitimate constitutional authority for their pronouncements, the harder it is for lower courts to follow exactly what is meant. And the Obergefell opinion handily illustrates right up front that the Court was throwing reason and clear guidance to the wind in favor of what Anthony Kennedy imagines is really killer prose. As Justice Scalia noted in his dissent:


If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

An illustration can be helpfully made from the very text of the Obergefell decision itself. Many non-lawyers are attempting to pooh pooh this decision as no big deal because of Justice Kennedy’s remark at least seemingly indicating that churches can still refuse to perform gay marriage ceremonies and can advocate against gay marriage (for whatever THAT is worth, now that the Supreme Court has removed the issue from the democratic process). “See?” these people say. “Religious conscience protections are still intact!”

However, no lawyer worth his salt is even mentioning this because it is obvious dicta of the rankest sort.  Neither of these issues were before the court or necessary to the resolution of the case before it, so Kennedy’s well-meaning dimwittery is binding on absolutely no one. It is also, for that matter, completely contradictory as a matter of logic from the declaration of same sex marriage as a right enumerated under the Equal Protection clause under the Fourteenth Amendment – a point which no doubt the other four liberal justices on the Court are unlikely to forget when this issue is litigated before them in the future, and which virtually every Appellate Circuit is likely to notice, even if Justice Kennedy did not.


You see, only the Supreme Court, under the awesome direction of the mind of Anthony Kennedy, can use words stating that churches can refuse to perform same sex weddings while reaching a result that logically precludes such a thing from being legally possible. This is exactly why judicial opinions are a terrible way to set and cabin policy.

Second, and equally importantly, the Federal Appellate system – and the Supreme Court in particular, tends to be composed of a remarkably narrow slice of the American population, which makes them temperamentally ill-suited to make policy for the entirety of such a large and diverse country. Recent history has made being either Catholic or Jewish almost a prerequisite for nomination to the Supreme Court (for reasons that make some good sense, but I digress), and these two religions are also disproportionately represented in the Federal judiciary as a whole. The Federal Judiciary is also overwhelmingly composed of people who are wealthy, and pretty much exclusively composed of people who have had one specific kind of education.

One of the things that you notice about lawyers, if you hang around them enough, is that they all sort of think alike. In fact, that’s more or less the stated purpose of law school, as they tell you from day one – “We are here to train you to think like lawyers, not like whatever you were before you became a lawyer.” That’s fine for people who have an identifiable and sometimes difficult job of navigating the judicial system and predicting what other lawyers like you (who sit on judicial benches) will do about a given situation.


It is a horrible idea, however, to give power to a cadre of people who tend to think pretty much alike, have jobs that are exactly the same, and tend to come from similar life backgrounds, to determine policy for the entire country. One of the great things about America is this – in the great conglomeration that is our voting public we have engineers from Buffalo, nurses from California, car factory workers from Georgia, accountants from Illinois, and farmers from Nebraska. The combined thoughts, experiences, and desires of all these people all go into the competition for electing officials both on the state and national level, such that policy that is enacted by legislatures has at least a fair shot of reflecting the hopes and concerns of all these various people, especially on the state level.

Lawyers are by nature an arrogant people, and when they are given a robe the problem tends to get worse instead of better. But it takes a special level of breathtaking hubris for five of them to yank the ability to participate in a hot button issue away from the entire American public and declare that henceforth, only lawyers wearing robes may make policy as pertains to this issue.

This hubris is well understood and rejected by the hoi polloi who are tested by following the Supreme Court’s various pronouncements of moral superiority. Probably, had the Supreme Court not unjustifiably intervened in the abortion debate in 1973, the United States would have settled on an abortion policy regime very similar to that of Europe, which has largely decided the issue democratically. It would likely have settled out that abortion would be largely legal in the first 20 weeks and largely illegal in the last 20 weeks, everyone would have felt that their voices had been respected and heard. Supreme Court nominations would likely not be the partisan game of hide-the-ball that they are now, the pro-life movement would largely be dormant, and neither political party would be able to use the issue to demagogue and fundraise off their base. Ironically, by purporting to end the abortion debate, the Supreme Court unintentionally prolonged it by four decades (and counting), irreparably injuring their prestige and moral authority in the process.


It seems likely, or at least possible, that what the Supreme Court has done today will have much the same effect. Same sex marriage is and was gaining in popularity throughout the country. Given another five or at the most ten years, it would likely have been legal by legislative action in all fifty states. In most states, there would likely have been some explicit statutory clause that would have stated that churches could refuse to perform same sex weddings if it was contrary to their doctrine. Some additional states (but not others) would have had additional conscience protections in accordance with the wishes of their populations. Everyone, ultimately, would have been more or less content, with but little low-level grumbling.

Instead, by needlessly injecting themselves in this debate at this juncture, for almost the sole purpose of helping Anthony Kennedy to feel better about himself after reading his press clippings in the New York Times, the Court has created an entire long-term class of voters who will feel (rightly!) that they have been disenfranchised from having been heard on this issue, which will inevitably lead to long-term resentment and increasingly hardened attitudes.

Same sex marriage advocates, I judge, were largely winning the public relations war on their issue. Had they gone to the states where they still faced obstacles and raised impassioned political campaigns designed to highlight the justice of their cause, and pushed for ballot referendums for their cause, I would have supported this and did support this. However, what has happened here today, even though it reaches a result I supported, has been done by the wrong process and I fear that the secondary effects of short circuiting the democratic process (yet again) in this manner will create much more evil than it solves.


No one who isn’t just fantastically enamored of letting lawyers set all the policy for the whole country should be cheering today’s decision – regardless of how they feel about the outcome itself.


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