Friday, July 24, 2015

A Satchel of Embarrassments: Anthony Kennedy and Obergefell v. Hodges

Anthony Kennedy
Justice Kennedy authored the opinion for the Court in Obergefell v. Hodges. He wrote the words, quoted by Justice Scalia, "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,"

In Obergefell, the Supreme Court concluded that the right to marry constituted a right that was "fundamental" under the federal Constitution. Because the right is fundamental, it violates the Due Process Clause of the Fourteenth Amendment to deny access to the right to marry to persons seeking to create same sex marriages on the same bases and terms under the laws of the States as those laws provided for the creation of opposite sex marriages. The decision has been immediately and widely hailed for its result. Obviously those who do not view the Constitution as empowering the federal government to interfere in the power of the States to regulate domestic institutions like marriage, and those that oppose the concept of same sex marriage did not join in the hoopla.

Still, even among those that welcomed the outcome of the case, there were those who looked for, but did not find, the precise decision for which they hoped. The Court did not decide that all discrimination between heterosexual orientation and homosexual orientation is, in its nature, invidious. Nor did the Court conclude that such forms of discrimination were subject to strict scrutiny, as are

The problem with Justice Kennedy's opinion in Obergefell is that is without connection to the plain text of the Constitution, or its history, or its construction by the Supreme Court for the history of the Court from the ratification of the Fourteenth Amendment up until the decision of the Court in Obergefell. Does it matter that Kennedy's opinion reflects his conclusion (albeit without expressly stating it) that he was deputized by the Constitution to sit in judgment of the power of the States in areas of human interaction expressly reserved to them under the Tenth Amendment?

I think that it matters that those that ratified the Constitution, and those that ratified the Fourteenth Amendment, did not deputize the Justices of the Supreme Court to sit in judgment of the exercise of the powers reserved to the States and to the People. The consequence of Justice Kennedy's opinion for the Court is a further erosion of the federal system by which aggregation of power is prevented by granting certain powers to the federal government, and retaining others in the States and in the People.