THE BLOG
07/07/2015 03:13 pm ET Updated Jul 07, 2016

Deconstructing Chief Justice Roberts' Dissent in the Epoch-Making Same-Sex Marriage Decision Obergefell v. Hodges , but Not From Traditional Perspectives of the Left

Since the slate of epoch-making rulings by SCOTUS last month, several op-eds have appeared questioning the attribution of a subliminal political intent of the Court to move towards the left. By implication that means the Court has stepped out of its traditional role as a neutral and impartial interpreter of constitutional law. The three major decisions on same-sex marriage, housing discrimination and the universal healthcare law (Affordable Care Act) could seem like once-in-a-lifetime victories for liberals, and quite frankly some moderate conservatives. Regardless of the side you take in these debates, one cannot but be awe-inspired by the trio of titanic decisions that seem to hit us all at once. And yet these recent op-eds in The New York Times and The Atlantic caution us not to read too much into these decisions as emblematic of a liberal turn of the Court the likes of which we have never seen.

And it's not wise to peg some justices as strictly "liberal" or "moderately conservative," since some tend to swing to either side, like Justice Kennedy, while the moderate conservative Chief Justice Roberts was pivotal in defending the universal healthcare bill twice. The op-eds point to recent historical memory where the Chief Justice Roberts era of the Court did some major damage to the liberal agenda to regulate gun ownership. They also constrained women's reproductive rights in the name of religious freedom and unfettered campaign finance by major individual donors and corporations from excessive regulatory intervention, thereby affecting the substantive and procedural viability of a valid democratic electoral process. In other words it's worthless to try and predict what the Court will do by extrapolating from legal precedent and tradition to the current political moment in which debates are raging and emotions are running high, as in the now nationally resolved battle over same-sex marriage.

Yet many of these narratives are not penetrating the philosophical roots that underpin the scaffold of recent decisions, whether they turn in favor of the left or the right. Take arguably the most anticipated decision in recent memory, Obergefell v. Hodges, which effectively made same-sex marriage a constitutionally protected national freedom. Before Obergefell 37 states had recognized some form of legalized same-sex marriage. The 14 petitioners in the consolidated Obergefell case argued that the states within which they resided, namely Michigan, Ohio, Kentucky and Tennessee, did not recognize either same-sex marriage because their state constitutions defined marriage as a "union between a man and a woman" or same-sex marriages conducted in states where they are legally valid. The majority opinion held that the Fourteenth Amendment commands that a state recognize legally same-sex marriage by issuing licenses or recognize same-sex marriages performed legally in other states. Any infringement of this fundamental right is a violation of the Due Process clause, which states that the most private and basic liberties of individual citizens cannot be abated without due process of the law. In short, states that do not allow same-sex couples to marry are violating that fundamental right to marry.

Trying to divine the political intention of individual justices in either the majority opinion of the landmark Obergefell v. Hodges or the dissent, in which Roberts led the charge, is certainly tempting. No doubt, many will try. They will accuse the dissenting justices of being dinosaurs from another era who fail to see the social and cultural shift taking place in major parts of the Western world, including some countries in Latin America. Major democracies are instituting national laws to recognize same-sex marriage, so why should we wait for a handful of recalcitrant state legislatures in the U.S. to just catch up to the momentum when a national majority (regardless of Democrat or Republican) already accepts same-sex marriage? Others will argue that since humans error at different points in history (for example, the anti-miscegenation laws that prevented interracial marriage before the Court overturned them), it's not wise to wait for a majority to change their opinion when certain minority rights are clearly being violated. That was the claim about the remaining states that refused to amend their constitutions to include same-sex unions in their legal definitions of marriage. Yet to dig deeper behind the surface level of emotive accusations and ad hominem attacks requires a closer examination of the text of the decision itself. The Roberts-led dissent offers us a unique view on how the justices do their best to maintain a fallacious distinction between judicial overreach into legislative law and policy making and neutral interpretation of laws that already exist rather than proscribing what laws should exist. In other words, it's best to enter the reasoning of the so-called "conservative" justices and deconstruct their arguments from within.

The kernel of Roberts' dissent is this: Judges of the Court should not be concerned with whether same-sex marriage is a "good idea," right, just or fair. Rather, they should only be concerned with what is constitutionally valid when it comes to interpreting laws passed at the state or national legislative levels. There is nothing constitutionally invalid about a state legislature defining marriage as that between a man and a woman, just as there is total validity in a state legislature that expands the legal definition of marriage to include same-sex couples. It's up to the states and their lawmaking powers as democratically autonomous that are sacrosanct. Courts are not legislatures, and this goes to the very heart of a democratic model that separates the powers of government. Government is only legitimate based on the consent of the people and can dissolve on the basis of the will of the people. When a handful of judges blur the lines between law crafting and policy making on the one hand and neutral interpretation of existing laws on the other, then the basic trust between the people and the government is broken, and democracy has failed. For the dissenting justices, the majority opinion in the Obergefell case violated the very nature of our modern understanding of democracy based on the separation of powers. Furthermore, why not let the political-democratic process take its course in the remaining states, which could eventually amend their constitutions to broaden the definition of marriage or pass a bill in the legislature that recognizes legally same-sex marriage? And why can't the minority few in those states who desire legal recognition of same-sex marriage simply pick up and move to a neighboring state that does recognize them?

For the majority of Americans, who already believe in same-sex marriage, the last question is not only patently absurd but underpins the type of reasoning that allows bigotry and ignorance to persist. Yet the liberal attack of the conservative dissent does not get to the heart of the matter, which points to the mystery of judicial reasoning: the appearance of neutrality under a "fixed set of rules" vs. "personal preferences" or the transcendent and objective nature of legal judgements vs. moral impulses in the political-democratic process of legislative law making. Indeed, the true definition of democracy, as Roberts' dissent argues, is a test of tolerating differing views, which the Constitution permits. This lies in stark contrast to a handful of self-anointed enlightened individuals, namely federal judges in a few states and the Supreme Court justices in the majority opinion, providing the unjustifiable cover of constitutional law for extra-legal matters that alter people's traditions, histories, psychologies, religions and philosophical world-views precisely in the name of justice as fairness. This is why Roberts said that those making the appeal to legalize same-sex marriage can celebrate what they think is a fair and just decision, but they shouldn't do so on the basis of the constitution.

Perhaps at the heart of the difference between the majority of justices and the dissent is not a philosophical-moral debate about whether same-sex marriage is right, just and fair. Rather, it reveals a philosophical dissonance on the interpretation and operation of the separation of powers while contemplating how the justices differ fundamentally on the nature of their very function as an impartial judiciary within government while living and breathing as independent yet engaged citizens in society. Can Roberts really be justified in saying that justices only interpret the law and not make them? For is not the very act of interpreting the law also its transformation and hence its making and unmaking? If so, then that would make the majority opinion's argument for the constitutional basis of legalizing same-sex marriage -- under the Fourteenth Amendment's constitutional principles of liberty in the Due Process clause and equality in the Equal Protection clause -- not only a valid interpretation of the law; it would also justify what is right and fair in redressing a long-standing injustice and inequality in the eyes of the nation's majority, namely the failure to extend the legal right to marry to all same-sex couples regardless of where they reside.