It’s not the most important thing about Obergefell—or even the second most important—but it’s noteworthy that rhetoric played a remarkably overt role in the Court’s opinions, particularly in the sharp criticisms leveled by the dissenting justices. I offer a few thoughts below. By way of disclosure, several years ago I clerked for Justice Kennedy, author of the Obergefell majority.
1. Speaking to the People. Justice Kennedy’s majority opinion proceeded under due process and equal protection but eschewed doctrinal categories like strict scrutiny. This may strike some lawyers as odd—and it certainly flummoxed some of the dissenters. As Chief Justice Roberts complained, the majority opinion lacks “anything resembling our usual framework for deciding equal protection cases,” which he called “casebook doctrine.”
But there’s a fairly apparent reason for Obergefell’s lack of lawyerly terminology: this is the rare opinion that is actually going to be read by large numbers of non-lawyers. And regular people won’t ask whether Obergefell reads like a casebook or has jargon phrases like “strict scrutiny” and “least restrictive means.” Instead, most people will want to understand the reasons beneath the jargon. Those reasons, like Obergefell itself, could well outlast whatever doctrinal categories and buzz phrases are popular today. So the key question is whether Obergefell speaks to the people. History will judge Kennedy’s rhetoric against that standard.
2. Civility in Disagreement. The majority opinion also illustrates Justice Kennedy’s view of how to express judicial disagreement. As others have noted, the overall tone of the dissenting opinions is unusually sharp, and Justice Scalia seemed intent on breaking his own records for stridency. But while Scalia uses terms like “pretentious” and “egotistic” to describe the majority, the majority does not respond in kind.
Scalia himself gives a reason for this when he notes that “[i]t is one thing for separate concurring or dissenting opinions to contain extravagances,” but “something else for the official opinion of the Court to do so.” Scalia makes this point in the course of calling the majority “silly.” But, perhaps unintentionally, Scalia’s observation suggests that he feels free to let off steam in Obergefell precisely because he is in dissent.
Still, Obergefell is restrained even by the standards of majority opinions, as it doesn’t directly respond to the dissents at all. This unilateral disarmament may understandably strike some readers as confusing or disappointing, but it’s no accident. Throughout his long career, Kennedy has usually avoided directly responding to dissents, or even acknowledging that they exist. This restraint is especially remarkable when you consider how easy it would have been for Kennedy to fire back at Scalia.
At one juncture, however, Kennedy did obliquely respond to the dissents. In the fact section, the majority notes that lower courts have recently written extensively on the constitutional issue of same-sex marriage. And, in making this point, Kennedy emphasizes that lower courts have debated the issue “without scornful or disparaging commentary.” Some might well disagree that every lower court decision actually exemplified civility. Be that as it may, the intended message here seems plain: why can’t civil discourse prevail in the highest court in the land?
3. Disagreement about Disparagement. Given what I’ve said so far, it’s ironic that the only explicit accusations of disrespectful rhetoric are leveled by the dissenters against the Obergefell majority. The most serious example appears in the Chief Justice’s dissent, which accuses the majority of launching “apparent assaults on the character of fairminded people.” The Chief labels these assaults “entirely gratuitous” and argues that the Court portrays everyone who doesn’t agree with it “as bigoted.” The Chief even asserts that “the majority feels compelled to sully those on the other side of the debate.” Justice Alito makes a somewhat more modest point, asserting that the majority opinion “will be used” by unnamed third parties “to vilify” same-sex marriage opponents, who henceforth “will risk being labeled as bigots.”
Perhaps Alito is correct that some people will “use”—one is tempted to say, misuse—the Obergefell majority to disparage individuals with sincerely held views. People appropriate the ideas of others for many purposes, after all. But the Chief’s accusation that Obergefell itself engages in such disparagement seems unfounded. By way of illustration, here is a sentence from Justice Kennedy’s majority opinion:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.
I’m open to hearing other interpretations, but to my ears, that sounds like an extraordinary effort to maintain civility and respect in the face of strong disagreement. To be sure, Kennedy also writes that the denial of same-sex marriage rights “demeans,” “stigmatizes,” and “disparage[s]” same-sex couples and their children. But those statements aren’t an accusation of bad intent so much as bad effect. It’s not an accusation of bigotry to say that a law is demeaning to those it harms.
To some extent, the disagreement here has to do with one’s point of view. That is, Kennedy largely takes the point of view of same-sex couples, whereas the Chief and Alito focus on the perspective of same-sex marriage opponents. But it’s entirely normal to adopt the viewpoint of rights holders in cases about constitutional rights—not the viewpoint of offended third parties. In any event, the majority’s different perspective is consistent with civility, not proof of its absence.
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Justice Kennedy is bound to have a controversial jurisprudential legacy, and Obergefell will feature prominently in it. In evaluating that legacy, commentators should consider Kennedy’s attempts to foster civility, even during fervent legal disagreements.
First posted on Prawfs.