Gay, SCOTUS, Supreme Court

4 Reasons Why Gay Marriage Is Safe, Even After Justice Kennedy Retires

Calm down, people; Justice Anthony Kennedy's retirement does not spell the end of same-sex marriage.

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Justice Anthony M. Kennedy

When Justice Anthony M. Kennedy did not announce his retirement from the U.S. Supreme Court at the end of October Term 2016, I breathed a sigh of relief.

First, as a pundit, I was relieved to see that my prediction that Justice Kennedy wouldn’t retire at the end of this Term — one that I first made last fall, and repeated last month — was vindicated.

Second, as a citizen, I was relieved that we would not have a confirmation battle over Justice Kennedy’s pivotal SCOTUS seat in the immediate future. AMK is the Court’s so-called “swing vote” on a whole host of critical issues, including abortion, affirmative action, free speech, and same-sex marriage. Filling his seat will be far more consequential than replacing Justice Antonin Scalia with Justice Neil M. Gorsuch.

The fight over Justice Kennedy’s successor will be unfathomably ugly — which is exactly what we don’t need at this rather fraught period in our national politics. It’s not clear that things will be any better a year from now, when there’s a much higher chance that AMK will step down, but it’s hard to imagine them getting any worse. A lot can happen in a year; let’s hope things calm down between now and then.

But here is one thing I’m not worried about. I’m not worried about what Justice Kennedy’s retirement will mean for marriage equality.

I suspect I’m in the minority in the LGBT community. From casual conversations with friends, I know that many are freaking out hold the view articulated by Mark Joseph Stern in his recent Slate piece, Marriage Equality May Soon Be in Peril. Stern’s article, which has been widely read and shared, is insightful and well argued, so I will use it as the majority opinion for purposes of filing my respectful dissent (but there are any number of other commentaries I could have used for this purpose).

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Here are the four reasons why I am not losing sleep over what Justice Kennedy’s retirement from the Court might mean for marriage equality.

(Disclosure: I consider myself a political moderate, and my views on marriage equality as a constitutional matter are, well, complicated.[1] But I obviously support gay marriage as a policy matter — I’m in a gay marriage myself — and I don’t want Obergefell v. Hodges, the landmark Kennedy opinion making marriage equality the law of the land, to be overruled.)

1. Chief Justice John G. Roberts will blink.

I agree with Mark Joseph Stern that if Justice Kennedy retires and is replaced by a solid social conservative (e.g., Judge Bill Pryor), then Chief Justice Roberts will become the swing vote on marriage equality. This possibility worries Stern; JGR wrote the lead dissent in Obergefell, which was surprisingly harsh. (Judge Richard Posner, not one to pull his punches, called it “heartless.”)

But dissenting from Obergefell in the first instance is very different from voting to overrule it — years later, after thousands of gay couples around the country have gotten married under its auspices. It’s much harder to take away a right than to not grant it in the first place — and here, taking the right of marriage away from millions of gay Americans would cause a total s**tstorm an incredible amount of chaos, along with unimaginable anger and backlash at the Court.

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Chief Justice Roberts is, above all, an institutionalist. His jurisprudential views aren’t as clean or consistent as some of the other justices’ views, but one theme running through them is concern for preserving Court’s institutional legitimacy and political capital. It’s why, despite his overall conservatism, he essentially found a loophole for upholding the Affordable Care Act. The Chief knew that striking down Obamacare would have caused huge political and economic disruption, created a gigantic confrontation with a co-equal branch of government, and put the Court at the center of a raging national controversy. So he came up with a doctrinal dodge that neither conservatives nor liberals found persuasive — but that got the job done in terms of keeping SCOTUS out of a firestorm.

Stern acknowledges that overruling Obergefell would turn SCOTUS into a lightning rod: “Overturning the decision, after all, would throw same-sex couples into legal limbo. The ensuing chaos would not be a good look for the Roberts Court.” This is true, but a major understatement. Turning back the clock on marriage equality would make the Roberts Court one of the most hated institutions in America — something that the Chief will avoid at all costs.

Note that Chief Justice Roberts did not join the conservative dissenters in Pavan v. Smith, in which the Court held that married same-sex couples are entitled to be listed on their children’s birth certificates on the same terms as married opposite-sex couples. Stern dismisses the significance of the Chief’s failure to join, saying it’s not clear what it signifies. But it seems to me that it would have been super-easy for Chief Justice Roberts to send a “join memo” to Justice Gorsuch, asking to have his name added to the Pavan dissent. Instead, JGR maintained a conspicuous silence.

Why? Sometimes the simplest explanations are the best: Chief Justice Roberts didn’t join the Pavan dissenters because, even though he doesn’t love Obergefell, he accepts its legitimacy as precedent — or, at the very least, doesn’t want to deploy the Court’s political capital on fighting that battle.

What if Justice Kennedy and a second member of the Obergefell majority, say Justice Ruth Bader Ginsburg, got replaced by more conservative jurists? I still doubt that Obergefell would be overturned (which would require, by the way, both a proper procedural vehicle and a Court highly motivated to reach out and revisit the issue) — for my next three reasons.

2. The reliance interests at stake could not be more powerful.

Whether to overturn Obergefell isn’t just a question of gay rights; it’s also a question of stare decisis, the legal doctrine concerning what weight to give to precedent. The stare decisis case for not messing with Obergefell couldn’t be much stronger (and buttresses my first point about Chief Justice Roberts flinching, given JGR’s own strong respect for precedent).

Recall that even Justice Scalia believed that correcting departures from textualism and originalism must be balanced with respect for precedent. (Here Justice Scalia parted ways somewhat from Justice Clarence Thomas, whom Scalia famously called “a nut” for CT’s extreme aversion to stare decisis.) Indeed, Justice Scalia was one of the Court’s best analysts of stare decisis.

Whether a precedent should be overruled depends on a variety of factors — see generally The Law of Judicial Precedent (affiliate link), by Bryan A. Garner et al. (including then-Judge Neil Gorsuch) — and one of the most important factors is reliance. It would be hard to find a more textbook case for reliance than the more than 150,000 gay couples who have gotten married since Obergefell.[2]

During Justice Neil M. Gorsuch’s confirmation hearings, I had an interesting exchange with a fellow legal commentator who is severely conservative and very pro-Gorsuch. I asked this analyst, who would like to see Obergefell overruled, whether Justice Gorsuch could be “counted on” for that endeavor. My friend said no — not because of any “squishiness” on NMG’s part, but because Obergefell is never getting overruled. Why, I asked? “Reliance interests are substantial. What would happen to existing legal relationships if overturned?”

Exactly. Overruling Obergefell would wreak havoc in the lives of thousands of married gay couples. And let’s not forget the hundreds of thousands of children being raised by gay couples (because Justice Kennedy certainly didn’t). Thousands of children — those currently being raised by gay couples, and those to be raised by gay couples in the future — would also be affected.

And remember that Obergefell is only the latest in what I’ve called Justice Kennedy’s four “Big Gay Cases” — Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell. These cases also implicate profound reliance interests, which could also be threatened depending on how broadly any opinion overruling Obergefell is written. It would be hard to imagine reliance interests stronger than those of the millions of gay people who have established intimate personal relationships, arranged their financial affairs, or gotten married and started families based in part on this series of decisions and the sweeping social and political changes they both contributed to and reflected.

If the Court were to overrule Obergefell, it would be required to discuss, and possibly disturb, an entire line of cases going all the way back to Romer in 1996 — a ruling from the last millennium. This is something SCOTUS surely doesn’t want to do.

3. The shift in public opinion is overwhelming and irreversible.

One could argue that, in theory, the courts should not be affected at all by public opinion. Courts should protect constitutional rights regardless of whether doing so is popular.

But the reality, discussed by scholars of both law and political science, is that the courts and public opinion very much affect each other. Sometimes judicial rulings reflect evolving public opinion, and sometimes public opinion gets shifted by judicial rulings, but there’s no denying the symbiosis between them.

It would therefore be naive to ignore — and to expect the justices to ignore — the tectonic shift in public opinion on same-sex marriage. From the Pew Research Center:

In Pew Research Center polling in 2001, Americans opposed same-sex marriage by a margin of 57% to 35%.

Since then, support for same-sex marriage has steadily grown. And today, support for same-sex marriage is at its highest point since Pew Research Center began polling on this issue. Based on polling in 2017, a majority of Americans (62%) support same-sex marriage, while 32% oppose it.

It would be difficult to find an issue where public opinion has shifted more decisively and rapidly. In contrast, on abortion — another issue where the Supreme Court arguably “imposed” a nationwide rule, displacing conflicting state laws — Americans’ views “have been broadly steady over the past decade,” according to Pew.

Almost two-thirds of American support marriage equality, and as older citizens (who tend to oppose it more) pass away, this percentage will only increase. As support for LGBT rights continues to increase in the years ahead, other actors in our political system — such as local city councils, and state legislatures and state courts — will also be less hostile toward the LGBT community.

In five or ten years, we won’t be seeing “bathroom bills,” nor will we be seeing “religious freedom” laws that are extreme in allowing discrimination against the gay community (e.g., laws that could be construed as allowing hotels or restaurants to not serve walk-in customers who happen to be gay — providing services to gay weddings is different, as I discuss below). States like North Carolina and Indiana that have tried to enact such measures have faced boycotts and backlash, and such negative reactions will only grow stronger as public opinion evolves further.

We are moving towards a national consensus on marriage equality, assuming we aren’t there already. Will the Supreme Court, even without Justice Kennedy, feel a burning desire to walk onto the railroad tracks and stand up in front of that freight train?

Some of the Court’s staunchest conservatives, perhaps the trio of Pavan v. Smith dissenters, might see a certain doomed glamour in “stand[ing] athwart history, yelling Stop.” But my prediction is that the passive virtues will carry the day: the justices aren’t required to revisit marriage equality, and there’s little reason for them to do so.

4. There are other outlets for conservative qualms about gay marriage.

Among people who share my views on constitutional and statutory interpretation, Obergefell incites intense anger. And that anger needs an outlet.

The central holding of Obergefell, requiring nationwide marriage equality, will not be disturbed. But conservatives’ anger over the decision could find expression in subsequent cases defining the outer limits of Obergefell — which could actually serve as a “safety valve” of sorts, letting conservatives blow off some steam while preserving the core marriage right.

We’ve seen this before: the core holding of Roe v. Wade regarding the right to abortion remains intact, but the Court continues to receive, and decide, cases on how far that right extends, and the degree to which abortion can be regulated (e.g., the 2016 case of Whole Woman’s Health v. Hellerstedt).

Limiting but not overruling a precedent is, by the way, much more the Chief Justice’s style (reinforcing my first point). As noted by Adam Liptak of the New York Times, Chief Justice Roberts hates to overrule precedents — at least expressly, as leading SCOTUS advocate Paul Smith (of Lawrence v. Texas fame) told Liptak. Instead, for better or worse, the Roberts Court goes for what Professor Barry Friedman and other scholars have referred to as “stealth overruling.”

As applied to Obergefell and marriage equality, however, “stealth overruling” is probably too strong a term. The term applies best when a precedent survives in name only. This will not be the case with Obergefell; gay couples will continue to get married in all 50 states because of that case and what it stands for.

Instead, the war will be fought over what falls under the “constellation of benefits” that the States have linked to marriage,” to quote Justice Kennedy in Obergefell. Some benefits will be protected by SCOTUS — such as the right of gay parents to be listed on their children’s birth certificates, per Pavan — while others will not. But the most important benefits will be safe, and the benefits that might fall by the wayside will be minor.

Take Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, which the Court agreed to hear next Term. In doctrinal terms, the question persented (per SCOTUSblog) is “[w]hether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.” In practical terms, it can be (crudely) framed this way: does the marriage right in Obergefell include the right to have an unwilling baker make your wedding cake? (Note my use of the word “crudely”; I realize I am grossly oversimplifying here.)

I expect this case will turn, yet again, on Justice Kennedy. But how he will vote here is far from clear (perhaps even to the justice himself).

Justice Kennedy is the great champion of gay rights on the Court, and he is aware of that legacy. Recall my prediction that Obergefell would come down on June 26, the same hand-down day as two of his other Big Gay Cases, Lawrence and Windsor — and my suspicion that Justice Kennedy had a hand in things when it did. So AMK might see Masterpiece as the wedding cake topper for his scrumptious gay-rights legacy.

On the other hand, Justice Kennedy, a California libertarian at heart, also falls hard for the First Amendment, rarely encountering a First Amendment claim that he doesn’t like. So I could also see AMK siding with the conservatives in Masterpiece Cakeshop, taking a middle ground between the conservatives and the liberals that he has alternated between delighting and angering all these years.

When my husband and I got married in 2015 — a few months after Obergefell, and yes, we used part of Justice Kennedy’s opinion as a ceremony reading (it wasn’t as clichéd then as it is now) — a dear friend who is a phenomenally talented baker prepared our beautiful, delicious, towering red-velvet cake. That cake was baked with love. I would much rather have our cake than a cake that we compelled someone to make for us using the force of law.

So maybe we gays can’t have our cake and eat it too — and maybe that’s not such a terrible thing. If not being able to force bakers to make cakes for us is the price we have to pay for preserving the central right articulated in Obergefell, then so be it. If we want people to respect our humanity, dignity, and autonomy, then maybe we should respect theirs. Live and let live, I say.

In his Slate piece, Stern writes, “Through sideways attacks, opponents can chip away at a decision until its foundation has been fatally undermined.” He fears that this will happen to gay marriage. I don’t share this concern — even as to matters more important than wedding cakes.

First, Stern discusses how Arkansas tried to deny married same-sex couples the right to be listed on their children’s birth certificates on the same terms as married opposite-sex couples. But remember, Arkansas didn’t succeed; the Arkansas Supreme Court got summarily reversed in Pavan, which is, as legal nerds know, quite the benchslap. And now that Pavan is on the books as precedent, other local and state jurisdiction are on notice that they can’t get away with such shenanigans.

Second, Stern talks about the Texas Supreme Court’s decision in Pidgeon v. Turner, which he characterizes as holding “that Obergefell does not clearly require states to extend spousal benefits to same-sex couples.” That’s not quite correct; read Professor Josh Blackman’s excellent analyses of the case here and here. It’s complicated, but suffice it to say that (1) the Texas Supreme Court decision turned on technical, procedural grounds, not on any defiance of Obergefell, and (2) on remand, the city of Houston will win, meaning that the city’s gay employees and their spouses will get benefits.

No, that’s not a typo. In this case, Houston, the largest city in a conservative state, wants to give spousal benefits to gay employees (and it’s some meddlesome taxpayers, abusing taking advantage of Texas’s unusual taxpayer standing doctrine, who are getting in the way). The fact that government and the gays are on the same side thus supports my earlier point: public support for gay marriage and other LGBT rights gets stronger by the day, meaning that as time passes, we will see fewer and fewer cases like the Arkansas birth-certificate situation.

Yes, the Supreme Court and lower courts will have to rule on the reach of Obergefell in the years ahead, just as they’ve had to do with Roe over the past few decades. But there will be much less Obergefell follow-on litigation than there has been Roe follow-on litigation, mainly because of the aforementioned shifts in public opinion and politics. There will be less and less anti-gay discrimination and animus with each passing week, month, and year. In other words, for the LGBT community and our place in American politics, “it gets better” — and better, and better, and better.

A decade from now, 80 percent or more of Americans will support gay marriage, and few if any jurisdictions will even be trying to chip away at gay marriage in a stealthy or sideways manner. In contrast, a decade from now, the public will still be very divided on abortion, and battles to regulate or reduce abortion will still be ongoing.

In conclusion, I say to my fellow gay Americans, and to anyone else who favors marriage equality: fear not. Justice Kennedy did great things for us — one would be hard-pressed to find an individual who has done more for gay rights than he has — but the marriage right enshrined in Obergefell transcends him. We won the fight not just in the Supreme Court but in lower courts, in legislatures, and in the court of public opinion — and those other victories will help preserve the hard-fought win of Obergefell, in terms of both the core marriage right and any benefits of marriage that actually matter.

Marriage equality is far more durable than many think. It will endure, long after Justice Kennedy no longer walks the halls of the marble palace at One First Street.

[1] Hello, reader! Welcome to the footnote where I try to explain, in under 500 words, my views on marriage equality as a legal issue (as opposed to a policy issue).

So… to be totally honest, if we were writing on a blank slate, I’m not sure the U.S. Constitution guarantees a right to same-sex marriage. (Yes, I know — heresy for a gay man in 2017.) I have textualist and originalist leanings (even if I’m not as extreme as I was in my youth), and I tend to agree with the late Justice Scalia: the Constitution is silent on a great many things, leaving them up to the people and their elected representatives.

But I also have a strong respect for precedent, and by the time Obergefell reached the Court, the con-law slate was far from blank. As Justice Scalia himself argued when dissenting in both Lawrence and Windsor, the reasoning of those precedents pointed strongly in the direction of a legal right to same-sex marriage. This explains why the vast majority of lower-court judges — from across the ideological spectrum, both Republicans and Democrats — ruled in favor of marriage equality even before the Supreme Court handed down Obergefell.

Finally, as a human being and gay man, emotionally I was rooting for Jim Obergefell and the other petitioners, notwithstanding my jurisprudential concerns about the correctness of their position in the abstract. So now that marriage equality is the law of the land, I can’t say — unlike most of my fellow travelers in textualist and originalist circles — that I’m terribly upset. Just leave it be, and move on to other, more worthwhile battles.

[2] Yes, I know — not all of the more than 100,000 gay couples who have gotten married since the Court’s ruling in Obergefell got married IN RELIANCE on Obergefell, since a number of states had gay marriage before Obergefell. But if you subtract the number of states where same-sex marriages became legal because of federal-court rulings post-Windsor and pre-Obergefell — rulings in which lower-court judges applied Windsor in anticipation of Obergefell, and rulings that would no longer be good law if Obergefell got overruled — you’re talking about just a dozen states. So it is absolutely fair to say that overruling Obergefell would cast doubt upon the marriages of tens of thousands of gay couples nationwide.

[3] No, declining to provide services to a gay wedding is not exactly the same as refusing to serve people celebrating an interracial marriage (a box I check as well). I don’t have time to get into it here, but in short, opposition to same-sex marriage is not QUITE as illegitimate a position, in terms of degree, as opposition to interracial marriage. Remember, even though attitudes have changed rapidly, a third of Americans still oppose gay marriage.

Such opposition to same-sex marriage arguably does not rest on a belief that one group is inherently inferior to another, at least not in precisely the same way that opposition to interracial marriage does, and not everyone who opposes gay marriage is necessarily homophobic. Instead, one could argue — for example, as Ryan Anderson does in this Heritage Foundation essay — that opposing SSM rests upon “the anthropological truth that men and women are distinct and complementary, on the biological fact that reproduction requires a man and a woman, and on the sociological reality that children benefit from having a mother and a father.” (And I say all this as a gay man who is in the process of trying to have a biological child who will have no mother.)

Marriage Equality May Soon Be in Peril [Slate]

Earlier:

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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