Monday, June 29, 2015

Definition Uber Alles: The Obergefell Dissent

I am puzzled by the dissenting opinion in this case.  The majority opinion is, I think, too rhapsodic but ultimately legally sound.  The dissent on the other hand is neither, and I think borders on being weird.  I can do without rhapsody in the Supreme Court, but am disturbed by oddity in that institution.  Both rhapsody and oddity are of concern, as the appearance of either of them in a legal opinion is a sign that the opinion's author has departed from legal analysis and strayed into the Never-Never Land of the zealot.  But oddity is of particular concern when it comes to the consideration of legal rights.

The dissenters are in a difficult position because it cannot be doubted that the ability to marry has been recognized as a legal right protected by the Constitution since at least 1962.  So in order to dissent, they must necessarily maintain that legal right is not available to certain people who are as much protected by the Constitution as any other American citizen.  Normally, such rights are available to all subject to forfeiture, generally by virtue of conviction of a criminal act.  However, it can't be maintained that gay people seeking to marry have all been convicted of a criminal act (no, sodomy doesn't count as criminal anymore under the Constitution).

The dissenters are thus reduced to contending, in effect, that the legal right to marry is a right that can be exercised only by particular people, but that others are excluded from exercising this legal right not because they have forfeited that right but because of a definition.  According to the dissenters, marriage is a legal right that can only be exercised by one man and one women because that is what the definition of "marriage" requires.

The dissent acknowledges that the definition of "marriage" may be changed, though.  The dissenters think, however, that the people through the legislature must change the definition, and not the court.  Thus we find in the dissent references to democracy and the will of the people which are unusual in a Supreme Court decision, as the Supreme Court has for many years disregarded the wishes of the people in upholding and interpreting the law when it deems it necessary to do so to uphold the Constitution, and this is indeed its function in our system.  The dissenters have all of them done just that themselves.  They simply abhor doing so in this case.

By acknowledging that the definition of "marriage" may be changed at all, however, and that if changed the legal right of marriage may be extended, the dissent creates problems for itself.  It makes the existence of a legal right dependent on something that may change, first, and this is something which the dissenters may find hard to stomach in other cases.  There is in addition a danger in letting the people, or the legislature, define what constitutes a legal right, as one hopes the dissenters recognize, even if that recognition would hint that they aren't being entirely impartial in this case.  The Founders were well aware of the potential for a tyranny of the majority, and took steps to avoid it; one of those steps was the creation of the Supreme Court.

There is also a danger in sanctioning the idea that it is possible to "define away" a legal right.  If one accepts that the Supreme Court must in all cases accept what a legislature mandates as a definition, it would be easy enough for a legislature to adopt definitions which would restrict existing legal rights or create new ones by adopting a particular definition. 

Perhaps it can be argued that in the case of "marriage" the dissenters refer to a definition of long standing, not dependent on legislative whim.  But the same could be said of "property" which until recently had been defined for many years as including certain human beings. 

Now there is talk of civil disobedience, and fears of restricting religious freedom.  There is even talk of the Supreme Court defying God's law by those who think of God as obsessed with human sexual relations (God as voyeur, as it were).  But the majority opinion makes it clear that should not be a concern.  This decision should properly be considered as applicable to marriage as a legal concept, which is in effect a contract or partnership.  Religions may consider it whatever they like, and require whatever rituals they think appropriate governing what they think is a marriage.  That should not be a concern of the law.  Similarly, it should not be a concern of religions what the State provides as governing this particular kind of contract or union.

I think it likely that we will not see the same kind of hysteria we saw in the days when the courts mandated segregation.  Acceptance of gay marriage has spread with remarkable celerity, and, frankly, those who oppose it and oppose modern society generally will die off soon enough, to be replaced with the less intolerant, or will withdraw from that society to live and die in relative isolation, for good or ill.

Perhaps the times really are a-changin', this time. 


  1. I've been working on a three-part discussion of the latest Supreme Court term on my own blog. The part you might be most interested in is here:

  2. Thanks. I'll take a look. I admire you giving it three posts instead of one.