Calling All Lawyers!!!

Burt Likko says:

Or is this, as it at least feels to me, a bit of an emotional overreaction to one of many, many legal cases in our history that tweaked our understanding of liberty just a bit, and which will not lead to complete and total anarchy?

Yeah, it’s that. Longer answer follows.

It’s all about “defining the liberty interest,” something that in my digest of Obergefell I referred to as “framing the issue.” The scope of the concept of “substantive due process,” which is the concept that Alito takes issue with, was well-restated in what has become the landmark decision of Washington v. Glucksberg:

Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” … . Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest. … Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” … that direct and restrain our exposition of the Due Process Clause. … [T]he Fourteenth Amendment “forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”

(Third paragraph of part II of Rehnquist’s majority opinion, internal citations omitted.) So that’s the operative language, that’s the standard. Justice Alito, unlike Justices Scalia and Thomas, does believe that this is, at its fundament, a valid use of the Fourteenth Amendment.

His issue, which he was quite direct and forceful about in his dissenting opinion in Obergefell, was that he believed Justice Kennedy’s majority opinion misapplied this standard. It’s not that the standard doesn’t exist, it’s that Kennedy did it wrong. A “careful description” of the right that Obergefell and the other plaintiffs claimed is a right to marry someone of the same sex, as Alito framed the issue. And there is no deep-rooted tradition of same-sex marriage, you see, and we’ve all had plenty of ordered liberty without same-sex marriage for these past 250 years or so. Instead, Kennedy describes this “dignity” thing which is inherently spongy and difficult to define. It’s imprecise. It escapes “careful description” the way a drop of mercury on glass escapes a scalpel. So, Alito’s claim goes, whenever five Justices get together and decide that damnit, the government just shouldn’t do something because it stinks that the government is doing it, well, that’s the law.

That’s Alito’s claim. And there’s a little merit to it — Kennedy could have got Obergefell to where he wanted to get Obergefell, in my opinion, on equal protection grounds alone and never needed to examine whether a liberty interest was implicated at all. Kennedy has been trying to, and now has finally succeeded, in boostrapping the concept of substantive due process, the concept that there are just plain some things the government can’t do, to be a way of circumscribing governmental efforts to pass laws that make life harder for gay people. (Which is why I say equal protection alone would be enough; all Kennedy needs to do is find homosexual a suspect class, which there’s ample case law authority for.)

In practice, though, Alito’s claim is pretty overblown. His argument only makes sense if the definition of the right as the right to marry someone of the same sex is the properly-narrowed definition of the right. And you can pretty much always define a claim of right so narrowly that there’s no tradition of it happening; that’s inherent in the nature of a case of first impression. The real question is whether Kennedy’s framing or Alito’s framing is correct: Alito says it’s the right to marry someone of the same sex, and Kennedy says it’s the right to marry, period. And there’s pretty clearly a massive tradition of marriage. Should you be presumptively free to marry? Yes, obviously so. Should the state need to show a damn good reason why you shouldn’t be able to marry the person you want? Yes, clearly.

So if you frame the issue in one way, which is to say if you define the word “liberty” in a broad way, you’re steering the ship towards the Charybdis of liberty meaning anything you want. That doesn’t mean you’re actually sailing into the maelstrom of kritocratic anarchy, though. Any more than defining the word “liberty” with a narrow meaning risks running the ship aground against the Scylla of a world view hidebound to the social mores of the late eighteenth century. By which I mean that Alito (at least if we take him at his word in his dissenting opinion) would allow for the democratic process to permit adoption of SSM, and thus for a tradition of same-sex marriage to establish itself over time. One day, a generation or so in the future, when most states had democratically adopted and maintained SSM, he (or more properly his successor) would say, “Yes, we now have a lengthy tradition and it is good and now we can say Glucksberg applies to it because we know exactly what this means.” But 2015 is too soon.

So you can see there’s some merit to his claim. Just not a lot, and certainly not a convincing amount — given contemporary social mores, I think everyone who is not being deliberately dense knows very well what same-sex marriage is: it’s marriage.Report