Obergefell Supporters: Decision Was Poorly Reasoned, Will Create Backlash

July 5, 2015

Two contributors at The Volokh Conspiracy, both of whom support Obergefell’s redefinition of marriage to include same-sex couples, nevertheless argue that it was a poor decision that will have unintended consequences.

Ilya Somin: “A great decision on same-sex marriage – but based on dubious reasoning”

Today’s Supreme Court decision on same-sex marriage is a great result, but based on dubious reasoning. . . .

For gays and lesbians seeking the right to marry and for many of us who have supported their cause, the result in today’s case matters more than the reasoning. But the Court’s legal reasoning also deserves attention, both because it is important in its own right, and because it establishes a precedent for future cases. Unfortunately, much of Justice Anthony Kennedy’s majority opinion is based on dubious and sometimes incoherent logic.

Gay rights advocates have advanced several different rationales for a constitutional right to same-sex marriage. . . .

Unfortunately, Justice Kennedy’s majority opinion doesn’t clearly endorse any of the various arguments previously advanced for a right to same-sex marriage, even as it to some degree nods at all of them. The result is a far from satisfying majority opinion.

. . . the standard test for identifying a fundamental right under the Due Process Clause is that the right must be “deeply rooted in this Nation’s history and tradition.” It’s hard to argue that the right to same-sex marriage is deeply rooted in this way, given that it did not exist in any state until 2003.

David Post: “A few words on Obergefell and the countermajoritarian tendency”

. . . perhaps because I’ve been re-rereading my Federalist Papers of late, in connection with some Internet governance work I’m doing, it does seem to me that celebrations are most definitely not called for, and that, like a lot of bad constitutional law, this one will come back to bite us.

I should say that I’m delighted that, as of today, we live in a country where there are no more laws on the books prohibiting same sex marriage.  I’m considerably less delighted that we arrived there because 5 Justices of the Supreme Court have so decided the matter.

We’ve been here before; the parallels to Roe v. Wade are pretty close, and I suppose that how one feels about the Obergefell case mirrors pretty closely how one feels about Roe.  I’m one of those people who thinks Roe was a serious constitutional mistake, and that its consequences — for women’s reproductive rights, among many other things (including the general state of our political culture) — have been terrible. States in 1973 were already loosening restrictions on abortion (just as states have been loosening up marriage restrictions over the past few years), and the movement was pretty clearly picking up steam, state-by-state.  There would have been lots of sporadic fighting over the ensuing years, as one state after another started to re-think its abortion laws, with some victories and some losses.  But Roe galvanized the opposition — there was no “Christian Right” before Roe — and by constitutionalizing the question singlehandedly made it a national issue that has been consuming us for 40 years. . . .

Roe was a hollow victory for women’s reproductive rights, and I fear that Obergefell might prove to be one as well.  We’ll never know what the world in 2015 would look like without Roe v Wade, but I’m reasonably sure that women — and especially poor women — in, say, Texas would have had greater access to abortion services in that alternate world than in ours.

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