Quick Thoughts on Obergefell
I finally got a chance to read Obergefell. The majority’s reliance on the due process clause and not equal protection is a bit of surprise to me (indeed, according to the Roberts’ dissent, even the Solicitor General disclaimed the due process argument), but perhaps is justified by what might be the sheer volume of litigation that would have resulted if the majority rested its decision on equal protection grounds rather than due process: had it held on equal protection without also finding a violation of due process, that would mean that each instance of a law according a benefit to an opposite-sex couple would have to be challenged from the perspective of the proper standard of constitutional review, i.e., rational basis — intermediate scrutiny — strict scrutiny. By simply declaring that the right to marry another person, regardless of that person’s sex, is an inherent part of liberty, there is simply no need now to challenge the rationality of gender-based restrictions found throughout the law to determine whether they satisfy constitutional demands of rationality. This clean solution to what might otherwise have been a rather large practical problem in implementing a commitment to marriage equality, however, raises problems of conceptual clarity insofar as it seems to recognize a fundamental positive liberty to marry. I don’t know whether in the case of US constitutional law, there are any other commitments to positive liberty, but there now seems to be a conception of liberty that requires the states to recognize marriage, and since this is now an inalienable kind of liberty, states must organize laws of marriage on a basis that does not discriminate on the basis of gender. I wonder, however, whether this positive liberty to marry also carries in its wake other positive liberties associated with families, like the right to pass on an estate to heirs? I also doubt the majority that endorsed a positive liberty to marry is likely to find a positive liberty to economic rights, e.g., a living wage for example. In any case, the chance that states could exit the marriage business, as some liberals hope for, seems to be extremely implausible in light of the majority’s language describing marriage as a freedom that is a necessary condition for individuals to obtain a host of goods that are required to live a good life. It does not seem to contemplate the possibility that a state could simply choose not to recognize the importance of these relationships — whatever called — because it is only by virtue of the public recognition of those relationships that it becomes possible to secure those other goods. Private ordering, it seems, cannot do the same job in securing these ends, at least according to the majority’s reasoning.