By a narrow 5-to-4 majority, the Supreme Court in Obergefell v. Hodges has ruled that the US Constitution requires states to permit gay and lesbian couples to marry. The decision raises many interesting questions about the court and its role in American society: the extraordinary influence of one man (Justice Anthony Kennedy) on the court’s decision-making, the malleability of constitutional interpretation in the face of rapidly shifting social norms, and the justices’ willingness/reluctance to advance beyond public opinion in their constitutional interpretations.
Yet the most interesting aspect of Obergefell may be the way the conservative justices chose to frame the issue in their four separate dissents: Each criticized the court’s refusal to defer to democratic decision making on the issue of gay marriage. Chief Justice John Roberts accuses the majority of “stealing this issue from the people.” Justice Antonin Scalia calls “attention to this court’s threat to American democracy” and accuses the majority of seeing itself as “the ruler of 320 million Americans coast-to-coast.” Justice Clarence Thomas denounces the majority for putting the issue of same-sex marriage “beyond the reach of the normal democratic process for the entire nation.” Justice Samuel Alito says the majority’s ruling “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”
These are strong statements, and they warrant a response. Here are two. First, the dissenters cannot really believe in unfettered democracy to the extent they profess. Presumably, none of them thinks that we should turn over to democratic majorities the decision whether to establish Protestantism as the national religion, whether to authorize the enslavement of human beings, whether to racially segregate our schools, or whether to permit women to enjoy equal citizenship rights. For much of our nation’s history, the Constitution was interpreted to permit each of these practices, meaning that their resolution was left to the democratic process. The dissenters offer no criteria to explain why gay marriage ought to be resolved through democratic votes but slavery and racial segregation should not be.
Second and more importantly, these democracy-loving statements are quite extraordinary coming from justices who, at least as often as their liberal colleagues, refuse to defer to democratic decision-making. The conservative justices regularly invalidate decisions made by Congress, state legislatures, and even city councils and local school boards on a wide range of issues, including campaign finance regulation, gun control, race-based affirmative action, efforts to promote racial integration in public schools, and measures designed to protect the voting rights of racial minorities.
The conservative justices probably would defend themselves from charges of inconsistency by arguing that their interventions on such issues are grounded in more compelling interpretations of the Constitution’s text and history than is same-sex marriage. But they are not. The justices who invalidate race-based affirmative action do so on the basis of a “color-blind” interpretation of the Constitution that has no grounding whatsoever in the text of the Fourteenth Amendment and is flatly inconsistent with its original understanding. The justices who have regularly voted to invalidate campaign finance regulation do so on the basis of an interpretation of the First Amendment that its framers would not have dreamed of and that seems to have occurred to virtually nobody for nearly the first two hundred years of the republic.
Roberts denounces “judicial policy making” on the issue of gay marriage. Does he believe that the court does less policy making when it bars a local school board from considering the race of students when attempting to promote integration in public schools or forbids a city council from mandating gun control in an effort to reduce violent crime? In such cases, the conservative justices take anything but the “modest and restrained” approach that the chief justice advocates on gay marriage.
Scalia calls the court a “threat to American democracy” for daring to take the issue of same-sex marriage away from the American people. Here’s a pop quiz: Which do you think is a greater threat to democracy: Court decisions that license the Koch brothers and Sheldon Adelson to spend hundreds of millions of dollars to influence the outcome of elections (rulings that 80 percent of Americans oppose, according to opinion polls) or a decision that authorizes two people of the same sex who love each other to get married (which 60 percent of Americans support).
In his Obergefell dissent, Roberts says that “those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves.” The chief justice is right: The Framers had barely any conception of judicial review. They would have been astonished — and probably aghast — at the idea of unelected, relatively unaccountable judges resolving so many of the nation’s most pressing social and political controversies — affirmative action, abortion, school prayer, the death penalty, campaign finance regulation, political gerrymandering, national health care reform, manual recounts of contested ballots in close presidential elections.
We ought to have an open and robust debate in this country as to whether judges have too much power and whether unmitigated democracy adequately protects the interests of minority groups. But that debate is not well served by opportunistic invocations of democracy by justices who have consistently proved more than happy to trump democratic decisions on those issues where they do not approve of what the majority has decided.
Michael J. Klarman is a professor at Harvard Law School and author of “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage.’’