Supreme Court defines important rights . . . but not clearly enough

Let’s start with what today’s decision was not.

It was not five judges forcing their will on the American people; five judges used the Constitution, as it was intended, to prevent a majority from depriving a minority of a fundamental right that the majority enjoys. The idea of same sex marriage undisputedly offends many but the marriage of a same sex couple has absolutely no bearing on, nor does it detract from a heterosexual union. Instead what was wholly absent from the four dissents was any explanation for how the right “to marry, establish a home and bring up children” that is and has been long protected by the Due Process Clause for heterosexual couples, cannot be extended same-sex couples even though their sexual orientation is protected. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

Expanding the right to marry to same-sex couples also did not depart from millennia of history. Except for the smallest sliver of this millennia – indeed just part of the last century and only in the developed world – that historical definition of marriage was one man and one or several women, considered only to be the chattel of their new husband. Let’s not pretend that the circa-2002 definition of marriage, before Hawaii legalized same-sex marriage and this storm arose, when then marriage meant a man and woman joined equally in a union, is what marriage was when the Framers signed the Constitution. Contrary to what Chief Judge Roberts would have us believe, there has never been a “universal definition” of marriage.

Thus today’s decision is laudable insofar as it guaranteed that a class of Americas can no longer be banned from the from the fundamental right to marry, but like United States v. Windsor, just two years ago, the Court today left key questions unanswered. In Windsor, the Court could have easily answered the questions resolved today and obviated the last two years of litigation that further entrenched the divisive debates and harmed our families. But today, the question of whether gay rights are subject to strict scrutiny was not resolved, it should have been answered, and it will presumably result in more divisive litigation at the Court very soon. While Associate Justice Kennedy has been seen as the champion of gay rights – indeed the author of Lawrence, Windsor, and Obergefell, all released on June 26th (will future generations make this the National Kennedy Gay Rights day?) – one is left wondering why this question remains unanswered as clearly the conservative block was never going to join the majority. Perhaps we will have to wait for the autobiographies to be published to understand why the majority remained silent on strict scrutiny. Perhaps Justice Kennedy’s vote would have been the lost vote.

Additionally, the majority declined to address the recent and dangerous expansion of the domestic relations exception. By contrast, the Chief’s dissent wasted little ink before turning to the dicta that "[t]he whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the United States.” In re Burrus, 136 U.S. 586, 593-94 (1890).

In our amicus brief, we argued that "the central premise of the domestic relations exception originally appeared as a dicta." Although this was first articulated in 1959, the Supreme Court did not rely on this justification for a holding as opposed to dicta until 1930. Ankenbrandt v. Richards, 504 U.S. 689, 694 (1992) ((noting that language in Barber, first announcing exception, was "technically dicta") (citing Barber v. Barber, 62 U.S. 582, 584 (1858)). For too long, lower courts have been left to their own to interpret what the Court intended in Ankenbrandt."

Currently the Circuits have split on applying the domestic relations exception and the justiciability of the family in the context of federal questions, and scholars have noted that this has undermined important federal rights affecting families, while showing no signs of abating. See e.g. Harbach, 66 Wash. & Lee L. Rev. 131 (2009).

For these reasons, the Chief was right that there is something to celebrate today, but we disagree with the Chief about not celebrating the Constitution. It should be. Significantly so. But this celebration must be tempered by the fact that the Court did not go far enough when applying the Constitution to define important family and gay rights. That apparently will be left for another day, which is of no comfort to the families caught up in litigation today.