The Obergefell Dissenting Justices Want to Create a Right Not to Feel Like a Bigot, by Ruben Garcia, Guest Blogger

The Supreme Court’s decision in Obergefell v. Hodges, No. 14-556 (U.S. Jun 26, 2015) will always be remembered for recognizing the stigma that gays and lesbians encountered because of laws that prevented them from marrying their partners while granting that right to couples of the opposite sex.

Justice Kennedy puts it as follows: “The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.” Obergefell v. Hodges, 27 No. 14-556 (U.S. Jun 26, 2015). Further, the patchwork system of state by state regulation of marriage also served to stigmatize couples when doing nothing more than traveling to another state. James Obergefell lost his partner to ALS and brought the case in Ohio to win the right to have his spouse’s name on his death certificate. Ijpe DeKoe’s marriage to Thomas Kostura was not recognized by Tennessee, even though DeKoe’s service in the military brought many of the benefits of marriage through the recently-won (2013) United States v. Windsordecision. These plaintiffs were suing for equality in the eyes of the law. Justice Kennedy wrote: “As made clear by the case of Obergefell and Arthur, and by that of DeKoe and Kostura, the recognition bans inflict substantial and continuing harm on same-sex couples.” Obergefell v. Hodges, 32 No. 14-556 (U.S. Jun 26, 2015).

Stigma and the Constitution

The idea that laws can stigmatize is a familiar one in race cases under the Equal Protection Clause of the Fourteenth Amendment. Brown v. Board of Education relied heavily on the stigma that segregated education visited on African-American school children to decide that separate schools were not equal. The Court’s famous reliance on the studies done by Dr. Kenneth Clark using black and white dolls has been debated since 1954. In addition, since 1906, the court has said the Thirteenth Amendment prohibits not just slavery or involuntary servitude, but also “the incidents and badges of slavery.” Hodges v. United States, 203 U.S. 1 (1906).

In his opinion for the Court, Justice Kennedy cited to many of the studies presented both for the dignitary harms against gays and lesbians and also their children occasioned by the denial of equal marriage. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Obergefell v. Hodges, 33 No. 14-556 (U.S. Jun 26, 2015). Another “basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” (citing Pierce v. Society of Sisters, 268 U. S. 510). Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser.” Obergefell v. Hodges, 3 No. 14-556 (U.S. Jun 26, 2015).

Justice Thomas and “Dignity”

Despite the long pedigree of stigma in the Court’s precedents, each of the four dissenting opinions dismissed the stigma felt by the plaintiffs and their families. Justice Thomas went on at length about how the government “cannot bestow dignity, and it cannot take it away.” “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.” Apart from the absurdity of these comparisons, it is clear that the law has long recognized certain actions – judicial, legislative and executive– as dignitary harms.

Who’s Sullying Whom?

The dissenting justices make clear in several passages of their opinions that they see the stigma of being viewed as a bigot for being against same sex marriage as worse than the stigma of being denied marriage. The harm that the dissenters are most concerned about is the harm to those who now will be in the legal and political minority of those still not accepting same sex marriage. Chief Justice Roberts put it this way:

“Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate.” Obergefell v. Hodges, 67 No. 14-556 (U.S. Jun 26, 2015) “It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s ‘better informed understanding’ as bigoted.” Ante, at 19.” Obergefell v. Hodges, 68 No. 14-556 (U.S. Jun 26, 2015)

Of the decision, Justice Alito said: “It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.” Obergefell v. Hodges, 101 No. 14-556 (U.S. Jun 26, 2015). Here, Justice Alito seems to say that the comparison between race discrimination and sexual orientation discrimination is wrong not because it is a bad analogy, but because it operates to shut down the conversation. Why, however, would this be a reason that the majority’s decision is wrong or the analogy is not an apt one?

Justice Antonin Scalia, perhaps the one most willing to “sully” the other side in a debate, was also very concerned the those who disagree with the decision would be mocked, even though they have the “wisdom of the ages” on their side, so he mocked the pretensions of the five justices in the majority: “These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.” Obergefell v. Hodges, 20-21 No. 14-556 (U.S. Jun 26, 2015).

Double Standards for Government Employees?

Justice Alito and the other dissenting Justices were not concerned about the “marginalization” of those who opposed the Court’s 5-4 decisions on affirmative action, voting rights, or campaign finance the way they were in this decision: “By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.” Obergefell v. Hodges, 102 No. 14-556 (U.S. Jun 26, 2015). As for the bitter and lasting wounds of slavery, according to this analogy, the nation has “moved on” in a way that it simply cannot from this decision.

Finally, and perhaps in most tension with his own opinions on the right of government employees to express their views on the job, Justice Alito portends a new round of litigation that has already been encouraged by the likes of Alabama Chief Justice Roy Moore and U.S. Senator Ted Cruz (R-Tex.). It is the real prospect of conscience claims by government employees such as county clerks and law enforcement asserting their religious rights. ”I assume,” Alito writes, “that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.” Obergefell v. Hodges, 102 No. 14-556 (U.S. Jun 26, 2015) (emphasis added). This flies in the face of the Court’s decision in Garcetti v. Ceballos, which held that government employees have no First Amendment freedom of speech protections if the speech involves part of their “official job duties.” We will soon discover just how different the Free Exercise clause of the First Amendment will be treated by the dissenting Justices.

The idea that a Supreme Court decision is wrongly decided because it will make a segment of the population feel bigoted is completely foreign to constitutional law. It is certainly much more legally irrelevant than the feelings of the plaintiffs in these cases, which were dismissed as irrelevant by Chief Justice Roberts. “Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.” Obergefell v. Hodges, 54 No. 14-556 (U.S. Jun 26, 2015) (Roberts, C.J., dissenting).

Since these are dissenting opinions, they cannot create any constitutional right not to feel bad about being against gay marriage. But they foreshadow perfectly how solicitous these four justices will be of the religious objections of those in the vanishing minority of people who will still oppose same sex marriage. Those cases have already been telegraphed by the dissenters; it is only a matter of time before four justices agree to hear one of them.