Miller- Blog Post 10

 

Does the Constitution need an amendment explicitly guaranteeing the right to marriage for non-heterosexual couples? In Obergefell v. Hodges, the Court ruled that establishing the right to gay marriage did not require an amendment, because it was implicit in the Fourteenth Amendment. Justice Kennedy, writing for the majority, argued that the text of the Fourteenth Amendment, which holds that states cannot "deprive any person of life, liberty, or property, without due process of law," includes protections for liberties including intimate personal choices such as same-sex marriage.

     Justice Scalia dissented, arguing that at the ratification of the Fourteenth Amendment, marriage was only allowed between men and women in all states. To Justice Scalia, the Court, in construing the Fourteenth Amendment to protect gay marriage, engaged in constitutional revision far outside of the scope of its powers. Justice Scalia’s arguments in Obergefell reflect his view expressed in “A Matter of Interpretation,” that the “unquestionably ‘time-dated’ character of the concrete provisions” lead “to the conclusion that the more abstract provisions are time-dated as well” (147).  To Justice Scalia, the time-dated meaning of the Fourteenth Amendment does not include the right to gay marriage because it did not have that meaning when it was written.

    This case is a fascinating illustration of the debate between Scalia and Dworkin, who would likely side with Justice Kennedy. Specifically, it illustrates Dworkin’s distinction between semantic and expectation originalism. According to Dworkin, “semantic originalism … insists that the rights-granting clauses be read to say what those who made them intended to say, and ‘expectation’ originalism … holds that these clauses should be understood to have the consequences that those who made them expected them to have” (2) In this case, one could argue that Scalia engaged in expectation originalism (a classification he would likely reject), because he contends that when the Fourteenth Amendment was ratified, it was not expected to include a right to gay marriage. Dworkin, on the other hand, would likely support Justice Kennedy’s analysis, and argue that a semantic originalist would rule that the text of the Fourteenth Amendment and the principles that underly it include an implicit protection of the right to gay marriage. As he explains, “key constitutional provisions, as a matter of their original meaning, set out abstract principles rather than concrete or dated rules” (122). Thus Dworkin would likely conclude that the fact that the original expectation for the Fourteenth Amendment did not include protections for gay marriage, the principles that are implicit in its text indeed support such protections. In sum, while Justice Scalia views the majority opinion as unconstitutionally creating a new right, Dworkin would likely defend it as upholding the rights already enumerated in the Fourteenth Amendment.

    This case also brings up interesting questions of democracy. In his dissent, Justice Scalia argues that it is undemocratic for the unelected Justices to create a new right in the case Obergefell because it is the elected legislature's job to make new rules and amendments. In contrast, I believe it is the job of the Court to protect the free and equal citizenship of all persons, and that failing to protect the right to gay marriage would infringe upon persons’ free and equal citizenship and thus would be anti-democratic. First, because as Brettschneider argues, the majority cannot be entrusted with the protection of minority rights, and thus substantive constraints enforced by the unelected Court are necessary. Second, because it is unfair to unload the burden onto gay individuals to convince a majority that they deserve their rights legislatively protected. Thus, I think the Court’s decision in Obergefell is distinctly democratic.