Why the Gay Marriage Decision is Awesome
(Even though Anthony Kennedy wrote it)
Anthony Kennedy is not a very good judge. He tends to write really muddle-headed opinions that substitute highfaluting rhetoric for legal analysis, especially in constitutional cases. But he actually got it right in the Obergefell case.
To see why, I’d like to tell you a tedious little fable.
Imagine that the U.S. states have, and have had for many years, a very special kind of contract. Call it an Individual Economic Partnership (IEP). That contract, into which citizens may enter by carrying out a series of ritualized formalities, closely entwines the economic lives of those who enter into it. The arrangement carries some major advantages (such as shared economic support) and some major disadvantages (such as mutual economic vulnerability). And it supports a wide variety of individually risky, but socially beneficial, life choices, such as childrearing and buying expensive fixed assets (like homes). It’s possible to reconstruct the kinds of economic relations that Individual Economic Partners have with a collection of less comprehensive contracts rather than with an IEP, but doing so is difficult, complex, and fairly pointless for most citizens.
As it so happens, the United States is prone to economic instability, and it lacks a serious social safety net. As a result, the vast majority of people find that it is in their interest to enter into IEPs, and have so found for hundreds of years. Moreover, the IEP contract has existed in essentially every other society for millennia, and the vast majority of people have chosen to enter into it, for essentially the same reasons as we do in the United States, also for millennia.
Because of this long history of near-universal adoption, and because entering into the IEP is in practice a manifestation of economic and social responsibility, the IEP has acquired a powerful social meaning. Entering into an IEP has long been seen as a kind of precondition of full adulthood; those who choose not to enter into IEPs have long been scorned, although that attitude is slowly changing.
Because of those social meanings, and because of the collective economic advantages of IEPs, the U.S. states have attached a variety of important legal consequences to having entered into an IEP. By law in all fifty states, entering into an IEP provides important tax advantages, facilitates desirable property arrangements, and makes it vastly easier to manage important aspects of one’s personal life, particularly medical care and childrearing. Unlike the economic advantages of the IEP contract, these noncontractual legal advantages are extremely difficult or impossible to replicate without an IEP. Moreover, this preferential state treatment of those who enter into IEPs has reinforced the high status of those who choose to enter into the contract.
However, for the entire history of the United States, redheads have been forbidden from entering into IEPs. A few states have relaxed this restriction, but not many, and the interstate effect of contract and property arrangements has made life complicated and difficult for redheads who have entered into IEPs in states which permit it. Life is significantly harder for redheads due to their inability to enter into IEPs.
I take the story I just told to be the root of a claim that entering into an IEP is a fundamental right, and that it is a fundamental right in substantial part because the state and federal governments, with their choices — to structure the economy and the social safety net such that IEPs are economically necessary for the vast majority of people, to subsidize IEPs with copious other legal rights — have participated in making it a central social institution, access to which is a precondition of full integration into the community and the ability to take advantage of the full set of benefits the United States offers its citizens.
That’s just what Justice Kennedy said:
For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. […] Valid marriage under state law is also a significant status for over a thousand provisions of federal law.[…] The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects.
The legal argument for this position is less important than its evident morality: regardless of one’s opinions about liberalism or about capitalism a liberal democratic capitalist state violates the ideals (ideological or otherwise) embedded into it when it creates a category of contract which is the precondition for a vast number of economic, social, and legal benefits that are ostensibly made available to all citizens, and then bars a minority class of citizens from entering into it. If there is such a thing as “liberty of contract,” any such law would blatantly violate it.
There, I said it. “Liberty of contract.” The Chief Justice compared the majority opinion in Obergefell to the notorious Lochner case (and, absurdly, insultingly, sickeningly, horrifyingly, unconscionably, to Dred Scott), in the cliched cry of the dissent in any substantive due process case. And Lochner, and the cases that accompanied it, are best known and almost universally rejected for their elevation of private economic rights, particularly the right to contract, to constitutional status, and for thereby impeding the New Deal.
But if you read the story above, it starts to look like Roberts was more right than he realized. Obergefell isn’t like Lochner merely because both cases discovered a constitutional right that some people disagree with. The heart of the case for marriage equality, as opposed to every other kind of equality for LGBT people, is rooted in the twin claims that a) the exclusion of LGBT people from the relationship of marriage offers insult to them — it reflects an inferior social status — and b) that exclusion irrationally deprives them of the benefit of a kind of private legal arrangement — a contract —that is central to economic and social life. Argument b) just is a liberty of contract claim. It’s the latter idea that runs smack into the Chief Justice’s invocation of Lochner as the traditional judicial objection to the finding of “new” fundamental rights protected by the Constitution.
So here’s the thing about that story. Liberty of contract is a constitutional right. It always has been. And expanding access to contractual rights has long been a goal of civil rights and social justice movements in the United States, from the abolition of slavery (or the freeing of labor contracts), to the entry of women into the labor market, to the end, in Shelley v. Kraemer, of racially restrictive covenants in the purchase of housing. Each of these steps served to promote the economic and social inclusion of previously excluded groups by stripping away legal restrictions on the exercise of freedom of contract. The categorical rejection of the notion of “liberty of contract” is something that my fellow leftists get wrong, and our libertarian sometimes-allies get right.
Also, Chief Justice Roberts, I’ll see your invocation of Dred Scott and raise it an invocation of Plessy v. Ferguson. For Plessy was a freedom of contract case too: black folks wanted to buy access to unsegregated railway cars, and, in many cases the railroads wanted to sell it to them; the government wouldn’t allow it. Indeed, the majority opinion in Plessy included the following line, which proves the philosopher’s dictum that “your modus ponens is my modus tollens”: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State.”
Where Lochner went wrong — and where those today who fight the redistribution of wealth, the control of industry, and even antidiscrimination laws and union shops under the tendentious mantra of “economic liberty” also go wrong — was not in recognizing the existence of fundamental economic rights, but in elevating them above other kinds of core economic and social rights, as well as above critical economic and social projects meant to fulfill the promise of economic liberty for all. Lochner, and the “right to work” activists today, put the contractual liberties of those who own and those with power above the equal contractual and other liberties of those who work and those without power. And that — -not because it recognized constitutional economic liberty, or somehow represented a unique kind of judicial overreaching — is why the Lochner era is a sour note in our legal history.
The liberty of contract, properly understood, prohibits the creation of castes structured by the power to enter into certain kinds of contracts. And if the wellbeing of humans must be tied to the form of contract, it at least prohibits the exclusion of some from access to that source of wellbeing. It is that liberty of contract which was violated when women were excluded from “dangerous” jobs and when blacks were excluded from railroad cars. It is that liberty of contract — understood as a human right rather than a right that attaches to the mere happenstance of citizenship — which the unjust law excluding undocumented immigrants from the labor market violates today. And it is that liberty that has been vindicated by recognizing a fundamental right to enter into the contract of marriage, first for interracial couples in Loving v. Virginia and now for gay and lesbian couples in Obergefell v. Hodges.
Lochnerism? I’ll take it.
