On June 26, 2015, Obergefell v. Hodges1 created a firestorm. A person wishing to marry another of the same sex had a right to do so. So said the Supreme Court of the United States [SCOTUS].
At least since Marbury v. Madison, it had been “the province and duty of the judicial department to say what the law is.”2 The Constitution of the United States is law in every real and practical sense, the highest law there is in this country.
Never mind that Obergefell made clear that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”3
Before tempers had a chance to cool, the Fifth Circuit delivered a counter-punch to Mississippi’s midriff.4
The firestorm reignited on November 5, 2015. Two justices of the Supreme Court of Mississippi suggested the opinion of the five Justice Obergefell majority just might be so dubious that state judges were not bound to enforce it.5
The matter needs to be discussed. First and foremost is the matter of how to discuss it so that the heat is turned down, not ratcheted upwards. And how to bring some perspective to the discussion.
Five-to-four SCOTUS decisions have been a fact of life for at least a century. Everyone knows of more than two or three such decisions thought to be wonderful, and the same number if not more thought to be terrible.
Men have been hanged on five-to-four decisions6 and men have been reprieved on five-to-four decisions.7
The Supreme Court of Mississippi has announced major constitutional doctrine by five to four votes.8
That Obergefell was a five-to-four decision, without more, can’t justify the brouhaha that has ensued.
Justice Anthony Kennedy authored the controlling opinion in the five-to-four Obergefell SCOTUS decision which has been met with such vitriol and angst. But what about the fact that several years ago the same Justice Kennedy authored the controlling opinion in the five-to-four SCOTUS decision in Citizens United9 which, if this is possible, has been met with as much vitriol and angst.
What is one to make of the fact that some ninety-plus per cent of those who approve of Justice Kennedy’s Obergefell opinion disapprove of his Citizens United opinion, and vice versa?
And that the same ninety-plus per cent applauding Obergefell will quickly explain that and how Citizens United has raped the Constitution and substantially damaged the republic, and vice versa for those who applaud Citizens United and despise Obergefell?
Without turning up the heat, how should we deal with the fact that neither side will consider the fact that it just might be wrong? This thought is a function of one of the Czekala-Chatham dissenters telling of his encounter with the work of a street artist in New Orleans who had placed signs around town “in simple back and white, ‘Think that you might be wrong.’”10
Pro-Obergefell folk will cheerfully pose that question to Citizens United supporters, but not to themselves. Pro-Citizens United folk will cheerfully pose that question to Obergefell supporters, but not to themselves.
The two Czekala-Chatham dissenters treat their readers to lots of quotations, from Alexander Hamilton in the Federalist Papers, from John Marshall, from Oliver Wendell Holmes, Jr., and from Justice Benjamin Curtis dissenting in Dred Scott.11
And, of course, they cite and quote from the four Obergefell dissenting opinions. As if they’d never felt the barb of the old adage that by and large all a dissenting opinion accomplishes is making clear the position that the majority rejected.
The apparent sincerity of the Czekala-Chatmam two suggests another view of a dissenting opinion: that it should be seen as “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into to which the dissenting judge believes the court to have been betrayed.”12
With this in mind, consider the quotations the Czekala-Chatham two offer. The great majority are stated at a level of generality that they would be equally at home (or out of place) in an opinion reaching the opposite result. In Daubert parlance, there is too great an analytical gap that these quotations may lead to a reliable adjudication.
Take, for example, “the Constitution ‘is made for people of fundamentally different views,’” lifted from Holmes’ famous Lochner dissent.13 Holmes is talking about fundamentally differing views of the meaning of “liberty” within the Due Process Clause of the Fourteenth Amendment. It is easy enough to imagine Justice Kennedy using that one in expounding “liberty” in his Obergefell majority opinion.
Some might think the quote out of place in both opinions. “General propositions do not decide concrete cases.”14 Holmes’ very next sentence in Lochner. His graceful way of saying there is “too great an analytical gap.”15
But it’s worse than that. How can a competent jurist familiar enough with Lochner to cite Holmes’ dissent be unaware that the “fundamentally different view” clause is only half of the sentence? The balance of the sentence reads: “and the accident of our finding certain opinions natural and familiar or novel or even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”16
We should not be too hard on the dissenting justice in Czekala-Chatham.17 He was quoting the Chief Justice of the United States. The Chief Justice’s failure, however, to recall the rest of the sentence — from the most famous and oft discussed opinion of the entire three year curriculum at his alma mater, the Harvard Law School18 — leaves him, in Shakespeare’s words, “hoist with his own petard.”19
This leads to another problem. The Czekala-Chatham dissenters seem not to have checked behind the Chief Justice’s argument that there is nothing in the Constitution that supports the right the Obergefell majority finds.20 What the Chief Justice argues simply is not so.
Justice Pierce’s commendable concurrence quotes the heart of Justice Kennedy’s majority opinion, citing the liberty prong of the Due Process Clause of the Fourteenth Amendment, and also the Equal Protection Clause, explaining that the two “are connected.”21
There are hundreds of Due Process Clause cases deciding major constitutional questions with like or less textual grounding, but no one fusses about those. International Shoe22 comes to mind.
Sensible, fair minded readers may not be convinced by Justice Kennedy’s Obergefell conjunction of the Equal Protection Clause and the liberty prong of the Due Process Clause.23
But saying the Constitution affords no textual basis for so arguing is not playing fair, unless it is at least coupled with a serious suggestion that the listener read and study Justice Kennedy’s opinion, and then make up his own mind.
Then there is the tired argument that the SCOTUS was legislating. Of course, the adjudication in Obergefell has a legislative component. So has every constitutional decision in SCOTUS history, starting with Marbury v. Madison.
The SCOTUS does not grant certiorari on a constitutional issue unless it has the collective conscious intent to legislate on some point of important public interest, or to reconcile some point of conflict among the U. S. Courts of Appeals.
A few days ago the SCOTUS announced it had granted certiorari to decide the constitutional enforceability vel non of Obamacare’s contraception coverage consistent with the religion clauses of the First Amendment. Can there be any doubt that the SCOTUS intends to engage in clarifying or corrective judicial legislation, constitutional variety?
Here’s betting a nickel that the case will be decided five to four, and will have a legislative component, with neither side having any greater textual support for its position than Justice Kennedy relied on when he exempted religious groups from having to accept same sex marriages.24
It is well to recall the very public career of Thomas Pickett Brady.25 Back in the late 1950s, while a circuit judge in Southwest Mississippi, Judge Brady attacked Brown v. Board of Education with a mean spirited passion that makes the four dissents in Obergefell and the two dissents in Czekala-Chatham seem quite mild.
In 1963 Gov. Ross Barnett appointed Judge Brady to the Supreme Court of Mississippi. Within a couple of years, Justice Brady came to an understanding of his oath that bears repeating in full.
Justice Brady was smart man. He was smart enough that he had come to see the part he and others had played along the road to September 30, 1962.
We acknowledge that all courts are fallible and their decisions are subject to acrid criticism. Nevertheless, this Court is under the authority of the United States Supreme Court. Our attitude toward a decision of that Court does not authorize or control its rejection or acceptance. We must follow the decision until it has been abrogated by constitutional and legal procedures. Irrespective of how erroneous it may appear, or how odious it is, a decision of the United States Supreme Court is still the ultimate in judicial determination and is binding on the tribunals and citizens of the respective states in comparable cases. As a self-governing agency it is imperative that this state operate under law, and law alone. The perversion of the law, regardless of the objective, can lead only to confusion, violence and anarchy. Just as water always seeks its own level, so absolute law will expose and punish its long submerged desecrations which have been committed in the name of justice. For the foregoing reasons, the judgment of the circuit court is reversed and the appellant is discharged.26
Thomas Pickens Brady, the man, was as unrepentant as ever. Justice Thomas Pickens Brady had learned that his oath and his state required more of him. To make sure that one and all understood that he understood the different prerogatives of citizen and a justice, he repeated his admonition a couple of years later.27
The Mississippi Constitution says “the people of this state have the inherent, sole and exclusive right to regulate the internal government and police thereof” with one great big exception.28 The people can change their form of government in any way they wish “whenever they deem it necessary to their safety and happiness,” with the same great big exception.
“Provided, Such change be not repugnant to the constitution of the United States.”29
To make sure there is no doubt of the practical meaning of this great big exception, the Constitution declares “nor shall any law be passed in derogation of the paramount allegiance of the citizens of this state to the government of the United States.”30
In their paramount allegiance to the government of the United States, the citizens of this state are obliged to respect and honor the Constitution of the United States, and what the SCOTUS says it means, even when it speaks only by a five-to-four margin.
Perhaps the day will come when we no longer fight old issues fought over and lost time and again. If Justice Brady can concede, can’t the rest of us? But, then, Justice Brady was educated at the Lawrenceville School and at Yale.