In a speech delivered at an American Bar Association function in Chicago on July 31, 2015, retired U.S. Supreme Court Justice John Paul Stevens had this to say about the Supreme Court’s marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (from the Justice’s prepared text):
“Probably the most significant opinion announced during the Term was Justice Kennedy’s explanation for holding that the Constitution protects an individual’s right to marry a person of the same sex. I was surprised by his decision to rely primarily on a substantive due process rationale rather than the Equal Protection Clause but, after reflection, I am persuaded that he was wise to do so. The difference between categories of couples capable of producing children and those completely unable to do so surely provides a rational basis for treating the two categories differently, but the substantive due process doctrine is more appropriate for an all-or-nothing analysis. The right to marry — like the right to decide whether to have an abortion, or the right to control the education of your children – fits squarely within the category of liberty protected by the Due Process Clause of the 14th Amendment. Just as Potter Stewart’s reliance on substantive due process in Roe v. Wade, 410 U.S. 113 (1973), and Justice Harlan’s and Justice White’s reliance on the substantive content of the work ‘liberty’ in Griswold v. Connecticut, 381 U.S. 479 (1965), were far better explanations for those two correct decisions than the concept of ‘privacy’ developed by the majority opinions, I am persuaded that a fair reading of the word ‘liberty’ best explains the real basis for the Court’s holding in the marriage case.
“The point is strongly reinforced by the dissenting opinions which rely heavily on earlier decisions rejecting the substantive due process analysis in Lochner v. New York, 198 U.S. 45 (1905). But those dissents incorrectly assume that our cases overruling Lochner rejected the entire doctrine of substantive due process, whereas in fact they merely rejected its application to economic regulation. Indeed, it is ironic that all of today’s dissenters (except Justice Thomas) who accuse the majority of improperly resurrecting Lochner, came much closer to committing that sin themselves when they decided to rely on substantive due process as the basis for their conclusion that the Second Amendment applies to the States. It borders on the absurd to assume that the word liberty does not include one’s right to choose a spouse, but does include a right to possess a firearm in one’s home. Because today’s dissents may one day persuade their authors to reconsider their own earlier reliance on substantive due process, I think those dissents may have the unintended consequence of lending support for the position advocated in the final chapter of my book.
“I endorse the Court’s holding that the Due Process Clause of the 14th Amendment protects an individual’s right to choose his or her spouse but I remain unpersuaded that that Clause also protects an individual’s right to use a gun. The dissenters have things backward when they argue that it protects the latter but not the former.”
I am rather surprised to read Justice Stevens’ view that the equal protection issue in the marriage equality case was between categories defined by “couples capable of producing children” and “those completely unable to do so.” After all, many different-sex couples are either incapable of producing children or uninterested in doing so, yet they are allowed to marry, while many same-sex couples are capable of producing children (with the assistance of a sperm donor or a surrogate). Both kinds of couples are known to acquire children through adoption as well. To me, the fact that many, but not all, different-sex couples can have children without the assistance of a third party, makes little difference, if one’s concern is about the raising of children, since different-sex and same-sex couples raising children are similarly situated with respect to one of the main reasons why the state fosters the institution of marriage with its reciprocal obligations. And it seems clear that the willingness of the state to allow different-sex couples to marry without proof of fertility or intention to have children means that the ability to procreate is not a sine qua non of the right to marry. Be that as it may, however, the Court’s decision to use substantive due process as its principal doctrinal tool in Obergefell meant that it could decide that case without having to commit itself on the question whether sexual orientation is a classification requiring heightened scrutiny of challenged government policies in discrimination cases. If avoiding that issue made it possible to have a solid five-member majority supporting one opinion — as Justice Ruth Bader Ginsburg’s recent comments suggest – then it was probably worth while. But what it means is that Obergefell, as a practical matter, is not relevant as an equal protection precedent for any issue other than the right to marry and to have marriages recognized and accorded full rights by the states, since it was decided under the fundamental rights branch of equal protection doctrine rather than the suspect classification branch. This is well illustrated by the 6th Circuit’s opinion in Ondo v. City of Cleveland, 2015 Westlaw 4604860 (Aug. 3, 2015), about which I will be writing shortly.