Friday, June 26, 2015

Obergefell and Shelby County-- and Lochner-- and Roe


The arguments of the dissenters in Obergefell for judicial restraint and respect for democratic deliberation would sound a lot more convincing if they hadn't all joined the opinion in Shelby County v. Holder. Shelby County is truly made up out of whole cloth, and it strikes down key parts of an important civil rights statute passed by overwhelming majorities in Congress.  Indeed, at oral argument in Shelby County Justice Scalia suggested that the very fact that the Voting Rights Act was passed by such overwhelming margins is a reason that the courts needed to strike it down. Talk about five lawyers undermining democracy and imposing their ideological convictions on the rest of the country. . .

The Chief Justice trots out Lochner for ritual denunciations. Good for him! After all, what conservative in good standing supports Lochner these days? (Ahem).

But one opinion is strangely missing from the discussion. Roe v. Wade. The term "Roe" appears only in the name of two law review articles cited by the Justices, and it is implied but not mentioned in a sly reference by the Chief to Justice Ginsburg's famous remarks about Roe.

The majority opinion declines to mention Roe or Casey at all when it discusses fundamental rights and the right of privacy. The dissenters don't use the "A" word at all, except for its appearance in the title of a law review article cited by the Chief. Thomas is the only Justice even to mention Casey.

It seems that abundant references to Lochner (and Dred Scott) are doing the work of references to Roe and Casey, the opinions that dare not speak their names.

Nevertheless, the specter of Roe (and Casey) haunts all of the opinions.

The dissenters think (or perhaps hope) that Obergefell will prove to be another Roe, still controversial after all these years.  The majority hopes that Obergefell will be like Griswold, Eisenstadt, and Lawrence, all of which are now canonical and beyond question for the vast majority of lawyers, politicians, and citizens.  What will actually happen? It's too soon to tell.

My current guess is something in between.  Same-sex marriage is already widely accepted, and will become more so as older people die and are replaced by new generations.  In this sense, Obergefell will be like Griswold, Eisenstadt, and Lawrence.

On the other hand, the culture wars are hardly over. Every time conservatives have lost one battle, they have found another terrain to fight on. In response to Lawrence, social conservatives quickly understood that it was not worth fighting the criminalization question any more. Therefore they switched to fighting over same-sex marriage.

Now that Obergefell has been decided, it is clear that conservatives will fight over religious liberty to refuse to acknowledge same-sex marriage or treat gay couples equally in public accommodations, educational institutions, and other areas of civil society. Justice Alito's dissent rings many of these themes.  Reva Siegel and Doug NeJaime have spelled out a bit of what is to come in the context of reproductive rights in their recent piece, Conscience Wars, which will appear this year in Yale Law Journal.

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