Wednesday, September 09, 2015

Obergefell, Judaism, and the Authority of Tradition

Neil Siegel

I took great interest in the recent Balkinization symposium on Roberta Rosenthal Kwall’s new book, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition (2015).  This fascinating book offers, among other things, detailed documentation of the extent to which conceptions of Jewish law and tradition have always been influenced by the broader cultures in which Jews have lived—not just in the modern Reform and Conservative movements, but also in traditionalist and Orthodox communities.  Reading this book reminded me of something else that I read recently:  the dissenting opinion of Chief Justice Roberts in Obergefell. 
According to the Roberts dissent, the scope of implied fundamental rights that are protected under the liberty of the Due Process Clause is limited to practices that are “objectively, deeply rooted in this Nation’s history and tradition.”  By embracing the so-called Glucksberg test, Roberts portrayed the authority of tradition in constitutional law as relatively static:  the task of the interpreter in the present is the historical one of discerning whether a specific practice has long been protected in the past.  Same-sex marriage obviously flunks such a test.  It has been around in the United States for just a dozen years.
A non-trivial problem for Roberts, however, is that the Glucksberg test is incompatible with rights that he and at least some of the other dissenters accept—and presumably not just for stare decisis reasons, invocation of which can make matters too easy on interpreters.  Rights that Roberts presumably accepts include the fundamental rights holding in Loving, the contraception holding in Griswold (see the Roberts and Alito confirmation hearings), and liberty-based protections against involuntary sterilization.  None of those rights are “objectively, deeply rooted” in American history and tradition.  For example, bans on inter-racial marriage, to our national shame, went back to the days of slavery.
Accordingly, Roberts has a conception of the constitutional authority of tradition that is more dynamic than he lets on.  He, too, exercises the human faculty of judgment in the present about the extent to which the past gets a veto and not just a vote. 
Roberts is not particularly candid about what he is doing.  He bears some similarities to certain Orthodox Jewish communities that Kwall describes.  They are selectively and silently responsive to dramatic changes in cultural values, even as they declare that they are uniquely authentic and faithful to Jewish law and tradition because they have not changed with the times.
Kwall, however, is not just interested in the extent to which Jewish law and tradition are culturally responsive.  Rather, she is interested in the dialectical interaction between Jewish law/tradition on the one hand, and Jewish culture on the other.  She is very concerned to document for secular Jews the extent to which Jewish law and tradition produce Jewish culture. 
This dimension of Kwall’s project brings to mind Justice Kennedy’s majority opinion in Obergefell.  Kennedy expressly and repeatedly describes the authority of tradition in fundamental rights adjudication as dynamic, not static.  It is striking how often the word “dynamic” itself appears in the majority opinion.  
But just as the Roberts dissent is not as static as it may at first appear, neither is the Kennedy majority opinion as dynamic as it may at first seem.  I doubt that any member of the majority would sign off on plural marriages or on incestuous marriages.  Kennedy sprinkled the qualifier “two people” throughout his opinion.  And the four reasons (as opposed to the four questions of Passover fame) that he invoked to explain why the Court’s cases protect the right to marry, as well as other equality-based considerations that he invoked (such as a long history of mistreating gay Americans), could potentially be used to distinguish same-sex marriage from plural marriage or incestuous marriage.  Kennedy expressly wrote at the end of his opinion that “these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”
In other words, there are likely limits on the scope of the fundamental right to marry that the Court perceives, and those limits are likely informed by American constitutional history and tradition.  At some point, the majority is likely to conclude, a proposed expansion of the right would destroy the institution of marriage, not merely alter it.
Of course, the majority is likely to so conclude at a given point in time.  But the limits that the Court perceives may continue to change over time.  We are not at the end of history.  Kwall’s book teaches that important lesson as well.

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