On October 28, the Rover published an article by Politics and Economics Editor Hailey Vrdolyak titled “Obergefell v. Hodges: An illegitimate opinion.” The article summarized a “Statement Calling for Constitutional Resistance to Obergefell v. Hodges,” released on October 8, which criticized the Supreme Court’s ruling in Obergefell as having demonstrated disregard for the Constitution and sound judicial precedent and called for a response from legislators and the American people. The statement was signed by 71 of the nation’s scholars, including Robert P. George, McCormick Professor of Jurisprudence and Professor of Politics at Princeton University, and Christopher Wolfe, Professor of Politics at the University of Dallas, both of whom were interviewed by the Rover for its October 28 report. Here, Donald Kommers responds to the Rover’s article, and Gerard V. Bradley, another signatory of the statement and a faculty advisor to the Rover, responds to Kommers.
Civil disobedience versus the Rule of Law
Along with Professor Robert George—who, by the way, is a personal friend—I too regard the U.S. Supreme Court’s Obergefell ruling that same-sex couples have a fundamental right to marry as wrongly decided. I also agree that the dissenting justices are spot on in describing the decision as thinly argued and gravely mistaken. I disagree, however, with the statement that Obergefell is an unconstitutional and illegitimate opinion and should be treated as such by governmental officials and Americans generally.
There are several problems with this summons to constitutional disobedience. First, the principle of judicial supremacy in the interpretation of the Constitution has long been the linchpin of American constitutionalism. The Supreme Court cemented this principle in 1958 by rejecting the view, popular in the South, that the famous desegregation decision of 1954 was also unconstitutional and illegitimate. In the first case of its kind, all nine justices famously signed on as authors of the opinion. They invoked the legendary case of Marbury v. Madison (1803), which declared that “the federal judiciary is supreme in the exposition of the law of the Constitution,” a “principle [that] has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” The Constitution, declared the Court, would become “a solemn mockery” if local officials could ignore or annul its judgments.
Second, if we actually agreed to treat certain cases as unconstitutional and illegitimate, I can think of recent cases other than Obergefell in which constitutional disobedience might be more appropriate. These cases would certainly include Citizens United v. Federal Election Commission (2010), the campaign finance case that may well lead to the corruption of the American political process. They might also include recent death penalty and gun control cases in which the Supreme Court upheld, respectively, the constitutionality of the death penalty and the private right of individuals to own and possess guns—even assault weapons—both of which implicate the right to life itself. And so the question: When should disagreements with the Supreme Court dissolve into disobedience?
Third, it is not clear from the George statement what constitutional disobedience would entail other than that it might prevent some political jurisdictions from normalizing or perpetuating the traditional definition of marriage. But is this any different from Roe v. Wade, which prevents local, state, and federal officials from enacting laws in direct defiance of Roe’s essential holding that a woman has a constitutional right to abort her fetus? Of course, it is perfectly legitimate for Americans and public officials politically to oppose Roe by imploring the justices to overrule the case or to redefine when the state can begin to protect fetal life. Actually, in response to the never-ending public debate and criticism over the legitimacy of the abortion right, the Supreme Court has already limited its application, even to the extent of affirming the state’s interest in protecting the fetus at all stages of pregnancy, a proposition the Court had categorically rejected in 1973. There is no reason to think that Obergefell could not also be changed in this conventional way.
Finally, the Rover quotes Christopher Wolfe [in Obergefell v. Hodges: An illegitimate opinion, October 28, 2015] as saying that “the Supreme Court has never had the absolute authority to make a final determination on a political question.” Let us pass on whether a so-called “political question” can really be distinguished from a legal issue fit for judicial resolution. That said, no one has ever taken the view that the Supreme Court speaks with absolute finality. (The justices would be the first to deny their infallibility when interpreting the Constitution.) For one thing, the Supreme Court often changes its mind, frequently in response to social change but also in the face of opposing constitutional arguments marshaled by legislators and other public officials. For another, Americans can effectively repeal a Supreme Court decision by amending the Constitution under the terms of Article V, and this has actually happened on at least three occasions when Supreme Court rulings were highly unpopular, morally objectionable, or politically unacceptable. Article V of the Constitution rather than disobedience should be the proper weapon of choice to repeal Obergefell.
But the problem with seeking to repeal Obergefell by a constitutional amendment is, alas, the increasing popularity, gathering moral acceptability, and seemingly unstoppable political support of same-sex marriage in communities and legislatures around the country. Americans may wonder whether in the face of these realities—and the movement of public opinion generally—they can say that Obergefell is either unconstitutional or illegitimate.
Donald Kommers is Professor Emeritus of Political Science and Concurrent Professor Emeritus of Law at the University of Notre Dame.
Gerard V. Bradley
My colleague Don Kommers rejects “constitutional disobedience.” I do too. He thinks that treating the Supreme Court’s same-sex marriage decision as “illegitimate” amounts to “constitutional disobedience.” I disagree.
On the contrary: I think that treating the Obergefell decision as illegitimate is the only way to obey the Constitution. Public officials should treat the decision as illegitimate because every last one of them has sworn an oath required by the Constitution to treat it—the Constitution—as “the supreme law of the land.” (Article VI, sec. 2). And no one—not even a single Supreme Court Justice, ever—has maintained that the Constitution is whatever five lawyers serving on the high Court happen to say that it is.
Don Kommers knows this, and agrees with it. He writes that Obergefell is “wrongly decided,” and “gravely mistaken.” Since the case has to do with the Constitution he should agree, too, that Obergefell is unconstitutional. What else could it be? Especially since Professor Kommers admits unqualifiedly that the Court is not infallible, makes important mistakes (he mentions several, including those about capital punishment and campaign finance), and frequently changes its mind.
Kommers could not deny that even the five Justices in the majority admitted that they broke with 200 years of judicial precedent, and millennia of social practice, and that they could claim no warrant for doing so in the text, logic, structure, or history of the Constitution.
By their own admission, these Justices relied crucially upon nothing of a constitutional or even legal nature. They depended instead upon what they called a “new insight” into the meaning of marriage. But their “insight” is not “new.” Nor is it an “insight.” It is a reductionist view of marriage that has been hanging around for centuries, namely, that marriage is all about adult intimacy and has no essential connection to having children. It just so happens that until just a few years ago, this “adults only” view was an outlier. It was rejected by all the major religious bodies and legal systems of the world. It was rejected by our Supreme Court. Indeed, just two years ago the Supreme Court affirmed the constitutional authority of any state to reject the “adults only” view (while recognizing, to be sure, that a state could choose same-sex marriage if it wanted to).
Don Kommers nonetheless does not want to say that Obergefell is “illegitimate.”
He seems worried about the consequences. He expresses one consequence he fears this way, quoting approvingly a Court statement that the “constitution” would become “a solemn mockery if local officials could ignore or annul its judgments.”
I am not sure what a “solemn mockery” is. But no one is asking local officials to either “ignore” or “annul” the Court’s judgment. Professor George and I (and others who brand Obergefell “illegitimate”) instead follow Abraham Lincoln and the whole tradition of American law in saying that anyone who is party to a binding judgment of the Court should comply with its decision. We follow Lincoln too in saying that otherwise it is the Constitution—and not the will of five Justices—which commands our fidelity.
Professor Kommers refers to our country’s great struggle over racial desegregation. He seems to offer it as an object lesson in the wake of Obergfell, and maybe as a binding precedent to resolve the whole question of “illegitimacy.” But the two situations are very different. In Brown the Court did not depart from the Constitution. The Court there restored the Constitution, precisely by rejecting its own unconstitutional doctrine, minted in 1896, that “separate but equal” facilities satisfied the Fourteenth Amendment. Racist local officials after Brown clung to the Court’s discredited doctrine, and were correctly required to comply with Brown, not because it was the will of the Justices but because it was the truth about our fundamental law.
Kommers says that “the Supreme Court often changes its mind, frequently in response to social change but also in the face opposing constitutional arguments”. Indeed it does, and will again, and perhaps will do so soon on the marriage question. If so, it will most likely be for a reason Kommers does not mention, a reason that explains most about-faces in the Court’s history, but that is less glorious than the reasons Kommers mentions—a simple change in Court personnel. A Republican President elected in 2016 would likely have the opportunity to change the outcome of Obergefell by making nominations to the Court.
In any event, Don Kommers is right to imply that Obergefell is unsettled law, and that it involves a matter of supreme importance to the well-being of our society. All the more reason, then, to reject his counsel to treat it—and not the Constitution—as the supreme law of the land.
Gerard V. Bradley is Professor of Law at the University of Notre Dame.