Two recent items in the news reflect the continuing fallout from Obergefell v. Hodges, the case barring states from restricting marriage to the union of a man and a woman. Senator Ted Cruz is holding hearings in response to what he takes to be the "lawlessness" of the decision. And in the New York Times, law professor William Baude asks a question many have been asking in the wake of Obergefell: "Is Polygamy Next?" (Are we sliding down a slippery slope?)Right, let's stop a little bit here. I should, I suppose, be patient with Fish, if only out of gratitude for his providing the model for David Lodge's wonderful character, Morris Zapp. But, really, this article is written in the most irritating kind of ignorance--pompous, self-assured ignorance. Let me explain.
So the questions are: (1) Is the majority decision, as Justice Scalia charges in his dissent, "lacking even a thin veneer of law" and full instead of "the mystical aphorisms of the fortune cookie"? (2) Or is Scalia's dissent, as his critics charge, "unhinged," "bitchy," "juvenile" and "hysterical" (all words that have been applied to it)? And (3), is it inevitable that the majority's arguments will lead to the legalization of plural marriage? I would answer "yes" to (1) and (3)," no" to (2).
Fish’s endorsement of Scalia’s dissent contending that the Obergefell majority lacks “even a thin veneer of law” requires ignoring a lot of well established cases.
First off, the Court has held that marriage is a fundamental right since Meyer v. Nebraska, 262 US 390 (1923):
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.Even a cursory search reveals that the cases go bak to the late 19th century, in Maynard v. Hill, 125 US 190 (1888).
Likewise, Loving v. Virginia, 388 US 1 (1967), found unconstitutional a bar on interracial marriage, rejecting an argument, like one made in Obergefell, that such restrictions were neutral, as applying equally to white and black citizens:
Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse, Allied Stores of Ohio, [p9] Inc. v. Bowers, 358 U.S. 522 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.Equal protection requires special care be applied to legal restrictions targeting “discrete insular minorities” who have been historically the subject of prejudice and political disadvantage. United States v. Carolene Products, Co., 304 US 144, n. 4 (1938). That homosexuality falls within this class is pretty clear–leaving aside questions of bias and prejudice, for which there’s a lot of evidence in terms of violence and the workplace, look at anti-gay legislation introduced in 2015 alone. A good example of such legal action was nullified in Romer v. Evans, 517 US 620 (1996), in which Colorado passed a referendum amending the state constitution so that laws protecting GLBT rights could not be passed by the State, limiting the rights of GLBT Coloradans to use the democratic process in a way no others were limited.
So requiring some quotient of a rational basis beyond tradition and moral disapproval slots neatly with classic equal protection law, contrary to the claim of “lawlessness.” It’s consistent with equal protection models dating back to pre WW II, and with a fundamental right status for marriage that’s nearly a century old. In sum, Fish is empirically wrong here.
He then compounds his error:
The court now finds itself in the same place with respect to "intimate domestic arrangements" as it has been in for a long time with respect to the issue of conscientious objectors. Before United States v. Seeger (1965) and Welsh v. United States (1970), conscientious objector status was granted to those who had undergone "religious training" and expressed a belief in a "Supreme Being" commanding "duties superior to those arising from any human relation" (Seeger) -- in short, an adherent of a traditional religion. But before it was done the court concluded that a constitutionally protected objection to war "need not be confined in either source or content to traditional or parochial concepts of religion." Instead, what is required is that the person seeking an exemption from military service profess a set of beliefs that "occupy in the life of that individual a 'place parallel to that filled by... God' in traditionally religious persons" (Welsh).Now, all this talk about the right to religious accommodation from generally applicable, nondiscriminatory laws, why, that's probative of--not sure what, frankly but it hardly matters, because, as before, Professor Fish is not up on the law. He hasn't read Employment Division v. Smith, 494 U.S. 872 (1990):
And what might that set of beliefs be? Why, almost anything. The requirement is not doctrinal or ceremonial; it is emotional. The beliefs must be "deeply held," whatever their content, and if they are, that is sufficient to earn the exemption. And given that no device for measuring the depth of one's beliefs -- no sincerity meter -- has ever been invented, there would seem to be no principled basis for denying anyone's claim. (Of course, there is now no draft, but there may be one again, in which case the issue of conscientious objection would return.)
Whatever the problems with the traditional definitions of either conscientious objection or marriage -- and there are many -- they at least provided a formula for adjudicating individual cases: If you're a man and a woman, you can get married; if you believe in God and belong to an established church, you can get an exemption. By departing from tradition and becoming more inclusive and less doctrinaire, the court has deprived itself of any brakes that might stop the train it has set in motion. Many will think this is a good thing. The question Scalia and the other dissenters raise is whether it is a legal good thing.
We have never held that an individual's religious beliefs [p879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):Note the Court approvingly cites Reynolds, which Fish is so sure is a dead letter.
Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.
(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said,
are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
Id. at 166-167.
Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a
valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).
United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310 U.S. at 595 (collecting cases). In Prince v. Massachusetts, 321 U.S. 158 (1944), we held that a mother could be prosecuted under the child labor laws [p880] for using her children to dispense literature in the streets, her religious motivation notwithstanding. We found no constitutional infirmity in "excluding [these children] from doing there what no other children may do." Id. at 171. In Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion), we upheld Sunday closing laws against the claim that they burdened the religious practices of persons whose religions compelled them to refrain from work on other days. In Gillette v. United States, 401 U.S. 437, 461 (1971), we sustained the military selective service system against the claim that it violated free exercise by conscripting persons who opposed a particular war on religious grounds.
Oh, and the author of this decision that rejected the line of cases cited by Fish to vindicate Antonin Scalia in Obergefell?
Antonin Scalia, of course.