Obergefell and Democracy

By Staszewski, Glen | Boston University Law Review, January 1, 2017 | Go to article overview

Obergefell and Democracy


Staszewski, Glen, Boston University Law Review


Introduction

Obergefell v. Hodges1 is, of course, about the constitutional obligation of the states to recognize same-sex marriages.2 The opinions of the Justices, however, are largely about competing understandings of the role of the court in a constitutional democracy. While each opinion emphasizes the importance of public deliberation for the legitimate exercise of governmental authority, the majority and dissenting opinions express profoundly different views of the nature of our deliberative democracy. This disagreement colors the fundamentally competing jurisprudential, doctrinal, and institutional views of the Justices, and is therefore crucial to understanding and evaluating the divergent opinions in the case.

This Article contends that the majority opinion reflected the practice of deliberative democracy, whereas the dissenting Justices sought to promote further deliberation on the issue of marriage equality in the relevant political processes.3 The majority engaged in reasoned deliberation, and concluded that there was no public-regarding justification for the government's refusal to extend marital recognition to same-sex couples, particularly given the importance of the interests at stake.4 As a result, the Court held that the challenged laws deprived the petitioners of their constitutionally protected liberty, and denied same-sex couples the equal protection of the laws.5 Meanwhile, the dissenters argued that a state's continued adherence to the traditional definition of marriage could not possibly violate the Fourteenth Amendment, and that the serious deliberation that was allegedly occurring on this issue should continue in the political branches.6 The dissenters complained that the Court's decision was democratically illegitimate, and that five unelected lawyers abused their interpretive authority by cutting off debate and imposing their policy views on the sovereign people.7 Thus, the opinions expressed profound disagreement about the proper understanding of deliberative democracy and the validity of incorporating this theory's central tenets into the Court's due process and equal protection jurisprudence.

While the dissenters advocated "judicial minimalism" in a manner that is superficially consistent with deliberative democracy, this Article claims that the majority's decision reflects a substantially better understanding of deliberative democratic theory's underlying commitments.8 Deliberative democratic theory, properly understood, should incorporate civic republican understandings of due process and equal protection, whereby legislation raises serious constitutional difficulties when it does not serve a legitimate, public-regarding purpose that could reasonably be accepted by individuals or groups who are adversely affected by the law. The Court reasonably concluded that prohibitions on samesex marriage serve no such purpose, and despite the ridicule of the dissenters, it was correct to recognize the mutually illuminating and interrelated nature of these principles in this context. Although deliberative democracy is sometimes understood as a purely procedural ideal, the better understanding of this theory also recognizes its substantive content. The majority opinion properly reflected the substantive nature of reasoned deliberation when it concluded that there was no persuasive justification for the government's refusal to extend marital recognition to same-sex couples. One of the central tenets of deliberative democratic theory is that legal and policy decisions should be provisional because new information and arguments emerge over time. Public officials who seek to make legitimate, collective decisions should consider the most recent learning on a subject. While the dissenters believed that the Obergefell case was closed in 1868 when traditional marriage was almost universally accepted, the Court properly invoked the idea of a living Constitution, emphasizing that "[w]hen new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed. …

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