In an op-ed in the Boston Globe, Kent Greenfield argues that the key difference between Justice Kennedy’s opinion in Obergefell v, Hodges and the dissent of Chief Justice Roberts is that Kennedy has empathy and Roberts does not. In reciting the facts of the petitioners’ claims in Obergefell Kennedy describes how James Obergefell and his life partner, in the final stages of ALS, charter a medical transport to fly them from their Ohio home to Maryland, where they were legally married in the cabin of the plane. But Ohio refused to recognize their marriage, causing even more grief to Obergefell.
The other tales are no less poignant, and Greenfield lauds Kennedy for his empathetic understanding of the distress caused by state limitations of marriage to opposite-sex couples. I agree with Greenfield that there are plausible constitutional arguments to be made on either side. The proponents contended that the liberties encompassed by due process and equal protection are capacious and must be understood in the light of contemporary practices. The opponents argued that there was nothing in our history or tradition that would suggest that defining marriage traditionally was presumptively forbidden. Kennedy’s opinion relied heavily on the second Justice Harlan’s view that divining unwritten (and thus hitherto unprotected) liberties must be seen in light of the traditions we have held and those that we have discarded. In the case of same-sex marriage we have long adhered to traditional marriage but have been rapidly breaking from that view. But unlike Loving v, Virginia, where the right to marry was deemed constitutionally fundamental, and the state impediment to marriage was based on race, already a criterion that was presumptively unlawful, the Court has never said that sexual orientation was, by itself, an illegal criterion.
How could empathy and the Constitution be in harmony? Victors of Obergefell say, that’s how. But because the vector of history seems to be trending away from limiting marriage to same-sex partners, there was another path that would have bridged the passionate empathy of Justice Kennedy and the sober reading of constitutionally protected liberties of the Chief Justice. The Court could have said that the full faith and credit clause obliges states to recognize same-sex marriages lawfully contracted in other states without deciding that states have no warrant for defining marriage as they wish. After all, the law governing who may marry whom has always been a state function. If some states wish to redefine marriage, they are free to do so, and their sister states must recognize those marriages. Given the rapid pace of change on this issue such a decision would have protected same-sex partners throughout the country who wished to marry and very probably have hastened the social change that is underway. But now that healthy process has been cauterized. Empathy itself cannot be the ratio decidendi of constitutional law, but neither must it be absent. What will come of what Raoul Berger once called “government by judiciary” remains to be seen.