Recent Supreme Court Term: Obergefell v. Hodges: Equality and Constitutional Interpretation

On June 26 the U.S. Supreme Court decided the “same-sex marriage” case Obergefell v. Hodges. The Court held unconstitutional, by a 5-4 vote, state laws that limit marriage to heterosexual couples. According to the Court, these limits violate both the Due Process and Equal Protection clauses of the 14th Amendment.

Justice Kennedy’s opinion for the Court focuses on the crucial role that marriage, as a component of the liberty protected by the Due Process clause, plays both in individuals’ lives and in structuring society.  Denying same sex-couples the opportunity to marry not only affects what type of society we live in, but also impoverishes the lives of a particular group of people in society. According to the Court, individuals define themselves through marriage. In addition, through marriage they access other “freedoms, such as expression, intimacy, and spirituality.” (p. 13) Marriage is also a means for individuals to achieve the “highest ideals of love, fidelity, devotion, sacrifice, and family.” (p. 28) Furthermore, children in same-sex families are injured by having to endure the stigma of familial inferiority as a result of the non-recognition of their parents’ marriages. (p. 15)

Each of the four dissents objects to the majority’s conclusion that there is a violation of the Due Process clause. The dissenting justices argue that Justice Kennedy’s reasons for finding that same-sex couples have a protected fundamental right to marry are matters of policy and that the state legislatures, not the U.S. Supreme Court, should decide what policies are best for the people and society overall. The Chief Justice’s dissent, for example, does not deny that there is a fundamental right to marry; instead the Chief Justice argues that this fundamental right applies only to heterosexual couples because “the core definition of marriage … [is]the union of a man and a woman.” (pp. 8 and 16.) This “core” meaning of the fundamental right of marriage is “deeply rooted in this Nation’s history and tradition.” Constraints on the definition of constitutionally protected rights keep the courts from legislating.

The majority and the dissents all recognize that the terms “liberty” and “marriage” must be interpreted. Unconstrained interpretation is problematic because it is difficult to distinguish from the act of legislating. Nonetheless, courts must interpret the words of a text, including a constitution. To be legitimate within our system, judicial interpretations must be bounded by an accepted and acceptable structure. The Court and the dissents disagree on what this structure is.

The Chief Justice’s dissent searches for a “core” meaning of marriage as a means of avoiding excessive interpretation. However, as the Court notes, the institution of marriage has changed dramatically over time. Different “core” meanings can be identified at different moments in time, space, and society. As Justice Kennedy wrote in his opinion for the Court, the doctrine of coverture was critical to the meaning of marriage in the early 19th century. At the time, a married woman’s husband could have determined where she would live, whether she could enter any particular contract, and how to employ any assets she may have owned upon marriage. He could also decide whether to force sexual relations on her and under what circumstances to discipline her physically or otherwise. In short, the central feature of her marriage might have been her subordination to her husband, not the fact that he was sexually male. The Chief Justice’s definition of marriage as based on heterosexuality is a choice among many central definitions of marriage.

The Court’s definition of marriage relies on a different set of concepts to constrain its interpretation: individual autonomy, intimacy and expression; the fundamental role that marriage plays in promoting child development and in structuring society; and the importance of equality as also articulated in the 14th Amendment.

For many decades, equality has had a critical function in identifying the proper role for courts in interpreting the constitutionality of majoritarian legislation. In our democratic system the courts protect minorities from oppression by the majority. (p. 24) See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) As the Court’s opinion notes, the ideas behind the Equal Protection clause reinforce the liberties protected by Due Process; restricting marriage to heterosexuals would have the effect of “diminish[ing] the personhood” of members of same-sex couples. (p. 19) Similarly, in U.S. v. Windsor, the Court highlighted the humiliation and financial harm to children in same-sex families when their parents’ marriages are not recognized by the federal government. This role of protecting minorities against harm done by the majority has been central to the role of the Court.

Since they cannot avoid interpretation, courts must identify the principles to guide their interpretations. In Obergefell, the Court chose protection of the members of a minority group against the demeaning life the legislative majority would have allowed them, a life determined by 19th century understandings of marriage.

The process of identifying the parameters for constitutional interpretation is one of the most important functions of courts and lawyers. The fact that it is subject to vigorous debate and is likely to continue to be so is healthy for our democracy.

Judith G. Greenberg

Recent Supreme Court Term: Zivotofsky v. Kerry

In a recent blog my colleague Lawrence Friedman noted, “many cases implicating the Constitution do not turn on the document’s text.” He was writing in the context of Fourth Amendment jurisprudence, but his observation is equally if not even more true in the context of foreign affairs and separation of powers. This is an area where the Court does not frequently tread for many reasons, not the least of which is that the Court is not keen to involve itself in what is usually seen as a turf battle between the two political branches.

Nonetheless, this past term the Court did take up a seemingly mundane case that has potentially significant consequences in the foreign affairs and national security arenas, areas where the Framers purposely created vague lines of authority between the President and Congress. Zivotofsky v. Kerry involved the petition of the Zivotofskys to have the birth of their child listed on his U.S. passport and consular report as “Jerusalem, Israel.” However, since 1948, when President Truman recognized Israel, he and every subsequent U.S. president have never acknowledged any country’s sovereignty over Jerusalem. Further, the Secretary of State has instructed State Department employees to record the place of birth for U.S. citizens born in Jerusalem as “Jerusalem,” with no further state affiliation.

Enter Congress, which in 2002 passed Section 214 of the Foreign Relations Authorization Act titled “United States Policy with Respect to Jerusalem as the Capital of Israel.” As this title suggests, Section 214 directed the Secretary of State to register the place of birth as Israel on registration of birth documents, certification of nationality, and passports for any U.S. citizen born in Jerusalem upon the request of the citizen or the citizen’s legal guardian. Section 214 was clearly intended to countermand the directives of the executive with respect to citizens born in Jerusalem.

The Court framed the clear conflict between the President and Congress in broad terms: 1. Whether the President has the exclusive power to grant formal recognition to a foreign sovereign? 2. If he has that power, can Congress command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition? In an opinion by Justice Kennedy the Court answered yes to the first question and no to the second.

The Court began its analysis by referring to Justice Jackson’s taxonomy in Youngstown Sheet and Tube Co. v. Sawyer, noting that this is a case where the President’s power is at its “lowest ebb” because he is acting in direct contravention of Congress, and thus he can rely solely on the powers the Constitution grants to him alone. However, the Constitution is silent as to whether or which branch has exclusive authority to recognize another sovereign. In fact, the Constitution does not mention the term “recognition” at all.

Unable to rely on the text, Justice Kennedy opts for a structural and, ultimately, a pragmatic approach to answer these questions. He notes that the Reception Clause in Article II directs the President to receive ambassadors and other public ministers. According to Justice Kennedy, that sounds a lot like recognition authority. Justice Kennedy goes on to list a number of other foreign affairs powers the Constitution vests in the President, such as making treaties and appointing ambassadors and other public ministers. Even though these treaty-making and appointments powers require senatorial consent, it is enough for Justice Kennedy that each is dependent on Presidential power. It is the President who must initiate the process. From this arguably thin reed, Justice Kennedy concludes that the President has the power to grant formal recognition to a foreign sovereign.

Justice Kennedy’s pragmatism is in full view as he goes on to address the second question, whether Congress can command the President and his Secretary of State to contradict his earlier recognition. Here the Court answers no; the President’s power is exclusive. This, according to the Court, is for the simple and obvious reason that the Nation must speak with one voice on the matter of recognizing a foreign sovereign. If the President is to be effective in negotiations over a formal recognition determination, it must be evident that he speaks for the Nation.

The conservative wing of the Court dissented in Zivotofsky. In the most scathing criticism, Justice Scalia questions whether the President’s recognition power is exclusive, but more to the point, he contends Section 214 has nothing to do with recognition of foreign sovereigns. Section 214, Justice Scalia argues, performs the much more prosaic function of allowing citizens some say in what their Government says about another country’s boarders in citizenship documents. Because citizenship documents are matters within Congress’s control, Congress has the authority to direct what those documents say.

It remains to be seen if this case will have longer-term impacts beyond its rather narrow facts. However, because the Court does not wade into this area very often, it is likely that courts, advocates, and commentators will turn to this case in support of various arguments over presidential and congressional authority. Some particular points of note are that that in this case the President argued for a much broader grant of authority. Citing to the 1936 case United States v. Curtiss-Wright, the Secretary of State contended that the President has exclusive authority to conduct diplomatic relations along with the “bulk of foreign-affairs powers.” The Court declined to read Curtiss-Wright so broadly, suggesting that too oft-cited language from that case that the President is the “sole organ of the federal government in the field of international affairs” is dicta.

Also interesting is that a majority of the Court did find express and exclusive executive power absent any clear language in the Constitution. The means by which the Court found this power in the constitutional structure and the Court’s pragmatic view of how a government must function is likely to provide a road-map for future foreign affairs and national security cases where the demarcation between the President’s and Congress’s power is vague.

Finally, in reaching its decision the Court noted that the President needs exclusive recognition power in order to be effective. If the Court believes that effectiveness is the touchstone of exclusive executive authority granted by the Constitution, than Zivotofsky is truly a blockbuster case and one that the executive will cite for generations to come in order to maximize its authority. I suspect that the Court will be forced to clarify and perhaps narrow this rationale in some future case, but time will tell.

Victor M. Hansen

Recent Supreme Court Term: Los Angeles v. Patel

Students in constitutional law come to learn what seasoned constitutional lawyers know: many cases implicating the Constitution do not turn on the document’s text. Which is not to say the text isn’t important, just that, in certain areas of constitutional law, the doctrinal tests the court has devised to implement textual commands often take precedence over the words themselves. Consider the Fourth Amendment, as demonstrated by the recent decision in Los Angeles v. Patel, involving the scope of protection afforded business records.

The case concerned a challenge to a Los Angeles ordinance that compelled hotel operators to keep records containing specified information provided by guests, and to make these records available to police officers “for inspection” on demand. The law made the failure to make the records available for inspection punishable by up to six months in jail and a $1,000 fine.

Writing for the majority, Justice Sotomayor concluded the law was unconstitutional under the Court’s Fourth Amendment jurisprudence. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and states that “no Warrants shall issue, but upon probable cause.” The Court has long interpreted this provision to mean that, absent a warrant based upon probable cause as determined by a neutral decisionmaker, a search will be deemed unreasonable. There is an exception to this rule for administrative searches, such as those contemplated by the Los Angeles law.

For an administrative search to be constitutional, Sotomayor explained, “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Absent this opportunity, searches under the ordinance potentially could exceed statutory limits or become tools for harassment. An opportunity to obtain such review is a minimal protection—there would be no need for probable cause to search—and, Sotomayor concluded, could be provided without “imposing onerous burdens on those charged with an administrative scheme’s enforcement.” She also noted that searches authorized by the Los Angeles law did not fall within the narrow category that involve closely regulated businesses, in which the government need not afford any opportunity to object to the search.

In dissent, Justice Scalia would have none of it. He argued that “[t]he Court reaches its wrongheaded conclusion not simply by misapplying … precedent, but by mistaking … precedent for the Fourth Amendment itself.” The only constitutional question, in his view, was “whether the challenged search [was] reasonable.” He concluded, “the limited warrantless searches authorized by Los Angeles’s ordinance [were] reasonable under the circumstances” because, in large part, hotels are “closely regulated businesses.”

Scalia’s approach to the Fourth Amendment begs a question: what does it mean for a search to be constitutionally reasonable?

The constitutional text, of course, does not define reasonableness. And so—as noted above—the Court has held a search as reasonable if it is supported by a warrant based upon probable cause. This is the default rule.

But this is not the only way to implement the reasonableness requirement. Professor Tom Clancy has concluded that the Framers likely understood “reasonableness” to require government agents to have a reason to search a particular person or place. (See The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEMPHIS. L. REV. 483 (1995)). This is in contrast to the regime authorized under the Los Angeles ordinance, which permitted law enforcement to search hotel records arbitrarily—and, as the Court noted, as “a pretext to harass business owners.”

We should prefer an approach to reasonableness that will not work to diminish the scope of the Fourth Amendment’s commitment to privacy. An understanding that search regimes need only be reasonable, in a rational-basis way—as suggested in Scalia’s dissenting opinion—eventually will undermine that commitment. For the scope of this kind of reasonableness could be quite elastic—if arbitrary records searches are reasonable in the context of hotels, why not in the context of any business where members of the public may congregate? Or any business, like hotels, that is subject to generally applicable regulations?

At bottom, there is an important difference between viewing a rule as essentially reasonable simply because it serves a legitimate government interest—in Patel, deterring criminals from operating on hotel premises—and viewing it as essentially unreasonable because, regardless of its salutary purpose, it allows police to search indiscriminately. Judges are understandably reluctant to critically review legislative rules under the former approach, while the latter gives them an objective and consistent basis upon which to ensure that the constitutional protection of privacy is not diminished to a point of irrelevance.

Regulation of hotels is important and the deterrence of criminal activity arguably more so. Under the Fourth Amendment, courts should not allow privacy interests—including those of businesses—to be sacrificed in an effort to achieve either.

Lawrence Friedman