With the Supreme Court about to take up the momentous question of whether the U.S. Constitution prohibits states from denying same-sex couples the freedom to marry in Obergefell v. Hodges, dozens of briefs have been filed with the court explaining why it does. The excellent arguments made in those briefs should resonate with all but the most closed-minded on the issue of marriage equality. And among those arguments, one in particular should resonate with Chief Justice John Roberts—that the Supreme Court’s 1967 decision in Loving v. Virginia is clear that the laws challenged in Obergefell infringe on the fundamental right of same-sex couples to marry. In a perhaps long-forgotten portion of his confirmation hearing before the Senate Judiciary Committee in September 2005, Roberts (then a judge on the D.C. Circuit) engaged in an interesting discussion of Loving with then-Sen. Joe Biden, a member of the committee.
In Loving, the court struck down the laws of the 16 states that still prohibited interracial couples from marrying. The court’s ruling had two independent bases in the 14th Amendment: that the laws were racially discriminatory in violation of the equal protection clause and that they denied interracial couples the fundamental right to marry, impermissibly infringing on the liberty interest protected by the due process clause. As a general matter, the Supreme Court has explained elsewhere that “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’ ”
Thus, when a person brings a lawsuit asserting that a state law violates her fundamental rights, a key issue for the court is how the right is defined—is it a right defined so narrowly by the facts of the case that it can only be considered a new right (not one “deeply rooted” in history or tradition), or does it fall within the scope of a more longstanding and recognized right?
Sen. Biden’s questions to Judge Roberts focused on how a court goes about identifying the right at stake, and, as the hearing transcript shows, Roberts built his reply around the Supreme Court’s decision in Loving. Sen. Biden introduced his questions with a reference to the 1989 Supreme Court case of Michael H. v. Gerald D., in which the justices debated the question of how to analyze claimed fundamental rights. Justice Scalia authored a plurality opinion contending that asserted fundamental rights had to be defined at the most specific level of generality, but a majority of the justices rejected that approach as unduly narrow. After the reference to the debate in Michael H., Sen. Biden proceeded with his questions to Judge Roberts:
So, Judge, how do you—I am not asking you about a case. How do you—do you look at the narrowest reading of whether or not such an asserted right has ever been protected, or do you look at it more broadly? What is the methodology you use?
Judge Roberts: I mean, I think you’re quite right that that is quite often the critical question in these cases, the degree of generality at which you define what the tradition, the history, and the practice you’re looking at. The example, I think, that I’ve always found it easiest to grasp was Loving v. Virginia. Do you look at the history of miscegenation statutes, or do you look at the history of marriage?
When Roberts observed that the Supreme Court has precedents governing “how you should phrase the level of generality,” Biden said there were competing precedents and asked Roberts which precedent he agreed with. Roberts replied:
Well, you do not look at the level of generality that is the issue that’s being challenged. So, for example, in Loving v. Virginia, if the challenge is, it seems to me—and this is what the court’s precedents say. If the challenge is to miscegenation statutes, that’s not the level of generality because you’re going to answer it’s completely circular.
Sen. Biden: But that is specific, judge. The generality was the right to marry. That is the generality.
Judge Roberts: Well, that’s what I’m saying. The dispute is do you look at it at that level of specificity or broader. And I’m saying you do not look at the narrowest level of generality, which is the statute that’s being challenged, because obviously that’s completely circular. You are saying there is obviously that statute that’s part of the history. So you look at it at a broader level of generality.
It is significant that Roberts volunteered Loving as exemplifying not only the nature of the issue confronting a court dealing with an asserted fundamental right, but the correct methodology the court should use in identifying the right. Roberts’ analysis tracked an important concurring opinion in Michael H., authored by Justice Sandra Day O’Connor and joined by Justice Anthony Kennedy, which argued that Scalia’s “level of generality” argument could not be squared with Loving. As Roberts explained, it would have been completely circular for the court in Loving, confronted with laws prohibiting interracial couples from marrying, to look only at the “history of miscegenation statutes.” After all, the very existence of those laws suggests that there was no “deeply rooted” tradition of “interracial marriage.” The correct inquiry, as Roberts further explained (and as is evident from the court’s decision), was to focus on the more general “right to marry.”
This is of course pertinent to Obergefell, as opponents of marriage equality for same-sex couples have argued that gay men and lesbians are seeking a new right—a right to “marry a person of the same sex”– that is different from the “right to marry” and not “deeply rooted in this Nation’s history and tradition.” In their briefs, supporters of marriage equality have demonstrated through the Supreme Court’s precedents, particularly including Loving, that this approach is too narrow, that the right being denied to same-sex couples is not a new right, any more than the right denied to mixed-race couples was a new right of “interracial marriage.” As 7th Circuit Judge Richard Posner wrote last year in an opinion striking down same-sex marriage bans in Wisconsin and Indiana, the argument that tradition supports the bans “runs head on into Loving.” That conclusion should resonate with Chief Justice Roberts. And if Roberts is true to his confirmation hearing testimony, he should find in Obergefell that state laws prohibiting same-sex couples from marrying violate their fundamental right to marry.