OBERGEFELL v. HODGES BEYOND JUDICIAL MINIMALISM:
Same-sex marriage adjudication in the U.S. Supreme Court
∗
Aline Brayner†
Henrique Rangel††
UNIVERSIDADE FEDERAL DO RIO DE JANEIRO
This paper was drafted for the 2016 meeting of the Law & Society Association. Please direct questions,
comments, and suggestions to [email protected] or [email protected].
∗
†
Undergraduate student in Law, Universidade Federal do Rio de Janeiro, Brasil.
Masters of Laws, Universidade Federal do Rio de Janeiro, Brasil.
††
OBERGEFELL v. HODGES BEYOND JUDICIAL MINIMALISM:
Same-sex marriage adjudication in the U.S. Supreme Court
∗
Aline Brayner
Henrique Rangel
I.
Introduction
The Supreme Court of the United States ruled the polemic case Obergefell v. Hodges (2015)1,
in which the Court has assured that the 14th Amendment requires a state to license a marriage
between two people of the same sex and to recognize a marriage between two people of the
same sex when their marriage was lawfully licensed and performed out-of-state.
The case has created great expectations related to its implications on Constitutional Law.
Some studies might approach this paradigmatic decision by reductionist leans aiming to
characterize the behavior of the Court as maximalist, claiming that the court usually pays
attention to an actual or emerging moral consensus, certainly with respect to fundamental
rights, following public opinion, not leading it. Otherwise, to the Justices, the views of the
American people seem to matter for two reasons. First, they give a kind of permission slip: if
most people agree with the reasons publicly given, the Court would make substantive
decisions preserving its authority. Second and perhaps more fundamental reason, directly
related to the same-sex marriage issue, is that the views of the American people provide
valuable information: if most people have come to share a moral commitment, or if the arc of
history is clearly on one side, then judges are likely to pay attention.
In fact, it is likely that the case Obergefell v. Hodges (2015) be considered an example of
maximalistic decision of the Court. Nevertheless, when paradigmatic decisions became a
turning point in judicial review, some addicts may be developed. The precedent, for example,
can be a target of isolated evaluations about the Supreme Court’s behavior, disregarding all
process of constitutional adjudication that happened before. The main problem of this
research is: a reductionist analysis can wrongly conduct people to think that Obergefell v.
Hodges (2015) indicates how the Supreme Court has a maximalistic way of decision-making.
1
Obergefell v. Hodges, 576 U.S. (2015).
Therefore, this paper holds the hypothesis that follows: this precedent reveals a minimalist
model of decision-making of the Supreme Court. In this sense, the judicial minimalism of
Cass Sunstein is the principal theoretical framework. In a few words: the theory of judicial
minimalism established that judges have a preference for small steps instead of large ones.
Minimalists believe that Justices lack relevant information, and they fear the potentially
harmful effects of decisions that reach broadly beyond the case at hand. They fear that wide
ruling will produce errors that can be hard to reverse.
According to this minimalist pattern, Obergefell v. Hodges is one step inside a constitutional
adjudication process started within Lawrence v. Texas (2003) and endorsed by United States
v. Windsor (2013).
The minimalist theory evaluates (i) the levels of depth of the justifications incorporated to the
decision, and (ii) the levels of wideness of the decision related to its effects. Although, this is
not the only aspect of the judicial minimalism that should be take in to account. The
conception of the judicial minimalism that we propose goes beyond the instant result of the
decision taken by the Court: it is also an important instrument to understand the process
which civil union between two people of the same-sex was ensure by the law.
The research methodology is based on three general criteria. The first is the temporal,
restricting the research between the years of 2003 to 2015. The starting point relies on the
precedent Lawrence v. Texas (2003), which has significantly intensified the debate around the
Civil Rights of the Gay Union. The ending point, otherwise, was established based on the
precedent Obergefell vs. Hodges (2015). The second criteria limit spatially the analysis to
United States, within their federal and state government. The third, promotes a material
delimitation, restricting the data to legal resources, like the Federal and State Constitutions,
law and precedents – from federal and state courts –, and political resources, once some states
has assured the same-sex marriage by popular decision. In relation to these criteria, three
recent decisions of the American Supreme Court stand out: Lawrence v. Texas (2003), United
States v. Windsor (2013) and Obergefell v. Hodges (2015).
The main goal of this paper is to demonstrate the insufficiency of analyzing cases singularly
to understand the decision-making process of the American Supreme Court. We support that
the case Obergefell vs. Hodges (2015) was the last step of a process of guarantees which,
without the precedents Lawrence vs. Texas (2003) and United States vs. Windsor (2013),
wouldn’t have been possible. Only an associated analysis of these three decisions seems to be
sufficient to understand the institutional feature that shapes the case under analysis. Each one
of these three precedents corresponds to a well-defined phase in the constitutional
adjudication of the right of same-sex marriage in USA.
The decision Obergefell v. Hodges (2015) seems to be incompatible with the depth and width
dimensions of minimalism. However, taking into account only this decision may lead us to a
miscomprehension of the Court’s behavior. This miscomprehension would classify the Court
as maximalist, but a complete evaluation of the three decisions clears how incompletely
theorized agreements and narrow holdings, in previous steps, reveals a minimalist decisionmaking pattern, which enabled the Court to decide in a maximalistic way.
Obergefell vs. Hodges (2015) certainly presents a spotlight event in the American
Constitutional history. Because of that, the decision would probably be seemed as a turning
point and in addition to this, shades of maximalism, judicial supremacy and progressivism.
Nevertheless, the present research supports that it only can be viewed like a spotlight event if
considered as part of a process composed by other events, equally remarkable. The decision
was the “last step”. Considering it as a single event would conduct us to a miscomprehension
of the behavior of the Supreme Court over time.
II. Judicial Minimalism
The judicial minimalism theory holds that judges should generally avoid broad rules and
abstract theories and attempt to focus their attention only on what is necessary to resolve
particular disputes. It is a practice of saying no more than necessary to justify an outcome.2
Minimalists care about the costs of decision-making and about the costs of error. They believe
that their approach will minimize both of these costs. Besides that, they also point to the
importance of democratic self-government and a norm of civic respect.
Narrow, shallow decisions reduce the risk and cost of error. Minimalist decisions are also said
to be more pluralistic while demonstrating respect for diverse perspectives by leaving
fundamental matters of principle unaddressed. It claims to promote stability and
2
See SUNSTEIN, Cass (1999): One Case at a Time: Judicial Minimalism on the Supreme Court
(Cambridge, Harvard University Press).
predictability, to maintain flexibility for future courts, and to empower democratic
deliberation by giving political decision-makers room to maneuver and respond to
constitutional questions left open by the Supreme Court. On a more philosophical level,
modern minimalism promotes itself as a hedge against judicial supremacy. It calls on judges
to go slowly and in small steps.
Modern judicial minimalism as a distinctive theory of decision-making credited to Professor
Cass Sunstein of Harvard Law School, who coined the term and is the leading academic
proponent of this approach to judging. Minimalistic way of judging, according to professor
Sunstein, variant proceeds along two different dimensions. First, judicial opinions should be
narrow rather than wide, deciding the case at hand while avoiding pronouncing rules for
resolving future cases. Second, judicial opinions should be shallow rather than deep,
avoiding large theoretical controversies and issues of basic principle. Judicial opinions should
rely instead on incompletely theorized agreements that enable judges with diverse
philosophical commitments to join in bottom- line judgments, leaving the more fundamental
questions of principle undecided.
According to these two dimensions, it is possible to classify Supreme Court’s precedents in
Lawrence vs. Texas (2003) e United States vs. Windsor (2013) as minimalist decisions.
III.
Lawrence v. Texas (2003)
In Lawrence v. Texas (2003) the Court struck down the sodomy law in Texas and, by
extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal
in every U.S. state and territory. The Supreme Court, with a five-justice majority, overturned
its previous ruling on the same issue in the 1986 case Bowers v. Hardwick, where it upheld a
challenged Georgia statute and did not find a constitutional protection of sexual privacy.3
Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too
narrowly. The Court held that intimate consensual sexual conduct was part of the liberty
protected by substantive due process under the 14th Amendment. Lawrence invalidated
similar laws throughout the United States that criminalized sodomy between consenting
adults acting in private, whatever the sex of the participants.4
3
4
Cf. Bowers vs. Hardwick, 478 U.S. 186 (1986).
15 Geo. Mason U. C.R. L.J. 105 2004–2005; 102 Mich. L. Rev. 1555 2003–2004.
Justice Anthony Kennedy wrote the majority opinion (which Justices John Paul Stevens,
David Souter, Ruth Bader Ginsburg, and Stephen Breyer joined) based on the argument that
homosexuals had a protected liberty interest to engage in private, sexual activity; that
homosexual’s moral and sexual choices were entitled to constitutional protection; and that
moral disapproval did not provide a legitimate justification for Texas's law criminalizing
sodomy. The majority decision also held that the intimate, adult consensual conduct at issue
here was part of the liberty protected by the substantive component of the Fourteenth
Amendment's due process protections.5
Therefore, Lawrence v. Texas (2003) was a minimalisc decision concerning the dimension of
depth. The Court has granted certiorari considering three questions: (i) Whether Petitioner’s
criminal convictions under the Texas “Homosexual Conduct” law–which criminalizes sexual
intimacy by same-sex couples, but not identical behavior by different-sex couples–violate the
14th Amendment guarantee of equal protection of laws? (ii) Whether Petitioners’ criminal
convictions for adult consensual sexual intimacy in the home violate their vital interests in
liberty and privacy protected by the Due Process Clause of the 14th Amendment? (iii) Whether
Bowers v. Hardwick should be overruled?” When the Court chose to decide only the last two
questions, leaving the first unanswered there was shallowness in the decision-making process.
The majority of the Court haven’t discussed about equal protection clause and the
homosexual civil rights, preventing a substantial discussion about same-sex marriage.
Adopting a broader approach, however, it is possible to consider that Lawrence vs. Texas
(2003) rekindled a debate about the homosexual civil rights. Its outcome was celebrated by
gay rights advocates, who hoped that further legal advances might result as a consequence.
IV. United States vs. Windsor (2013)
United States v. Windsor is a landmark civil rights case in which the Supreme Court held that
restricting U.S. federal interpretation of "marriage" and "spouse" to apply only to
heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is
unconstitutional under the Due Process Clause of the 5th Amendment.
5“The case does involve two adults who, with full and mutual consent from each other, engaged in
sexual practices common to a homosexual lifestyle. […] Their right to liberty under the Due Process
Clause gives them the full right to engage in their conduct without intervention of the government.”
Lawrence vs. Texas, 539 U.S. 558 (2003), p. 578.
The Defense of Marriage Act (DOMA), enacted in 1996, states that, for the purposes of
federal law, the words "marriage" and "spouse" refer to legal unions between one man and
one woman. Since that time, some states have authorized same-sex marriage. In other cases
regarding the DOMA, federal courts have ruled it unconstitutional under the Fifth
Amendment, but the courts have disagreed on the rationale.
Justice Anthony Kennedy delivered the opinion of another 5-4 majority. The Supreme Court
held that states have the authority to define marital relationships and that DOMA goes against
legislative and historical precedent by undermining that authority. The Court held that the
Constitution prevented the federal government from treating state-sanctioned heterosexual
marriages differently from state-sanctioned same-sex marriages, and that such differentiation
"demean[ed] the couple, whose moral and sexual choices the Constitution protects6.” The
result is that DOMA denies same-sex couples the rights that come from federal recognition of
marriage, which are available to other couples with legal marriages under state law. The Court
held that the purpose and effect of DOMA is to impose a "disadvantage, a separate status, and
so a stigma" on same-sex couples in violation of the 5th Amendment's guarantee of equalprotection clause.
However the ruling focused on the provision of DOMA responsible for the federal
government refusing to acknowledge State sanctioned same-sex marriages, leaving the
question of state marriage laws itself to the individual States. For that reason, United States v.
Windsor can be considered a minimalistic decision under the dimension of its narrowness.
V. Obergefell v. Hodges (2015)
On June 26, 2015, the Court held in another 5–4 decision that the fundamental right to marry
is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection
Clause of the 14th Amendment to the United States Constitution. The Court overturned its
prior decision in Baker v. Nelson (1971), which the Sixth Circuit had invoked as precedent. It
was a decision carried by remarkable wideness and deepness.
Regarding to its wideness, Obergefell v. Hodges requires all states to issue marriage licenses
to same-sex couples and to recognize same-sex marriages validly performed in other
6Windsor, 133 S. Ct. at 2694.
jurisdictions. Concerning to its deepness, Obergefell v. Hodges overturned Baker v. Nelson7
and the Supreme Court examined the nature of fundamental rights guaranteed to all by the
Constitution, the harm done to individuals by delaying the implementation of such rights
while the democratic process plays out, and the evolving understanding of discrimination and
inequality that has developed greatly since Baker v. Nelson. For that reasons, we can consider
that Obergefell v. Hodges is a maximalistic decision.
The Court noted the relationship between the liberty of the Due Process Clause and the
equality of the Equal Protection Clause and determined that same-sex marriage bans violated
the latter. Concluding that the liberty and equality of same-sex couples was significantly
burdened, the Court struck down same-sex marriage bans for violating both clauses, holding
that same-sex couples may exercise the fundamental right to marry in all fifty states.
The Obergefell v. Hodges decision came on the second anniversary of the United States v.
Windsor ruling that struck down Section 3 of the Defense of Marriage Act (DOMA), which
denied federal recognition to same-sex marriages. It also came on the twelfth anniversary of
Lawrence v. Texas, which struck down sodomy laws in 13 states. We support that the case
Obergefell vs. Hodges (2015) was the last step of a process of guarantees which, without the
precedents Lawrence vs. Texas (2003) and United States vs. Windsor (2013), wouldn’t have
been possible.
VI. Minimalism to Maximalism: the Constitucional Adjudication Process
Since June 26, 2015, when the Supreme Court ruled in Obergefell v. Hodges same-sex
marriage has been legal nationwide due to this state-level bans on same-sex marriage are
unconstitutional. The court ruled that the denial of marriage licenses to same-sex couples and
the refusal to recognize those marriages performed in other jurisdictions violates the Due
Process and the Equal Protection clauses of the 14th Amendment of the United States
Constitution. The ruling overturned the precedent Baker v. Nelson8.
However, take in to account only this decision conducts us to a miscomprehension of the
Court’s behavior. During the period of 2003 to 2015, various lower court decisions, state
legislation, and popular referendums had already legalized same-sex marriage to some degree
7Richard John Baker v. Gerald R. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971)
in thirty-eight out of fifty U.S. states, in the U.S. territory Guam, and in the District of
Columbia.
On 2003, the Supreme Court could have assured the same-sex marriage, under the Equal
Protection Clause in Lawrence v. Texas. Rather than including sexuality under protected
liberty, the Court could strike down the law as violating the equal protection clause because it
criminalized male-male but not male-female sodomy. Justice Sandra Day O'Connor filed a
concurring opinion in that sense. O'Connor noted that a law limiting marriage to heterosexual
couples would pass the rational scrutiny as long as it was designed to "preserve the traditional
institution of marriage" and not simply based on the state's dislike of homosexual persons.
Therefore, Lawrence v. Texas was a minimalistic considering the shallowness in the decisionmaking process.
On the other hand, United States v. Windsor can be considered a minimalistic decision under
the dimension of its narrowness. Justice Kennedy demonstrated his intention in limiting the
holding arguing that the majority opinion was based on federalism, finding DOMA
unconstitutional because the federal government was interfering with state control of
marriage. In his words: "The dominant theme of the majority opinion is that the Federal
Government's intrusion into an area 'central to state domestic relations law applicable to its
residents and citizens' is sufficiently 'unusual' to set off alarm bells.... [I]ts judgment is based
on federalism.”9 The Court held that the Constitution prevented the federal government from
treating state-sanctioned heterosexual marriages differently from state-sanctioned same-sex
marriage. In this sense, this precedent would only link the states where the same-sex marriage
was a guarantee already established.
Some studies might approach the paradigmatic decision Obergefell v. Hodges by reductionist
leans aiming to characterize the behavior of this Court as maximalist, claiming that the court
usually pays attention to an actual or emerging moral consensus, certainly with respect to
fundamental rights, following public opinion, not leading it. To the justices, the views of the
American people seem to matter. By the time that same-sex marriage became legal nationally,
public opinion on the subject had reached almost 60% approval levels according to polls by
9United States v. Windsor, No. 12-307, 570 U.S. ___ (June 26, 2013). Retrieved June 26, 2013.
The Wall Street Journal 10 , the Human Rights Campaign 11 , and CNN 12 and trending
consistently upward over the years prior.
In fact, it is likely that the case Obergefell vs. Hodges (2015) be considered an example of
maximalistic decision of the Court. Nevertheless, according to the main goal of this work,
Obergefell vs. Hodges should be evaluated as one step inside a constitutional adjudication
process started within Lawrence v. Texas (2003) and endorsed by United States v. Windsor
(2013). Obergefell vs. Hodges can’t be a target of isolated evaluations about the Supreme
Court’s behavior, disregarding all process of constitutional adjudication that happened before.
A reductionist analysis can wrongly conduct people to think the Supreme Court has a
maximalistic way of decision-making which according to our conclusions at this work is not
true.
In Lawrence v. Texas and United States v. Windsor minimalists justices lacked relevant
information that they could have decided. According to minimalists, Justices fear the
potentially harmful effects of their decisions that reach broadly beyond the case at hand. They
fear that wide ruling will produce errors that can be difficult to reverse.
Such premises explain how the last step depends on what remained decided before. Even if
the majority of the Court had preferred ensure equal rights to same-sex couples since 2003 or
203, the Justices would be unlike to bear the risk of decide without reinforce the
democratically accountable institutions before. After Lawrence v. Texas (2003), same-sex
couples replaced their civil rights in the public debate. Some states ensured their marriage by
state legislative act, popular consultation or judicial decision in lower courts. When the Court
granted certiorari to United States v. Windsor (2013), only nine states had already guaranteed
the same-sex marriage. In this decision, Justices have signaled a broad probability to overrule
Baker v. Nelson (1971) soon. The ruling that such bans are discriminatory and violate the
Equal Protection Clause of the 5th Amendment suggested the same interpretation in a future
case involving the state legislation against same-sex marriage. Since 2013, federal and state
lower courts demonstrated activist on this subject and the number of states assuring then the
right to marry bulk from nine to thirty-seven in less than two years. Obsergefell v. Hodges
(2015) forced only regional minorities to license and to recognize same-sex marriages,
10Janet Hook. "Support for Gay Marriage Hits All-Time High — WSJ/NBC News Poll". WSJ.
Retrieved September 30, 2015.
11
Poll: 60 percent of likely voters back gay marriage". POLITICO. Retrieved February 2, 2016.
12
CNN poll: 63 percent of Americans say same-sex couples have a right to marry". LGBTQ Nation.
Retrieved September 30, 2015.
particularly in the South, Southeast, and Midwest. After a supermajority of states ensure the
right and past decisions settle similar standards in the same sense, to maximize the protection
seemed to be the minimal response. Thus, Obergefell v. Hoodges (2015) ruled beyond judicial
minimalism
VII. CONCLUSION
We can conclude that the case Obergefell vs. Hodges (2015) was the last step of a process of
guarantees which, without the precedents Lawrence vs. Texas (2003) and United States vs.
Windsor (2013), wouldn’t have been possible.
The landmark decision Obergefell v. Hodges is a precedent beyond the judicial minimalism.
Concerning to its depth, the Court noted the relationship between the liberty of the Due
Process Clause and the equality of the Equal Protection Clause and determined that same-sex
marriage bans violated both clauses. Concerning to its wideness, the Court struck down samesex marriage bans for violating both clauses, holding that same-sex couples may exercise the
fundamental right to marry in all fifty states.
On that sense, maximalisc decisions like Obergefell v. Hodges reaffirms the American
Supreme Court remain assuming a minimalistic decision-making model in landmark cases.
REFERENCES
BICKEL, Alexander (1962): The Least Dangerous Branch: The Supreme Court at the Bar of
Politics (New Haven, Yale University Press).
BICKEL, Alexander (1970): The Supreme Court and the Idea of Progress (New York, Harper
& Row).
CHEMERINSKY, Erwin (2014): “Appearances Can Be Deceiving: October Term 2013
Moved the Law to the Right”, en University of California Legal Studies Research Paper
Series (No. 2014-61).
DAHL, Robert (1957): “Decision-Making in a Democracy: The Supreme Court as a National
Policy-Maker”, en Journal of Public Law (Vol. 6, 280).
DIXON, Rosalind (2011): “Weak-form Judicial Review and the American excepcionalism”,
en Chicago Law School Public Law and Legal Theory Working Papers Series (No. 348).
ELY, John Hart (1980): Democracy and Distrust: A Theory of Judicial Review (Cambridge,
Harvard University Press).
ESKRIDGE, JR., William (1993): “A History of Same-Sex Marriage”, en Virginia Law
Review (Vol. 79, 1419).
FEIGENBAUM, Jeremy (2015): “Bargaining in the Shadow of the ‘Law?’: The Case of
Same-Sex Divorce”, en Harvard Negotiation Law Review (Vol. 20, 101).
HABERMAS, Jürgen (1996): Between Facts and Norms: Contributions to a Discourse
Theory of Law and Democracy (Cambridge, The MIT Press).
HALL, Kermit; ELY, JR., James; GROSSMAN, Joel (Coords.) (2005): The Oxford
Companion to the Supreme Court of the United States. 2nd ed. New York, NY: Oxford
University Press, 2005.
KRAMER, Larry (1997): “Same-Sex Marriage, Conflict of Laws, and the Unconstitutional
Public Policy Exception”,en The Yale Law Journal (Vol. 106, 7).
KRAMER, Larry (2007): “The Interest of the Man: James Madison, Popular
Constitutionalism and the Theory of Deliberative Democracy”, en Valparaiso University Law
Review (Vol. 41, 2).
NELSON, Willam (2000): Marbury v. Madison: the origins and the legacy of judicial review
(Lawrence, University Press of Kansas).
NUSSBAUM, Martha (2009): “A right to marry? Same-Sex Marriage and Constitutional
Law”, en Dissent (Vol. 56, 3).
NUSSBAUM, Martha (1999): Sex and Social Justice (New York, Oxford University Press).
RAWLS, John (1993): Political Liberalism (New York, Columbia University Press).
SCHAUER, Frederick (2009): Thinking Like a Lawyer: A New Introduction to Legal
Reasoning (Cambridge, Harvard University Press).
SIEGEL, Reva (2006): “Constitutional Culture, Social Movement Conflict and Constitutional
Change: The Case of the de facto ERA”, en California Law Review (Vol. 94, 1323).
SUMMERS, Robert (1978): “Two Types of Substantive Reasons: The Core of a Theory of
Common-Law Justification”, en Cornell Law Review (Vol. 63, 5).
SUNSTEIN, Cass (2008): “Beyond Judicial Minimalism”, en Chicago Public Law and Legal
Theory Working Paper Series (No. 237).
SUNSTEIN, Cass (2015): Choosing Not to Choose: Understanding the Value of Choice (New
York, Oxford University Press).
SUNSTEIN, Cass (2002): “Incompletely Theorized Agreements in Constitutional Law”, en
Chicago Public Law and Legal Theory Working Paper Series (No. 28).
SUNSTEIN, Cass (1996): Legal Reasoning and Political Conflict (New York, Oxford
University Press).
SUNSTEIN, Cass (1999): One Case at a Time: Judicial Minimalism on the Supreme Court
(Cambridge, Harvard University Press).
SUNSTEIN, Cass (2000): “Practical Reason and Incompletely Theorized Agreements”, en
E.U.M. (Coord.), Reasoning Practically (New York, Oxford University Press).
TUSHNET, Mark (2008): Weak Courts, Strong Rights: Judicial Review and Social Welfare
Rights in Comparative Constitutional Law (Princeton, Princeton University Press).