Scalia's Prophecy Fulfilled (Sub Silentio)

Sub silentio (literally, "under [the cloak of] silence") is a legal term of art for the technique of a court that, say, wants to accomplish something like the overruling of an earlier case -- without having to admit in express words what it is doing. For whatever political or collegial considerations prevail at the moment, the court finds it more "convenient" to stop short of saying what it is doing, while doing it nonetheless. Then, either a few (or even many) years later, the court can "discover", say, that the case of W. vs. X was in fact overruled, sub silentio, by the case of Y vs. Z.

Courts also understandably shy away from overturning their own prior decisions. As Justices O'Connor, Kennedy and Souter noted in declining to overrule Roe v. Wade in the later case of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), “Liberty finds no refuge in a jurisprudence of doubt.”

Today the United States Supreme Court in effect overruled, without saying so, its earlier holdings in which it expressly declined to declare that homosexuals enjoyed a "fundamental right" to practice their lifestyle without State interference. And the most remarkable thing is that it did so sub silentio, without even issuing any written opinion!

The Court accomplished this astonishing feat by the simple tactic of exercising its power to review lower court decisions. It denied review of decisions by three different Circuit Courts of Appeal striking down bans on same-sex marriages in the states of Indiana, Oklahoma, Utah, Virginia (three cases) and Wisconsin. Those seven decisions are now final, and mean that the same courts could in the future strike down similar laws in six other States within their jurisdictions: Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming.

Moreover, a decision striking down bans on same-sex marriage in Idaho and Nevada is expected soon from the very liberal Ninth Circuit Court of Appeals in San Francisco, with jurisdiction over seven more States than those two. Cases that could be affected by that ruling are currently pending in the lower courts of Alaska, Arizona and Montana.

Before today's denials of review, the Court had uniformly struck down refusals by the lower courts to stay the effect of their decisions (and thus begin the process of marrying same-sex couples before those decisions became final). But now that those decisions are made final, by the Court's refusal to review them, the couples in the States affected by the rulings will begin marrying as soon as next Monday.

So by refusing to exercise its powers of review, the Court has in effect given a green light to same-sex marriage in as many as thirty States, with more sure to follow. And all of this without a single uniform ruling that same-sex marriage is a "fundamental right" under the Constitution!

Previously the Court had held that State statutes having a discriminatory effect against a class of people could be upheld if there was any "rational basis" for the discrimination -- unless the case involved a "fundamental right", in which instance the statute would be subjected to a higher standard of review, called "strict scrutiny." In Roe v. Wade, for example, the Court struck down an anti-abortion statute on the ground that the right to abort an unborn child was "fundamental" under the Constitution.

But after today's (in)action, that is a distinction without a difference. In its 2003 decision in Lawrence v. Texas, striking down a Texas criminal statute outlawing acts of sodomy between people of the same sex, the majority went out of its way to declare that it was not finding a "fundamental right" to engage in sodomy. Rather, it struck down the statute on the ground that the only basis for the provision was in a moral or religious code. States could not enact penal laws on such a basis, it declared, without infringing on "a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." (My bold emphasis added.)

As Justice Scalia pointed out in a stinging and prophetic dissent, this rationale had no limits at all:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 2480 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge [i.e., the petitioners' challenge that the anti-sodomy law involved in that case had no rational basis to support it]. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U.S., at 196, 106 S.Ct. 2841. 

(Lawrence v. Texas (2003) 539 U.S. 558, 590 [123 S.Ct. 2472, 2490, 156 L.Ed.2d 508] [footnote omitted].)

Justice Scalia called it exactly, right down to today's (in)action. The sequence of rulings from the Supreme Court is thus as follows:

1. Bowers v. Hardwick (1986) 478 U.S. 186 [106 S.Ct. 2841, 92 L.Ed.2d 140]: Georgia's anti-sodomy statute did not violate the "fundamental rights" of homosexuals. Justices in the majority: White, Burger (C.J.), Powell, Rehnquist and O'Connor; Justices dissenting: Blackmun, Brennan, Marshall and Stevens.

2. Lawrence v. Texas (2003) 539 U.S. 558 [123 S.Ct. 2472, 156 L.Ed.2d 508]: While not deciding that homosexuals had any "fundamental Constitutional right" to engage in sodomy, the Court held that States could not penalize such acts without interfering with the essential liberty of individuals to make lifestyle choices. Justices in the majority: Kennedy, Stevens, Souter, Ginsburg and Breyer (O'Connor concurred in the judgment); Justices dissenting: Rehnquist (C.J.), Scalia, and Thomas.

3. United States v. Windsor (2013) __ U.S. ___ [133 S.Ct. 2675, 186 L.Ed.2d 808]: While not deciding that same-sex marriage is a "fundamental right deeply rooted in this Nation's history and tradition," Congress' singling out of only heterosexual marriage for federal recognition unconstitutionally deprives same-sex couples recognized by their own State of their liberty under the Fifth Amendment. Justices in the majority: Kennedy, Ginsburg, Breyer, Sotomayor and Kagan; Justices dissenting: Roberts (C.J.), Scalia, Thomas and Alito.

It will be evident at once that Justice Kennedy has been instrumental in shifting the Court's gay-rights jurisprudence from the narrow necessity of first finding that such rights are "fundamental" (in order to make laws discriminating against them subject to strict scrutiny) to the far broader, less stringent  requirement that State and federal laws may not unduly infringe upon the liberty of individuals to lead the lifestyles of their choice. Each time, he attracted the Court's liberal majority to support him in that shift.

At the same time, it should be evident, in light of today's orders refusing review of any of the decisions striking down same-sex-marriage bans below, that at least one Justice on the so-called conservative side had to vote with the liberals and Justice Kennedy to deny review. The reason for that statement is that it takes the vote of just four Justices to accept a case for review, and there were four dissenting justices in Windsor who are all still on the Court today. (I speak of the "so-called" conservative side because it is becoming increasingly questionable whether the Chief Justice may still be counted among their number.)

[UPDATE 10/06/2012: For a slightly different take on what could have occurred behind the Court's sealed doors -- and especially detailing the switch in viewpoint that had to occur for Justice Kennedy -- see this post from law professor Josh Blackman (blog linked under "Juricannon" at the right).]

Before today's orders were issued, Justice Ginsburg had expressed the view in public that the same-sex marriage rulings were not yet ripe for review, as there were not yet any decisions by the Courts of Appeal that upheld a State's ban on same-sex marriages. The Court usually likes to step in only to resolve conflicts between the Courts of Appeal, and here there were none (yet). Could this viewpoint have swayed any of the four conservatives? I doubt it very much.

At the same time, if those same four Justices could read the tea leaves displayed by the prior decisions in Lawrence and Windsor, then it should have been obvious that accepting review of any of the seven cases below would have led only to another Kennedy majority opinion finding that bans on same-sex marriage infringe unconstitutionally upon individual liberties. Thus by declining review at this time, the door could be left open for a different Court at a later day to return, perhaps, to the rational basis jurisprudence that prevailed pre-Lawrence.

And given the results expected in the upcoming midterm elections, such a calculating minority Justice (or two) might well entertain the hope that the elections would stymie President Obama's ability to appoint any more Justices for the remainder of his term -- leaving open the possibility that 2016 could see the election of a Republican president with a Republican majority in the Senate.

Cynical? You bet. Calculating? Certainly. For the calculus says nothing about what will happen to all of the same-sex marriages that will be contracted in many States between next Monday and whenever there is again a conservative majority on the Court. Presumably their validity would be a fait accompli, and seen as the temporary price to be paid for a longer-term uniformity in the law.

But is that any worse than the cynicism and calculated strategies of those who are currently employing the lower federal courts to gain what they could not gain at the ballot box?

I say we are all the worse off for the sheer, unprincipled politics that now govern federal jurisprudence on issues that were traditionally left to the individual States to decide. When the courts read the newspapers rather than their own precedents, we are indeed at the point where liberty can find no refuge in a jurisprudence of doubt or politics.