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When Thinking about Obergefell We Must Distinguish between Policy and Law



Among the friends of liberty, there is much confusion about whether the Supreme Court’s Obergefell opinion is a vindication of liberty or an usurpation of power. When thinking about the opinion we should be aware of two different modes of analysis: policymaker and judge. How we see Obergefell depends on which mode we have switched on. Let me explain.

I was an undergraduate when I first encountered the case of Lochner v. New York, 198 U.S. 405 (1905). Lochner dealt with a New York statute prohibiting bakers from working more than 60 hours per week and/or 10 hours per day. The state argued that the statute was a simple exercise of the police power—the reserved power to pass general legislation for the health, safety, and welfare of the people. The Supreme Court, however, held that the statute deprived bakers of liberty without due process of law contrary to the Fourteenth Amendment. Asserting that bakers were not “wards of the state,” the Court found “no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor, in the occupation of baker.”

As a believer in free markets, I originally applauded the Court’s decision. Government, in my opinion, had no business interfering with two parties setting terms of contract under which one would labor and the other pay. I was thinking about this issue as a policymaker. Were I in the New York legislature, I would have advocated against this interference in markets and voted against wage and hour prohibitions.

My conclusion about Lochner changed when I switched from the policymaking mode to that of jurist. In examining the idea of “due process” I learned that this concept means that before the government can punish a person for some act or omission, government has to resort to the courts and use established procedures under pre-existing laws. Alexander Hamilton was clear about the scope of due process when writing in the late 1780s: “The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of courts of justice; they can never be referred to an act of the legislature.” In other words, before putting someone in jail or forfeiting their property, government must follow a normal and established process. Warrants must be signed by a neutral magistrate, juries should be empaneled to hear a felony case, etc. Due process has nothing to do with the substance of a law, i.e., whether a judge thinks the law is good or bad policy. So long as the law has a basis in reason (when dealing with something clearly within the states’ reserved powers), the judicial inquiry should cease. Thus, I realized that Lochner was an example of judicial legislation: the Supreme Court substituting its policy preferences for that of the New York legislature. When in the jurist mode, I had to concede Lochner was wrongly decided although in policymaker mode I liked the result.

We should think about Obergefell in the same way. As a matter of policy, many of you can give sound arguments on why the definition of marriage should be expanded to include same-sex couples. However, we are debating the propriety of a decision of the United States Supreme Court. We must switch to jurist mode. State laws limiting marriage to one man and one woman have nothing to do with due process, which is entirely a procedural matter. The Supreme Court has no business looking at the substance of the laws to determine if it agrees with the policies enacted by various state legislatures. Linking marriage to procreation is inherently reasonable. There the judicial inquiry should end.

I know this is not easy to do. It was not easy for me to accept that Lochner was bad law inasmuch as I liked the result and believed it good policy. Similarly, it is not easy for many of you to accept that Obergefell is bad law although you like the policy of expanding the definition of marriage. But, if we do not make a distinction between the mode of policymaker and that of judge, then we end up with a system in which nine unelected lawyers make policy decisions for the entire nation and we have no recourse against them. We can’t vote them out of office like we can policymakers in Congress, a state legislature, or a city council.

So, when debating Obergefell, make sure you’re in jurisprudence mode. It might change your perspective on the outcome of this case.

Footnote: Some libertarian scholars believe that the Supreme Court got Lochner right as a matter of policy and jurisprudence. If you are interested in this argument, see David N. Mayer, Liberty of Contract (2011).

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