Obergefell v. Hodges, 576 U. S. ___ (2015)

Same-sex couples in the states of Kentucky, Michigan, Ohio, and Tennessee sued their state agencies for their refusal to recognize legal same-sex marriages or an outright ban on such marriages, claiming the statutes of these states were in violation of the Equal Protection Clause and Due process Clause of the Fourteenth Amendment.

Justice Kennedy delivered the opinion for the 5-4 majority which also consisted of Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Court ruled in favor of the plaintiffs, holding the Fourteenth Amendment guarantees the right to marry regardless of whether the couple is opposite- or same-sex. Chief Justice Roberts, along with Justices Scalia, Thomas, and Alito each wrote dissenting opinions, claiming with this decision the Court was overstepping in its role.

Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682 (2014)

The Green family — which owns and operates Hobby Lobby Stores, Inc. — alleged the requirement of preventative care such as contraception to be provided by for-profit institutions' employee health care plans under the Patient Protection and Affordable Care Act was an infringement upon the rights which are provided under the Religious Freedom Restoration Act of 1993.

Justice Alito delivered the opinion of the 5-4 majority which also included Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. The Court held for-profit companies could be persons within the meaning of the Religious Freedom Restoration Act and may deny employees health coverage of contraception. In her dissent, to which Justices Breyer, Sotomayor, and Kagan signed on, Justice Ginsburg argued the Court's decision was precluded by precedent which held there is no violation of religious freedom when it is a coincidental consequence of a statute, and this ruling impedes on the rights of third parties, namely the women seeking contraception.

Application of the Models of Decision-Making

In deciding the outcome of a case, the factors which justices must take into consideration may be molded to conform to their personal and political preferences. This concept is highly visible in the majority and dissenting opinions in these two cases.

Under the attitudinal model of Supreme Court decision-making, it is possible to determine how the justices would make decisions if their votes were determined by ideology alone. Thus, based on the values and preferences of a given justice, those who are liberal will support liberal policies, such as the protection of same-sex marriage, and justices who are conservative will prefer conservative policies, such as the protection of the right to refuse to provide a service on the basis of religious beliefs.

The 5-4 outcome in each of these cases communicates the partisan split among the Supreme Court. Considering the political composition of the Court, it is not surprising or unexpected to see Justice Kennedy be the deciding swing vote while Justices Ginsburg, Breyer, Sotomayor, and Kagan vote together and Chief Justice Roberts votes with Justices Scalia, Thomas, and Alito.

Under the legal model, it is assumed justices make decisions based purely on legal considerations — the plain meaning of statutes and the Constitution, the intent of the Framers, and legal precedent — and thus they would employ an originalist reading of the Constitution and the Patient Protection and Affordable Care Act. As is presented in Chief Justice Roberts's dissent in Obergefell v. Hodges, 576 U. S. ___ (2015), the Constitution does not specifically address same-sex marriage, and thus, in compliance with the Tenth Amendment, the issue should be left to the states. Extending the rights enjoyed by opposite-sex couples to same-sex couples — as the majority has — would be inappropriate in the context of this model since it ignores the plain meaning of the Constitution and instead assumes the Constitution to be a living document. Conservative justices in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682 (2014) do not employ a textualist understanding in the majority opinion. Instead, they determine Congress's intent was for the Religious Freedom Restoration Act to apply to corporations since they are made up of individuals and the exemption for non-profit religious organizations can and should be applied to for-profit religious corporations.

The decisions of such an emotional and controversial issues as same-sex marriage and religious freedom at the expense of third parties are likely to result in some level of social upheaval no matter which side the Court ruled in favor of. It is unlikely the Court's decision to protect same-sex marriage would be reversed since this would be in the form of a Constitutional Amendment, but how warmly the public welcomes the decision would nonetheless be salient. Attempt to overturn the Burwell decision through requiring for-profit religious corporations to provide contraception would likely have been unsuccessful due to the Republican majority in the House of Representatives at the time. In each case, the Court's judicial policymaking indeed seems to be welcomed by the majority, much to the dismay of the dissenting justices. This would be unlikely under the rational-choice model of decision-making, as it would be a threat to the integrity of the Court but would be reasonable if the justices were focused on pursuing their personal policy preferences. While each case conforms to the Court's current aptitude of hyperactive policymaking, it is clear the decisions in both Obergefell and Burwell were indeed politically motivated.

Conclusion

Each side is able to apply the various legal considerations in a manner that supports their partisan stances. When it is politically convenient, judicial activism — policymaking — may be acceptable to employ in a given case. Neither Obergefell v. Hodges, 576 U. S. ___ (2015) nor Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682 (2014) would have resulted in the same outcome if the justices voted in accordance with the legal model of judicial decision-making: they would have not been as partisan or even ruled in favor of the parties which they did. Both the liberal justices in the Obergefell majority and the conservative justices in the Burwell majority engage in policymaking at the risk of the integrity of the Court due to the controversial nature of each case.