Obergefell Dissent: Justice Roberts's misunderstanding of Faulkner

originally published on July 3, 2015

In his dissent in the Obergefell case, Chief Justice Roberts asserts that, notwithstanding emerging understandings of fairness and justice, the Constitution's 14th Amendment should not be interpreted to require civil marriage equality for gay couples, concluding with reliance on a famous William Faulkner quote from the book Requiem for a Nun: “The past isn’t dead. It isn’t even past.”

But the Chief Justice seems not to have actually read or understood Faulkner. In the book, a young woman, Temple Drake Stevens, harbors embarrassing secrets from her past, which, if revealed, could save the life of a black woman on death row. Temple's uncle, Gavin Stevens, urges her to step forward. Temple demurs, saying, "The past is dead." Gavin replies with the words quoted by the Chief Justice: "The past isn't dead. It isn't even past."

Faulkner warned us that we are haunted by the past and need to take action to own up to and correct past sins. Indeed, that was an underpinning of Loving v. Virginia, where the Court overturned bans on interracial marriage. Yet, the Chief Justice says that the Court should be controlled by an element of a past (discrimination against and antipathy toward gay people) that has caused unnecessary pain, because it is still part of our present. By invoking Faulkner, the Chief Justice actually undermines the very point that is the linchpin of his argument.

[NB: The Chief Justice’s discussion is found at pp. 22-23 of his dissent.]