Section: News

On the Record: Jonathan Adler

On the Record: Jonathan Adler

Photo courtesy of Jonathan Adler

Jonathan Adler, law professor and director of the Center for Business Law and Regulation at Case Western Reserve University in Cleveland, is the most cited environmental law expert under age 40, according to legal scholar Brian Leiter. He has written extensively about environmental and constitutional law, having published five books as well as pieces in dozens of publications including The Wall Street Journal and USA Today.

In your talk, you encouraged American citizens to question the logic of the Supreme Court’s decision to use the doctrine of due process to justify the Obergefell v. Hodges decision. Can you explain why you think this decision, while just, is not doctrinally sound?

For whatever reason, Justice [Anthony] Kennedy’s opinion decided to rely more heavily on the notion of substantive due process than on other doctrinal rationales which would have made the decision fit more readily into existing precedent. For example, the court could have focused on doctrines that questioned government decisions to treat different classes of people differently. Had the court gone more in that direction, it would have been easier to see how this decision fits into the court’s case law relating to other instances where the government has made distinctions between citizens.

The substantive due process rationale that the court used concluded that a liberty interest was violated by a state’s refusal to recognize a marriage between two people of the same sex. That has a couple of problems in terms of existing doctrine. Liberty is traditionally understood as a freedom from government restraint, not entitlement to a government benefit or recognition.

You wrote two articles for The Washington Post about Kim Davis’s refusal to issue same-sex marriage licenses. Why do you feel strongly opposed to her actions?

If you are an elected official, and are sworn into office, and part of your obligation is to issue marriage licenses, you are not entitled to decide which marriages to recognize and which not to recognize. Even if one takes an expansive view of religious accommodation, what Kim Davis was asking for was not only not to have to issue licenses herself, but to prevent anyone in her office from issuing the licenses. It would be one thing for a state to say that a specific individual in a specific government agency could withdraw from performing a function, so long as someone else is ready and able to take their place, but it’s quite different to take the position that she did    that her office could deny service to people who, under the law, were entitled to receive certain benefits.

You have described yourself as politically right-of-center or libertarian. You also publicly express your support for same-sex marriage. How do you rectify your political leanings and your support for same-sex marriage?

I generally consider myself on the right side of the political spectrum because I have a limited view of what government should do. Personally, I don’t like the government in the bedroom or in the boardroom, unless there’s some particularly compelling justification. The law is supposed to provide a framework through which people can organize their private affairs in accordance with their own goals. I don’t see much basis for the government picking and choosing among couples based on different conceptions of what the right way to live is.

In the talk, I spoke particularly about the issue of children because one of the arguments made on the right against same-sex marriage is that state recognition of marriage is primarily about reinforcing an institution that provides the best environment in which to raise children. The reality is, hundreds of thousands of children are being raised by gay parents. It’s hard to believe that it’s better for those children to be raised in single-parent households rather than two-parent households. Similarly, if there are gay couples that want to adopt and want to provide a stable environment for children they would adopt, it’s hard to argue that denying them the benefits of marriage enhances or protects the children’s interest.

At this point, who do you think you are going to vote for? Are you backing John Kasich for the election?

There are a handful of people who I’m pretty sure I will not vote for — I will not vote for Donald Trump or for Michael Huckabee, but I have not endorsed anybody. I have done some work for the Kasich administration, but I have not done anything for the campaign. I’ve got enough to do as an academic.

What do you make of the Republican Party’s position on same-sex marriage and, moving forward, do you think they have to change it to win and to stay relevant?

I think that, politically, the Supreme Court’s decision creates more breathing room for Republicans because it largely takes the issue off the table. The issue’s been resolved, and so it will make it less of an issue in the election than it would have been. That probably benefits Republican candidates. It removes a potentially dangerous issue.

This interview has been edited for length and clarity.


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