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Monday, July 6, 2015

On Obergefell v. Hodges

I finally got around to reading the opinions in Obergefell v. Hodges and they were...interesting.  The opinion of the Court was written by Justice Kennedy and joined by Justices Kagan, Souter, Ginsberg, and Sotomayer.  Chief Justice Roberts penned a dissent which was joined by Justices Scalia and Thomas, Justice Scalia penned a dissent which was joined by Justice Thomas, Justice Thomas penned a dissent which was joined by Justice Scalia, and Justice Alito penned a dissent which was joined by Justices Scalia and Thomas.

The majority opinion focused heavily on previous rulings of the Court holding that marriage is a fundamental right that "is inherent in the concept of individual autonomy"; "supports a two-person union unlike any other in its importance to committed individuals"; "that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education", and because "this Court's cases and the Nation's traditions make clear that marriage is a keystone of the Nation's social order."  Basically, Justice Kennedy argues that since marriage is a ceremony with many civil benefits attached, equal protection and human dignity require that states recognize same sex marriages.  He makes sure to note that the states must not only allow same-sex couple to get married, but they must recognize same-sex weddings performed in other states.  He also takes care to note that no church can be forced to marry a same-sex couple.

Chief Justice Roberts' dissent focused mainly on the fact that the decision established a new right that is against the traditional meaning of marriage.  He said that the various changes to marriage over the years have been more tinkering around the edges and not changing the core of what marriage is: a union of one man and one woman.  Of course, he promptly contradicts himself by noting that many societies throughout history have a history of polygamy, which he expresses concern about.  Basically, he says that this decision will open the door to polygamy.  As a personal note, I ask why that is a major issue if all of the people involved are consenting adults.

Justices Scalia and Thomas' dissents are basically extended temper tantrums.  They argue that the wisdom of the ages has told us that marriage is between a man and a woman and that the Founders only envisioned that marriage could be between a man and a woman, so there is no right to a same sex marriage.  Basically, they are looking to freeze the United States in place where it was when it was first written.  Justice Thomas goes so far as to say that liberty is only protection from being physically restrained and the slavery and denial of the right to marry in no way impact on  people's dignity.  Theirs is an overly literalist view of the Constitution that makes no sense whatsoever.

Justice Alito basically argues along a similar vein to Scalia and Thomas.  He says that since marriage has been defined a certain way for "milennia" (which it hasn't, just FYI), it must continue to mean that.  He (and the other dissents) also argue that this decision short-circuits the democratic process and is actually about making policy, not deciding Constitutional meaning.

I am assuming that, if you are reading this, you know which side of the fence I come down on.  Of the dissents, only Chief Justice Roberts' really makes any sense.  The other three are all, more or less, extended judicial temper tantrums.  While Chief Justice Roberts dissent makes some sense, it suffers because he tries to remove judicial decision making from the real world and place it in an ivory tower were the real world impact of a decision is not relevant.  That type of decision making is horribly bad for fairly obvious reasons.  While I am not saying that decisions should be driven by what will happen, the decisions need to take that into account.  That is simple common sense, nothing more.  His dissent also lacks any sort of human angle and focuses exclusively on the philosophical issues, which again makes no sense.

If you want to read the opinions, look here.