Ethics Observations On The King v. Burwell and Obergefell v. Hodges Decisions And Their Aftermath


 Obergefell v. Hodges, in which the Supreme Court considered whether states had to recognize a right to same-sex marriages, and King v. Burwell, in which the Court was called upon to clarify some incompetent drafting in the Affordable Care Act, could not be more dissimilar in terms of issues, topics, and significance. Nonetheless, because the two decisions involved hot political issues and arrived on consecutive days, and because they ended up favoring the positions that Democratic and progressive partisans support, they have been conglomerated in public discourse to fit several general themes, all, to varying degrees, misleading, simplistic, and biased. The decisions have also launched some of the most hysterical and embarrassing commentary in recent memory.

Some ethics, as opposed to legal, observations:

1. Anyone who hasn’t read the majority opinions and the dissents, who just skimmed them—believe me, if law school taught me anything, it taught me that skimming court opinions was a sure road to error and humiliation—or who read them but could not understand them, should be ignored, and perhaps gently mocked, for expressing any view at all about whether the decisions were the “right” ones. Quite simply, such people are not qualified to hold an opinion. They can have, and express, an opinion regarding whether the Court’s calls on Burwell or Obergefell are consistent with their own needs, desires, belief or political orientation, but they have no basis for asserting that either decision is wrong, or, right, on the law.

2. One can find it troubling and ominous, as I do, that the votes on the two cases were as predictable as they were. Objective legal scholars with integrity should be capable of ruling in ways that are not congruent with the personal political philosophies. A Democratic Presidential appointee who favors expansive government activity in health care control should be able to look at a statute designed to accomplish that purpose and still conclude, “Nope, the law mean what they want it to mean,” or “Sorry, the damn thing is unconstitutional.” Similarly, we should be able to trust a politically conservative justice to examine a statute that he objects to on principle and still conclude, “Yup, it passes the test.” Maybe all the Justices are capable of meeting this standard, but these two cases don’t suggest that. They suggest the opposite.

3. As lawyer and legal scholar David Bernstein wrote in the Washington Post, “regardless of the extent to which one believes the Court was influenced by the Justices’ policy preferences, the relevant opinions relied on standard jurisprudential arguments, not naked policy preferences.” That is to say that the arguments and reasoning in the opinions, pro and con, are legal arguments, and founded in jurisprudence, not politics.

4. John Roberts is getting excoriated by conservative commentators for his majority bolstering vote on Burwell. His approach was completely consistent with what he told Congress would be his philosophy in his confirmation hearings...and they did not oppose him then. He is not a member of a “team”; he has a job to do, and he did it.

5. Burwell, which involved an infamous passage in the ACA that was either a botched attempt at extortion to make the states establish exchanges (according to Jonathan Gruber) , a miscalculated provision that rendered the law unworkable, a piece of crummy drafting that the lazy Democratic Congress didn’t catch because they voted for the law without reading it, or some combination. What it was not was obviously one thing or the other. Pro-Obamacare journalists displayed their dishonesty by mocking the lawsuit, which was based on the words of the statute. Anti-Obamacare warriors were similarly wrong to assert that there is no doubt that Courts must always read laws to mean what they literally say even if a law’s language defeats the purpose of the law. This is a long-standing debate in jurisprudence–words or intent?—that is as old as law itself, and one that will never be settled. Either ruling would have been defensible, and the claim  that this isn’t so is ignorance stoked by confirmation bias.

6. Similarly, the question of whether judges should consider the consequences of their rulings or just rule on the law as if they were legal-minded computers is eternal and similarly unresolvable. Robert Bork was rejected as a member of the Court in part because he signaled that he saw the role of a Justice in abstract terms, as a purely intellectual challenge. On the other extreme is Justice Sotomayor, who believes that judging comes equally from the heart and the brain. Her approach is more prone to abuse, but the fact remains that ruling Obamacare a dead letter at this point would have caused great confusion, hardship and chaos, as well as expense. Would it be worth all that pain to send the message that Congress can’t depend on courts to clean up the messes caused by its incompetence?

Maybe, but anyone who claims the answer is obvious or easy isn’t worth listening to.

7. The consensus among analysts seems to be that the majority opinion in the same-sex marriage decision was confusing and not as persuasive as it should have been, and that the four dissents were, to varying extents, mistaken, misguided, emotional, or bizarre.  Here is a critique of Justice Thomas’s dissent; here is a critique of Roberts’ effort; and critiques of Scalia a scalding attack are everywhere, with this one, by Ann Althouse, being my favorite.

I never doubted that the Court would make the decision it did, and assumed this would happen eventually years ago. It should have been a unanimous decision, like Brown v. Board of Education. Obergefell’s force can be summed up in one of Justice Anthony Kennedy’s  points, which is that marriage hasn’t changed, but society’s understanding of gays as equals and full citizens in every way has. If only his legal reasoning was as clear and convincing as his moral and ethical arguments.

8. The reactions from the stubborn and intractable foes of same-sex marriage have ranged from irresponsible to hysterical to idiotic to insane, and only time will tell how much Republicans will harm their party and the nation by crippling their ability to deal with real issues of existential consequence with an extended tantrum that makes conservatives look petty, archaic and foolish. The same is true, with perhaps lesser consequences, of the religious right and the Catholic Church.

9. Bobby Jindal is calling for the Supreme Court members to be elected: that’s in the running for most irresponsible response. So is Mike Huckabee’s pledge to defy the Court.  Carly Fiorina echoed a common theme of the hysterics, that the decision stole an opportunity from Americans to organically decide the issue themselves. Americans shouldn’t be able to “decide” to withhold basic rights from other Americans without a powerful, clear, tangible and just reason, and religion cannot figure into the decision. That’s why this was a Constitutional question. Luckily, however, for these and other prominent demagogues on the gay marriage issue, this guy still laps them in the deranged reaction race.

10. Finally, Republicans are being disingenuous and hypocritical. Both decisions help the party, if it is smart enough to let them. Now it can accept that gay marriage is the law of the land, and stop making itself look silly while catering to the kind of blatant anti-gay bigots whose vile rhetorical on the internet the past few days was so sickening. Republicans also know is is they, not the Democrats, who would have been labeled the true blameworthy party, and would have reaped the rage of the public and the media if the ACA had been killed by a few misbegotten words.

They wanted to lose Burwell so they could bitch about it.

To educate yourself on both decisions, Scotusblog is the place to go.


80 thoughts on “Ethics Observations On The King v. Burwell and Obergefell v. Hodges Decisions And Their Aftermath

  1. I am uncertain that the Republicans “would have reaped the rage of the public” had the Court’s decision gone the other way re: the ACA. Plenty of middle folks who have seen their healthcare insurance premiums jacked up certainly do not support the ACA the way it is written. In addition, limited access to newly approved drugs is a result of the ACA which many are unhappy with. Senior citizens have seen Medicare gutted to pay for those low income folks that qualify for the ACA. The liberal media would predictably raise a hissy fit but educated people are walking up regarding the media being an official organ (like Pravda) of the ‘progressives’ agenda.

    • They would have been blamed, because the GOP Congress could not or would not come up with anything to fix any part of the problem resulting from the law crashing, even though it was the Democrats who botched the bill in the first place.

      • They will get blamed for everything. That’s the benefit of having the Media be the propaganda wing of the Democrat party. It doesn’t take a Prophet to see that…

        That’s part of the overall need of centralizing regimes like the Left. One always needs a scapegoat to blame problems on.

  2. Personally I think Kennedy’s decision in Obergefell was 90% “love is love” and 10% law. None of the dissents were all that great either, but they do point up the dangers of where some of this is going. I think we are kidding ourselves if we think this is the end of some great process and now all the gays will simply settle down into bourgeois lives with marriages and mortgages. Some will, but for a lot on the left this is only the beginning and the gay community only a tool for a larger agenda.

    I was frankly disgusted with the fulsome celebration of this decision, with Obama lighting the White House in pride colors and every national landmark following suit. That speaks of enforced conformity and almost the creation of a new noble class, like somehow gays are specially blessed. I don’t think I have seen such over celebration since 9/11.

    That aside, since it will pass, in Canada not gay marriage itself, but the side effects, have led to fairly significant erosion of free speech and faith. If you speak out against gay marriage there, expect to be censored for “hate speech” and to receive a knock at the door from the Human Rights Commission, with fines and administrative punishment to follow. We’ve already seen what can happen here if someone takes a tentative step toward protecting those freedoms, like in Indiana. What now?

    My fear is that even grudging acceptance of the new reality won’t be enough for some on the left, especially if you say you accept but don’t want to celebrate or get involved. I don’t want to be threatened with loss of my job or pension if I won’t put up a rainbow ribbon or go to a pride function. I don’t want the fact that I still believe in the Catholic definition of marriage to count against me. And I think it was inappropriate for Obama to say we all need to bend our beliefs to allow for this. This is too close to soft tyranny.

    • I am not that pessimistic, but I do think that continued attacks on gay marriage will now be taken as pure bigotry, and with some justification. If you say Rod v. Wade should be overturned, you are doing so to assert concern for unborn human lives. That’s a substantive and ethical purpose. Arguing that you want to take a right away once the Court has identified it when the only “benefit” of doing so would be to hew to a long-time word definition, avoiding straw man horrors (like polygamy: Roberts lost my respect by pulling that out) and to embrace well-debunked anti-gay fears, will look like pure discrimination, because that’s what it will be. You’ll have the right to say that gays shouldn’t be allowed to marry just like you have the right to argue that blacks shouldn’t be lawyers. But don’t expect people to be nice to you for it.

      • But now that SCOTUS has taken that decision out of the people’s hands, it will end up like Roe v. Wade. Because like abortion, there are compelling and competing rights involved with gay marriage.

        In abortion, it’s about the right to life. With gay marriage, the First Amendment is now involved: Freedom of speech, freedom of association, the free exercise of religion… what happens when they collide with the orthodoxy of the LGBT agenda?

        Furthermore, why shouldn’t deeply religious people look at what happened to people like Julea Ward, Angela McCaskill, or the owners of Elane Photography, Sweet Cakes by Melissa, Masterpiece Cakeshop, or Arlene’s Flowers and NOT feel their First Amendment rights are threatened? Don’t they have a right to be angry at those who they believe threaten their rights?

        People seeking the overturning of Obergefell v. Hodges may very well do so to either protect the democratic process from an imperial judiciary.

        • That made no sense at all.

          In abortion, it’s about the right to life.

          That’s the legitimate state interest on the anti-abortion side, yes.

          ” With gay marriage, the First Amendment is now involved: Freedom of speech, freedom of association, the free exercise of religion… what happens when they collide with the orthodoxy of the LGBT agenda?”

          Giiberish, hysteria. What gay couples do affects noone but them, and harms nobody. There is nothing but stubborness and bias to argue against them having the same rights as the rest of us.

          • When they start discriminating against active Mormons, Southern Baptists, and Roman Catholics in order to prevent so-called “micro-aggressions” against the LGBT community, will you still argue that people aren’t being harmed (that day’s gonna come – just look at Angela McCaskill)?

            Jack, either you think people like me are bigoted rubes who are about to get what’s coming to them from their betters, or you are unable to see that the incidents of the last few years (wedding chapels, a New York family’s barn, a photographer, a florist, bakers…) show that the LGBT agenda has bullying, coercion, thought control, and silencing dissent as inherent features?

            If it is the former, then my fears for the First Amendment are not irrational, nor are they gibberish or hysteria.

            • The right to argue that gays have no business marrying or that gays are a scourge of humanity is distinct and irrelevant to the question of whether gays should have a right to marry.I will defend to the death the former, even as I think the latter is undeniable.

              The stubborn obsession with preventing strangers from living their lives as they wish and being on an equal footing with heterosexuals is mystifying to me. A phobia? A habit? Delusion? If it is just faith, it is one of the aspects of faith that undermines, and will continue to undermine, support for religion. Gays have rights even if some of them employ despicable tactics in the name of those rights: the ends don’t justify the means, but neither do the means invalidate the ends, which seems to me to be what you are claiming.

        • “Because like abortion, there are compelling and competing rights involved with gay marriage.”

          There really isn’t. I mean… There’s an argument that the gay lobby is bullying businesses to participate in ways contrary to their faith, but that’s almost a red herring: The vast majority of businesses will be just fine taking money for wedding favours. But even if you considered the coercion in there to be a rights issue, and I’m not without sympathy, I’ve made the same argument before, it has nothing to do with legislating gay marriage. We shouldn’t hold up the rights of the vast majority of a demographic to get married because there’s a few idiots pushing a militant agenda.

          • That’s exactly right, HT. This is why stuck-in-the-mud analysts keep rushing to fake arguments like supposed child abuse, disease, “the destruction of marriage as an institution,” marriage as exclusively for child-rearing and polygamy. No bullets, no facts, no reason at all to dictate to same-sex couples in love that they can’t do what heterosexual couples in love, and lot NOT in love, do without interference.

          • For the record, I really don’t have a problem with 2 adults doing whatever or calling it whatever. Like I said before, it doesn’t bother me that a same-sex couple live up the street, and I’m not going to harass them, although I might not invite them to dinner. My problem isn’t with gay folks who just want to settle down with marriages, mortgages, and occasionally misery like us hetero folks. Legally this decision was probably right, based on the Equal Protection Clause (why that wasn’t used more rather than the emotional stuff I don’t know, maybe Kennedy wanted to give the world something that sounded good and could be easily quoted), although the Civil Rights Act of 1964 does not mention orientation as a protected class (state anti-discrimination laws are uneven, in NJ the Law Against Discrimination (LAD) is very broad, but in PA if I own a diner I can still kick a gay couple out for no reason).

            My main problems are with coercion, which I’ll talk about in a minute, and public bizarre behavior. Jack already said that he agrees that the spiking of the football has been obnoxious, this from a president who said “we don’t spike the football” after the shooting of bin Laden. I think he’s set a rotten precedent with lighting up the White House, which is not the Empire State Building, in pride colors. Is he going to light it up red, white and blue this weekend? Red, white and green in October? Green in March? Who decides what causes the President personally honors? I’ve got no problem with gay couples acting like hetero couples, i.e. holding hands, etc., but I’d just as soon not see cross-dressing (weird) or, more importantly some guy walking down Fifth Avenue in chaps that show his hairy balloon knot to the world, or even less. It’s gross, it’s vulgar, it’s in-your-face, and it’s saying “hey, look at me!”

            I’m not so much worried about what happened Friday, but I don’t believe it’s the end of the process. I believe that it’s the beginning of a larger process and a larger agenda of which the gay goals are only a small part. I already touched on this above to some degree. The fact is that the left is soulless and without a moral compass, and at this point run mostly by folks who have no values beyond the will to power (Obama, Hilary, Soros, etc.) Frankly I don’t believe any of them have particular love for gay people, in fact both Obama and Hilary have flip-flopped on the record about gay marriage (in Obama’s case he flip-flop-flipped). I do believe that they want to weaken institutions and values that could challenge them, and they are willing to use anyone or any cause as a tool to do that. It does not speak to good faith when gay couples are calling around to wedding venues to find the one that won’t take them and suing them to force them and possibly make themselves a tidy sum of cash that will ruin that business and hold the owners and their values up to public ridicule. Of course it’s easy to scoff and call efforts like this over cakes and dresses much ado about nothing, but what about when it becomes suing churches, which is the logical next step? What about when gay advocates sue to strip religious charities of their tax exempt status because of their objections to SSM? For that matter, what’s to stop abortion advocates from suing to take away Catholic Charities’ exemption for their known opposition to another “settled right?” And that doesn’t even cover the question of boycotts, sometimes over offhand statements or misinterpreted laws, which might even extend to whole states like in Indiana. All of these are powerful weapons in the hands of the left to essentially enforce conformity and silence those who disagree, or who maybe just don’t want to get involved. Only time will prove this out, but I am NOT optimistic.

            • And that’s reasonable. Honestly… when you consider an estimated 2% of humanity enjoys same sex attraction, In America, that maths out to about 7 million people. When we talk about the people who dress up in BDSM gear and suspend themselves from swings while twinks hammer them with waffle bats…. We’re talking about the fractional minority. I think “Pride” parades have done more damage to progress in equality than anything else, if for no other reason than to give some truth to the straw men they should be. And coercion…. I’ve said it before. I want vendors to be able to post their hate on their doors. I don’t want to give them my money. I realize my views might be unique…But holy shit… I think we actually agree on something regarding gay people. Great victory!

      • The polygamy advocates are real people, and their logic for legalization is insurmountable now. They car consenting adults who are being discriminated against because of how/who they “love”. So I’m not sure how that’s a straw man. If anything gay marriage advocates are going to change their opinions of polygamy in order to maintain logical consistency.

        There’s also zero chance that the institution of marriage/families are getting stronger because of this, and if Europe is any indication, they are going to get weaker at an accelerated pace. Gay culture does not value monogamy in the sense that traditional marriage does, gay partnerships, married or not, have higher levels of domestic abuse, STDs, “open” marriages, and infidelity, so I’d love to have any shred of evidence from biology, sociology, anything tangible that debunks concerns of increased cultural focus on sex and lust over love and commitment. It’s already clearly happening.

        • Nope. 1) There’s a compelling state reason to ban polygamy. It’s abusive to women, and bad for kids. 2) It’s not discriminatory to ban it. Plenty of court rulings support illegalizing religious practices, and there’s no gender bias: men can’t marry multiple women, women can’t marry multiple men, and any other combination you like. It’s a straw man, and it will never have sufficient support to become an issue. Being married to one person is difficult enough.

          • Well, I hope you’re right, but I do have counterpoints.

            -The State can’t and doesn’t ban polyamorous living arrangements from existing, so it’s going to seem pretty old-fashioned to deny them legal marriage if they want it.

            -If there’s no actual legal abuse of women or children going on, I don’t see how polyamorous marriage could stay banned on those grounds. I’m sure you’re right about polygamy being harmful to families and kids in the long-term, compared to a more traditional family…but you could make the same case about gay marriages.

            -You can’t look at polygamy anymore as just a few backwoods Mormons. It’s increasingly popular. Here’s what some a gay writer with a doctorate in “queer theory” has to say:

            “…In fact, LGBT communities have a long history of polyamory—one dating all the way back to Lord Byron and the Shelleys, continuing through to Harvey Milk and the Radical Faeries. A 2006 study showed that 28% of lesbians, a third of bisexuals, and almost two thirds of gay men are open to nonmonogamous relationships. As any polyamorous bond will automatically involve at least two men or two women, all feature some form of same-sex relationship. Polyamorous families are queer families.”

            They also already have flags, symbols, parades, PSA’s about how much they love one another and how oppressed they feel, and all the trimmings. I don’t think it’s too much of a stretch to say that this could become the next battle front after the dust clears from this one.

            • 1. I don;t see the logic.
              2. No, you can’t, actually. On the other side, there are several court cases involving abusive polygamous relationships.
              3.LGBT communities have a long history of polyamory because they couldn’t get married. Wow, talk about a circular argument!
              4. It’s not going to happen. Feminists, for one, would fight it tooth and nail.

            • “If there’s no actual legal abuse of women or children going on, I don’t see how polyamorous marriage could stay banned on those grounds. I’m sure you’re right about polygamy being harmful to families and kids in the long-term, compared to a more traditional family…but you could make the same case about gay marriages.”
              I don’t know if you can make the same case about gay marriages, but you can definitely make the same case about single parenting being more harmful to kids in the long-term, compared to traditional families.

                • I just don’t see the logic. If you can redefine it to include one other kind of relationship, it’s open to being redefined other ways. There are already a few “throuples” out there and they are receiving favorable news coverage. It may be a longer, tougher fight if the feminists resist, but they may just shrug and say “anything goes” since there is already one lesbian pagan throuple in the US getting favorable coverage.

                  • Steve, marriage was not “redefined” to allow another kind of relationship. Marriage as it is defined was decreed to be a right that all citizens could enjoy equally under the law. A committed, gay couple is in the same “relationship” as a man and a woman who have the same commitment. If the definition of “contract” was “an enforceable exchange of promises between as Asian and a Caucasian,” declaring that those limitations were illegal wouldn’t change the nature of the relationship.

                    • Sorry, Jack, I don’t see it that way. Hetero relationships and homo relationships aren’t exactly the same thing, and I do see this as the expansion of the traditional definition. Once you allow one expansion, it’s that much easier to allow another. Again, only time will prove this out.

                    • Haha, no, this is the thinking me, not the vitriol-spewing me. I may be repulsed by the idea of certain sex acts, but yuck factor over private (emphasize private, exhibitionism is a whole other story) acts isn’t legal authority. The fact is that hetero couples alone can procreate almost as a matter of course (yes, I know some can’t or don’t) and that is the “normal” way to do so without outside intervention. Homosexual couples can’t, although they of course CAN (and sometimes do) raise children through other means such as adoption, in vitro, etc. By the same token, a family involving more than two partners could also raise children, and among the few remaining old school Mormons or among polygamous immigrants they still do. Why can’t we give them the nod too?

                    • Because polygamy is a different relationship entirely, with special drawbacks. Marriage is marriage, regardless of the genders of the participants.

                      Otherwise Bruce Jenner, identifying as female, couldn’t marry his first wife and have it recognized in Texas. Are you really going to argue that that marriage is materially different from male Bruce marrying a female?

                    • Not sure about that one, since that I think is a third category, with actual crossing of genders involved.

              • More like Whoooosh, since that’s the same point I’m making. You can make the case against any kind of parenting that isn’t two, opposite-sex, well-adjusted, non-poor parents. But that doesn’t make less-than-ideal arrangements illegal. Married gay parenting and single parenting are currently not banned. Polygamist marriage is. Lots of people are now asking, “why not?”

                  • Somebody correct me if I’m wrong, but I’m under the impression that architects, builders and building owners do three-way contracts for new buildings. And it ain’t easy.

                    • I’m a landscape architect and we don’t do that. If there are 3 parties there are either 2 contracts with one party being the “central hub” or General Contractor or 3 contracts representing each possible pairing of the 3 – but even that is complex and rife with complications.

                      I can only assume trying to work common property and children (not just responsibilities and services rendered) into such contractual relationship makes the arrangement infinitely impossible.

                      Now if a polygamist wanted to make such an argument based on a kind of “general contractor” angle, gads can we say return to 1600 b.c.?

                      But that is anecdotal. There may be some architectural organizations that do that.

                    • Sort of. As tex pointed out, usually there’s the principal, the general contractor, and the subcontractors, who contract with the GC and not the principal. There can also be design professionals like tex or an engineer. It can make for a truly confusing mess when there is litigation, trust me, I did condominium litigation for about a year. That said, if three people want to share marital rights, then why not? Since those pushing gay marriage talk about the fact that the Bible allowed for polygamy, which it did, then go for it.

          • Your first argument is very similar to those that are being put forward by people like the National Organization for Marriage and Family Research Council against same-sex marriage. Ideas about what’s “bad” for women and kids swing in and out of fashion, and are often swamped by other political movements (like the push for same-sex marriage). Your second argument is also identical to the anti-SSM argument “well, straight people can’t marry people of the same gender either.” If you think either of those arguments will hold after watching what happened with same-sex marriage over the past couple decades, then you’re much more optimistic than I. Additionally, the focal point for any pro-polygamy movement will probably be Reynolds vs. United States, which is a very poorly-reasoned and -written case, and which will make a big, fat, juicy target for media commentators and social-media feeding frenzies.

            • 1. No, it’s not. Polygamy works against the basic reasons government encourages stable family units. There is a reason why civilized nations turned against polygamy: it is an unequal, economically unstable, sexist system.

              2.”Ideas about what’s “bad” for women and kids swing in and out of fashion, and are often swamped by other political movements (like the push for same-sex marriage).”—this is what is called accumulated wisdom. Gay marriage eventually won favor because there were no valid arguments against it—NONE. That you don’t see that doesn’t make it a fad.

              3. “Your second argument is also identical to the anti-SSM argument “well, straight people can’t marry people of the same gender either.” Dishonest framing of the question, and I dislike that tactic intensely. Marriage is a committed, legally sanctified union between people who for reasons of dedication, respect and/or love wish to commit to each other. Since heterosexuals do not wish to do this with people of the same sex, that gender equality argument, which someone had the brass to raise in court, is dishonest. Banning polygamy outright is analogous to banning marriage between couples for all sexes in all combinations, which the government could certainly do.

              4. You are so anti-gay marriage-blinded that you can’t see the obvious. Gay marriage succeeded not because of political maneuvering but because the arguments for it were compelling, and the arguments against were hysterical, ignorant, or based on ancient taboos. There is a huge ethical, moral and logical chasm between gay marriage and polygamy. That you don’t see that explains a lot.

              • 1/2.The reasons governments encourage stable family units change over time, and the stability of the family isn’t the only reason governments regulate marriages. There’s a reason the trending hashtag right now is “LoveWins.” Things that are seen at one point in time as “unequal, economically unstable, and sexist” may well be models of tolerance and justice at another point. Just look at the way gender and family roles have changed in the Anglosphere since the Victorian era. These trends also encompass societal attitudes toward homosexuality. President James Buchanan was probably gay, and it wasn’t exactly a secret that he was a confirmed bachelor who lived in a D.C. boarding house full of flouncy and fancy southern dandies. He was still one of the better diplomats we’ve ever had, and was widely acclaimed as a powerful and wise political figure before his unfortunately disastrous presidency. In classical times the Greeks and Romans had varying attitudes towards the status of women and of homoerotic relationships as well. The status of the family and of love is never written in stone, and is always socially determined one way or another.

                3. Your definition of marriage does not preclude plural marriage, as it does not specify a number of people in the union. Still, pointing that out feels pedantic and so I shan’t rely on it – it’s clearly not what you intended. That said, I don’t see the distinction between the pro-same-sex marriage argument: “don’t like a ‘gay marriage?’ Then don’t get married to someone of the same sex!’ and its polyamorous cousin: “don’t like plural marriages? Then only get married to one person!” Activists on the left seem to see things the same way, as well as mainstream journalists in Politico, the Economist, and Slate. Perhaps I’m missing something here. You certainly seem to think so.

                4. Sir, you don’t know me at all, so please do not make blind accusations. I voted against Prop. 8, and while I strongly dislike the mau-mauing of good-faith opponents of same-sex marriage on grounds of tolerance and pluralism, I do not oppose the extension of marriage rights to same-sex couples. The worst that I am willing to own up to is a set of vague, Chesterton’s-fence-ish worries about the slow societal turn away from the nuclear family and toward more atomistic modes of reproduction (especially single parenthood), but that’s hardly relevant to gay marriage per se. Moving on, of course the success of the gay rights movement has everything to do with political maneuvering. The fact that you see the arguments in favor and against same-sex marriage as somehow distinct from the politics of the movement and the cultural moment in which the debate was being carried out is rather telling, too.

                • 1/2. “There’s a reason the trending hashtag right now is “LoveWins.” Yes, and that reason is ignorance, laziness, and the limitations of Twitter. It has no more validity than #Corporationsarentpeople. Come on. You aren’t seriously thinking that substantive law is going to be influenced by Twitter Talk. Yes, society learns stuff, and biases without substance fall by the wayside. Yes, inside the culture it’s hard to tell what will fall next. Yes, in the 50s the idea of same-sex marriage was seen as laughable—but then, gays were invisible and misunderstood. I’m not saying that there aren’t changes to come–sure there are. Polygamy, however, like Santorum’s other bogey men, bestiality and man-boy sex, is not a likely or a reasonable next step, no matter how many silly articles appear in Salon or Slate.

                  3. I don’t know it your missing something. I’d say you’re taking hypotheticals seriously when the people who propose them aren’t especially serious themselves.

                  4. I wrote a post long ago about how legitimate religious foes of same-sex marriage weren’t bigots, and were, as you say, good faith opponents. My faith in that position has been shaken by the hateful and willfully mean-spirited way many of those I would have once put in that category have behaved and spoken lately. Refusing to sell a gay couple a dress or a cake is in the latter category, as is claiming that allowing someone not of your faith to do what they want is against your faith. Too much of the conduct has been gratuitously hateful—there are reasonable people whose faith tells them to oppose gay marriage, but I have not observed many. Maybe the stress of the debate has driven them over the line.

                  I am annoyed at the argument that all sexes are forbidden from same-sex marriage. I wrote about it here—I think it is lawyerly deceit at its worst, and when it was tried in Court, it was laughed out of it. Thus I flared—Beth says I’ve been cranky lately, and she knows me, so I’ll accept that—at your suggestion that my assertion that there is no gender bias in anti-polygamy laws was similar. THAT is NOT a dishonest position, it is in fact true. ALL polygamy is banned, man with three wives, man with three husbands, woman with three husbands, woman with three wives, multiple men with multiple shared wives, etc. Same -sex marriage bans, however, do not ban all marriage. You’re obviously smart, so I credited you with knowing this was a lousy analogy on your part and either insulting me by presuming I wouldn’t discern that, or insulting me by accusing me of making the equivalent of the bogus argument I detest.

                  That was unfair: you just made a weak point, that’s all. I do it myself, a lot. I’m sorry. Please accept a sincere apology.

                  • (1/2). Aha…I think I’ve found the rub of our disagreement. I agree that TwitterTalk (sounds like an old-timey talk-radio show about birdwatching!) probably won’t have a big impact on the substantive law. However, I do very much fear that the Twitterati will have an outsize impact on substantive politics, which in turn will help drive the law places where it wouldn’t otherwise have ventured. (3) In my mind, the things unserious people say can have very serious consequences if the unserious are loud and obnoxious enough, or if there are enough of them to make their weight felt in the polls.

                    (4) Apology accepted, and allow me to offer one of my own – I’ve read your blog for a while (including the piece on the gender bias anti-same-sex marriage argument), and ought to have realized that drawing that particular parallel would not go over well. I was thoughtless.

                    (4.1) I’m still interested on your opinion of Reynolds v. U.S., and whether or not you think its distinctly old-timey and judgmental rhetoric will stand up under modern progressive scrutiny.

      • Polygamy isn’t necessarily a straw-man. Not only are major media organs like Slate, Politico, The Daily Beast, and even the Economist posting pieces about how “Polygamy Is Next,” (to say nothing of figures like Dan Savage, famous for championing the idea that truly healthy marriages should be “monogamish”) but there’s something of a track-record of “slippery slope” arguments in this area being proved correct. A particularly piquant example is how Justice Scalia’s dissent in Windsor was used by lower courts to justify striking down anti-same-sex marriage statutes across the country.

        • Yes, those magazines post a lot of stuff, because they need readers. It’s clickbait. Nobody rushes to read obvious, rational stuff. How many articles have been on the web about how soon we will all live for 200 years and colonize the moon? That’s your criteria for what’s inevitable?

          • Not to be nitpicky, but the reasons we don’t live for 200 years and haven’t colonized the moon are cold, hard, science. All the wishing and wanting in the world wouldn’t make those things true. Same-sex marriage and polyamory aren’t scientific issues. Socio-political issues gain traction precisely when a lot of people start wishing and wanting them to be true. At some point clickbait turns into a trend. I don’t know if polyamory *will* gain the momentum same-sex marriage did, but I think it’s a distinct possibility.

            • That is picky, however, and not really dispositive: there are ridiculous predictions and assertions that are not contradicted by science but are almost as unlikely to occur. Let’s see:

              Will Justin Beiber Sing at the Met?
              Could left-handed people be the next minority to revolt?
              Why Trump has the Edge for the GOP Nomination!
              Alex Rodriguez, Comeback Player Of The Year?
              Why the US will Be Speaking Swedish by 2030.

              All of these are as likely as polygamy being found to be a “right.”

              The fact that gay Americans are and have been human beings, however, AGAIN, is not something requiring “wishing and wanting.” It’s true. As citizens, they are due the same rights as other citizens, and Equal Protection under the law.

              • Well, if we’re just looking at the numbers, A-Rod has been having a pretty decent year (.285/.388/.522, better than any year he’s had since 2009!). Considering his baseline stats last year were nonexistant, he’s got as good a case as any. Still a rather repugnant human being, though.

                Seriously, all I’m saying is that social justice issues are driven by politics, rhetoric, and (to a lesser degree) social pressure to be on the correct side in the culture wars. In 1970, while gays were being beaten and arrested at nightclubs or in bus stop bathrooms, the idea that same-sex marriage would be enshrined in language reminiscent of Brown v. Board of Education of Topeka, Kansas would have seemed as ridiculous as polygamy/polyandry/polyamory does today. Social media and clickbait were instrumental in driving the zeitgeist toward same-sex marriage, and there seems to be the first inklings of a similar push towards further legitimizing non-standard relationships.

                • Except for A-Rod, I don’t disagree with any of that. (A-Rod will probably be the best possible COTY candidate based on stats, but you and I both know why he won’t win the honor, and I, at least, think its a very good reason)

                  My point is that while all of that you mention was part of the formula, if it didn’t have underlying legitimacy, it still would have gone nowhere in the end. Lots of us have loved ones, friends and colleagues who are gay, we respect them, and they have committed partners. Do you know anyone feeling oppressed because they can’t have four wives or three husbands? I don’t. I’ve never spoken to anyone or known anyone who KNOWS such people. It’s an abstract argument, essentially a hypothetical.

                  • We definitely agree on A-Rod. He shouldn’t win the award because he’s a lousy cheater and vulgar narcissist. Still, I’ve seen him play a couple times, and I’m glad I have. I’ll probably tell my kids about it one day (assuming I ever have any). It’s a sad and vexsome part of life that genius and decency aren’t more intertwined.

                    Scott Alexander, the excellent blogger who runs SlateStarCodex is polyamorous. I don’t know if he feels particularly oppressed by the lack of a legally-sanctioned plural marriage contract. I do know that, according to the most impartial surveys I can find, somewhere between two and six percent of the public identifies as lesbian, gay, or bisexual (ie., is a member of a class affected by Obergefell), but if you ask random people on the street what percentage of the population is gay, you get answers like “twenty percent” or even more. This speaks to the power of political discourse to distort reality around a controversial issue. An even more extreme variant of this phenomenon is occurring in the case of transgender issues. The statistics here are very murky, but the best information we have now suggests something less than one percent of the population identifies as transgendered (not exclusive to those who have or plan to transition from their birth gender to another), yet transgender issues have exploded onto the political scene and have racked up an impressive amount of cultural momentum. If the right tastemakers or activists dedicate a similar amount of energy to the cause of the polyamorous (or, in Dan Savage’s formulation, the “monogamish”), I doubt that the size of the minority in question will present much of a handicap.

                    • The same distortion is true of public assessment of the % of African Americans, which is a bit less than 15% but most Americans think it is twice that or more. Also Jews, who, like gays, have a very large social and cultural footprint in relatively small numbers.

    • “I don’t want to be threatened with loss of my job or pension if I won’t put up a rainbow ribbon or go to a pride function”

      This is EXACTLY the kind of irresponsible exaggeration you claim to be decrying. It behooves everyone to dial back the rhetoric and deal in specifics, rather than serving more of what you claim to be against.

      In the real world, a gay couple in Tennessee is told they can’t rent an apartment together – because they are gay. In whose lexicon of human rights does that seem proper? Not mine. It should be illegal, just as it is to deny someone an apartment because they are black (which also used to be legal, in the not-too-distant-past).

      I’ll go further: not only should it be illegal to deny someone an apartment because you don’t like their sexual orientation – you shouldn’t be given an exemption because you’re a Southern Baptist, anymore than a property-owning Muslim should be allowed to screen out tenants who don’t wear a burka.

      Is that radical? Does it signal a decline in society? Hardly. The general trend in US society today – thank God – is toward more inclusive human rights, not away from them.

      I don’t see any danger of your job or pension being threatened by ribbons or gay pride function attendance. I DO see a danger from irresponsible fear-mongering. And there is real and present danger in the real world today for people who are being hurt by the kind of discrimination described above – unlike the theoretical pain in your theoretical fantasies about a left-gone-crazy future.

      For detail on the Tennessee renters’ dilemma see

  3. I don’t agree on the opinions but I completely agree on the political fall-out. The opinions only help Republicans running for President and otherwise. Gay marriage was increasingly a bad issue for Republicans. Bush and Rubio put out statements that are both smart politically and good policy. The others I have seen (e.g., Walker), not so much.

  4. As a non-lawyer, I found this a really thoughtful piece; I probably learned more from this post than from everything else on the subject.

    Thanks for the education, Jack.

  5. I agree that the left’s spiking the ball has been obnoxious, especially the media’s silly and completely unprofessional cheerleading for Obama, which, I guess, is inevitable when there is very little real to give him credit for. The ACA decision was a narrow escape from a disaster entirely of the Democrat’s making, by passing a law undemocratical and writing it incompetently. Obama’s attacks on the Court and public lobbying was unpresidential and destructive. A net loss. How is Obama in any way responsible for the gay marriage decision? He was still opposing gay marriage when Massachusetts declared the right there, and, oh, he was about, let’s see, 10, 20 years or so behind ME on the issue. Like Hillary, Obama became a gay marriage supporter when the polls flipped: nothing to be proud about, just more “leading from behind, ” as in “rush to the head of the army and take credit after the hard work has been done by others.”

  6. I generally agree with the direction of Jindal’s proposal to elect SCOTUS justices. I don’t want the Senate to do the “confirmations” anymore; those are 100 people who are too easy to pay off, too ideologically inflexible to adequately represent the larger number of non-ideological (and alternately ideological) citizenry.

    Shifting the selection process to the legislatures of the states would also help to break the stranglehold on governance held by the biases of Northeastern- and urban-origin political “leadership,” which have consistently driven government on a skewed path to the left (and arguably, driven the federal treasury to bankruptcy, and driven the law to somewhere beyond and behind the moon in terms of relevance and responsiveness to real societal needs and issues).

    • Because electing judges has worked so well everywhere else. This is a horrible proposal, with little thought behind it, just playing to the cheap seats. It’s also pointless and futile. There are valid, needed and helpful Constitutional Amendments that have no chance. Jindal, Cruz et al. are just grandstanding. Not helpful.

      • Because appointing judges has worked even better everywhere. If you like authoritarianism and tyranny creep. (Those two final words in the previous sentence are intended to be taken together as a concept – “tyranny creep” – and not as a missing-comma personal insult.)

        • Alexander Hamilton eloquently argued against the election of judges in one of the Federalist Papers.

          The Economist does a nice job of listing a bunch of the horrors that result from electing judges, including the massive amounts of money being raised to tout simplistic mottoes on TV; the inherent conflict of interest in promising an electorate, or even hint, that he or she would decide a case in any way other than the law; and the fact that elections ruin the distinction between the third of the three branches of government, rendering the judiciary identical to the legislative branch and removing an important check and balance.

          Bad idea? You betcha.

        • Appointing judges sucks. Voting for them sucks more…

          Is that better?

          Most human constructs, especially in government is to minimize the inevitable suck. Republics, especially the American one gets this generally right, though, like all human constructs, eventually are consumed. More left-wing style constructs, either in the direction of hyper-democracy or in the direction of hyper-authoritarianism increase the suck much faster.

            • Well, Jeez, Jack, Tex, Charles – appointing instead of electing is so superior, why stop with judges? Let’s have someone appoint all the so-called representatives in the legislatures, too. Oh, wait – perfect: Judges can do that! And, appoint those legislators for LIFE. (So many of them achieve that status now through electoral means, anyway; there’s some potential cost savings from holding those pesky elections.) Let the President appoint all the state governors. (It would indeed be deliciously vicious to require that the Executive Branch top office holders be elected and not appointed by the POTUS.) Simplistic mottoes seem to be the way of governance in all three branches now: “[this or that] fundamental human right exists, because I say so – except when I don’t say so.”

                • I don’t see how you seem to think that I support election of judges who lack certain minimum qualifications. I would vote for you for a judge. Do you think you are unqualified to sit as a judge?

              • I don’t get the hysterics…

                We don’t directly elect the president. We don’t directly elect judges. We only just began directly electing senators last century, which I’m all for stopping that and giving it back to the states legislatures to elect.

  7. “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns” said Mr. Dooley, Finley Peter Dunne’s character..

  8. I want to make a couple of observations here. Please don’t construe any of them as an assault on your observations, although I will take issue with a few of your points, respectfully and with an eye on adding value to the commentary.
    First of all, with respect to your admonition about those reading the decisions in the subject cases, I generally agree. Without reading them, it’s difficult to really get the reasoning of the justices writing them. You really cannot get that at all from the critiques, many of which fall much flatter than most would imagine when compared with the actual opinion.
    For example, the conservative critique of Roberts, whose decisions in King v. Burwell and Obergefell v. Hodges and seem dichotomous at first impression, really make much more sense when you actually read them, which it’s pretty clear some critics haven’t. Roberts’ philosophy in both cases is clear and reasonably consistent — deference to the state and national legislatures when it comes to interpreting the laws. This same philosophy was reflected in NFIB vs. Sebelius, and I wonder if conservatives will offer the same criticism when their laws are challenged and he writes with deference to a conservative principle embodied in the law? Roberts’ is actually a very conservative approach, and very much what conservatives wanted in a Supreme Court justice. In my view, they have exactly what they asked for.
    With respect to Kennedy’s opinion, it seems clear to me that he has returned to the theory that animated Lochner v. New York. Roberts points this out repeatedly, and although this has been derided by many libertarian-leaning observers, I find his argument quite correct, and his rejection of Lochner and Kennedy’s relationship with it in compelling. The 14th Amendment’s due process clause is the inevitable home of those who desire to substitute their own judgment for that of the legislature, and that’s what we have in Obergefell v. Hodges in my opinion.
    As a general principle, I don’t really disagree with the outcome. I think gay marriage was inevitable, and would have eventually been enacted in all states. I also agree that as a substantive matter, gays were burdened by state laws, particularly in terms of state and federal rights and benefits. I also find it impossible to reconcile the “full faith and credit” clause of Article IV of the federal constitution with the state’s refusal to honor gay marriages in other states, and it mystifies me that this point was never raised in Obergefell.
    Turning to your comments, I find this incongruous:

    Finally, Republicans are being disingenuous and hypocritical. Both decisions help the party, if it is smart enough to let them. Now it can accept that gay marriage is the law of the land, and stop making itself look silly while catering to the kind of blatant anti-gay bigots whose vile rhetorical on the internet the past few days was so sickening. Republicans also know is is they, not the Democrats, who would have been labeled the true blameworthy party, and would have reaped the rage of the public and the media if the ACA had been killed by a few misbegotten words.

    While this may be so for some Republicans, this is a very broad brush with which to paint, especially one loaded with rhetorical tar. While both decisions may help the party in the context of a national election, they calcify the opinions of congressional districts and force the Republicans, particularly house candidates to the right and into yet another “litmus test” reminiscent of Roe v. Wade, which is likely to create an ever-more intractable stalemate among the electorate.
    Far from harmonizing the nation around a new, organic understanding of marriage and removing a social issue from the culture wars (which would have eventually been accomplished had the court ruled otherwise), this has created another indignity by the lights of most religious Americans which may never be redressed, and may last (and this is pure speculation on my part) much longer than it would have taken the country to arrive at this position had the court merely required the Full Faith and Credit clause to control interstate marriage recognition, and said that the Equal Protection clause of the 14th Amendment required that states and the Federal government confer the same benefits on gay unions as traditional marriages while leaving the states free to say what marriage was.
    Instead of this measured and clearly constitutional approach, Kennedy struck out on his own (I consider the silent acquiescence of the liberals the price of Kennedy’s opinion) and brought forth a legally underwhelming mouse which will be celebrated for its result and reviled for its reasoning, or rather, lack thereof. It was full of rhetorical flourishes to which judges (see Scalia’s dashed-off tripe of an opinion) often retreat when they know they are on thin legal ice, or just don’t care how they get from A to B.
    Regarding the bile, I must point out that much of that is driven by and in response to by the inane cheerleading and unethical commentary from the media and the never-ending assault of Social Justice Warriors on the enumerated rights of Americans, never mind the ones discovered by the Court. The aggrieved, particularly those who hold the man-woman definition of marriage as holy writ, should be forgiven for their over-reaction at this point in the process. Hopefully, it will subside into more reasoned and rational commentary as people discover that the world has not (yet) ended and our constitutional republic remains more or less intact.
    Note that I don’t apply this thinking to the unreasoning gay-haters (of which there are far too many), but rather to the vast majority of the objectors, who reject the opinion on religious grounds. Kennedy is far kinder to that opinion than you have been, and no matter how deeply and long-held your convictions are, I expected more compassion and understanding from you than your wording about the opponents of the decision would suggest. Perhaps I simply misunderstood you.
    Despite Kennedy’s assertions, the fundamental nature of marriage has been, from it’s inception until now, between a man and a woman. That is no longer the case, and marriage, despite Justice Kennedy’s protestations to the contrary, is changed dramatically, if not beyond recognition as some would claim.
    Now that I’ve disagreed with you on one point, let me offer praise on another:

    One can find it troubling and ominous, as I do, that the votes on the two cases were as predictable as they were.

    Troubling and ominous, indeed. That the left wing of the court couldn’t be bothered even offer a peep on such a momentous case suggests some kind of quid-pro-quo that I find deeply disturbing. Can it really be possible that Kennedy’s analysis, as flawed as it seems to many, is held without even a hint of disagreement from four liberal justices? I have doubts. Their silence should worry everyone.

    Pro-Obamacare journalists displayed their dishonesty by mocking the lawsuit, which was based on the words of the statute. Anti-Obamacare warriors were similarly wrong to assert that there is no doubt that Courts must always read laws to mean what they literally say even if a law’s language defeats the purpose of the law.

    Nominally, I would agree with this, but I find that the legislative history of the law suggests that it read the way it was intended to read. There is nothing in the history of the legislation that suggests it was a drafting accident or simple incompetence.
    I agree with you that it is a close question as to the arguments presented, and I don’t necessarily disagree with Roberts’ reasoning — as I said above, it appears to be consistent with his judicial philosophy of deference to the legislature. I think the “Anti-Obamacare warriors” were objectively correct about what the plain meaning of law was, contra your complaint above. It seems to me that you are trying a bit to hard to be fair on that one, and picked the wrong point to argue.
    Sorry about the long commentary, but it’s just impossible for me to be brief.

    • Thanks Glenn; not too long at all. There are too many treatises about the form over substance debate in statutory construction to count, and the gay marriage decision is sure to generate volumes more.

      I don’t think traditional legislative history analysis is relevant or applicable to the ACA dispute, because the bill wasn’t debated in substance on the Senate floor, and the details were unknown to those voting for it. The debate and process was all about passage rather than content—Roberts alluded to this correctly in his opinion. I don’t believe anyone really thinks the Democratic Congress members intended the exchange trap, even if we assume that the lobbyists, consultants and staffers who wrote teh bill did. Yes, it’s an example of the corruption of the entire lawmaking system.

      I was torn: In some ways would have liked to have seen Congress punished for being so slovenly, but I also didn’t and don’t doubt that few if any who who voted yea knew this provision was in the bill or would have voted for it if they knew what it meant.

      • You make a fine point about the ACA’s lack of full debate. I think the question of whether or not congress “intended the exchange trap” will forever be academic, and now pretty much meaningless. I guess my main point is that there is at least sufficient evidence to conclude they did, although a conclusion in the alternative is probably equally defensible. You are certainly correct to point out that the ACA “debate” was more about passing something before subsequent elections derailed the effort than carefully crafting high-quality legislation, if such a thing actually exists these days. Ethically, that speaks to a complete abdication of responsible government by the congress that passed it, particularly the Democrats.
        I actually didn’t much care one way or the other how the court found in Burwell. My instinct is that the ACA, despite it’s disgustingly partisan history, needs to be repealed or modified by the people (absent the obvious constitutional problems resolved in NFIB) rather than by judges, which is another thing that makes the gay marriage ruling feel less “legitimate” (I use that word with only a hint of scorn; I don’t really question the Courts’ legitimacy). I think that Roberts’ deference to the legislature is actually a laudable thing when it comes to overall legislation. I wish Kennedy had shown the same deference in Obergefell.

      • It was, I believe, the first time since at least the civil war that congress enacted something so controversial that was such a major change to the status quo with a razor thin majority split along pure party lines (I believe I first read this argument from Megan Mcardle, but I’m feeling too lazy to double check). There are very good reasons not to make drastic changes to the system without bipartisan support and preferably a large majority. The 60 vote filibuster bypass is not sufficient, but I think 2/3 of both houses would qualify. The fact that at least 1 one of those 60 elections was hotly disputed with plausible accusations that fraud was the deciding factor (Franken) doesn’t help, nor does the fact that Kennedy was replaced via special election in which opposition to the healthcare law may be part of why a known opponent of it was chosen.

        1. Bipartisan support means the opposition party can’t really campaign on opposition to it, and will at least put some effort into actually making it work. Even if it’s only a few token members. For this law, the only compromise democrats made was with their own conservative wing, not with any actual republicans. The version of the law that included republicanamendments was not the one that was finally approved, to the best of my knowledge.

        2. A strong majority generally means there is broad public support for the measure, which gives politicians better reason to work with it and cover for voting against their party’s stand if it has one. It also means you can’t claim the law passed only because of any one shady election.

        3. Drastic changes will create much greater opposition and turmoil. Small changes by their nature aren’t as controversial. Large bills have their own issues of readability and interpretation on top of everything else.

        4. Bipartisanship and broad support mean you can actually subject it to normal scrutiny to fix major flaws.

        I think the lack of normal process is a reason to be more strict, not less. Letting it slide here makes that sort of process more likely going forward. It may be less of an issue than I fear, but I’m not particularly optimistic about that.

        Politics make me cynical…

        • I agree. I am not necessarily a fan of same-sex marriage. But, I live in a state that adopted it through the legislative process. It was not imposed by judges (as it had been in many, and now is in all). The federalist in me said, “great, the system works.”

          Nothing in Obergefell changed anything in my State, except that I am one further (and BIG) step away from self-government.

          And, that PISSES me off. I had absolutely no stake in the RESULT of the case, but I have a BIG fucking stake in the PROCESS!

          This may go right up there with Dred Scott, Brown v. Board, and Roe v. Wade. When the Supreme Court simply thinks that it can declare away a problem, when it attempts to resolve controversial issues by fiat, it often makes them more difficult to resolve culturally.


          • A democracy that allows its people to gang up and vote away the rights of other citizens betrays its own principles.

            Dred Scott, Korematsu, and Roe v. Wade belong in one category; Brown v. Board, Obergefell and Loving in the opposite one. I don’t see how or why you would lump decisions withholding rights with those affirming them.

            • Dred Scott led to war, Brown led to rioting, Roe has led to decades of bitterness, litigation, and enmity. My post was about the process, not the merits of any of this. Process is important.

              The Court may think it is capable of ending controversy by edict (I remember hearing that Taney thought Dred Scott would resolve the slavery issue once and for all), but, what did Scalia call it? Hubris?

              Seems fitting to me. They are not final because they are infallible; they are infallible because they are final. (I forget the Justice I just paraphrased. Black?)

              I just hate that the Supreme Court has become some sort of Delphic Oracle, and every summer, we have to wait for it to decide what our world looks like.


              • That’s not their doing, its the media framing of it, Jut, just to make headlines. The Court hasn’t changed.
                Taney get a bad rap. The decision was terrible, but he WAS trying to settle the issue, and that is, in some issues that won’t be settled short of war, a legitimate justification. But you better be right.

  9. On the topic of #3, I have always wondered, if 9 justices are ALL applying ONLY legal precedent and the constitution through a rational lens, how can there ever be anything BUT unanimous rulings on EVERYTHING?

    • Because human affairs are infinitely complicated, and the law isn’t much better. The formalism debate is one of the great chicken and egg controversies in the law—there is ample precedent and logic to either side, so naturally confirmation bias tips the scales. Gay marriage is the classic conservative/liberal divide, with a bias for tradition over new information set against a bias in favor of overthrowing the status quo and expanding personal rights…

  10. Am I one of the people you were thinking of regarding skimming? I disagree in part, obviously. It’s possible to pick out a section and see if that logic holds, without necessarily reading the rest of the decision. We are certainly doing a better job than people who don’t read it at all… but that is something of a “there are worse things” rationalization.

    On the other hand, I read the section completely where it was determined that the meaning was ambiguous and I was not convinced. Does that count as skimming? I didn’t read every other section all the way though, but without the ambiguity the rest would be moot. I suppose I could have missed an alternative justification for calling it ambiguous, but if so such an argument should have been in the relevant section, and I have enough faith in Roberts writing skills to consider it unlikely.

    And of course, there’s the possibility that I misunderstood something in the section I did read, but that’s an issue for everyone regardless.

    • Skimming can work, but legal opinions are complex, and not reading them entirely—that means footnotes too—and also reading, in some instances, the cases being referred to or relied on, it is difficult for a lawyer to fairly assess the opinion, much less a layman.

      And I do agree with Scalia that “writing for posterity” as Kennedy was just risks muddling things and confusing people unless you are really really good at writing, which most justices are not. Scalia didn’t have to be nasty about it, though.

  11. Just to quibble, “polygamy” means having more than one wife; “polyandry” means having more than one husband.

    But there is the old joke that says “Bigamy is having one wife too many. So is monogamy.”

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