Lawyers all around the country are drooling like a bulldog eying off a cat with no legs at the thought of yet another blistering Scalia dissent on gay rights. So much fun.
As I see it, the Supreme Court should go 6-3 for the right to marry, Kennedy delivering the majority judgment. Marriage fundamental right, laws fail at any level of scrutiny because duh, laws invalid under the 14th amendment, compulsory fuck-you Scalia citation, rousing ending, bing, bang, boom. Where’s the cake and champagne?
I just can’t see Kennedy voting against or going for weasel words to limit the effect of the judgment. The steady advancement of gay rights in the Supreme Court most ensures Kennedy’s place in the history books and (more importantly) the law texts. Lawyers do love to have their name on a precedent that’s going to be cited a hundred years from now.
This is not in any way to suggest mercenary intent. Kennedy’s judgments in Romer, Lawrence and Windsor clearly indicate that gay rights are something he genuinely and passionately supports, and has patiently and firmly worked to expand.
See Romer in 1996:
The primary rationale the State [of Colorado] offers for Amendment 2 [prohibiting any laws to protect homosexuals against discrimination] is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. “[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . .” Civil Rights Cases, 109 U.S., at 24.
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.
See Lawrence in 2003:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
See Windsor in 2013:
DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
As has been noted in several recent District Court judgments which I seem to recall reading or at least dreaming up, if you stir up the “State” and “federal” references in that paragraph and season it with a bit of Loving, you’ve basically written the final paragraph of Kennedy’s upcoming judgment in Obergefell v Hodges et al, et al for him.
It boggles belief that Kennedy would sully his legal reputation by overlooking or distinguishing his own judgments in Romer, Lawrence and Windsor in order to decide that States can go around to gays’ houses and poke them in the eyes with a stick if they ask to get married, not least due to the threat of Ruth Bader Ginsburg calling him a softcock in the lunch room for the rest of his career, and generations of law students thinking he’s a bit of a dick. I’m looking at you, Byron White.
I think Roberts will vote with the majority, because he is a man who always has both eyes, two soft hands and a buffing rag on his reputation. Barring accidents or Tony Scalia going berserko with an icepick, Roberts has another twenty or thirty years as Chief Justice. He knows that freedom to marry is coming, sooner or later, and he’s not going to miss his share of Kennedy’s reflected glory or allow the Roberts Court to hand down a Plessy v. Fergusonesque fuck-you-with-our-state’s-rights to the faggots, which the same Roberts Court is then going to have to overturn ten years from now, when gay marriage is legal everywhere but one or two bumblefuck places like Kentucky and New Hampshire, in a 7-2 decision written by Justice Ginsburg (Chief Justice Roberts and Justice Scalia dissenting) which consists only of the words “Motion granted because Anthony Kennedy and John Roberts are, and were, softcocks.” How embarrassment. How humiliation.
Besides, Roberts has more important matters to devote his attention to like gutting Obamacare and giving corporations the right to vote and bear children.
I’d love to see an RBG concurring judgment consisting of just a ten minute video loop of her reading out the best bits of Scalia’s dissents in Lawrence and Windsor and laughing her arse off, but I suspect she would not want to step on Kennedy’s moment of glory in any way, because RBG is class.
Scalia, to pick a counter example entirely at random, is not class, being, as he is, an arsehole. Scalia is going to be livid. He will rant. He will rave. He will pontificate and huff and puff and slaver about the coming dark days of people marrying hamsters and genderless bathrooms*, until his head explodes. It will be glorious, and a little bit like this:
* I’m not sure how one goes about marrying a genderless bathroom, or indeed any kind of room, but I’d give you fair odds that Brian Brown or Mags Gallagher will be railing against it sometime soon.
ETA: Commenter BBA points out that I have committed the fault of automatically bundling Clarence Thomas in with Mad Tony Scalia into a big bundle of chubby man fun (try getting that out of your head). Clarence is a very different breed of fool and might, as BBA notes, just want to write his own judgment about how “200 years of precedent are wrong, the Supreme Court has no power of judicial review, and John Marshall sucks.”
I still think Roberts will go with history rather than politics. However, I suspect that if he is in dissent, the dissents will look something like the mishmash we got in
Windsor, where Roberts wrote his own weasel dissent saying there was no jurisdiction, Scalia (Thomas agreeing and Roberts agreeing in part) ranted about the Supreme Court usurping the role of the Congress and how the majority judgment was “rootless and shifting” in its justifications, and little Sam Alito (Thomas agreeing in part) burbled on about family and the mythical “right to same-sex marriage”. Scalia even gets the boot into Alito about his theory of jurisdiction.
Basically, it’s wingnut pick and mix down in the dissents.
Mike J
Has anybody run scotus-predict?
https://github.com/mjbommar/scotus-predict
Amir Khalid
Thank God. For a moment there, I thought you were referring to people marrying off their pet hamsters to genderless bathrooms. Now that would be perverted.
Baud
As bad as Scalia is, I think Alito is worse.
I would pay a considerable sum of money to see a Ginsburg opinion that uses “softcock” in any way.
GregB
You might want to check your facts on bumblefuck states when slamming NH.
tavella
If it’s 6-3, it’s going to be because Roberts wants to write the decision and shape it as narrowly as possible, I’d say. If it’s 5-4 Kennedy writes it, but unless his parish priest has suddenly convinced him he’s going to hell, I don’t see why or how Kennedy does a turnaround here.
Sarah, Proud and Tall
@GregB:
That was a joke, Joyce.
Baud
@tavella:
Pretty hard to write this narrowly. Either gays can marry or they can’t.
Punchy
6-3? Is you math screwy? Alito, Roberts, Thomas, and opinion-already-penned Scalia are automatics. The ONLY way we get Roberts is if he votes to bounce Obamacare subsies and feels the need to avoid being labeled the biggest douchebag in the history of SCOTUS. Otherwise, this is 5-4 at best
Anne Laurie
And writing like this is why we love you so, Ms. P&T!
In case you haven’t seen it yet, it gets better, if Linda Greenhouse in the NYTimes is to be believed:
Baud
@Anne Laurie:
Right. Marriage equality doesn’t protect LGBT folks from private discrimination. That takes legislation.
catclub
Will Scalia or Roberts write something to encourage the dignitude of states to defy the Supreme Court decision on this?
Cacti
I think marriage equality will win the day because Kennedy has been consistent in his jurisprudence against state laws overtly hostile to gay Americans.
I think getting a 6th vote from any of the remaining Republican 4 is a pipe dream.
Sarah, Proud and Tall
@Punchy:
I don’t think 5-4 is at best. I think it’s a dead cert, barring unfortunately timed deaths. No way does Kennedy flip.
I think there’s a chance Roberts might write a narrow judgment of his own, for the right to marry but with many weasel words about religious freedom, with Kennedy writing the majority judgment. However, I think Roberts is ultimately a pragmatist and a lawyer, and so will go with Kennedy’s judgment.
I may well be wrong. I often am.
Punchy
@Punchy: upon actually fully reading the post, I see you address all of this already. Im a dumbass. Apologies.
BruceFromOhio
I am committing grand quote larceny and driving this like I stole it.
GregB
@Sarah, Proud and Tall:
NH is a bumblefuck state but Democratic Governor John Lynch was the second Governor to ever sign a gay marriage bill into law.
It deserves kudos instead of brickbats.
Baud
@Sarah, Proud and Tall:
The reason I disagree with you is that, so long as marriage equality gets 5 votes, no one is going to hold Roberts’s dissenting vote against him. It’s one the benefits of being a Republican.
Roger Moore
@Anne Laurie:
Because the Supreme Court issuing a ruling on abortion certainly closed that for all time.
Litlebritdifrnt
I am so sick of toenail fungus ads,
Sarah, Proud and Tall
@Anne Laurie:
Mrs, please. I can’t be having with that Ms stuff.
Absolutely. The right to marry, I suspect, is a done deal. The Supremes will rule, Sister Mags will cry on TV, both sides of politics will breathe a sigh of relief, most of the population will get on with their lives marrying whoever they want and going to Uncle Chuck’s marriage to Uncle Fred next weekend.
Greenhouse is right. The same lawyers and politicians and NOM carbuncles who have spent the last twenty or thirty years raking it off the top stopping the queers getting married will quietly put away those files and get out nice shiny new ones about protecting people from having to sell vagina cakes to lesbians.
Mind you, while I appreciate that not everyone lives in places where there are dozens of wedding cake places to choose from, would you really want your wedding cake baked by a fundamentalist christian? I imagine it would taste bitter, and a bit crumbly on the edges. And who wants that in a vagina cake?
BBA
Don’t forget Clarence Thomas! He’ll dissent with a pointless ramble about how 200 years of precedent are wrong, the Supreme Court has no power of judicial review, and John Marshall sucks. In other words, the same dissent he’s been writing for a quarter century.
It irritates me how people think Thomas just agrees with Scalia on everything. They’re both wingnuts but they come from very different lines of wingnuttery.
Sarah, Proud and Tall
@Punchy:
No problem. Going off half-cocked is kind of what keeps this place running.
tavella
@Baud: Pretty hard to write this narrowly. Either gays can marry or they can’t.
Oh, there’s whether gays are a suspect class (some of the courts ruled they were), which makes it much harder to discriminate in other areas of law, there’s religious exceptions… there’s going to be a big difference depending on who writes it.
Sarah, Proud and Tall
@Baud:
This is very true. I suppose we shall see if Roberts is first and foremost a Republican or a Lawyer. I may be biased.
JPL
@Cacti: I think it wins so they can get rid of that pesky health care law. Roberts doesn’t want his legacy to be just being an asshole.
Sarah, Proud and Tall
@BBA:
You’re entirely right. I admit I try not to think about Clarence Thomas at all. I may have to insert an edit.
Violet
I’m cheering for the icepick. Okay, not really. But something that would remove several of the conservative justices including Roberts, all while a Democrat is president and, since I’m dreaming, with a Democratic Congress in place to confirm the Supreme appointments. Like I said, dreaming.
I wish Jesus would ride into the Supreme Court on his T-Rex, the one that likes to eat conservative Justices for dinner. That that hasn’t happened yet is proof that God is napping.
Morzer
I wonder whether we shall see John Roberts proudly defending the right for Hobby to marry Lobby. Corporations being people too and all.
Baud
@tavella:
Do you have an example of law that would possibly survive if we win this, regardless of whether the court deems them a suspect class?
Baud
@Sarah, Proud and Tall:
I think the Obamacare case will tell us that more than this case.
piratedan
@tavella: oh there’s all kinds of shades of nuance in play here, just look at the shade of skin pigmentation whenever a gun (or a gun shaped object) is involved in a death…. and yet, the law certainly seems to be open to interpretation based on your local LEA.
Anne Laurie
@GregB:
… because Massachusetts was the first, now & forever in the record books!
And NH couldn’t bear the thought of missing out on the gay-wedding industry bonanza. But what th’ heck, many good things are done for less-than-stellar reasons.
Morzer
@Anne Laurie:
It was bad enough when the New Hamsters used to raid across the border for our wimmins, but now they are carrying off our fine, rugged young mens as well.
Have they at last no decency?
Trentrunner
I’m a gay married dude, and I’m WAY more worried about the SCOTUS decision on ACA subsidies.
More worried than I’ve ever been about any SCOTUS decision in my adult lifetime.
lamh36
@Anne Laurie: Ya know I was listening to Ted Olson (sp?) on the Stephanie Miller show and he pretty much agreed that GOP want this done. He said that he had attended a Log Cabin Republican private fundraiser and there was a “number of high profile” GOP operatives and pols there.
So gaming this out, once gay marriage is the law of the land, how will this affect the two parties? I mean how long will GOP continue to treat Log Cabins and GOProud like red-headed stepchildren.
Will it become a question of what party is better on equal rights for married LGBT citizens, or will it make it a political wash for both parties?
Baud
@lamh36:
It ain’t really benefited the Dems yet, now has it? Don’t see why it would get any better.
JPL
@lamh36: I think it is interesting that the decision will come about the same time as ACA subsidies. I think they rule in favor of equal protection under the law for marriage equality and rule against subsidies.
Morzer
@lamh36:
I think the question might be not whether it benefits Democrats directly, but whether it starts to push a chunk of the Talibangelicals out of political engagement with a Republican party that can’t delivery that same good old-fashioned sweet bigotry rush any longer.
Baud
@Morzer:
Nah. They just double down on abortion and it’ll all be good.
Roger Moore
@tavella:
I think this is going to be a big one. A lot of the circuit court rulings have said that anti-equality laws can’t even pass a rational basis test, so there’s no need to rule on whether gays are a protected class or not. The conservatives who want to rule in favor of marriage equality may want to adopt that logic so they don’t have to come up with a ruling on gays’ protected status. Liberals will probably want to stick in something about anti-gay laws requiring heightened or strict scrutiny, since that would make the ruling much broader.
Sarah, Proud and Tall
@Baud:
“Murder”. It’s spelled “murder”.
Babykiller.
ETA: Was that unduly harsh? I’m a bit drunk and I can’t tell.
Morzer
@Baud:
I am not so sure about that. I think there are signs of a generational divide – older evangelicals wanting to rail about sodomites and go full Rushdoony on them, while younger people seem to find the whole thing distasteful/absurd/repellent. I have seen surveys that suggest that at least part of the evangelical demographic is unhappy with the way in which their churches have been made into GOP propaganda central and are finding other places to be on Sunday. When you couple that with an apparent shrinking of the Christian segment of the population, I think there’s a good case to be made that we are past peak Talibangelical by a few years now.
GregB
@Anne Laurie:
NH will have tax-free gay weddings forever!
Major Major Major Major
This whole Halbig thing just makes me think of a DnD game gone wrong.
Alito: Look, it says right here, that I can use Divine Metamagic to–
RBG: That would obviously break every other rule in the game, and besides it’s from a supplement!
Scalia: Words have meanings. And those meanings don’t change. My cleric casts quickened empowered holy word.
Roberts: Rocks fall. Everyone dies.
Tenzil Kem
@GregB: What Greg said. We not only did it earlier than most states, the crazy GOP legislature we had for two years even couldn’t get a majority of Republicans to vote for repeal a couple years later. Live free or die.
Morzer
@Major Major Major Major:
I like the way you integrated the silence of Clarence Thomas into your narrative.
Baud
@Morzer:
I’ve seen zero distaste among Republicans for pushing for abortion restrictions. I think the gay issue just fades away, except for some libertarian minded folks who will take all the credit. The GOP will continue to oppose non-discrimination laws, but that will be couched as religious freedom and anti-litigation rather than “gays icky.”
Sarah, Proud and Tall
@Major Major Major Major:
Nice.
tavella
@Baud: Do you have an example of law that would possibly survive if we win this, regardless of whether the court deems them a suspect class?
Oh, I don’t expect any of the anti-gay marriage laws to survive this, but how a decision is written can have big impacts on other related areas. If the principle that gays are a suspect class is established, it becomes the standard to apply across the country, and suddenly every anti-gay law is held to strict scrutiny, which makes it very hard indeed for any to survive.
Baud
@Major Major Major Major:
Win.
Michael W
I sure do hope that you are rights. I get so nervous when folks in robes are deciding my right. Great post that gives me hope. Oh and I got the NH joke. That was funny.
JPL
I guess I’m more cynical. I think Roberts gives us gay marriage and takes away subsidies for ACA. He wants a legacy.
Morzer
@Baud:
The GOP obviously doesn’t agree with you. They’ve just run away from their own idiotic forced-breeding bill. I think they’ve come close to the end of the road on that issue. In any case, we were talking about gay rights benefiting/not benefiting Democrats – and I think that you underestimate the impact of recent developments on the Talibangelical community.
Baud
@tavella:
FWIW, I don’t think even Kennedy signs on to a suspect class opinion.
Michael W
Oh and not to be a mush but I love your posts. Cheers!
Sarah, Proud and Tall
@Anne Laurie:
I was going to use Massachusets but it didn’t scan as well as NH
Baud
@Morzer:
They ran away because Boehner sucks at his job. I’d be surprised if they don’t pass an anti-abortion restriction in this Congress.
Anne Laurie
@Morzer:
Snerk. As if any Masshole ever used the words “New Hampshire” and “decency” in the same sentence!
Schlemazel
@lamh36:
You mean accept them openly as equals when out? Well, lets see . . . how they doing on that front with people of color?
Ripley
@Morzer:
Don’t tell Huckabee, he’s been shilling for God’s Law this week.
Morzer
@Baud:
They ran away because they didn’t want to risk committing to language that is now seen as too extreme and toxic for the average American. Yes, they’ll pass some anodyne and meaningless nonsense – but the salient point is that they’ve reached the end of this particular road nationally. Sure, Boehner is as much use as a catflap in an elephant house, but that isn’t why they ran away from the bill just as the whackaloon mob descends on DC for the annual Forced Breeding Of American Women March.
Violet
I guess this is all the pupdate we’ll get from John. It’s from 16 hours ago on his Twitter feed:
Baud
@Morzer:
I disagree. At best, they will wait to see if they get the presidency in 2016 before pushing the issue. But I doubt they can get away with doing nothing this Congress.
Morzer
@Ripley:
Sure, but that’s just another gentle shaking of the moneytree to keep the Squirrel Hunter in Confederate dollars for a couple more years. No-one cares what Huckabee thinks on any given topic.
Morzer
@Baud:
I don’t believe that they will do anything. It’s not like the rubes have anywhere else to go. They’ll pass all sorts of meaningless nonsense forbidding abortions to be funded with Benghazidollars, but they won’t actually achieve anything. We’ve seen quadrillions of refudiations of Obamacare go nowhere and it’ll be the same with abortions.
Kylroy
@Violet: If someone had bombed the supreme court on January 21st, 2009, they would have enabled a generation of progressive laws to be passed without being picked apart in the courts.
Or, y’know, touched off a civil war. Either way.
Baud
@Morzer:
Well, yeah, Obama will stop all of it, just like the Senate previously did. I don’t know what they’re political calculation is, but I will eagerly await evidence that they are moving away from the abortion fight.
Morzer
@Kylroy:
It would be a terrible loss to the nation if Scalia, Alito, Thomas, Roberts and Waffles accidentally brutally cut their heads off while shaving.
Morzer
@Baud:
My point is that they are spinning their wheels on this issue, as on virtually everything else. There’s no more road forward for social conservatism and they’ve lost the gay rights fight big time. I think that the next ten years will be marked by social “conservatives” clinging on to the gains from their bigotry with the tide running ever stronger against them.
Zinsky
I’m guessing 5-4 with Roberts writing some smarmy, holier-than-thou dissenting screed about religious freedom, blah blah blah, as if magical, fantasy thinking is as important as real human being’s lives.
Baud
@Morzer:
I hope so, but I have seen evidence of a political cost to them yet.
burnspbesq
@Baud:
If strict scrutiny doesn’t apply, I can imagine an outburst of carefully crafted state laws taking away the right of gay married couples to adopt, to sign durable powers of attorney for health care, etc. It would take years to get them all struck down.
Republican-controlled state legislatures will feel obligated to do something to signal to the base that they aren’t taking this abomination lying down.
burnspbesq
If there are five votes to reverse, then there will be six. By long-standing tradition, the Chief Justice, if he is in the majority, gets to assign the writing of the majority opinion. And he’ll assign it to himself, for the same reason that Kobe Bryant will always jack up a contested three at the buzzer even if there is a teammate wide open for a dunk.
Major Major Major Major
@burnspbesq: I never got why strict scrutiny doesn’t apply. I mean I get why conservatives don’t want to use it, but gays are like the definition of what strict scrutiny is for right now.
Major Major Major Major
@burnspbesq: why wasn’t Roberts in the majority on the DOMA or Prop 8 cases then?
burnspbesq
@Baud:
Standard of review is a red herring. There are plenty of opinions out there that persuasively say that even under rational basis, these laws fail. I mean, seriously, how the fcuk does forbidding gays to marry, while allowing straights who are two old to conceive to marry, advance the cause of “responsible procreation” (whatever the hell that is)?
Villago Delenda Est
@Anne Laurie: Exactly. The vile primitives who make up the GOP base will howl for Impeachment of the Gay FIve (or Six) and demand that a constitutional amendment banning gay marriage forever is the way to go.
Steeplejack
@Morzer:
The Republicans in Congress don’t need to do anything about abortion. It’s all being taken care of quietly at the state legislature level, with increasingly draconian regulations forcing the closing of clinics and the restriction/denial of services to women.
Steeplejack
@burnspbesq:
True dat.
Hank
Of course Roberts will vote in the majority. As the only gay justice it just makes sense that he’d vote to allow gay marriage.
Via the old tbogg at FDL
Pic
Villago Delenda Est
@Steeplejack: Yes, but in the civilized states, sluts are not being punished, which drives the vile primitives absolutely bonkers.
Sarah, Proud and Tall
@Major Major Major Major:
I suspect the reason in both cases might be because Roberts is a bit of a dick.
burnspbesq
@Major Major Major Major:
Hell if I know–but I don’t care, because the laws against gay marriage fail even under rational basis.
Matt McIrvin
@BBA: I was just reading (via Gary Farber on FB) about Brown v. EMA, a 2011 case in which the Supreme Court struck down laws restricting videogame sales to minors, and ruled that videogames had full First Amendment protection. It was a 5-4 split but not along partisan lines: the majority was Scalia, Kennedy, Sotomayor, RBG and Kagan, and Kagan recently said she was really hesitant and still isn’t sure she made the right call. Thomas and Breyer took the most extreme opposite case, supporting all such minors’-access legislation, and Roberts and Alito were somewhere in the middle:
http://www.slate.com/blogs/future_tense/2015/01/07/elena_kagan_reveals_the_supreme_court_came_close_to_allowing_video_game.html?wpsrc=sh_all_dt_tw_top
So this is a case where Scalia and Thomas were as opposed to each other as anyone on the Supreme Court. Scalia actually wrote one of his thunderous rants as the majority opinion.
Matt McIrvin
@Anne Laurie: When the NH House of Representatives, everyone’s favorite legislative body, got filled with Tea Partiers in 2010, a lot of them wanted to re-ban same-sex marriage (which had just become legal), and there was a move to do it. It failed partly because too many of them were libertarian types who wanted to divert the whole thing into eliminating gubmint marriage entirely. I thought it was hilarious, because usually people use that line to try to derail the pro-gay-marriage side.
kc
That was great, Sarah. Loved this bit:
danielx
@Hank:
Good good, it’s like they’re going to break into YMCA at any instant…in a totally ironic and completely heterosexual fashion, of course.
Cervantes
@GregB:
For what it’s worth, the “joke” escaped me as well.
brantl
I have to say, this is the most cogent analysis of the Supreme Court that I have read, in a long time.
brantl
@BBA: But Thomas is a major kiss-ass, has barely ever asked a question, and is a complete dick. Other than the “never asks a question” part, how is that distinguished from Scalia?
Hunter
@Cacti: @12: I think Roberts may come in as #6 if only because most major corporations are for gay rights — it’s good for business. Don’t forget that some 60+ corporations filed an amicus brief in one of the cases supporting marriage equality.
Hunter
@Roger Moore: @18: Same-sex marriage doesn’t have the same resonance with most people that abortion does, no matter how hard Anti-Gay, Inc., tries to link them. It doesn’t involve killing anything and most people realize that it doesn’t affect them one way or the other.
Besides, now cousin Robby can settle down with that nice man he’s been seeing.
Hunter
@tavella: @23: Since marriage is a fundamental right, these cases can automatically be considered under strict scrutiny without having to determine whether gays and lesbians constitute a suspect class, as I understand it.
Hunter
@Anne Laurie: @32: Actually, Connecticut was the first state to pass a law legalizing recognition of same-sex marriage (2005); Massachusetts happened because of activist judges (decision in 2003; became legal in 2004 because the legislature did not act).
balconesfault
Will corporations get voting apportionment based on number of shareholders, or on market capitalization?
feebog
I read the government brief on the ACA case last night. In any sane world this would never have reached the Supreme Court, its that clear that the Plaintiff’s reading of law is completely bogus. If they do overturn the subsidies, it is going to be a huge clusterfk. Congress is not about to step in and correct it. We will be faced with millions of people who are mandated to buy insurance they can’t afford.
Chris
@lamh36:
I think the civil rights struggle offers a pretty good precedent of what we should expect. First, we need a big, unequivocal win, that would definitely signal to the social conservatives that the party’s over (same thing the CRA and VRA did for the Dixiecrats). That would, presumably, be this decision.
Then, you’ll see them redeploy and start fighting rearguard actions to try and protect the enclaves in which they can still discriminate – as someone mentioned above, passing carefully crafted states’ laws that go just up to the line and then arguing that the feds don’t have the power to overrule them, or protecting discrimination in the private sector by saying that the feds can’t be ordering good Christian CEOs to do things against their conscience. Etc.
After enough years have passed and gay marriage and the like have become accepted institutions that nobody really thinks about anymore, you’ll see a revisionist narrative start up in which conservatives were TOTALLY on board with gay rights the entire time, in fact Obama was the big homophobe for not hopping on board the gay rights train fast enough and Don’t Ask Don’t Tell proves Democrats were the REAL homophobes.
Chris
@Morzer:
Oh, the puritans always bounce back in some way or other. Whether they win or lose.
In the early twentieth century, it was alcohol. They lost that fight so badly that “prohibition” is now the go-to reference for anyone pointing out that regulation doesn’t always work. In the middle of the twentieth century, they came back with changing the national motto and the pledge of allegiance to reference God and such nonsense. They won that fight. Then by the eighties, it was abortion and gay rights. They’ve now pretty much lost at least one of these fights, but I’m sure they’ll find something else.
Ron Thompson
Kennedy’s judgments in Romer, Lawrence and Windsor clearly indicate that gay rights are something he genuinely and passionately supports
If you’re going to write about legal matters, you should understand the difference between a judgment and an opinion.
A judgment says who wins, and what the loser must do. That takes about a paragraph in most cases.
The explanation of how the court arrived at its judgment is called an opinion. What you are referring to are Justice Kennedy’s majority opinions for the court in those three cases.
Lex
This Sarah lady can write. John, you might want to give her the keys more often. ;-)
Sarah, Proud and Tall
@Ron Thompson:
Thanks, Ron. I’ll remember that for next time. I freely confess that most of what I know about law I learned either from Rumpole books or from hanging around the foyers of my solicitors’ offices trying to pick up junior associates, so the terminology isn’t necessarily my strong point.
gorram
@Baud: Does the phrase “skim milk” ring a bell? For a while there that was exactly the situation?!
gorram
I think anything predicting less than a 3 justice dissent is a little nutty because the unholy trinity of Scalia-Thomas-Alito even if fractured aren’t going to sign on with marriage equality. I think faith in both Roberts and Kennedy is misplaced – Roberts blinks in the face of present crises not long term popular cultural judgment and Kennedy’s pro-LGBTness is profoundly libertarian (ie: opposition to sodomy laws in the 90s-2003 and DOMA restricting states’ expansions of marriage rights more presently) and not necessarily framed as a positive right to full participation in social/legal/economic structures of society (ie: mandated marriage equality among other things). Remember he voted against exactly that kind of mandate in Hollingsworth v. Perry and the 5-4 striking down Prop 8 was only carried by Roberts finding a conscience.
Maybe this post is just designed to talk up a good game, but it comes across as missing how uncertain the situation is. Maybe I’m misreading it and it’s all in good fun, but it just comes off a bit weird.
gorram
@Chris: We’ve already seen that the rear-guard action is fierce in a lot of the US on segregation and investment/support for Black communities. Remember that fight is hardly over itself.
On marriage, we’re already seeing a good chunk of that switch over it seems. Remember how Oklahoma was looking into moving marriage-related benefits into the private sector (which remember, is by and large wholly legally permitted to discriminate against LGBT people). The unfortunate reality is that the US really was structured on the idea that certain things (money, land, and education are the big ones) are only allowed to be given to the “right kind”. Whether we’re talking about race, sexual orientation, or gender (assigned or identity), that’s still overwhelmingly the reality on the ground for how people live.