About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, June 27, 2015

Reactions to Reactions

It bothers me that various people, including over at Lawyers, Guns and Money, are provided tired and/or unsubstantiated criticisms of the SSM opinion and unwarranted respect for certain dissents. There are the expected potshots at Kennedy's prose (I'll survive and the dissents were deep down worse unless you are only judging on style points*) and the alleged lack of clarity of what "the law is."  I reckon the law is that same sex marriage is protected.  Since marriage is deemed a "fundamental right," heightened scrutiny would seem to be followed unless the justices sub silento changed years of precedent.  Granted the opinion -- contra Heller -- doesn't have expansive dicta on other subjects.

Some, e.g., wanted the opinion to decide the level of scrutiny for sexual orientation, which is not necessary. It would have been a more activist and wide ranging opinion for a Court constantly favoring a more modest approach.  Also, some reference to use of "animus," which was raised in the "People's Brief," which I signed along with a mass of other people (thus it's name).  The use of state DOMAs to block legislative developments here can be cited as I have in the past to show how most if not all of the states still with bans had that extra layer of bad. And, as noted here, such provisions block the democratic means Roberts et. al. promote and support reflected in poll numbers. It is likely, especially given legislative bottlenecks generally, certain states still would not authorize same sex marriage. Telling point though.

Anyway, the opinion did focus on "dignity," a special concern in the animus area.  But, overall, as in Lawrence v. Texas, the approach used here is more comprehensive. And, animus cases -- see Windsor -- suggest the laws in question are in effect special burdens. This was more general practice. Finally, use of a more inclusive "part of a greater mosaic" approach is more welcoming overall and was a strategy of many in the marriage movement generally. In more "not just Kennedy" news, the movement has been known to use sentiment, including regarding the human interest stories / burdens of those being denied rights.  Is it really surprising that the opinion seems to be emotional there? 

There was also opposition (comments) to the use of substantive due process and arguments (comments; repeatedly conclusionary) that Roberts and Thomas did a good job challenging the majority on the point.  I get the general sense -- though one person kept on saying Kennedy didn't show his work (here regarding due process and equal protection synergy) though he clearly did (paragraphs worth) -- the criticism is more a matter of disliking the technique itself.  If you read the opinion, it provides clear analysis (using precedent) to show how the right to marry was long protected and in an open-ended way.  It was "presumed" that it involved man and woman marriage (but see Powell's concurrence in Zablocki, concerned about how regulations involving homosexuals might be struck down given the open-ended nature of the majority opinion). An evolving understanding however showed that the actual principles involved apply just as well to same sex couples.

Now, if you want to do away with years of precedent, fine, but it is unclear how the dissents challenge this in any other way. Washington v. Glucksberg won't save you either; it spoke of "new rights" and the "right to marry" is not that. Nose counting suggests the reach of potentially expansive dicta is limited especially once a range of cases are examined. And, the majority has a better case on how that right was expansively applied.  The idea that marriage was only about procreation or the only "core" aspect that simply could not be changed is man/woman does not stand up to scrutiny. How exactly is Roberts et. al. arguing things well by making the same specious arguments? If the courts can significantly change gender relationships in the 1970s given changing understandings (reflected by societal actions, expert knowledge, laws, judicial rulings etc.), why is this different?  Why is this supposed to be the act of merely five justices as compared to any number of other things?  Repetition of error doesn't make it less erroneous.

Some are concerned (accepting the ruling was a "necessary evil") that the opinion will be a "setback" including because now  "instead of having to defend anti-gay policies on the merits, [some] can invoke the principle of popular sovereignty, piously disclaiming any opinion on the merits of the controversy while vociferously insisting that it is the right of the people to decide the question."  Not seeing it as I say there -- is that the case with abortion?  Nor does the ruling settle each and every GLBTQ issue though it surely helps one side.  This is why so many were ecstatic in part because it will be used as a weapon for further success.**  A tipping point has come and as with abortion there will be backlash (with rights protected) either way.  How much longer should they wait?

The ruling, as was the case for Lawrence v. Texas (intimate association protected generally), has a broad reach.  For instance, the argument used here is partially about gender equality too, even if gender equality itself is not used as an argument (it is favored by some; not by many courts).  It is also about the right to make a range of marital choices just as freedom of religion includes not having one (many say they are "spiritual" instead; this might confuse non-hippies like Scalia). There was some pushback on Kennedy's pro-marriage language and I won't dispute he laid it on thick (he or a clerk might have seen it as a nod to their spouse).  But, like the reminder that marriage is only partially about procreation -- and choosing not to procreate is fine (btw must have missed Roberts et. al. explanation about the elderly marrying here)  -- more choices here includes the right not to get married.  Anyway, sometimes one forgets Kennedy is still some sort of conservative, even if the type many liberals can live with.

One discussion wondered why Kennedy would leave affirmative action but not same sex marriage to the political process, a reference to his opinion in  Schuette.  It is noted that Breyer also joined the result there though a reader might miss this in the analysis.  Also, the quotations aside, it is not as if Kennedy actually totally leaves the question of affirmative action to the electorate. He has rejected certain race conscious programs that they chose as unconstitutional.  Furthermore, affirmative action is a means to racial equality though some might believe it is a necessary one.  At issue here is a direct barrier on fundamental rights and equality.  No, the test is not that you only trust the voters when they are likely to vote with Kennedy.

The same sex marriage debate repeatedly leads to references of polygamy and incest, largely by opponents but at times by defenders with some sort of libertarian bent or desire for neatness. Line drawing as with development of the law is often not neat and we have survived, even if the rules followed seem somewhat arbitrary to some people.  Appeals to originalism here have been shown to be weak; complete trust of the democratic system rightly rejected.  OTOH, for those like Thomas who do care for such things, marriage has long been held to be a liberty.  If he wants to call it a "privilege or immunity" be my guest.  He argues "liberty" is about freedom from government action.  Marriage was just that -- it provided a realm of privacy to do things you otherwise could not do, including cohabitation.  Finally, not only spousal immunity but things like guaranteed widow benefits show how the "p/i" would work here. Plus, the distribution of benefits cannot be done in an invidious fashion.

Anyway, the majority did list "two-person union" as one of the four principles of a right to marry though Roberts in effect noted this was an arbitrary limit as compared to man/woman marriages.  The majority did not spend time discussing why polygamy is different. The core reason is that societal developments have recognized same sex relationships, which even the states accepted on some level.  Polygamy does not have such wide recognition and for good cause.  The majority might have said a bit more about that but this concerns few, including those who are open to expanding marriage to include them.  Monogamy was part of marriage precedents; the issue at hand is same sex marriage and time shows that they fit the ends of marriage.  Incest seems to have been avoided.  If such cases arise in the future, and they likely will in some fashion, the specific concerns can be examined. 

I'll be interested in seeing further developments here. As noted near the end of the opinion, the marriage "debate" is far from over even if it goes on now with basic rights protected for the group in question. This is true in general -- the push to look "beyond marriage," protections for non-marital relationships for all types of people has been ongoing for years. And, there are a range of interests to gays and lesbians, not even including trans issues that are far from fulfilled by this ruling.  After all, Loving v. Virginia did not end things for race.  For now, congratulations.


* A low point was when Chief Justice Roberts, yes the Chief Justice of the Supreme Court of the United States, told same sex couples to "by all means celebrate today’s decision ... [b]ut do not celebrate the Constitution. It had nothing to do with it."  The bitterness is dripping.  Precedent for over a hundred years protects a right to marry as a "liberty" protected by due process and equal protection is right there in the text. So sorry. The Constitution has "something" to do with it.  And, "Lochner!" And, for added effect -- Dred Scott!!!  Equal rights to same sex couples, as we know, is akin to the non-personhood of blacks or stopping wage/hour legislation. Not like? Declaring unconstitutional PPACA or voting rights laws.

Justice Scalia is just too easy of a target -- his dissent is redundant in respect to the "leave this to the people to decide" message since Roberts already covered that. It was mostly a gratuitous chance for "Scalia to be Scalia" and be joined with Thomas in so doing.  I will grant that some of his remarks might be funny -- partially to save time -- like you would think some slightly deluded outrageous elderly family member might be.  But, seriously now, this guy has passed some tipping point. RBG? Isn't it about time to have an intervention? Or is it your crafty way to degrade the brand?  Alito here is bitter without the wackiness.

** Andy Humm (Gay USA) on his Facebook page: From the great gay journalist Steven Thrasher: "Just got off the phone with Roberta Kaplan, who argued Windsor, who explained to me all the legal ways today's case is pretty much everything we wanted, and lays the legal framework to prevent discrimination across the board in many arenas beyond marriage. 'There is nothing in it I am worried about. It states in no uncertain terms that gay people are fully protected in a manner of equality protected by the Fifth and 14th amendments. And that's what this movement has been fighting for now for decades, and for the 20 years I have been involved. This is the pinnacle of our success so far, and it is hard for me to see now that any court, anywhere, state or federal, could possibly tolerate discrimination against gay people on any basis.'

No comments:

Post a Comment

Thanks for your .02!