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

Thursday, November 19, 2015

"Equal Dignity"

Obergefell v. Hodges (SSM) continues to have academic discussion over at Harvard, part of the argument it is a type of "game changer" of sorts in constitutional analysis. I think Prof. Tribe is correct to downplay the change somewhat as portrayed in the first analysis though both are worthwhile to examine the overall principles involved. Tribe rightly argues that the opinion "represents the culmination of a decades-long project that has revolutionized the Court’s fundamental rights jurisprudence."

There continues to be a battle on the contours, but we are not talking about some novel principles that suddenly came out contra, e.g., Roberts being so very confused in his dissent. The first article sees Obergefell (destined to be one of the most forgotten precedent case names) as de facto overruling Washington v. Glucksberg, a major substantive due process precedent. The majority (via Rehnquist) tried to cabin unenumerated rights here but just how much the reasoning actually does that is up to the reader. An honest realistic counting of noses here shows three actual votes for the full approach.* O'Connor concurred separately in a fashion that suggests she was more concerned with the specific issue of physician assisted suicide than some broad attempt to limit substantive due process.

Kennedy didn't speak separately but joined O'Connor years before to "not foreclose the unanticipated by the prior imposition of a single mode of historical analysis."  She cited Poe v. Ullman, also favored in the Casey abortion decision, the favorite approach for the Obergefell developing history approach. This underlines the perils of trying to selectively use one opinion or even parts of one (such as the federalism aspects of Windsor) without putting it in a wider context.  It's important that a firm five votes supports a broader view here but this "what about Glucksberg" query is not new anyhow -- see the opinions in Lawrence v. Texas.

The two articles here in more helpful for me to summarize a general approach at any rate. The same applies to the substantive due process and equality "synergy."  This is not new. I don't know what the confusion here is. Loving v. Virginia shows how the two interact as did various other opinions, at times some justices viewing things in an equal protection mindset, some in a substantive due process fashion. An earlier overlap would be Griffin v. Illinois speaking of "equal justice"  or the two school segregation cases, one a due process matter (federal), the other equal protection (state).  And, again, Lawrence v. Texas spoke of the connection:
Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.
The majority opinion used substantive due process while the concurring opinion relied on equal protection. The articles can also be used to show "dignity" is not just something Kennedy came up with as did various articles in the past.  The general idea that concepts such as "marriage" change over time as new information and societal developments occur isn't new either.  The debate here is basically on details.  This does not belittle the ultimate scope of the opinion here, including the value of bringing various strands together, but the novelty of it all is unclear to me.

A final thing here is "what about Lochner?" Chief Justice Roberts sets up a drinking game there by repeatedly citing that case. Again, we are talking degree here.  It is not apparent that he is against a "right to marry" as such and we are back to "what about coverture" etc. regarding the current scope of such a right.  The problem of Lochner, or a primary one at least, was its breadth. Some "right to contract" was not disputed by at least eight justices.  The Supreme Court could have rejected the couples' claims here and still have to face the continuing problem of the proper contours of constitutional limits and the Roberts Court is not that minimalist there. Shelby, anyone?

The favored approach by the writers here is to think of some "anti-subordination" principle or something to show why equal rights is appropriate in this case. So maximum hour laws were valid to protect the unbalanced relationship between employer and employee. Others would use some economic/non-economic liberty approach. Or whatever. I find the whole thing somewhat tired since there are various reasonable ways to differentiate here and again difficult questions will arise requiring value choices and so forth to be made.  "What about Lochner?" was raised in Griswold v. Connecticut too and even campaign finance cases.

Anyway, like many an article, the journey here is worthwhile even if certain details are not of my liking. And, the SSM opinion is a landmark case, including one where certain basic principles are expressed well with likely long lasting effects.  But, be sure, some future case will try to cabin things as even this case did regarding "marriage" as compared to some other "liberty" covered in Glucksberg. As the first article notes, this wasn't overly convincing though even there probably somewhat so (easier to expand on "marriage" than something like physician assisted suicide though some general right was appealed to there as well -- see, e.g., Justice Breyer's concurrence). Again, nothing new under the sun.


* A somewhat unbalanced  artificial approach might get you somewhere else.  On that level and regarding the same case, see here, an example to me of the unreasonable commentator.  This is a pet peeve of mine, one arising out of general concerns  The basic problem being that a person in strident tones assumes a questionable strong argument is being made and ridicules it.

A better approach would to provide a more sympathetic interpretation, especially since just what is intended is unclear and at times the response is the party that comes off as more unreasonable.  That is, misreading the person as well as wrong on the merits -- a double whammy.  The reader is left to examine both sides (and comments) as applied here, but the professor imho is not a first time offender here and is of the type that stridently keeps on digging.   Pushes my buttons.

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