There are various discussions (and go to Slate for more etc.) that honor and discuss Kennedy's majority opinion's characteristics. This includes its use of liberty and equality, its overall tone and rhetoric plus its evolving tradition approach that (oxymoron it might be to some) be called "evolving originalism." The idea is you have basic purposes (here of marriage) but how they apply change over time as our experience and knowledge changes. Overall, there is a lot to praise, especially if you give it a chance.
There are various things I might have tweaked though as one of those discussions note, ala Brown v. Bd., the approachable nature of the opinion (and I would include here it's overall positive tone, which a more full-fledged equal protection and/or animus ruling could lack) is important given the broad potential readership here. The brief history of marriage and development of changing views of homosexuals is appreciated. The framework of marriage and equality/liberty synergy worked for me. The material was there -- he used it to provide an appealing overall approach.
Nonetheless, I would have added more on how rights of homosexuals grew there as the sticks of marriage grew for the couples involved. Also, I would have noted how same sex marriage in some fashion existed for quite some time, if only to show the potential once we accepted the possibility. Same sex marriage is not just something that was invented twenty years ago. And, yes, I would have added a bit more on recent state DOMAs etc. to show animus and/or how democratic decision-making was blocked.
[Note: The changing minds on the question clearly factored in here but it does warrant adding that the majority opinion does at one point basically note (as has been the case in the 8A context and so forth) on some level ultimately it is up to the Supreme Court to apply constitutional principles. Here there was a circuit split making it particularly important though they at times don't require that. Ultimately, basic constitutional principles, not nose counting of some sort, was at stake here. But, the USSC just acting solely on its own on these issues is rare. There is surely shall we say some free will going on here; it just is a combination of factors.]
As one discussion links notes, the majority opinion is overall positive and politely shows respect for dissenting religious and secular views on this subject. The dissent doesn't buy it -- the majority opinion is clearly same sex positive and rejects "demeaning" same sex couples by denying a constitutional right to marry. But, it is speaking in constitutional tones. Also, would the dissents be as concerned if racism was at stake and a general vibe of positivity involving racial equality is provided even though some people reject that sort of thing? I seriously question this.
Finally, there was a way, especially Chief Justice Roberts, to dissent without being so bitter about it, without comparing a ruling protecting same sex marriage to overturning a maximum hour law or freedom provision. The dissent could respectfully note that homosexuals did have a history of discrimination, say that the argument about the synergy of equality and liberty has a point and some barriers here would be illegitimate. There was room for some common ground there without him sounding like one or two of the tools in dissent. Thomas, e.g., let us remember dissented in Lawrence while here assuring us same sex couples just can go about their lives. Plus, when the majority says they respect dissenting views, go with it. Don't send the message that it was really a wink wink and they won't be respected as a matter of law.
You might lose three votes here, but accept Lawrence v. Texas. And, finally, perhaps suggest some rights to couples are required though not yet marriage. Perhaps, recognition (why was this even brought in? it was barely mentioned) or acceptance of out of state divorces or stopping a total ban of adoptions on account of sexual orientation. Meanwhile, you say the right to marriage is too big to recognize now, things are still developing and the usual conservative line. And, tone down the Lochner stuff but use a bit of that and Washington v. Glucksberg etc. about concern for error.
Still wrong (he should know). And, one final summary.
There are various things I might have tweaked though as one of those discussions note, ala Brown v. Bd., the approachable nature of the opinion (and I would include here it's overall positive tone, which a more full-fledged equal protection and/or animus ruling could lack) is important given the broad potential readership here. The brief history of marriage and development of changing views of homosexuals is appreciated. The framework of marriage and equality/liberty synergy worked for me. The material was there -- he used it to provide an appealing overall approach.
Nonetheless, I would have added more on how rights of homosexuals grew there as the sticks of marriage grew for the couples involved. Also, I would have noted how same sex marriage in some fashion existed for quite some time, if only to show the potential once we accepted the possibility. Same sex marriage is not just something that was invented twenty years ago. And, yes, I would have added a bit more on recent state DOMAs etc. to show animus and/or how democratic decision-making was blocked.
[Note: The changing minds on the question clearly factored in here but it does warrant adding that the majority opinion does at one point basically note (as has been the case in the 8A context and so forth) on some level ultimately it is up to the Supreme Court to apply constitutional principles. Here there was a circuit split making it particularly important though they at times don't require that. Ultimately, basic constitutional principles, not nose counting of some sort, was at stake here. But, the USSC just acting solely on its own on these issues is rare. There is surely shall we say some free will going on here; it just is a combination of factors.]
As one discussion links notes, the majority opinion is overall positive and politely shows respect for dissenting religious and secular views on this subject. The dissent doesn't buy it -- the majority opinion is clearly same sex positive and rejects "demeaning" same sex couples by denying a constitutional right to marry. But, it is speaking in constitutional tones. Also, would the dissents be as concerned if racism was at stake and a general vibe of positivity involving racial equality is provided even though some people reject that sort of thing? I seriously question this.
Finally, there was a way, especially Chief Justice Roberts, to dissent without being so bitter about it, without comparing a ruling protecting same sex marriage to overturning a maximum hour law or freedom provision. The dissent could respectfully note that homosexuals did have a history of discrimination, say that the argument about the synergy of equality and liberty has a point and some barriers here would be illegitimate. There was room for some common ground there without him sounding like one or two of the tools in dissent. Thomas, e.g., let us remember dissented in Lawrence while here assuring us same sex couples just can go about their lives. Plus, when the majority says they respect dissenting views, go with it. Don't send the message that it was really a wink wink and they won't be respected as a matter of law.
You might lose three votes here, but accept Lawrence v. Texas. And, finally, perhaps suggest some rights to couples are required though not yet marriage. Perhaps, recognition (why was this even brought in? it was barely mentioned) or acceptance of out of state divorces or stopping a total ban of adoptions on account of sexual orientation. Meanwhile, you say the right to marriage is too big to recognize now, things are still developing and the usual conservative line. And, tone down the Lochner stuff but use a bit of that and Washington v. Glucksberg etc. about concern for error.
Still wrong (he should know). And, one final summary.
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Thanks for your .02!