Supreme Court Rules 5-4 To End The Sanctity Of Marriage

Ken AshfordBreaking News, Courts/Law, Gay Marriage, History, Sex/Morality/Family Values, Supreme CourtLeave a Comment

46 years ago this weekend, police in New York City raided a gay bar called the Stonewall Inn.

Obviously, this is the end (we hope) of a remarkable civil rights story (despite my snarky headline).  Here’s the opinion.

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Reactions are about what you expect.  I will update as the day goes on.  But the important thing is that about 3 million gay people just won the right to become married.

The dissents are interesting.  They all take pains to say, “Hey, I’m happy about the result!  Seriously!  Go celebrate!”, just before launching rather odd objections.

The main dissent is by Chief Justice Roberts, but all of them take great pains to say, essentially, “Hey *I* don’t have a problem with gay marriage”.  The thing they object to, universally in dissent, is that the court should not decide.  They would rather have this worked out in a democratic fashion.

I think Kennedy, writing for the majority, dispenses with this.  First of all, it has come up through the courts.  There is a split in the circuits.  It IS a legal question.  And the Constitution supersedes democracy.  End of story.  If I had a bone to pick about the majority opinion, it is this: Once again, Justice Kennedy did not spell out what constitutional test he was applying to a claim of gay equality.  It simply discussed a series of court precedents, and his own recitation of notions of liberty, without saying what burden those challenging the bans had to satisfy before winning the right to equality.

The dissents also mischaracterize the majority opinion, saying things like “the majority views bans on gay marriage as unwise“.  No, the majority views same-sex marriage bans as UNCONSTITUTIONAL and a violation of the 14th Amendment.  The majority is not substituting its preference for that of legislatures — they are doing what upper level courts often do, i.e., decide whether something is constitutional or not.

Ironically, while the dissent says the majority is acting extra-judicially, many of the dissents arguments have little to do with the actual law (instead, they argue policy, democracy, etc.)

Breakdowns and reactions below the fold

Roberts’ dissent

One point Roberts makes is this:


He has a point.  But my response would be simple — maybe plural marriages should not be banned either.  Maybe we should allow those.  I don’t know the arguments for and against — although I could probably think of reasons why a state has an overriding interest in banning plurality marriages and not same-sex ones.  But plurality marriages are not before the Court, and the Court shouldn’t be dealing with hypothetical what-if slippery slope shit anyway.

Secondly, Roberts says in the last line “the States at issue here do not have an institution of same-sex marriage, either”.  He’s falling into the same trap that many fall into.  The word “same-sex” is an adjective, not a noun.  States have an institution of marriage.  Same-sex is merely one of several adverbs used to describe a TYPE of marriage, i.e., who can be IN a marriage.  Just like “opposite-race”.  Try imagining that last line and substitute “opposite-race” for “same-sex”.

I thought Roberts might be with the majority on this one.  I don’t know why.


Justice Roberts with some friends many years ago

Scalia’s dissent

Unlike his “curmodgeonly” dissent in the Obamacare case yesterday, Scalia’s dissent here is just furious and mean.  He REALLY thinks the opinion threatens democracy.

Here are some of the phrases he uses to describe the decision:

  • “threat to American democracy”
  • “robs the People of… the freedom to govern themselves”
  • “lacking even a thin veneer of law”
  • “judicial Putsch”

Additionally, Scalia took several shots at the writing style of Justice Anthony Kennedy’s opinion:

  • “[the opinion contains] mummeries and straining-to-be-memorable passages”
  • “The opinion is couched in a style that is as pretentious as its content is egotistic”
  • “the opinion’s showy profundities are often profoundly incoherent”

He went on to argue that the Court is elitist and not truly representative of America (and gratuitously expressed his opinion that California is not a true Western state):

Scalia dissent 1

He even took a seeming shot at his own wife:

  • “One would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.”

And in a footnote, he said he would rather “hide my head in a bag” than join an opinion that began like Kennedy’s does, and bemoaned how far the Court has fallen:

  • “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Scalia even offered what may the first legal cite of a hippie.

“‘The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,'” he quoted from the majority opinion before adding, “Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”

HuffPost went to look for the first hippie it could find, per Scalia’s instructions. A 61-year-old man from Alexandria outside the White House, protesting nuclear weapons, said he had come to this very park in the 1970s for pot smoke-ins, but added that there really haven’t been hippies around since the Grateful Dead stopped touring. He was nonetheless willing to offer a judgment on Scalia’s assertion that marriage abridges rather than expands intimacy. “I’ve known it to have both reactions,” he ruled. “Scalia is a big knucklehead.”

Yup, and an asshole.

I really would like to know how a decision allowing gays to marry threatens democracy, but a decision allowing corporations to spend unlimited money influencing elections isn’t a threat to democracy.

Alito’s dissent

This is an op-ed piece. Almost no case citation.  And that’s odd since he didn’t join in Roberts dissent.


Thomas dissent

Well, he’s just giving a personal opinion, and I don’t think people would agree with him.


I don’t really think slaves had their dignity or their humanity.  I think it is safe to say that they had both taken away from them…. by government.

Celebration and snark

The Washington Post updates its map of states where SSM is legal:


The best tweet so far, if only for the imagery:

Lot of avatar changes today:


Kevin Drum reminds us that in a few years, gay marriage will be as ubiquitous as cell phones:

For a while it will continue to be a political football, but not for long. Even the opponents will quickly realize that same-sex marriage changes….nothing. Life goes on normally. The gay couples in town still live and hang out together just like they always have, and a few marriage ceremonies didn’t change that. In their own houses, everything stays the same. The actual impact is zero. No one is trying to recruit their kids to the cause. Their churches continue to marry whoever they want to marry. After a few months or a few years, they just forget about it. After all, the lawn needs mowing and the kids have to get ferried to soccer practice and Chinese sounds good for dinner—and that gay couple who run the Jade Palace over on 4th sure make a mean Kung Pao Chicken. And that’s it.

Not only is he right socially, but I think he is right as a matter of democracy.  People (and justices!) are saying this is the death knell for a democratic system.  No.  It’s not.

Reactions from the right

Well, THIS is pretty off-the-mark:


The Texas AG is worried about religious liberty:

But no court, no law, no rule, and no words will change the simple truth that marriage is the union of one man and one woman. Nothing will change the importance of a mother and a father to the raising of a child. And nothing will change our collective resolve that all Americans should be able to exercise their faith in their daily lives without infringement and harassment.

That’s what we in the business call a non-sequitur.

And now Congressman Peter King wants to do away with ALL marriage:

And conspiracy theorists are now joining the fray.  At the Free Republic they think that Scalia may be hinting that the “fifth vote” of Kennedy was paid for.  That’s because Scalia wrote:

“22 If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began:
“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,”
I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.ZEt

And here’s a GOOD reaction from the right: