Bench Memos

Law & the Courts

Some Observations on the SSM Ruling—Part 1

There’s so much that can be said about last Friday’s ruling in Obergefell v. Hodges wrongly striking down state marriage laws. I’ll offer some observations here and in follow-on posts:

1. For the reasons set forth in the Chief Justice’s dissent, I don’t see how anyone could take Justice Kennedy’s reasoning seriously. In the core of his opinion—if, that is, a bag of gas can be said to have a core—Kennedy presents “four principles and traditions” that supposedly “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples” (emphasis added):

(a) “A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”

(b) “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”

(c) “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”

(d) “Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”

As the Chief Justice points out, each of these propositions begs the question what marriage is and what the Court’s precedents mean by marriage. Indeed, Kennedy himself acknowledges that “this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners.” But he glibly passes over that what he disparages as an unthinking presumption is rooted, as the Chief explains, in the unique procreative capacity of heterosexual intercourse. (Kennedy’s particular contention that the meaning that the right to marry draws from the right of procreation applies “with equal force to same-sex couples” ought to highlight the absurdity for anyone who is awake.)

2. I doubt very much that any of the liberals who joined Kennedy’s opinion actually is happy with his reasoning, including his predominant emphasis on substantive due process (as opposed to equal protection). But they will happily sign their name to anything that delivers the bottom-line result they want. As Andy McCarthy observes with respect to the three big rulings from last week (emphasis in original):

Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?

There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.…

And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.

It is simply accepted that these justices are not there to judge. They are there to vote.

(I confess that I held out naïve hopes for Breyer in his early years on the Court—until his joinder in Kennedy’s incomprehensible ruling in Romer v. Evans.)

3. I’ll highlight again that Elena Kagan paved her path to the Court by trying to bamboozle senators, during her confirmation process for Solicitor General, with her declaration that “There is no federal constitutional right to same-sex marriage.” Imagine, for a moment, that a conservative justice had testified that “There is a federal constitutional right to abortion” and then had gone on to vote to overrule Roe v. Wade. The same media that was complicit in Kagan’s bamboozling and is silent now would have generated a national scandal.

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