Bench Memos

Law & the Courts

Some Observations on the SSM Ruling—Part 2

More (numbered serially from my Part 1 post):

4. Kennedy’s occupation of a realm beyond reason confirms my belief that there was never any prospect that he would refrain from voting to invent a constitutional SSM right.

Some folks took hope from his federalism blatherings in United States v. Windsor. But those blatherings made no sense there—a proper understanding of federalism vindicates the federal government’s authority to define marriage for the limited purpose of provisions of federal law. That Kennedy could get such an easy case wrong, and that he could so breezily impute animus to the overwhelming number of federal legislators (including many strong supporters of gay rights) who voted for DOMA, revealed his real agenda.

And if it weren’t already plain enough from his previous rulings, Kennedy openly advertised his desire to be known to history as the Abraham Lincoln of gays and lesbians.

5. Kennedy and the four liberals publicly defend their sometime practice of invoking contemporary foreign laws or decisions in support of their adventurist misreadings of the Constitution. As I’ve spelled out in Hill testimony, their practice is entirely unprincipled: “there is no principle that any Justice has devised or will adopt that will explain why it would be proper to look to some contemporary foreign and international legal materials, but not others, to construe the Constitution in some instances but not in others.”

To anyone who still doubts that point, ask why there is no inquiry into foreign law in Obergefell. The answer: As this amicus brief explains, foreign jurisdictions overwhelmingly reject SSM, and just last year even the European Court of Human Rights acknowledged that “it cannot be said that there exists any European consensus on allowing same-sex marriage.” In other words, the justices in the majority didn’t invoke foreign law because, consistent with their broader lawlessness, they are entirely opportunistic and results-oriented in their use of foreign law.

6. A word in defense of the Chief Justice: I’ll have some criticisms to offer of his opinion in King v. Burwell, but anyone inclined to psychologize that Roberts is eager to curry favor with the Establishment needs to read his powerful dissent in Obergefell

 

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