Bench Memos

Law & the Courts

Today’s Pro-SSM Ruling

I’m not going to try to summarize—not right away, at least—today’s competing opinions in the 5-4 ruling (as expected, Justice Kennedy and the liberals in the majority). I invite the reader to wade through them, and I’m confident that anyone who can distinguish the constitutional question (Does the Constitution require states to allow same-sex marriage?) from the policy question (Should the people of a state choose to allow same-sex marriage?) will discover that the dissenters have it right on the constitutional question. I’ll note from Kennedy’s strange statement of the states’ supposed position—see page 4, first paragraph—that he does not appear to be among those who can readily distinguish the two questions.

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