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Sunday, June 28, 2015

Rhetoric and Reason in Obergefell

It’s not the most important thing about Obergefell—or even the second most important—but it’s noteworthy that rhetoric played a remarkably overt role in the Court’s opinions, particularly in the sharp criticisms leveled by the dissenting justices. I offer a few thoughts below. By way of disclosure, several years ago I clerked for Justice Kennedy, author of the Obergefell majority.

1. Speaking to the People. Justice Kennedy’s majority opinion proceeded under due process and equal protection but eschewed doctrinal categories like strict scrutiny. This may strike some lawyers as odd—and it certainly flummoxed some of the dissenters. As Chief Justice Roberts complained, the majority opinion lacks “anything resembling our usual framework for deciding equal protection cases,” which he called “casebook doctrine.”

But there’s a fairly apparent reason for Obergefell’s lack of lawyerly terminology: this is the rare opinion that is actually going to be read by large numbers of non-lawyers. And regular people won’t ask whether Obergefell reads like a casebook or has jargon phrases like “strict scrutiny” and “least restrictive means.” Instead, most people will want to understand the reasons beneath the jargon. Those reasons, like Obergefell itself, could well outlast whatever doctrinal categories and buzz phrases are popular today. So the key question is whether Obergefell speaks to the people. History will judge Kennedy’s rhetoric against that standard.

2. Civility in Disagreement. The majority opinion also illustrates Justice Kennedy’s view of how to express judicial disagreement. As others have noted, the overall tone of the dissenting opinions is unusually sharp, and Justice Scalia seemed intent on breaking his own records for stridency. But while Scalia uses terms like “pretentious” and “egotistic” to describe the majority, the majority does not respond in kind.

Scalia himself gives a reason for this when he notes that “[i]t is one thing for separate concurring or dissenting opinions to contain extravagances,” but “something else for the official opinion of the Court to do so.” Scalia makes this point in the course of calling the majority “silly.” But, perhaps unintentionally, Scalia’s observation suggests that he feels free to let off steam in Obergefell precisely because he is in dissent.

Still, Obergefell is restrained even by the standards of majority opinions, as it doesn’t directly respond to the dissents at all. This unilateral disarmament may understandably strike some readers as confusing or disappointing, but it’s no accident. Throughout his long career, Kennedy has usually avoided directly responding to dissents, or even acknowledging that they exist. This restraint is especially remarkable when you consider how easy it would have been for Kennedy to fire back at Scalia.

At one juncture, however, Kennedy did obliquely respond to the dissents. In the fact section, the majority notes that lower courts have recently written extensively on the constitutional issue of same-sex marriage. And, in making this point, Kennedy emphasizes that lower courts have debated the issue “without scornful or disparaging commentary.” Some might well disagree that every lower court decision actually exemplified civility. Be that as it may, the intended message here seems plain: why can’t civil discourse prevail in the highest court in the land? 

3. Disagreement about Disparagement. Given what I’ve said so far, it’s ironic that the only explicit accusations of disrespectful rhetoric are leveled by the dissenters against the Obergefell majority. The most serious example appears in the Chief Justice’s dissent, which accuses the majority of launching “apparent assaults on the character of fairminded people.” The Chief labels these assaults “entirely gratuitous” and argues that the Court portrays everyone who doesn’t agree with it “as bigoted.” The Chief even asserts that “the majority feels compelled to sully those on the other side of the debate.” Justice Alito makes a somewhat more modest point, asserting that the majority opinion “will be used” by unnamed third parties “to vilify” same-sex marriage opponents, who henceforth “will risk being labeled as bigots.” 

Perhaps Alito is correct that some people will “use”—one is tempted to say, misuse—the Obergefell majority to disparage individuals with sincerely held views. People appropriate the ideas of others for many purposes, after all. But the Chief’s accusation that Obergefell itself engages in such disparagement seems unfounded. By way of illustration, here is a sentence from Justice Kennedy’s majority opinion:

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.

I'm open to hearing other interpretations, but to my ears, that sounds like an extraordinary effort to maintain civility and respect in the face of strong disagreement. To be sure, Kennedy also writes that the denial of same-sex marriage rights “demeans,” “stigmatizes,” and “disparage[s]” same-sex couples and their children. But those statements aren’t an accusation of bad intent so much as bad effect. It's not an accusation of bigotry to say that a law is demeaning to those it harms.

To some extent, the disagreement here has to do with one’s point of view. That is, Kennedy largely takes the point of view of same-sex couples, whereas the Chief and Alito focus on the perspective of same-sex marriage opponents. But it's entirely normal to adopt the viewpoint of rights holders in cases about constitutional rights—not the viewpoint of offended third parties. In any event, the majority’s different perspective is consistent with civility, not proof of its absence.

*          *          *

Justice Kennedy is bound to have a controversial jurisprudential legacy, and Obergefell will feature prominently in it. In evaluating that legacy, commentators should consider Kennedy’s attempts to foster civility, even during fervent legal disagreements.

Posted by Richard M. Re on June 28, 2015 at 04:49 PM | Permalink


This is about two months late, but a recent post linked to this one, so I just noticed FP's comment.

My replies to Hokie, FP, was generally concerned with wondering why same sex marriage itself would lead to incest. If incest is an issue, it is an issue for different sex couples too, and most cases would apply to them. This applies to the "dignity" of marriage issue, which didn't suddenly arise here either.

Why is the door NOW left open as compared to the myriad of liberality including premarital sexual relationships? Why is NOW polygamy an issue? Polygamy didn't suddenly not become a problem because same sex couples equally now have the right to marry.

As to the link. Overall, marriage is not only for procreation, so generally fertility/infertility isn't the test. There are a range of reasons for marriage and the society/the courts so have decided. Making it about fertility makes marriage small. We don't, like some religious and other moral communities, as a whole require a certain form of sex for marriage to be present. We unlike the Catholic Church don't ban those unable at marriage to have that form of sex a right to marry.

Same sex marriage advances "procreation" too since they too have (by various means) and raise children. As to the privacy concern of checking the infertile, it's only a trivial concern since fertility isn't really the only point. But, if we were going to deny rights here for that reason, it would not really seem outrageous to require a simple fertility test to avoid overinclusiveness.

BTW, as to the last reply, Posner was strongly dismissive, almost sneering, of the state's arguments. The "moralizing" involved a few comments and can similarly be used to dismiss Griswold, since there was a passage there sentimentally honoring marriage, so much that some use it as part of their marriage ceremony. Look past a few poetic comments to the main reasoning of the piece. One a growing majority agrees with even though there is a strong dissent.

Posted by: Joe | Aug 27, 2015 1:19:30 PM

Civil disagreement is fine when you think your colleague in the majority is honestly going about his job. When you reasonably think that he's on nothing more a personal ego trip and is enjoying writing his personal feelings into the constitution and reaping the ensuing praise from the media, then the dissenting opinions are extremely civil compared against what Kennedy deserved.

The "head in a bag" dissent has been coming for a long time. If this opinion is "for the people," then it does the country a massive disservice by suggesting that our judiciary's main function is sentimental moralizing.

I have to wonder whether his joining colleagues felt any sense of embarrassment over joining this opinion. Judge Posner's opinion is 1000 times better and has the distinction of being respectable.

Posted by: smh | Jul 2, 2015 1:02:06 AM

Also, Joe. The best answer to the infertile couple objection I know of on the web can be found here:http://discussingmarriage.org/the-objection-from-infertility/#.VZSUt_lViko

I think reasons 2), 4), and 6) especially add to your points here. Would be interested in your response to them.

Posted by: FP | Jul 1, 2015 9:34:00 PM

Now we're away from the Constitution and into good/bad policy territory.

"naturally leads" and "excludes" are two different things.

Joe, you're responding to a slippery slope argument. HokieEngineer is making a different case: a no principled basis argument.

Even granting that the state promoted lots of different things is no response to why the state OUGHT to principally exclude two adult lovers who happen to be related.

Roberts is clear about polyamory being next on the docket. Why should THREE SS committed to sharing the burdens and benefits of domestic life (and hitting on all four of the reasons Kennedy brings up about marriage) be denied a marriage license any more than TWO SS people, or two biologically related people?

You would have to appeal to some other reason. But the door has been left wide open. Now that we've enshrined marriage as a fundamental right, the reason can't just be a set of harms (rights usually trump those). Absent some really good account (which I've yet to read), Roberts' (and HokieEngineer's) point is foreceful: given the majority's reasoning, there's no principle basis by which to exclude these other forms of relationship from marriage recognition by the state.

Now will someone answer my original question: How did Kennedy not TRAMPLE Glucksberg's long-enshrined liberty test (that liberty interests not "deeply rooted in the nation's history" do not qualify as being a protected liberty interest in the due process clause)? This is as serious a charge as any.

Posted by: FP | Jul 1, 2015 9:30:21 PM

"state had an interest in married couples producing viable offspring"

The "right to marry" before Obergefell included the right of those who are infertile to marry members of the opposite sex. Not a single state barred those who could not have "viable offspring" from marrying.

Marriage itself wasn't a matter of dignity only starting late June 2015. Then, same sex couples enjoyed it equally with different sex couples, including 80 year old different sex couples who without any interest in "viable offspring" had a right to marry.

Sorry, you are being a tad bit obtuse if you think that. Marriage before June 2015 was about many things, not just "viable offspring" and how same sex marriage being recognized (as it was already by state discretion which by your lights was irrational if it didn't also authorize incest) naturally leads to incest is unclear to me.

Posted by: Joe | Jul 1, 2015 6:30:07 PM

Joe: Pre-Obergefell, there were legitimate reasons to separate incest from interracial marriage--at least in the post-Loving era. In particular, the state had an interest in married couples producing viable offspring. Now, Obergefell has taken that state interest away and replaced it with the right to "dignity."

I'm not trying to be obtuse. I just don't see how you can take the Obergefell argument and exclude father-daughter (or even father-son) marriages, assuming that both parties are above the age of consent.

Posted by: HokieEngineer | Jul 1, 2015 3:55:58 PM

Curious: What is a sympathetic view of the majority's response to Glucksberg here (that liberty interests not "deeply rooted in the nation's history" do not qualify as being a protected liberty interest)? For the Chief Justice to say the majority is trampling Glucksberg and reviving Lochner--could there be a more severe critique?

Also, it seems the court majority could not affirm without opting for a highly contested (if only vaguely articulated) worldview of marriage: any two, romantically committed people who seek public recognition of their union. Anyone disagree with me on that?

Earnestly looking to understand.

Posted by: FP | Jul 1, 2015 3:46:50 PM

HokieEngineer, is the usual "what about incest" trope (raised as well when interracial marriage was in front of the Supreme Court) a suggestion you realize that society and law has significantly developed in the last 45 years since Baker v. Nelson in respect of marriage and homosexuality? It is akin to referencing the law of race relations in 1935 in 1980 and wondering "I just don't understand how we got here."

I'm not sure why there was a good reason before the ruling not to allow different sex couples to marry close family members but now that same sex couples (or interracial couples or couples with different castes or ...) can marry the rules should change. What part of the ruling "naturally" leads to that result exactly? If there should be marriage allowed even among close family members, same sex marriage changes the equation how exactly?

Posted by: Joe | Jul 1, 2015 3:21:12 PM

Joe: Is a natural extension of Obergefell that state statues with regard to incest (except with minors) naturally fall by the wayside? For example, the Code of Virginia singles out "a marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood" as being prohibited. By Obergefell's logic, aren't those persons deserving of the dignity of marriage as well? Shouldn't we "discover" liberty for them?

Posted by: HokieEngineer | Jul 1, 2015 11:04:43 AM

I don't understand how Obergefell and Windsor are inconsistent. Windsor is absolutely clear that "[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons." And that state laws must do so isn't controversial. Even had Windsor been a pure federalism decision, it would have been extraordinarily strange if it had somehow insulated state marriage law from federal constitutional principles. United States v. Lopez does not mean that state gun laws cannot violate the Constitution.

If anything, Obergefell should make at least some critics of Windsor feel better about that decision. As a doctrinal matter, Obergefell does not rest in any important way on Windsor. Obergefell emerges out of the fundamental right to marry line of cases (Loving, Turner, Zablocki), read according to what we might call the Lawrence v. Texas methodology, under which fundamental rights should not be read so narrowly as to simply reaffirm traditional exclusions of disfavored groups. Windsor is cited a handful of times in the majority opinion, but not for its substantive doctrine. So Obergefell takes the federalism rationale of Windsor seriously, and does not treat it as mere surplusage to Windsor's equal protection analysis. Justice Kennedy does not suggest that the unconstitutionality of DOMA implies or even has all that much bearing on the unconstitutionality of state bans. Chief Justice Roberts may have lost the war, but he won that battle.

Posted by: JHW | Jul 1, 2015 5:46:08 AM

HokieEngineer, a lot of developments in the last 45 years from the time of Baker and the current day. Are you saying you are not aware of them?

Just Passing By, I listened to the oral arguments, and the argument made was that the state had a rational basis to block same sex marriage since it would burden the interests of marriage (some child protection rationale) otherwise. It would in their eyes "redefine" marriage (quoting a state brief there) to recognize same sex marriage. Others might do that but they don't want to.

Windsor explains that marriage traditionally was a state function and it was allowed to develop in the states. But, it did not say that the Court was saying the federal government violated the 10A. It made a clear equal protection (via the 5A) argument. The first section highlighted how suspicious the law was in that it went out of its way to interfere with state discretion. But, it still noted that states didn't have unlimited discretion.

The ruling here did not "ignore" Windsor -- states still retain much discretion over marriage policy but like in Loving v. VA et. al. they don't have unlimited discretion to violate the right to marry especially in a way to burden a certain group with the history of discrimination like here.

Posted by: Joe | Jul 1, 2015 1:09:43 AM

I nominate two parts of Kennedy's opinion as unfair and inexcusable as a matter of fair judging.

First, he unfairly describes the respondent states' position. He says at top of page 4 "To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world."

As I read the states' position, they did not insist that it would demean marriage to allow SSM, and did not insist that the traditional view was mandated. Quite the contrary. They said that other states were free to expand it, and that their own states were free to do so if they wished, or free to keep the old way. They said gendered marriage was an allowable position, not a mandated one. In saying otherwise, Kennedy suggested a national rule one way or the other was a given, all or nothing, and to heck with a federalist answer. That framing makes it easier to pick his way, but it's not what the two options on the table were.

Second, his biggest failure to address other views is not his failure to address the dissenters, but his failure to address Windsor's rationale. He gives only a few cursory cites to its pro-SSM side. But he says nothing about its many passages trumpeting federalism and how federal DOMA was bad because it stepped on traditional state territory. Windsor said that Windsor's marriage deserved federal respect because the State of New York chose to respect it, under its sovereign power to define marriage.

When Windsor came out, everyone of course tried to make something of reconciling its federalist parts with its equality and dignity of SSM parts. The tension there was undeniable. That doesn't mean necessarily that the state side wins, but there's at least some explaining to do and some wrestling to do. Let's be honest; we all assumed that the four joiners never believed that but signed on anyway, but Kennedy truly had two sides, it seems.

Just a short time later, to just ignore those passages now is not credible. All that does is teach lawyers and law students and citizens to take the most cynical view of Windsor in retrospect: It was all just dishonest handwaving to buy a few more years to change the facts on the ground in the states and in popular opinion.

At least he makes a pass at explaining away Glucksberg. And Baker's one line. But dealing with Windsor would have been harder, since it's his own and so recent and a bit too hard to wiggle out of. So he just waved it away. I don't think we'd be charitable if Kennedy swung surprisingly right and gave no acknowledgment to Windsor's other side in reverse, or if he just ignored Loving. We shouldn't be any more forgiving on this. After years of criticism of Roe and Lawrence for doctrinal sloppiness, both sides of the debate deserved better.

Posted by: Just passing by | Jul 1, 2015 12:34:49 AM

I'm an engineer who enjoys the topic of constitutional law. (I guess being a non-lawyer still makes me part of "the public.") I agree with Hash that the majority opinion in Obergefell leaves much to be desired in terms of substantive analysis. (Its rhetoric has little appeal to me.) In particular, I'm uncertain how we got from Baker's "want of a substantial federal question" to Windsor's "by history and tradition the definition and regulation of marriage...has been treated as being within the authority and realm of the separate States"--two consistent results--to Obergefell.

While the outcome may be just, the approach leaves much to be desired.

Posted by: HokieEngineer | Jun 29, 2015 12:42:09 PM

BTW, Scalia is always like that in dissent. I remember last year when there were two decisions released (I can't recall which two) in the same week. In the first, Scalia, writing for the majority, overturned a law. In the second, Scalia, writing in dissent, castigated the majority for *daring* to overturn a law. Not for their reasoning, but for overturning a law passed by a legislature.

In this dissent, which might be a new record of hackery and dishonesty for a hack and dishonest man, Scalia, reaches new lows. Note his demographic breakdown of the SCOTUS, as if that had any legal or constitutional bearing. This is from a guy who has no problem with that whenever he is in the majority.

Posted by: Barry | Jun 29, 2015 11:58:07 AM

I will move on to today -- the death penalty cases have a lot to process -- but appreciate JHW's as usual well expressed summary of the basic points, which have been in some fashion missed by various criticisms of the alleged "shoddy" etc. nature of the majority opinion.

I continue am left with the basic conclusion that a combination of disagreement with the result and distaste with his rhetorical style clouded reactions.

I also think a restrained (no "nothing to do with the Constitution" potshots -- talk about demeaning) dissent by Roberts could have been submitted. It would in part have noted that same sex couples would have various constitutional rights that certain states rather not protect, but marriage was a bridge too far for the usual Judge Sutton type arguments etc. But, as with the by one count 16 references of Lochner, that for whatever reason was beyond the Chief Justice of the Supreme Court of the United States.

Posted by: Joe | Jun 29, 2015 10:51:43 AM


Thanks for this post and for your insider's eye take on things. I also noticed the lack of doctrinal focus of the majority opinion, but I initially wrote it off just as Kennedy writing one his "sweet mystery of life" opinions. (Scalia's words, not mine). I wonder, though, whether Kagan, Ginsburg, Sotomayor, and Breyer might have been pushing for heightened scrutiny in the equal protection analysis but Kennedy would not agree to it. To get five votes on board, then, I wonder if the four "liberals" agreed to an opinion vague on equal protection. The fact that none of the "liberals" wrote concurrences spelling out which level of scrutiny they'd apply and analyzing the facts under that level suggests to me that the vagueness was the result of this sort of compromise.

I'd appreciate your thoughts.

Posted by: AnonProf13 | Jun 29, 2015 9:29:58 AM

Asher: If this blog post is (excessively?) charitable, your comment is exceedingly uncharitable. There is nothing obscure about the legal logic of Kennedy's opinion. Here it is in three steps:

1. There is a well-established constitutional right to marry. Many people dislike this doctrine, or find it strange, but it's there and the only justices who seem to contest it are Thomas and Scalia.

2. Same-sex marriages are protected by the Constitution just like different-sex marriages, because there is no substantial distinction between same-sex and different-sex couples when it comes to the interests protected by the constitutional right to marry. (That doesn't mean there is free-wheeling authority for federal judges to imply constitutional rights whenever they think those interests are stake. Again, there is ALREADY a well-established constitutional right to marry. All Justice Kennedy is doing is explaining why it applies here, to people who are seeking access specifically to marriage.)

3. To justify the denial of a constitutional right, you need some good reason, and Kennedy walks through why the states' main rationales fail (respect for the political process and responsible procreation--they didn't make moral or religious arguments). Kennedy does not use the tiers-of-scrutiny jargon here but his logic is still pretty straightforward.

Kennedy does not address the question of what would happen if a state fundamentally transformed how it handles marriage: say, if it did not legally recognize marriages at all, or if it actually did structure marriage and its eligibility requirements exclusively around the ability for natural procreation. But that was not the question at issue in this case. And neither of those things are very likely to happen.

Your suggestion that Kennedy's description of the effects of same-sex marriage bans implies that their supporters are bigots seems wrong. Supporters of bans might think that there are good reasons for them (say, responsible procreation), but be mistaken; that's not the same thing as bigotry. Or supporters of bans might not appreciate the harm they do to same-sex couples; also not the same thing as bigotry. Or supporters of bans might embrace moral or religious values that are in themselves not bigoted but are illegitimate bases for making laws, at least in the context of constitutionally-protected liberty. (Cf. Lawrence v. Texas. Kennedy's opinion in Obergfell doesn't make this argument, but that's because, unlike Texas, the states here did not make moral arguments.) To acknowledge the subordinating harms of a policy is surely to engage in a kind of moral criticism of the proponents; that's a harm they are responsible for. But it's not a moral criticism that (necessarily) demeans their character.

Posted by: JHW | Jun 29, 2015 7:37:30 AM

I think Obergefell is right, but this is rather charitable. *Does* Obergefell speak to the people? And does Obergefell really give reasons stripped of jargon? Or does it just substitute familiar legal jargon with a different legal jargon that's carefully stripped of reasons? On the first score, I don't think this opinion successfully speaks to non-lawyers. It has a lovely peroration and a moving statement of facts that were justly quoted in press accounts, sandwiching 15+ pages of analysis that, by my count, contain well over fifty case citations. Most opinions of any importance have quotable beginnings and endings. If the people don't want to read about tiers of scrutiny (which are hardly difficult to explain to non-lawyers), I'm not sure that they'll want to read about De Toqueville's observations of American marriages in 1835, how this practice is inherent in that concept and abidingly connected with another concept, how the Court's precedents illustrate the "synergy" between and "convergence" of due process and equal protection, how the Court's gender discrimination cases were really all about "equal dignity," or the Court's tetrad of reasons for which the Court's precedents recognize marriage as fundamental, supported by copious citations to those precedents. I think non-lawyers would probably have an easier time following an argument about means-end fit than an argument about four principles and traditions and how they overlap in the land of synergistic convergences. (Who's more readable on this subject, Posner or Kennedy?) Much like Griswold, there's a jargon here, even a legal jargon; it's just a kind of legal jargon that's fairly unique to its author.

As far as explaining its reasons to the people or lawyers, the opinion's a partial success at best. Is the Court's holding dependent on a right to marriage licenses and traditional benefits (such that states can't stop issuing licenses altogether), or just on discrimination in who the states gave their licenses? Are the reasons for the result in any way specific to same-sex couples; are the reasons for the result specific to marriage? Or are they specific to the "synergy" between limits on marriage and discrimination against gays and lesbians? Does a state have to construct its marriage laws to advance the Court's four principles and traditions (loneliness-avoidance, personal autonomy, child-rearing, constructing "building blocks" of society), or could they enact marriage laws that genuinely were all about kids? Is there a right to state benefits of any other kind that help avoid loneliness and promote autonomy, or just marriage licenses? (If not, why not when the link between avoiding loneliness and a marriage _license_ is attenuated at best?) When a state doesn't let a group get married, how persuasive do the state's justifications have to be? Do the justifications even matter, or does the state lose if the group's marriages fit the Court's tetrad of principles and traditions? I think even non-lawyers could understand this opinion better if it contained more legal doctrine, whether familiar or novel, and less obscuring rhetoric. As is, all the people got was a jargon-filled Letterman list of the top four special things about marriage and the ways in which gays are hurt by the inability to enjoy these special things. Even a small child can understand that a list of things he likes about cookies doesn't add up to a right on his part to unlimited cookies. Nor does a touching description of the way cookie-deprivation makes him feel. The people are left to wonder whether the Court is prepared to strike down any law that deprives nice people of nice things, or whether the Court is only interested in invalidating laws that impinge (unjustifiably?) on some unspecified combination of the dozens of abstractions that float through the opinion.

As far as it not being an accusation of bigotry to say that a law demeans and stigmatizes those whom it harms, is that so? Usually when we accuse people of "demeaning," "stigmatizing, "disrespecting," "disparaging," and "subordinating" some group, accusing them of being bigots is exactly what we're doing. Of course, it's possible to stigmatize and disrespect a group without being bigoted; sex offenders are stigmatized, disrespected, subordinated and demeaned, and for good non-bigoted reasons. But very few people use that language, however apposite, to talk about how we treat sex offenders (and the people who do so do so in the course of decrying what they see as bigotry against sex offenders). Rather, we say that racists, misogynists, and heterosexists demean and stigmatize, while never using those words to describe discrimination that we deem justified or justifiable. Given how these words are invariably used, I don't see how one can accuse someone of stigmatizing without stigmatizing the putative stigmatizer, or how one can coherently talk of "decent and honorable" stigmatization. If Loving had said that many people believed interracial marriage was wrong for "decent and honorable" reasons and the Court had no intent to disparage them, wouldn't that either be impossible to take seriously, or, if taken seriously, vitiate much of the force of the opinion? This goes to what's wrong with the whole opinion; the Court's either too disinterested or too afraid to say anything about the reasons for gay marriage bans. It just wants to talk about the bans' dreadful harms, while pretending that perhaps the reasons people imposed those harms on gays are perfectly okay. If that's so, maybe the harms are okay too! The only coherent way to make that work is to say that certain kinds of reasons, however sound in their sphere, cannot be the basis for law. But that's far more of an argument than this opinion can muster.

Posted by: Asher | Jun 29, 2015 2:33:50 AM


It makes no sense to appeal to norms of civility when it is the definition of civility itself that is under debate. In my own view the dissenters were remarkably restrained given the fact that Kennedy gave their entire worldview the middle finger. It remains to be seen in time whether the populace itself contains that same restraint.

Posted by: Daniel | Jun 28, 2015 10:54:31 PM

As for tone, a conquering King can afford to be magnanimous in describing the banished views of his new subjects. It's hardly surprising that the victims of such a coup are a little less concerned about civility, and a little more concerned in making clear that five unelected and unaccountable lawyers have hijacked one of the most fundamental institutions of human civilization based on nothing more than their raw power to count to five.

Posted by: Hash | Jun 28, 2015 10:17:11 PM

I bet that the number of non-lawyers who read Heller probably dwarfed the number of non-lawyers who read Obergefell, given that there are way more passionate gun owners than gays in the country. Yet somehow Scalia still managed to write an opinion that contains actual legal analysis over which one can join issue, rather than a mix of philosophy and poetry. Can you imagine what Heller would read like if Kennedy had written it? Rather than an intricate parsing of the text of the 2A and the history of gun regulation, it'd have been ten pages of navel-gazing about how guns are really important to the people who want to own them.

Posted by: Hash | Jun 28, 2015 9:49:24 PM

Sorry I don't buy the public will read it and so it can't be lawyerly. Yes, there were definitely a lot of quotes on Facebook of excerpts from the ode to marriage paragraphs, usually accompanied by someone claiming to be crying. But I don't know of a single non-lawyer that read even the majority opinion, and even among my lawyer friends, only a small handful. I don't expect that to change in the future. I doubt any non-trivial percentage of the population has read Brown v Board of Ed, Roe v Wade, or any other Supreme Court case you'd care to name. This case is going to be read by every future law school student and not much of anyone else.

If Justice Kennedy really felt he had to get those clicks, he could have included the poetry AND some genuine legal analysis (including maybe even something about the equal protection clause other than how in love it is with the due process clause).

And while there was no reason to respond to the dissenters' gratuitous nastiness, there was every reason to respond to their substantive points. To be fair, on page 18 he does respond to one of the serious thrusts of the Roberts' dissent, though he puts the objection in the mouth of the respondents instead, but there are several other strong points that he simply ignores. In ignoring the dissents' substantive points, he missed the opportunity to make the opinion stronger.

Posted by: brad | Jun 28, 2015 8:08:38 PM

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