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On Obergefell

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Anthony Kennedy

Obviously, I’m happy about the judgment. I would forgive Kennedy his bad-undergraduate-essay prose (all-too-representative sample: “From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage”) if he would tell us what the law is:

While Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas are wrong about same-sex marriage, they weren’t wrong about Kennedy’s majority opinion, which leaves a lot to be desired. All of Kennedy’s same-sex marriage opinions have all contained passages whose legal reach exceeds their rhetorical grasp, and even people sympathetic to Kennedy’s conclusions will wince in recognition when reading Scalia’s snarky lines about Kennedy’s “straining-to-be-memorable passages” and “inspirational pop-philosophy.”

Much worse that its aesthetic problems, however, is where Kennedy leaves equal protection law as it pertains to LGBT rights more generally. As with Kennedy’s DOMA opinion – about which I wrote that he “flirt[ed] awkwardly with federalism, due process and equal protection rationales without ever quite summoning up the courage to invite one to the prom” – he maddeningly continued in this opinion to vaguely invoke both equal protection and due process theories without clarifying the applicable standard when it comes to LGBT rights more generally. “Each concept – liberty and equal protection – leads to a stronger understanding of the other,” asserted Kennedy.

Nonetheless, he ended up in the right place, and that’s what’s most important. You may be surprised to learn that I find the calls for judicial restraint coming from the persons responsible for Shelby County hard to stomach (and Scalia’s standup routine needs a lot of work.) And finally, let us recall that “Borking” was great and there should be more of it.

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  • rea

    It seems a tad ungrateful to criticize his prose style . . .

    • Orphos

      Ungrateful, and yet. There’s one way this could’ve been a bigger victory, and that’s if LGBT (or, more likely LG and sometimes B in this case, still more work to do) sexual orientations were classes subject to heightened scrutiny. I don’t think it’s prose style alone at work here, I think it’s deliberately unclear, but it’s infuriatingly so.

      As it currently stands, it’s now perfectly legal to get married, go to work, get fired on account of the marriage, and go home and get evicted on account of the marriage.

      • Gwen

        Right Orphos.

        I think if the Notorious RBG had actually written this, then we might get a more meaningful and sweeping decision on the standard of review for gender discrimination cases.

        I think if Breyer had written it, we’d have gotten a more delicate treatise on the proper role of the judiciary in a democracy.

        I think if Kagan had written it, we might get some good comic book jokes.

        But because Kennedy wrote it, and because Kennedy… is Kennedy (his heart is in the right place, but he seems to force everything through this fuzzy post-post-Lochner concept of liberty) it is… what it is.

        • ajp

          Someone sent me this in law school, never really had an excuse to share it before (sfw, minus some mild language). http://imgur.com/2sYKOmO

          • timb

            There are some legal scholars who argue the “standard of review” idea is stupid and artificial.

            I disagree with them on that, as I tend to find law easiest when someone who is in charge of interpreting tells me how they do it. I’m simple that way

            • Scott Lemieux

              I actually think the Supreme Court should abandon the levels of scrutiny analysis. But Kennedy doesn’t do that; he doesn’t do anything.

      • Joseph Slater

        Even if this case declared that sexual orientation was subject to strict scrutiny, that wouldn’t give any protection to any private-sector employees nor to the vast majority of renters. Heightened scrutiny only applies to government action. Employment discrimination in the private sector and almost all housing discrimination is only illegal because of statutes.

        • Gwen

          Yes, yes you are right.

          But having a standard of review would increase the certainty and predictability of future cases.

          Remember, at core this is a gender discrimination case. We haven’t really had a clear idea what standard of review applies in such cases, because we tried this thing with intermediate scrutiny and then it all kind of melted down.

          Meanwhile, while “rational basis with bite” was cute in Romer v. Evans, it’s 20 years later, and we still haven’t a clue what that’s supposed to mean.

          I appreciate tremendously what Kennedy has done for the LGBT community, but I realize there are feminist struggles that won’t get resolved properly because who-the-hell-knows-what-we’re-supposed-to-do-with-those.

    • ajp

      I mean, I think one should get only so much credit for doing the right thing, but then you look at the dissenters and…

      I dunno, I think criticizing Kennedy is fair game. Scholars, lawyers, judges have been making the same exact criticisms of Kennedy’s writing for years. Years. People made similar criticisms about another landmark gay rights case also penned by Kennedy-Lawrence (i.e.-what the fuck is the standard of review, Tony?). Scalia can be an unprincipled dick, but when he’s criticizing the quality of a Kennedy opinion he’s almost always right. Part of the man’s job is to write clearly enough so that practicioners and the government aren’t scratching their heads saying “wtf?”

    • MikeJake

      I sometimes wonder if letting him write the opinion is the price for Kennedy’s support.

      • dn

        Scott mentioned in his piece that Kennedy, as the most senior member of the majority, has the prerogative of assigning the opinion to himself. So there’s no question of “letting” him.

  • dilan

    This is totally true.

    And yet you like Douglas’ opinion in Griswold, which does the exact same thing. (“Wait, are we talking about the Third Amendment now? Or the Fourth?”)

    Is there anything at all to your apparent aesthetic preference in judicial craft other than the fact that you are ideologically sympathetic to Douglas and unsympathetic to Kennedy?

    • rea

      Clearly, the 3rd Amendment is the relevant one–no quartering little soldiers in women’s uteruses

      (but you know, Dilan, just because you don’t understand something doesn’t make it incoherent.)

      • dilan

        I actually understand penumbras quite well.

        I’ve never said the idea that there are penumbras to rights is incoherent. I do say that Douglas’ opinion in Griswold is incoherent– and yes, the idea that the Third Amendment has anything to do with Griswold is ridiculous.

        (But to be clear, I wasn’t even specifically making that point in my original post. I was just pointing out that Douglas’ meandering from provision to provision in the Constitution was the same as Kennedy’s today. Which it is.)

        • Gwen

          Meh. Douglas had a theory, and it isn’t a poorly reasoned theory either. It’s not dressed up in poetry.

          Also, Douglas never did anything entirely stupid, like write Kennedy’s opinion in Carhart II. Oh sure, trees have standing. But that’s more evil-genius than derp. Carhart II is full of derp.

    • Cheerful

      well one difference is that Kennedy is writing at a time when there is a very well developed bunch of caselaw regarding the Equal Protection Clause and how it applies to claims of legal discrimination which (in my quick skim) he ignores. We are left content with knowing there is a synergy with the Due Process Clause. Do not inquire further.

      Douglas was writing on a fresher slate and his theory that the Bill of rights by cumulative force generates a right of privacy is not too more difficult to work with than the idea the Due Process clause does.

      After how many opinion? the applicability of the Equal Protection clause to LGBT persons remains a mystery.

      • Joe_JP

        he ignores

        “Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.”

        (part of extended discussion of caselaw)

        Griswold similarly quoted case law but helped rephrase it in a certain respect. How much this was done in either case is debatable. Anyway, this is not novel. As one person noted, e.g., Roberts arguably used Chevron differently in King v. Burwell.

        • Cheerful

          ok, how does Lawrence say that the EPC helps to identify and correct inequalities? Will there be levels of scrutiny or is Kennedy walking away from it?

          And will that only be inequalities relative to the grant or denial of marriage or inequalities applied to the condition of gay people?

          Sure he name checks some EPC cases. He just doesn’t go any further.

          • Joe_JP

            Lawrence v. Texas discussed how due process and equal protection work together. I suggest people read the section of the opinion, but here is a taste:

            Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

            The opinion as a whole respects the interests of gays and lesbians. They have an equal right to intimate association. An open-ended right to sodomy isn’t core concern there; specifically certain groups = gays and lesbians = are the focus.

            What is the “level of scrutiny” in Heller? Levels of scrutiny was not as much of a concern in various cases in recent years. Do people care about that or only when Kennedy writes? Windsor, however, used the animus level of scrutiny found in various opinions. Lawrence v. Texas held the law was so irrational that even rational basis wasn’t met. Levels of scrutiny, however, has repeatedly been pointed out to be elastic in practice anyway.

            He does not just “name check” — he provides paragraphs of discussion. And, citation of the cases, such as unmarried people using contraceptives, that have in the past used both equal protection and fundamental rights together shows how his arguments fit into precedent.

            Lawrence v. Texas was not about marriage, so no, his arguments are not just applicable to marriage. The opinion here shows how the fundamental right to marriage is part of a collection of liberties (like raising children), so no here either.

    • sharculese

      Look, what’s most important here is that we preserve the sanctity of the principle that only Dilan does things for the right reasons.

      • dilan

        Seriously, I don’t have any problem with today’s decision. (Any more than Scott does, by the way.)

        I just think that it’s ridiculous to declare this opinion meandering and incoherent while lionizing one of the most meandering and incoherent opinions ever issued by an Anglo-Saxon jurist.

        I guess I would also say that you’ve missed my point in another direction– I actually don’t think it matters that much that Kennedy’s opinion is meandering and incoherent, even though I agree with Scott that it is. In these politically charged cases, doctrine is not nearly as important as it is in criminal procedure cases, or such.

        • sharculese

          I get what you’re saying now. I was snarking on your last line, which kind of implies you see Scott’s argument as somehow illegitimate.

          I will say, at the same, reading Kennedy’s opinion I had a very ‘when are we gonna get to the fireworks factory?’ feel, and got frustrated when I realized the meat of it was watching the same set of bad arguments for traditional marriage get demolished yet again.

          • cpinva

            “I will say, at the same, reading Kennedy’s opinion I had a very ‘when are we gonna get to the fireworks factory?’ feel, and got frustrated when I realized the meat of it was watching the same set of bad arguments for traditional marriage get demolished yet again.”

            just add this to the many opinions on choice, where we watch the same bad arguments for restricting a woman’s right to decide on her very own medical treatment get demolished over and over and over again. oddly enough (well, not really), many of those bad arguments parallel each other, possibly because they’re coming from the same group of people.

    • Scott Lemieux

      which does the exact same thing.

      It just doesn’t. Making structural inferences from the text is not the same thing as refusing to identify the standard being applied to a particular case.

      are ideologically sympathetic to Douglas and unsympathetic to Kennedy?

      In this case, I agree entirely with Kennedy’s judgment, so that can’t be it.

  • mikenmar

    I couldn’t disagree with you more about the style. I think the writing is fantastic. Prose that lofty only sounds pretentious when it’s actually coming from undergraduates. Here, it’s coming from the Supreme Court in a landmark opinion. It is not only appropriate, it is essential.

    Furthermore, you’ve completely missed the underlying importance of the legal reasoning. It goes way, way beyond same sex marriage. This opinion is about the vitality of the Living Constitution and the valid power of modern judges to recognize rights that dead judges have ignored. The lack of any specification as to the level of scrutiny is small potatoes compared with that.

    • 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. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

      New Age jurisprudence.

      • matt w

        How are the bolded parts New Age, exactly?

    • Epsilon

      I don’t see how you can say that it’s “small potatoes” that dozens of other same-sex rights issues are going to have to be separately litigated and potentially resolved by SCOTUS when compared to the fact that a single justice paid non-binding homage to a lofty theory of Constitutional interpretation.

      These things have real consequences for actual people, and I don’t think those directly affected could possibly care less whether Kennedy used mechanical or boring language to resolve them if he actually resolved them. But he didn’t. And that’s a shame.

    • Chad

      It’s not either/or. Justice Kennedy easily could have crafted an opinion that contained the lofty-sounding prose and high-level arguments that you found compelling, while still minding all of his doctrinal p’s and q’s (and avoiding the criticism leveled against the majority by the various dissenters). A straight-forward EPC analysis would not only have been compelling, and provided a clear precedent for future application by lower courts, but also would have foreclosed all of the arguments regarding the countermajoritarian difficulty.

      • mikenmar

        I don’t see how any lower court could read that opinion and reasonably conclude that gays and lesbians aren’t a protected class for EP purposes. Whether they get strict or intermediate scrutiny is another matter, but there’s no way this opinion can be read as endorsing rational basis review.

        Furthermore, I think there are good reasons not to endorse the whole three-levels-of-scrutiny scheme.

        In practice, I imagine lower courts are probably going to apply something like intermediate scrutiny to other claims involving gays and lesbians. I’d prefer strict scrutiny if I had to choose one, obviously, but the key thing is to balance the right in a meaningful way against the regulation at issue. There’s no question that this opinion establishes a basis for doing so.

    • Scott Lemieux

      I do like the concluding paragraph fine — it works. A lot of the rest, though, is awfully purple.

  • keta

    I’d just like to say congratulations – to all Americans – for yet another step forward towards a more equal and equitable society.

    I watched television coverage of this ruling this morning and this hetero Canadian found it very moving when LGBT supporters celebrated in front of the court, on the upper plaza no less, with a rendition of the American national anthem.

    I’d also like to thank Justice Antonin Scalia for this summer’s catchphrase, which I intend to employ at every opportunity:

    “Do you think they’re fishing spoons or bait?”
    “Is it safe to hit?”
    “Wanna’ another beer?”
    “Should we put a reef in it?”
    “Whaddya’ want to throw on the barbeque?”

    “Dunno. Let’s ask the nearest hippie.”

    • Downpuppy

      How drunk does Scalia get to put that crap on paper?

      • cpinva

        “How drunk does Scalia get to put that crap on paper?”

        sadly, he does this stuff sober. I’m pretty certain I don’t want to see what he does, after a few glasses of sacramental wine.

        • Pat

          You guys know my theory – he’s in early stages of dementia.

    • Gregor Sansa
      • keta

        Nice!

  • Unemployed_Northeastern

    “I would forgive Kennedy his bad-undergraduate-essay prose (all-too-representative sample: “From their beginning to their most recent page, the annals of human history”

    No sh*t, that was my introductory sentence for just about every history paper I wrote… in the 9th grade. “Open wide,” a teacher told me. I took that advice literally.

    • Robert M.

      It’s bad writing and it’s laughably ahistorical. So… win-win?

    • Linnaeus

      “Throughout history…”

      • Mankind has long desired to obliterate the sun…

        • cpinva

          or land on it…

          • allium

            Tonight, ladies and gentlemen, we fulfill that dream.

      • ChrisTS

        I got this once in an undergrad’s paper: “Since before history, mankind has been arguing Plato’s Forms.”

    • Lee Rudolph

      “Open wide,” a teacher told me. I took that advice literally.

      I hope and pray (you being in 9th grade, and all) that you literally took it figuratively, rather than literally taking it literally in the sense of the phrase used by dental hygienists and irrumators.

  • sleepyirv

    Quite frankly, the best thing in Kennedy’s opinion is his retort against judicial restraint in this case. And he accomplished that by quoting liberally from Robert Jackson (To be fair, it is always best to quote liberally from Robert Jackson’s Barnette opinion if you can.)

  • What I’m seeing confusion about is, how does this work, practically?

    The 5th Circuit issued a stay of the Miss. district-court decision striking the state’s gay-marriage ban. Our AG is saying that has to be lifted.

    The SCOTUS op’s mandate doesn’t issue for 25 days, and it appears some jurisdictions are going to take that to mean they don’t have to comply yet.

    Hoping to see an explainer pop up by the end of the day.

    • Here btw is SCOTUSblog:

      In the meantime, perhaps hundreds of thousands of same-sex couples will obtain licenses and be married, opening access for them to a wide array of state and federal benefits that go with marriage — ranging from better tax treatment to equal status as parents. In any state where a ban remains technically on the books, it remains possible that state and local officials will engage in resistance, thus making it necessary for couples to get court orders to assure their access to a license.

      Under the Supreme Court’s rules, it does not issue a formal order to put into effect a decision. Rather, the Court’s clerk will send a copy of the decision to the lower court whose ruling was being reviewed — in this case, the U.S. Court of Appeals for the Sixth Circuit, which had upheld the same-sex marriage bans in all four states in its geographic reach.

      That transmission is likely to occur nearly immediately, adding the states of Kentucky, Michigan, Ohio and Tennessee to the places where same-sex marriage will become available. Cases involving the other ten states where bans had remained in force up to Friday are likely to be resolved quickly by the federal appeals courts in the First, Fifth, and Eighth Circuits.

    • postmodulator

      In more concrete terms, Franklin County, Ohio apparently began issuing same-sex marriage licenses immediately. As in, the moment the decision was announced. There were a few couples sitting outside the Clerk of Courts, waiting.

      There were some frankly adorable photographs on my FB feed but I can’t find them now.

      • sam

        Yeah- this doesn’t seem (so far) to be a Brown vs. Board of Ed situation where “all deliberate speed” was interpreted to mean “as slow as humanly possible. Many places seem to already be, at least informally, complying with the decision even though they could theoretically wait for the formalities. I’ve seen photos of couples getting licenses from clerks in Georgia, Arkansas, Texas, and other holdout jurisdictions.

        It’ll probably be a hodgepodge of willing and unwilling clerks until all of the formalities are followed through with, but everyone seems to understand that it’s a fait accompli.

        • Karen24

          Travis County started issuing same sex marriage licenses at lunch. It took that long to get the new form set in the computers.

        • cpinva

          “It’ll probably be a hodgepodge of willing and unwilling clerks until all of the formalities are followed through with, but everyone seems to understand that it’s a fait accompli.”

          any takers on a bet that, even after all the formalities have been observed, there will still be a few clerks refusing to issue them (marriage licenses), claiming it violates their religious freedom? you just know there will be.

          • postmodulator

            There was some Seattle cop who stubbornly kept arresting people for marijuana possession long after legalization. They ended up firing him when he wouldn’t let it go.

    • rea

      It all depends on how big an asshole the county clerk wants to be–nothing stops them from allowing people to get married immediately:

      http://thedailynews.cc/2015/06/26/just-in-lakeview-women-are-first-same-sex-couple-to-marry-in-montcalm-county/

    • TribalistMeathead

      I read about three blood-red counties in GA (portions of two comprised Newt Gingrich’s former district and portions of the third comprised Bob Barr’s) that started issuing licenses almost immediately.

  • Joe_JP

    So, reasoning doesn’t matter but let’s complain about it anyway, right? The “law is” the same sex marriage is protected. That the constitutional right to marriage has four key aspects. That liberty and equality (especially where there is a history of discrimination) work together.

    It’s too bad he doesn’t — like Scalia in Heller — provide a list of presumptively (though it isn’t official, mind you) acceptable legislation regarding gays and lesbians. Same sex marriage isn’t enough to decide. Got to cover other stuff. I’m thinking though if the fundamental right to marry applies to them, others do too. Clearly Kennedy thinks raising children, to cite another category of rights, applies to them too.

    The particulars will develop over time. This is how law works. I forgive the chunky language given the overall content. And, this is not trademark law. Marriage and equality will likely get you poetic sometimes. Better than those opinions by Scalia or Thomas poetic about the “dignity” of states.

    • Linnaeus

      Better than those opinions by Scalia or Thomas poetic about the “dignity” of states.

      As Bill the Bard once wrote, “the devil can cite scripture for his purpose”.

    • Scott Lemieux

      Better than those opinions by Scalia or Thomas poetic about the “dignity” of states.

      I mean, of course.

  • ASV

    That’s all well and good, but ultimately having this decision come from the Court will undermine the cause of marriage equality because reasons.

    • indefinitelee

      i’d actually appreciate an analysis of why this isn’t so. Already seeing this reasoning trotted out but don’t know enough to counter it.

      • Robert M.

        I don’t think you need a counterargument. Lots of people–including Roberts–intimate that there will be some sort of backlash. What’s missing from those assertions, though, is any real reason why the backlash would be worse than the current state of affairs. The law of the land today is that same-sex couples can be married, and from any coherent perspective on marriage equality, that’s far better than the law of the land yesterday.

        Additionally, other major decisions haven’t demonstrated the same sort of backlash. As an example, there was no upswelling of support for campaign-finance reform after Citizens United–at least, not enough to actually change the law, which is what really counts. Basically, the idea of backlash is Green Lanternism in reverse, and it’s the responsibility of the person making the claim to explain why and how a particular decision will actually end up having the opposite effect.

        • indefinitelee

          well not backlash per se but the idea that a court decision is inferior to legislation.

      • Scott Lemieux
  • ajp

    Loosely reasoned and poorly written? Unbearable purple prose? Yep, classic Kennedy. But if a Kennedy opinion is the price we have to pay for marriage equality, so be it. I would’ve loved an RBG-penned opinion. But alas, Kennedy is the senior justice in the majority, and gay rights savior is his legacy goddammit, and no sharing with anyone else! After his sloppy, sloppy work in Lawrence he shouldn’t have been allowed to hog the gay rights opinions for himself, but institutional norms are powerful.

    You’d think comity would dictate letting another justice write one of these, but they’re probably too scared of Kennedy’s general flakiness to put up a fight. Let the flakiest, shakiest vote write the majority, as any competent strategist would tell you.

    • cpinva

      “You’d think comity would dictate letting another justice write one of these, but they’re probably too scared of Kennedy’s general flakiness to put up a fight.”

      as a parent, if you want to survive with your mind somewhat intact, you learn when a fight isn’t worth having. this wasn’t one of those times.

  • Murc

    I idly went over to Sully’s joint just to see if this hauled him out of retirement.

    And it did, but Jesus H. Motherfuck. The man managed to make it allllllll about himself and the fact that he was banging the drum on this before anyone else (and fair’s fair, he was, but come on) while simultaneously trying really hard not to give that impression and taking gratuitous swipes at everyone who didn’t get behind this at the same speed he did back in the 90s.

    I don’t miss him. At all.

    • Rob in CT

      I get this, and yet… I think Sully actually earned this particular victory lap (though, granted, I haven’t read his post and it’s possible that it’s so over the top I’ll agree w/you when I read it). Other shit he’s done he deserves his lumps for, no question.

    • Richard Gadsden

      If you take his post as “personal reminiscences from the same-sex marriage campaign”, rather than any attempt to account the whole story, then I think it’s a worthwhile summary of his personal experiences.

      … and hell, there aren’t many people whose personal experiences are more relevant.

  • Rob in CT

    So… how about Thomas’ bit on dignity. I’m flabbergasted.

    • rea

      I thought he was suggesting that states can get married, there.

      • cpinva

        I thought he had a brain aneurysm. unfortunately, with Thomas, it’s hard to tell.

      • Rob in CT

        I mean, seriously:

        Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

        What the fuck? This may well be true in a metaphysical sense but… what does that have to do with the law of the land?

        • ChrisTS

          I guess he meant that dignity is something one creates for oneself. Fair enough. But being enslaved (for chrissake) is a pretty big blow to one’s sense of self-worth.

        • dn

          Thomas’ whole theory is based on a bizarre and deeply incoherent combination of the historical and the ahistorical. He lionizes the Framers for “the idea – captured in our Declaration of Independence – that human dignity is innate”, which sounds a lot like an endorsement of timeless human rights unlimited by historical circumstance; yet he rejects the idea that the Constitution protects any concept of human dignity except that advanced by an eclectic assortment of 17th and 18th century white guys. And of course he rests the legitimacy of the Constitution itself on Lockean social contract theory, despite the fact that Locke’s theory is ahistorical and that few people today actually adhere to such a narrow definition of human dignity anyway (thus calling the validity of the “contract” into question).

          In any case, the whole thing begs the question. The entire point of the Declaration’s outlining of inalienable rights, after all, was to bolster the ultimate claim to a natural right of revolution. So it provides no actual defense against a revolution now. If Thomas thinks the majority decision is a revolutionary change, why does he think such arguments can avail him?

  • rea

    Let me not to the marriage of true minds
    Admit impediments. Love is not love
    Which alters when it alteration finds,
    Or bends with the remover to remove:
    O no; it is an ever-fixed mark,
    That looks on tempests, and is never shaken;
    It is the star to every wandering bark,
    Whose worth’s unknown, although his height be taken.
    Love’s not Time’s fool, though rosy lips and cheeks
    Within his bending sickle’s compass come;
    Love alters not with his brief hours and weeks,
    But bears it out even to the edge of doom.
    If this be error and upon me proved,
    I never writ, nor no man ever loved.

    • Karen24

      Thank you. I made this poem my Facebook status today.

  • Karen24

    Can we at least snark mercilessly on Scalia’s Abe Simpson dissent, in which he instructs to “ask a hippie” about why spirituality is a liberty interest? When I get home from work, I’m going to take a picture of my Guatemalan weaving high-top sneakers, a reusable grocery bag, my guitar, and the sheet music to “When My Guitar Gently Weeps” and post it under #askahippie.

    • Rob in CT

      I do think that “ask a hippie” is gonna be a thing.

      • Karen24

        I soooo hope so.

      • Joseph Slater

        “Ask the nearest hippie,” technically. But I’m for that being a thing.

        • Karen24

          So #thenearesthippie instead.

      • McAllen

        But how can I ask a hippie when I have already punched him?

    • John F

      I read it was him saying to go ask a hippie for confirmation that marriage constituted a curtailment of the freedom of intimacy…

      It was Scalia wielding a very old stereotype about hippies being into “free love” and being opposed to marriage:

      “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. 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.”

      • Rob in CT

        Yes, that’s what he meant. It’s funny, because it’s so, so, so “I’m still fighting the fights we had in the 60s” and so much of the country is like “I don’t care about your stupid arguments from 50+ years ago.”

        • John F

          It’s funny, because it’s so, so, so “I’m still fighting the fights we had in the 60s”

          That also explains/desribes much of Fox News’ viewership

    • Scott Lemieux

      Uh, I did!

      • Karen24

        Indeed you did!

    • Joe_JP
  • efgoldman

    IANAL, but I wonder if this decision could eventually ameliorate or even overturn Hobby Lobby?

  • Kalil

    Thank Dog I’m not the only one left feeling like this is a pretty ugly victory. Having read the decision, I feel that Thomas presented a stronger set of arguments than Kennedy – if only by virtue of /making/ arguments. It’s utterly embarrassing. All Kennedy had to do was copy and paste the lower court rulings. Total, utter failure.

    Oh well. At least we won.

  • Mawwiage. Mawwiage is what bwings us togethaw today. Mawwiage, that bwessed awwangement, that dweam within a dweam…

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