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On Obergefell


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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