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I don’t think I’ve been happier to write a blog post, prouder to proclaim my membership in the legal profession, or more jubilant at a development in this nation’s legal history, since May 16, 2008. Democracy forever tainted the unvarnished pride and happiness I felt on that day. Nothing is certain, but I suspect that given the great difficulty involved with amending the Federal Constitution and the present state of public opinion, that is very unlikely to happen again.

I wrote back during the oral arguments about having become just a bit jaded at seeing the same arguments in favor of and against same-sex marriage for so long that they could be simply classified and re-identified by number or title. In a sense, we can boil the various opinions in Friday’s case of Obergefell v. Hodges down in that fashion. And since, here and in the popular media, there has already been extensive commentary about the holding, the efflorescence of joy it elicited from most people, and the role it will play in the political landscape until same-sex marriage becomes as unremarkable a part of the background of our culture as mixed-race marriages already are, I’m going to take a different approach here.

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This case, more than nearly any other in a generation, offers a remarkable lesson in legal draftsmanship. The craft of structuring an argument that blends evidence, precedent, logic, and emotional force is one that we lawyers work very hard at, and Obergefell demonstrates some truly notable exemplars of that craft at its epitome. The Justices of the Supreme Court are heroes of legal writing, and in that sense (apart from the massively significant holding) this is a case for the ages. Note, though, that I don’t say this in uniform praise — just as two of the five opinions published on Friday are examples of what lawyers should do, three of them are examples of just how badly things can go when a lawyer misuses the contents of her epistolary toolkit.

A word of warning. This post examines writing. This necessarily involves extensive quotes from the opinion, and extensive analysis of the writing in them. This post is over 7,200 words long and there are long excerpts of legal writing in it. If you’ve no appetite for something of that length, well, I warned you.


Official Photograph of Justice Anthony Kennedy

Justice Anthony Kennedy. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Anthony Kennedy (writing for a 5-vote majority):  ~Definition, Dignity, Equality, Fundamental Rights, Legal Uniformity, Harmlessness, Fundamental Rights again. So much for the argument.

This is about the best writing I can think of coming from Justice Kennedy. Now, bear in mind that legal writing is not always laced with soaring rhetoric, persuasive but rarely poetic, and often intended to be logical rather than poetic. Prose may soar, and this sort of case presents an opportunity for soaring prose. But again, it’s got to be legal in tone; this is not a campaign speech but an articulation of justice.

He begins by describing the personal circumstances of some of the plaintiffs. Kennedy begins by dealing with the definitional and historical arguments:

That history [of opposite-sex marriage] is the beginning of these cases. The respondents say it should be the end as well. 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.

The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage,the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.

Most touching after that is Kennedy’s description of the circumstances that led the petitioners to seek judicial relief.

There is the heartbreaking story of James Obergefell and John Arthur, who fell in love and committed to one another over twenty years ago. John was diagnosed with ALS in 2011; they were married in Maryland on the tarmac because John was too ill to even disembark fromthe plane; he died three months later. The state of Ohio would not list James as John’s surviving spouse on the death certificate; they are legally strangers even in death. (One hopes that in his particular case, a special order is crafted remedying that cruelty.)

There are April DeBoer and her would-be (soon-to-be) wife Jayne Rowse, who tried to form a family together, but only one of them can legally adopt their children; should something happen to one woman, the other will be legally a stranger to the children she is raising and will be separated from them.

Sergeant First Class Ijpe DeKoe, a U.S. Army Reservist, is husband to Thomas Kostura in New York where they were married shortly before Sgt. DeKoe was deployed to Afghanistan where he honorably served his nation in harm’s way, but he is not married to his husband in Tennessee where they live. Sgt. DeKoe travels frequently for his regular job and for his duties in the Army Reserve, and neither he nor his husband can be sure that if something happens to him, his husband will be able to attend to him in the hospital.

From there, likely borrowing heavily from research and work done by his Sister Justice Ruth Bader Ginsburg, whose academic, practice, and judicial career has caused her to delve very deeply into the evolution of the legal status of women in the United States, Kennedy explains that the legal institution of marriage has evolved and molded to fit changes in culture over the years, most prominently by adopting and later abandoning the doctrine of coverture.

These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. [] These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.

Personally, I think it’s hard to understate overstate the importance of this groundwork, sociological though it is. It isn’t formal sociology by any means, although Kennedy certainly cites to it. It’s a broad survey of scholarship, employing and summarizing history and accumulated knowledge to the benefit of the law. (I can hear the same folks who misunderstand Kennedy’s reference to international law as points of comparison and contract with the U.S. now picking up the similarly ill-informed slogan of “No Multidisciplinary Law!”) And the result of this survey is that the law can be informed about itself and its interaction with the rest of the culture — and armed with the information that marriage is not and never has been a static social institution, the law must adopt a similarly dynamic treatment of it.

Justice Ruth Bader Ginsburg. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Ruth Bader Ginsburg. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

For the legal writer, Kennedy’s opinion here illustrates how to take the efforts of a contributor, in this case his Sister Justice Ginsburg, and incorporate it into one’s own writing. Though Ginsburg’s intellectual influence is starkly obvious, and her contributions are what is said in this passage, there is little doubt that it is still Kennedy speaking.

Then he explains that the role of homosexuality has also changed in our culture over the years, from being thought an abhorrence and a criminal act, to a generally-tolerated way for some people to be and act. Along the way, the law molded and changed itself to conform to the evolving social standing of homosexuality. Kennedy notes that same-sex marriage cases have been before various courts since 1972. He includes an appendix listing, nearly comprehensively, the cases that have addressed the issue. This demonstrates a couple of interesting things that he is content to leave unsaid: the number of people who have wanted access to the institution of marriage, the serious thought given to the issue, the extent of the debate that has been had about it. He does not directly list the democratic initiatives that have also dealt with the issue but does nod to them in the text of his opinion. This, too, is clearly a deliberate choice on his part.

Once we stop learning about the actual people, the sociology and history are sort of dry, actually. Certainly isn’t all that legal. But once the groundwork is laid, it’s off to an analysis of due process and equal protections, which is very solidly in Kennedy’s wheelhouse. That’s when things start to get very, very good from a legal draftsmanship perspective.

The core of Kennedy’s legal reasoning arises from the most prominent benchmark in this zone of Constitutional jurisprudence: the case of Washington v. Glucksberg (1997) 521 U.S. 702. In Glucksberg, the Supreme Court denied a claim that the Due Process Clause of the Fourteenth Amendment substantively prohibited a state from enacting law criminalizing assisted suicide. A majority of the Court agreed that the Due Process Clause does indeed put certain kinds of actions out of reach of a state legislature, but cautioned that in order to prevent this sort of claim from making a hash of the law in the future by way of every litigant in every case claiming a “right” to do things, strong limits were put on the application of the way a court could interpret and apply the concept of substantive due process. Specifically,

First, the Court has regularly observed that the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition. E.g., Moore v. East Cleveland, 431 U.S. 494, 503 (plurality opinion). Second, the Court has required a “careful description” of the asserted fundamental liberty interest. E.g., Reno v. Flores, 507 U.S. 292, 302. The Ninth Circuit’s and respondents’ various descriptions of the interest here at stake–e.g., a right to “determin[e] the time and manner of one’s death,” the “right to die,” a “liberty to choose how to die,” a right to “control of one’s final days,” “the right to choose a humane, dignified death,” and “the liberty to shape death”–run counter to that second requirement.

Every opinion — the majority and all four dissents — grapple with this two-prong test for substantive due process. Kennedy his the exact right note, the legally and intellectually correct note — when he confronts the respondents’ arguments that Glucksberg puts same-sex marriage out of reach of the substantive due process clause:

Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg , 521 U. S. 702, 721 (1997), which called for a “‘careful description’ ” of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.” Brief for Respondent in No. 14–556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a “right to inter-racial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. See also Glucksberg , 521 U. S., at 752–773 (Souter, J., concurring in judgment); id., at 789–792 (BREYER, J., concurring in judgments). That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving, 388 U. S., at 12; Lawrence, 539 U. S., at 566–567.

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. 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. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.

Let’s leave aside for the moment whether you agree or disagree with this reasoning. It’s first-class legal writing. It’s a paragon of the principle that the way an issue is framed determines how it is resolved. Are we discussing a right to marry someone of the same sex? If so, the respondents necessarily win, because there is no deep historical tradition of people marrying other people of the same sex — not in American history, not in world history. Or, are we discussing the right to marry? If so, there is a massive, deep, powerful historical tradition. Frame the issue correctly, and you’ll inevitably win the argument. That’s what legal writing is supposed to do: persuade by describing the issue.

Do you notice how, once the reasoning reaches the point that we’re not talking about the right to same-sex marriage, we’re talking about the right to marriage in a general sense, the conclusion has become foregone? For an SSM opponent to concede that the right to marriage at all is the issue is for that disputant to lose the dispute. That’s good legal writing.

But there’s more, which is why I quote this passage at length. Kennedy doesn’t simply assert that this is the issue and let that framing of the issue stand on its own strength. He works the law to buttress his frame. He points to Loving, a case challenging a law criminalizing inter-racial marriage. He points to Zablocki, a case involving a challenge to a Wisconsin law denying marriage licenses to “deadbeat dads” who owed money on child support payments. He summarizes those cases, tailoring them to the framing of the issue in this case. He scores a direct hit in so doing because not only does he summarize those cases, but he summarizes the framing of the issues in those cases and presents those frames as precise fits for the framing of the issue in this case.

Kennedy’s other legal gambit is to link substantive due process rights to the Equal Protection Clause. He reaches for the proposition that if one person has a substantive due process right, then everyone has that same right.

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.

One might accuse this exposition of the relationship between substantive due process and equal protection as being prolix. Greater economy in verbiage was possible here. But Kennedy uses this reasoning to call back to an earlier theme:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

This callback adds strength and coherence to the overall argument. It directs the reader to a previous point and applies that point to a new subject matter under discussion. And it carries strong intellectual and moral force: when we engage in substantive due process jurisprudence, we need not blind ourselves to developments in other areas of the law; the law as a whole is something that molds, grows, and changes over time to meet the challenges of the society it serves. So of course we’re going to have different ideas about what “equality” means today than we did in 1868. We’re going to have different ideas about what “liberty” means today than we did in 1868 or 1791.

And in so doing, Kennedy also dispenses with notions of “original meaning” of these phrases, an interpretive technique championed by his Brother Scalia (see below) and dovetails back, again, to a previously-quoted section of his opinion, the one that stated that the definition of marriage might start with ancient and traditional social concepts but need not end there. (Actually, that’s a great bit of framing all by itself, better for being that subtle: if marriage is a static, constant concept, it doesn’t “start” at all, it simply is. But by indicating that a concept of marriage has a “start,” that necessarily implies that the concept might no longer be at that startng point.)

By framing the issue with the breadth appropriate to achieve the intellectual result, and working the issue with logic, case support, and emotion, Kennedy presents his reasoning as simple, simple to the point of being a syllogistic inevitability. He presents the issue in emotional terms as well, to explain that the result is not only logical but just and moral. And, mindful of the scope and historical importance of the opinion, he does at least some of his framing on a high level, elevating the decision to put it on a plane with the writings and ideals of the Framers, the deeply-held fundamental values of American civics that will have a broad appeal to a broad audience.

Maybe he won’t persuade everyone, and it seems at times he’s aware of that. He could hardly not be, given that four of his Brethren dispute his result in terms both certain and outraged.


Chief Justice John Roberts. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Chief Justice John Roberts. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Chief Justice John Roberts (joined in dissent by Justices Antonin Scalia and Clarence Thomas): Democracy, Definition, just a dash of Procreation, Slippery Slope, Democracy again.

The basic thrust of the Chief’s dissent is that “democracy was working just fine,” Some states adopted same-sex marriage after social debate, some did not, the trend appears to have been in favor of expansion of same-sex marriage rights, and that was as it should have been. It isn’t for the Court to throw out ancient definitions of marriage that are encapsulated in thousands of years of law predating even the Anglo-American legal system; even societies with very different visions of marriage than modern America have always had marriages between men and women because of the existential relationship between marriage and childrearing, not between people of the same sex. Democracy can change that in our Constitutional system, but not the courts.

All well and good; these are familiar arguments to me and they didn’t carry the day. So be it; that’s the sort of thing that normally the Chief would articulate for the same reason any Justice dissents: in the hopes that future cases and future scholars will see the wisdom in those arguments and incorporate them into later articulations of the law. Roberts goes so far as to hint that were he a legislator, he would very seriously consider the majority’s points when considering social policy and might even go so far as to vote, democratically, in favor of same-sex marriage; he simply thinks this sort of decision is not for judges to make.

But things go downhill from there, in a way that genuinely surprises me. The Chief, usually a greatly respectful gentleman to his Brethren even when writing in dissent, appears to have slipped into Scalia-lite mode. Criticizing the majority for not exercising restraint and respect for democracy degrades a bit, as the Chief offers, for the first time in his career, a strident condemnation of the notion of substantive due process. He does not go quite so far as to say the doctrine lacks any legal substance, but does basically say that any time it is invoked, a serious threat to democracy is made.

He claims, quite incorrectly and illogically, that the first time substantive due process was invoked was the case of Dred Scott v. Sanford (1857) 19 How. 393. As you will recall from your high school American History class, Dred Scot was the thoroughly-staged case of a slave bought in Missouri, taken by his owner to the free state of Illinois, and then returned to Missouri, only to find the Supreme Court ruled “Once a slave, always a slave, even if you go to a free state where there is no slavery.” (You may hiss now, as do law students when the holding is discussed in class.) Respectfully, the Chief is dead wrong to call Dred Scott a substantive due process case, though, because substantive due process arises out of the due process clause, and Dred Scott was decided on the reasoning that, being a slave, Dred Scott could not have been a citizen. The Fifth Amendment was, at most, only in the penumbra of the Court’s reasoning in Dred Scott; the Fugitive Slave Clause was the operative section of the Constitution in that case.

Then, on three separate occasions thereafter, he compares Friday’s case to Lochner v. New York (1905) 198 U.S. 45. This case struck down state-level minimum wage laws on the grounds that they interfered with the employer and employee’s freedom to contract as they saw fit. Its jurisprudence is roundly condemned in academic circles obstruction of democracy by a corrupt legal system to benefit big corporations. Roberts calls it substantive due process case gone wrong as well: one in which, strictly as a manner of personal policy preference and with only a tissue of claim to legal authority, judges impose their will upon the law contrary to the decisions made by democratically-elected authorities. Roberts is on stronger ground to call this a judicial abuse of the substantive due process power. But even so, that does not mean that substantive due process is itself an invalid doctrine; it means that like other legal doctrines, judges might abuse it.

Now, bear in mind that there are five cases that are almost uniformly taught in law school as worthy of special moral condemnation: Dred Scott v. Sanford (which is correctly identified as a massively pro-slavery decision which helped precipitate the Civil War), Plessy v. Ferguson (1896) 163 U.S. 537 (the “separate but equal” case), Lochner v. New York, Korematsu v. United States (1944) 323 U.S. 214, and Bowers v. Hardwick (1986) 478 U.S. 186 (states may criminalize homosexual sodomy). Some scholars have called these cases the “Anticanon” because of the degree of academic obloquy poured down upon them. Note that, fortunately, none of these cases are still good law today.

But the point is, comparison of a particular case to a specimen from the Anticanon is the legal equivalent of the Argumentum ad Hitlerum. As I will get to in just a second, Roberts admits that this opinion is bound to be the source of unvarnished joy and happiness for millions of people. To compare that to two of these Anticanonical cases, cases which abandoned the bid of millions to escape slavery and later, the efforts to remediate the grinding poverty of millions more, is the legal equivalent of giving a raspberry during a wedding ceremony.

The whole dissent is summed up in the peroration, in which he recognizes that the result of this particular case is actually likely to be popular:

If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. I respectfully dissent.

Again, it’s a shift that is uncharacteristic of the Chief — it starts out quite nicely and cordially. It shows the Chief’s awareness of the Court’s position in broader society and a deeply human appreciation of the stakes and results of the case. He is generous of spirit and understands that the result will produce happiness. And then, very new and different from his typical style, it suddenly and sharply turns dark, portentous, and accusatory. But then, so was the rest of the opinion.

Perhaps the only mitigation of that is that this is a really unusual, momentous, and self-consciously historic sort of case. Roberts is not good at the “This is a milepost in the decline and fall of the American Republic” sort of rhetoric that political partisans lob about with ever-diminishing degrees of subtlety, and it shows. Roberts’ dissent demonstrates an unfamiliarity with the bombastic style of the Dean of the Court, and therefore in both its logic and its tone demonstrates the epistolary sin of not speaking in the author’s own voice.


Justice Antonin Scalia. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Antonin Scalia. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Antonin Scalia (joined in dissent by Justice Clarence Thomas): Democracy, Federalism, and Democracy again. Again, so much for the argument. On to the language.

Bombast and flamboyance, so strange-sounding coming from the Chief, is the very essence of Justice Scalia’s oeuvre.

Scalia cannot help but indulge in his opinion his opinion that the Fourteenth Amendment applies to formal legal equality on matters of race alone. This has previously led him to indicate that the equal protection clause does not apply to women, because that was beyond the contemplation of the Framers of the Fourteenth Amendment. (A claim which doesn’t seem to be wholly historically accurate.) He calls the majority’s decision a “judicial Putsch,” “a naked judicial claim to legislative — indeed, super-legislative — power,” one which “makes the People subordinate to a committee of nine unelected lawyers [which] does not deserve to be called a democracy,” Including himself in his analysis he points out the unrepresentative nature of the makeup of the Court, calling it a “select, patrician, and highly unrepresentative panel of nine.”

He accuses the majority opinion of having “a style that is as pretentious as its content is egotistic,” setting up a footnote which offers a sure marker that some language trading was going on amongst the majority, although it’s not quite clear who was bargaining for it. I quote the footnote in full:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “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,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Ouch, and perhaps in a case reconciling different Circuits’ interpretation of Article 9 of the Uniform Commercial Code, such a direct attack on high-flying rhetoric would score some points. Here, though, the reader is left with a similar sentiment as an NFL referee watching a receiver raise his hands in celebration after scoring a touchdown, only to then be shoved to the ground by a defender, well after the play is over. For something like that, you throw a flag for “unsportsmanlike conduct.”

More importantly, it’s evidence that Scalia thinks the emerging concepts of “dignity” and “identity” as fundamental rights are as silly, unprincipled, and ungrounded in law as a previous generation’s articulation of the concept of “privacy.” And it’s a swipe at Kennedy for including this language at the apparent urging of one of the Nine. My guess, and it’s only a guess, is that this language was proffered by Justice Stephen Breyer, as it seems to fit Breyer’s particular rhetorical style and Breyer’s particular approach of melding individual rights and the structures of democracy. In any event, Scalia goes on to quote some of the better language in the opinion and inserts parenthetical comments like “Really?” and “Huh?” and “What say?” which do not, in my opinion, acquit him of the sorts of abuse-of-tone charges he levels at the majority.

Substantively, Scalia doesn’t add anything to the argument more than Roberts did before him — it basically comes down to “This was a job for democracy, not the judicial process.” Scalia’s opinion finds its quintessence on page 7, when he calls out the majority’s rhetoric: “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.” Do as I say, not as I do, Your Honor? Scalia’s opinion takes his typically entertaining style of criticism, and turns the dial up to eleven. Though unlike the Chief, Scalia speaks very clearly in his own voice, this dissenting opinion suffers from the epistolary sin of permitting itself to go over the top.

Now, it’s an amazing thing when Antonin Scalia’s rhetoric is not the most eyebrow-raising of the various opinions in a case, but in Obergefell, the normally show-stealing Justice Scalia finds himself upstaged: one of his Brethren works himself to a breathtaking froth.


Justice Clarence Thomas. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Clarence Thomas. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Clarence Thomas (joined in dissent by Justice Antonin Scalia): Definition, Democracy, Conscience, ~Dignity. Although I’ll give him credit. His “democracy” argument looks like nothing else I’ve seen before.

Justice Thomas starts out just fine, drawing an intellectual distinction between negative liberties that he says the Constitution protects, and positive rights which he says the Constitution does not afford. Inoffensive and indeed a bromide, if inapplicable in my opinion to this situation (because the state is affirmatively involved in the granting of a marriage license; the state must do something before people are legally married). But, I can see how one could come to think it is an applicable distinction: people do marry each other, after all. Thomas also refutes wholesale the concept of substantive due process, something which his Brethren Roberts and Scalia have already done before him and which Thomas has done repeatedly in the past. Again, this isn’t really all that remarkable up to this point.

After that, Thomas digs in to Magna Carta. A word to the wise: when legal reasoning invokes Magna Carta, that’s a clue that there’s either a substantial reach going on, or there is some actual crazedness in the mind of Magna Carta’s invoker. Not that The Great Charter isn’t of historical importance, but it is properly invoked these days only for very limited purposes. Gratefully Justice Thomas actually starts out with one of those purposes: indicating that trials are a necessary part of due process before the government may take life, liberty, or property. Magna Carta actually isn’t the best authority available for this to U.S. lawyers, the Fifth and Fourteenth Amendments are, but a passing reference to that ancient British document demonstrating that even the King had to respect the process of law is sometimes okay.

Thomas invokes Magna Carta again, though, in asking what the word “liberty” means. He concludes it meant “freedom from physical restraint” in Magna Carta and therefore it meant the same thing in the Fifth Amendment and therefore it meant the same thing in the Fourteenth Amendment. From there he muses about the state of nature in Locke’s political philosophy, by way of saying no one has a “right” to a government entitlement. So liberty might mean freedom from governmental action of some sort, a kind of “leaving-alone” by the government such that a person remains in the Lockean state of nature undisturbed or controlled by laws.

If you’re wondering right about now when this is going to circle back round to marriage, you aren’t alone. After five pages of Magna Carta and Locke, as though two hundred and twenty-two years of Constitutional law hadn’t happened more recently than that, Thomas says that the petitioners seeking same-sex marriage have not been deprived of any liberty, because their physical movements have not been restrained and the government hasn’t stopped them from, you know, being gay and whatnot:

Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.

It’s appropriate to say “Wow!” at such a narrow conception of liberty. And yes, in a moment it’s going to get worse.

It’s also appropriate to say “Wow!” at this point because the opinion demonstrates a blinding and willful ignorance to the indisputable-to-anyone-paying-attention and undisputed-in-the-record-of-the-case-before-the-court facts that within living memory, gay people were incarcerated and physically restrained for engaging in same-sex relationships, and the petitioners themselves have not been able to order their lives as they see fit: they have not been able to adopt children, they have not been able to get death certificates, they have not been able to form marital communities for joint ownership of property, they have not been able to be secure in hospital visitation rights.

After that, Thomas tells us that 35 states have democratically examined the question of what marriage should be and whether same-sex couples should be able to have it; 32 of those states democratically decided not, and if the petitioners don’t like that, well, too bad. Democracy has winners and losers. Better luck next time. Then, Justice Thomas speculates that, inevitably, religious rights to exclude same-sex unions from religious marriages will inevitably come in to conflict with the majority’s rule that civil marriages must be extended to same-sex couples. He does not cite to or refer to any disputes or lawsuits invoking or purporting to invoke those conflicts at all.

All that was the windup. The punchline comes at the end of Thomas’ opinion, at the point where he says that the majority is deeply misplaced to rely upon the emerging concept of “dignity” that was noted as being so prominently a part of the oral arguments of this case:

The corollary of that principle is that human dignity cannot be taken away by the government. 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.

Respectfully, Your Honor, but the hell you say. And I’m going to leave my reaction to that passage right there at that.

As a piece of legal writing, Thomas’ dissent is flawed, fatally so. It tries to do too much with too little. It fails to understand the weakness of its cited authorities, and the extended-to-depletion reasoning grasps where it cannot reach. Thomas’ rhetoric attempts to soar but falls flat, burdened as it is by trying to make the law be something it simply is not, tied down by calling the facts things that they are not. It begins with first principles and tries to meander from them to a result; along the way Thomas’ writing cannot overcome the reasoning it expresses, reasoning which fundamentally misunderstands the issue under examination.


Justice Samuel Alito. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Samuel Alito. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Samuel Alito (joined in dissent by Justices Antonin Scalia and Clarence Thomas): Democracy. History. Prudence. Conscience. Democracy.

Alito’s argument is crisp and readily-susceptible of condensation: The Constitution is silent about marriage. To call “marriage” a liberty interest recongized by the Due Process Clause, we need to be assured that there is a deeply-rooted tradition. There is no deeply-rooted tradition of same-sex marriage. Marriage was not always about making people happy or fulfilled. Maybe that’s socially what a lot of people think about it being, but states can have whatever notions of marriage they want, and some may wish to consider it mainly a procreative institution as it was historically defined. And we have no idea what will happen now that we’re changing something so deeply fundamental to society, at should leave the question of whether to abandon that prudence to the wisdom of the people collectively rather than imposing our own preferences on them.

His analysis under Glucksberg is similarly straightforward, and Alito can be forgiven the seemingly egoistical self-reference to his dissent from U.S. v. Windsor, 2013’s case striking down the core of the Federal Defense of Marriage Act:

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg, 521 U. S. 701–721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor, 570 U. S. ___, ___ (2013) (Alito, J., dissenting) (slip op., at 7). Indeed:

“In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.

“What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” Id., at ___ (slip op., at 7–8) (footnote omitted).

For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.

The reasoning is simple: there was no same-sex marriage anywhere in the United States until 2003, so it’s simply not the case that same-sex marriage is a long-established tradition.

Alito addresses the Argument from Conscience in an evocative, if again strangely dark way:

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

I guess on the one hand, one could reply to this argument, “Too bad,” because other people expressing other antiquated points of view today considered noxious, like racism or sexism or National Socialism, do indeed suffer that sort of obloquy. But on the othe rhand, the better response seems to be “So what?” If it is not the Court’s business to make states treat same-sex couples equal to opposite-sex couples, as Alito would have it, then why would it be any more the Court’s business to protect individuals from being called unsavory names?

Strangely, Alito indicates that something in the majority opinion will be a direct threat to religious liberty:

It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.

It’s a powerful recapitulation of the Argument from Democracy, but I just don’t understand how, as a matter of law, a “Utah Compromise” is pre-empted by the majority decision. A carve-out for religious exemption strikes me as inevitable anyway under current RFRA jurisprudence, a subject upon which Justice Alito would seemingly be well-versed.

The not-fully-explained concern, especially with the one rather melodramatic line, mars what otherwise is pretty clearly the best of the four dissenting opinions. Alito’s reasoning is the most straightforward and easy to understand, adhering the strongest to precedent, and therefore the most persuasive. I’m finding myself liking Samuel Alito the most among the bloc of the four conservative Justices this Term. (Which is a bit of a disappointment, because until Friday I’d have given that nod to the typically gentlemanly and pleasant Chief Justice Roberts.) Justice Alito’s lawyerly, intellectual approach that has emerged in a fresh and enjoyable way over the past several weeks. I don’t agree with with man (except when I do), but I have very much enjoyed his writing and I commend the judicial demeanor conveyed in his prose.

I admire Alito’s dissent (excepting those few flawed paragraphs) for the same reason I admire Kennedy’s majority opinion: it keeps the focus on the law, blending logic and precedent together in a way persuades, in a way the presents its conclusion as foregone and inevitable. It’s inherent in the nature of persuasive writing that one will encounter different conclusions to the same matter right next to one another, and a case like this presents a stark and powerful example of that. All Nine of the Justices had the same facts, the same basic body of law, the same arguments to work with. The five resulting opinions are as different as each of their personalities, and to some extent reflective of them.

Perhaps we can forgive some of the excesses of rhetoric and deviations from a sober, lawyerly style insofar as the stakes and pressures of this case are unique and overwhelming. At least, that’s what I hope for with respect to the Chief.

As for the case itself. The arc of American history traces a trend of ever-increasing liberty, a trend of ever-expansive equality, a trend of ever-nuanced balancing of law and freedom, a trend of deepening rather than diminishing commitment to the liberal philosophies of the Enlightenment that were the foundation of our Revolution and the moral lodestar of the Framers. We began our history but imperfectly realizing those ideals in our law and our society, and though we are closer to the ideal, we know we realize those ideas today but imperfectly still. Perhaps the conservative dissenters are right that our next challenge will be balancing the interests of those who hold sincere religious objections to same-sex marriage, for the right of free worship, free individual conscience, is deeply important as well. But today sees a greater vision of equality, of mutual respect, of liberty manifest in our national law than was present last week, and this is cause to celebrate.

You might fall in love with and want to marry someone of the same sex as yourself at some point. You can, now, and to do so is so obviously a good thing as future generations shall wonder that this was ever so contentious an issue at all. Or perhaps you will never marry someone of the same sex — even so, you should still celebrate that we achieved a bit of our national ideals. America showed herself at her very best this Friday. I’m told that this weekend sees Pride festivals all over the country. We all should be proud.


Feature Image by Elvert Barnes The Highest Profile Legal Writing Clinic Ever


Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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50 thoughts on “The Highest Profile Legal Writing Clinic Ever

  1. I know a number of people have wondered why I’ve taken so long to finish my promised digest of the case and, uncharacteristically, been absent from this weekend’s discussion of it.

    Professional and personal obligations overtook me from tackling the case on Friday, the day the case was handed down. I’d really been expecting it on Monday, June 29, but the Court does what it does, not what’s necessarily convenient for writers like me.

    Besides, we’ve had, what, five other posts about it since the case was handed down right here on these pages? Every columnist, writer, magazine, and newspaper in the country and many globally have written about what the decision is and what its import will be. So I figured, take the time to look at it from a different perspective.

    So today, late Sunday morning. is the first chance I’ve had to re-tackle the matter. I hope you all enjoy it.

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    • this is really wonderful; much akin to my own responses, though I have not nearly as much understanding of the legal grounding — but I know I have a very good eye and ear for good legal grounding.

      I struggled with the section on Alito, and think it’s because of missing blockquotes; would you check that section please? Then I’ll re-read it.

      Thank you, this is a stupendous addition to the conversation.

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  2. three of them are examples of just how badly things can go when a lawyer misuses the contents of her epistolary toolkit.

    I see what you’re doing there, but it looks odd when all three were actually written by hims.

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  3. Excellent post, Brother Burt. I honestly don’t think I could do an in-depth reading and discussion of judicial reasoning like this so I am a bit jealous. Jelly in the popular parlance.

    Interestingly, you have done the most substantial defense of the majority decision. I have seen other liberals express frustration that it gets to the right result but might be a bit thin on legal reasoning. There have been comparisons between Kennedy’s writing in this case and Douglas’ writing in Griswold. Right decision but in need of tuning up later on. Though everyone on the pro-SSM crowd does seem to love this paragraph:

    “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

    I admit I teared up when reading this as well.

    I don’t know the purpose of Scalia’s writing style anymore. He seems to be coming the cantankerous old man of the bench and his dissents on high-profile cases seem to be sarcastic, insulting, and not much of anything else.

    You are right about Thomas and his narrow frame-work on what liberty means. Interesting his most salient point was buried in a footnote:

    “The majority also suggests that marriage confers ‘nobility’ on individuals. I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more ‘noble’ than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.”

    Now this does not make the majority decision wrong but it is a fair point.

    There is something I’ve noticed about a lot of rhetorical choices especially by us weirdos who spend a lot of time arguing about politics on-line.

    Libertarians and the Right-Wing generally place a lot of stock, time, consideration, and effort into the formal tools of logic and rhetoric. They seem to love various Latin rhetorical terms and devices like petitio principii. I also see the right-wing and/or libertarians talk about First Principles more. There is a seemingly strong stress on First Principles in a lot of on-line writing from the Right-wing and Libertarians.

    I honestly this sort of talk really pompous and off-putting. I imagine a bunch of inane young men in bowties* standing about and impressing each other with Latin terminology. I am not into First Principles generally because they seem like a way of maintaining the status quo and controlling the terms of debate. Why do I have to accept some right-winger nut jobs First Principles?

    Now the rhetoric of the Left can leave stuff to be desired often as well. I think the Left is equally attracted to their own magic words theories and terms like microagression and can be dismissive of those who offer the tiniest critiques of said terms. There are times we go too much for poetry and not enough for rationality like in Griswold.

    *Right-wing young dudes seem to love bow ties for inexplicable reasons.

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      • I would say that the problem of words and rhetoric in the United States is this:

        1. We have always been a Democratic Republic. We never had a nobility or an aristocracy in the truest sense. It is true that the original Republic had a very limited franchise but this was expanded to all white men fairly quickly (by Jackson’s first election) and much more slowly to minorities and women. I don’t think attempts to found an aristocracy in the U.S. were ever very serious.

        2. As such, we have never had a monarchist party. There have always been monarchist parties in Europe even in countries where the monarchy was long gone like Third Republic France. In short, there were always people in Europe with power and influence who were skeptical of democracy and the like.

        3. Those arguments exist in the U.S. but are really non-starters. I can’t imagine any scneario in which a person making arguments against democracy gets elected in the United States. Anti-democracy arguments are usually associated with dweebs who can’t get dates and are too impressed by their own intelligence. This means that people on all ends of the spectrum portray themselves (and probably see themselves) as to the true definers of liberty, decency, freedom, etc.

        4. TL,DR, In the U.S. liberty and freedom mean all things to all people.

        I suspect that when people use formal rhetorical terms, they like the idea of sounding cold and rationalistic. Notice how liberals are always dismissed as bleeding hearts who can’t see humanity for the wretched mess that it really is.

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    • Liberals wanted the decision to be based on the equal protection of the laws clause rather than due process so you can also get LGBT people declared to be a in a quasi-suspect or suspect class. This would mean that laws that discriminate against them would have to pass intermediate or strict scrutiny to be Constitutional.

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    • I don’t know why other people invoke principles, but this contempt for principles that I sometimes see on the left should be worrying. It reveals a lack of serious thought about matters of justice and morality. The reason being that the only way one could condemn first principles is if one thought that one’s own moral intuitions were adequate to the task of accurately discerning right from wrong. But once you start trying to examine whether your moral beliefs are supported by good reasons, you inevitably start looking for more general and fundamental principles which would stand in that reason giving relation.*

      This is not to say that the left is necessarily hubristic or anti-reason. I know many high liberals who arrive at their position from first principles (a lot of them happen to be academic philosophers). Neither am I saying that the right is particularly congenial to reason. On internet discussions, I notice that people on the right often latch on to principles as an excuse for their beliefs regardless of whether the principle is independently plausible. Certainly, a lot of the principles social conservatives invoke against SSM and freer immigration are poorly thought out. Hell even libertarians (Rand and Rothbard come to mind) marshal poorly grounded principles for their arguments.

      *I know moral particularists have something to say to that, but particularists are just confused as to the nature of reasons and of morality. A justifying reason makes the conclusion more probable. Particularists believe that reasons are particular (i.e. that there is no general account of how reasons apply to particular cases. Something may be a reason in one case but not in another and there will be no further principle to explain/justify the difference). However reasons which are particular fail to make the conclusion more probable. They merely pass the buck.

      Also, part of what goes on in moral reason giving is to signal a willingness to abide by the requirements of morality even when it is against one’s own interests to do so. When one adopts a particularist approach to ethics, one appears to be trying to have it both ways, effectively saying that “this reason applies to thee but not to me”. Non-general reasons thus, cannot signal such a willingness to abide by the moral requirements.

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      • In my long experience with people who seem to think they reason from First Principles, the First Principles don’t actually do any useful work and are generally after-the-fact justifications for results put into pompous language. The arguments resulting from them usually amount to long-winded ways of saying: If A then A. A. Therefore, A.
        But maybe you know a different crowd, and could provide some examples.

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  4. Like everyone else said, fine work as usual. I still think the dissent has a small point in that Kennedy’s language is so ‘poetic’ that is does distract from what should be a staightforward logical case of ‘equal protection means equal protection, mother fishers’.

    Far from seeking to devalue marriage,the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.

    Like here. Is the ‘their’ of ‘their immutable nature’ talking about the privileges and responsibilities or to the respondents? I think it’s the the latter, and if so, so what if it’s mutable or immutable? What difference at this point does it make if sexual identity is hardwired or not? Rights are rights.

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  5. Thomas treatment of ‘nobility’ is highly amusing; a rhetorical word play that is unworthy of a first-year debate student.

    no·bil·i·ty n??bil?d?/ noun
    1. the quality of being noble in character, mind, birth, or rank.
    synonyms: virtue, goodness, honor, decency, integrity; More
    2. the group of people belonging to the noble class in a country, especially those with a hereditary or honorary title.
    “a member of the English nobility”
    synonyms: aristocracy, aristocrats, peerage, peers (of the realm), lords, nobles, noblemen, noblewomen, patricians; informalaristos,
    “a member of the nobility”

    As Saul pointed out below, we don’t have a noble class in the US, in the sense of definition 2. So ‘nobility’ must pertain to definition 1, the quality of being noble in character, mind, birth, or rank. Does marriage create noble character?

    I’ve certainly read a lot of bull crap about the ‘civilizing’ impact marriage (to a woman) has on men that leads me to believe that it helps create more-noble character in many men. It’s silly and discriminatory to presume that this is purely the influence of women and not the influence of committed relationship.

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  6. References to the Magna Carta puzzle me. It’s entirely about safeguarding the rights and privileges of the barons against the sovereign, and says nothing (literally nothing) about individual liberty as we understand it today. Nor was it the first step in devolving power from an absolute ruler towards to local nobility; John was an exceptionally weak and incompetent king, and later, stronger kings exercised far more power. There’s nothing in American law that derives from it, unless you make a very strained analogy between king vs. barons and federal vs. state government. What does invoking it mean other than “I went to college”?

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    • I suspect that appeals to the Magna Carta appeal to the idea that everything needs to be rooted in tradition of some sort of not. It is the same thing that has people talking about fundamentals and first principles over and over again and worrying whether there arguments fit within latin rhetorical terminology. Remember that there is a large right-wing movement called the Frozen Constitution or Constitution in Exile movement and they love Thomas much more than they love Scalia.

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    • IIRC, American law does but only insofar as English common law is rooted (way, way, way back in the day) in the Magna Carta, and then we stole English Common law because the folks who handled the Revolution and post-Revolution stuff were, for the most part, really familiar with English Common law so it got absorbed into our system. (It also works. It’d been around a very long time when we copied it and used it to jump start our legal system. A lot of the kinks had been worked out).

      I dunno, though. There’s always this desire in the back of some minds to find some single, unalterable truth and there make your stand, to find a rock to build your whole world on.

      Life’s fluid and every changing, and even your roots have to be adaptable. Find yourself a tree, something solid but that can grow and change. Because that rock? It’ll crack underneath you, in the end. The Tree will bend.

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  7. I haven’t read the whole thing yet since I’m going about my normal Sunday (I’m surprised I’m even here), but just to point something out, Lochner v New York was a maximum hours case not a minimum wage law.

    Still, I’m flabbergasted that the Lochner myth still exists since it’s debunking began about 25 years ago. Talk about making a mountain out of a molehill. I’ll comment on the rest when I get a chance.

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    • The Volokh Conspiracy had a huge set of posts about rehabilitating Lochner, I think because someone on the VC wrote a book.

      Sadly I ignored the whole series and couldn’t even begin to tell you what was being rehabilitated about Lochner or why.

      But if this ‘anticanon’ is actually a thing, I suspect they were really out in the weeds if they’re trying to rehabilitate it.

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      • David Bernstein wrote a book about it, and a really good one. I’m not sure if you would necessarily agree with some of the conclusions, but the one thing of note about his book is that nowhere does he make an argument that the decision was correct.

        He doesn’t have to, and that’s pretty much the point of it. Lochner v New York could have gone either way. Both the majority and the dissent pretty close (i.e. 8 of the nine justices acknowledged the then liberty of contract jurisprudence and agreed with the methodology applied to the decision).

        The question was whether or not the occupation of bakers was dangerous enough to warrant a maximum hours regulation justifiable as a health law under the traditional state police power (a similar law for miners was upheld 7 or 8 years earlier in Holden v Hardy). Both sides submitted facts. The majority went with one set of facts. The dissent suggested that it should have deferred to the facts presented by New York State.

        Where’s the anti-canon? That the Court failed to defer to the majority? If that qualifies a case as an anti-canon, then we may as well add a whole host of civil liberties cases to the mix, including the focus of this post. I have a feeling that we don’t want to go there.

        Was Lochner ideological? I don’t think so. To the extent that there was an ideological connection to the liberty of contract, it would have been to property rights. That would explain the Court’s resistance to minimum wage laws, even when it pertained to businesses affected by the public interest.

        As it is, Lochner was pretty much overturned in 1917, about 20 years before West Coast so to the extent Lochner should be rehabilitated, we can start by understanding what it really represented as opposed to comparing it to cases like Dred Scott and Korematsu.

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        • I had no idea the anticanon was a thing until I read this post, so I can’t exactly defend the decisions placed in it. I only noted that Lochner was apparently placed IN said anticanon.

          And then I mentioned that the VC had a whole series of posts on it, and someone wrote a book on it.

          Honestly, 90% of what provoked my comment was hearing this ‘anticanon’ thing made me finally get the tone of the Lochner posts and titles on VC. I was totally unaware that Lochner had such a history in the legal profession, but learning that put said posts in perspective).

          But I’d be happy to ALSO learn why it’s anticanon, and perhaps if Burt is bored one day he can explain. :)

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      • Yes, and one can make a case that there was an ideological position taken in that case. It was a business affected with a public interest and since Munn v Illinois, price regulations constitutionally valid. The argument against wage regulations is exactly the same against price regulations (i.e. taking of property) so if prices can be regulated, why not wages?

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  8. To me this is the beating heart of the decision in terms of law:

    The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

    Given its source (a conservative justice) and placement (not dictum, not in a dissent, but at the center of the argument in a socially transformative opinion announcing dramatically new law), this is like a thunderbolt of fundamentally important legal theory-in-practice from above.

    The various parts of the argument establishing that marriage (to the person one loves) is fundamental right and that there is no legitimate reason to deny it to people based on sexual orientation are of course also historically important. But they, as many activist-observers have pointed out, are somewhat limited as doctrine to this specific matter, and fall slightly short of announcing a new general framework for the protection of gay rights general (i.e. an explicit categorization as a suspect class and thus the requirement for strict scrutiny to allow a law denying equal protection or due process).

    OTOH, the language I quote (from your quote, though I have read it and re-read it myself repeatedly since Friday) to me seems like it could be the source of at present untold new claims of personal liberty (or for that matter of government prerogatives) that develop alongside changes in public attitude. Though maybe I’m wrong about this, and and this view is long-established in Kennedy’s jurisprudence.

    Note, though, that this view is not formally a rejection of originalism, at least arguably not. It’s actually an originalist claim: that the original public meaning of various phrases in the Bill of Rights and the 14th Amendment (and I don’t know how he’d then deny in much of the rest of the constitution, excepting things like the required number of Senators, ages of officials, terms in office, etc.) were written specifically to be able to accommodate changes in the public understanding of the practical meaning of the kind of liberties they seek to protect. So that laws on the books at the time (whose constitutionality no one thought would be challenged by new constitutional provisions), or other unquestioned assumptions about what these provisions would mean, are absolutely no bar to finding either that 1) these provisions all along protected rights it wasn’t recognized they protected, and the system simply hadn’t uncovered that, or 2) given changes in the reality and understanding of injustice, the practical meanings of constitutional provisions have, according to their original intended purpose, taken on legal meanings they did not initially have. (I think it is more often and rightly going to be 1 than 2.)

    In the short term I think the language establishing marriage as a fundamental right (so long as you only want to marry one person) and barring discrimination in t will probably be that parts of this decision that courts most use to build upon. But over time, I think the language about the Framing generation(s) recognizing that injustice is not always seen in real time, and for that reason entrusting a charter of protecting freedom “as we learn its meaning” will be the more significant source of legal change.

    I found this piece to be helpful in thinking about Kennedy’s opinion and arriving at this view:


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      • Pretty much, yep. That it was understood that the full meaning of these promises of liberty would come into view only over time as the character of the Republic became more known – as opposed to actually changing their meaning and truly new meanings coming into being in the text due to changing facts in the country. That’s the interpretation advanced in that SCOTUSBlog entry, and I would guess it’s what Kennedy would tell us is the basic nature of his point in the passage, as well. I.e., I think he would not tell us “I’m a living constitutionalist now (or always have been),” but that he’d say something like, “Settling initial indeterminacies of meaning over time by illuminating practical meaning in light of greater awareness of how the nation and its conscience developed over time is the real nature of the right kind of originalism.”

        This is, to be sure, a pretty subtle distinction. I’m actually not totally sure that, if he would insist on this view but also insist that it is originalism and not living constitutionalism, that it would matter, to the extent we followed him, whether we then called ourselves originalists or living constitutionalists. I tend to think there is still a distinction, but I’ve been thinking about it all day, and I definitely don’t have it clear for myself yet.

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  9. Since Burt is so fond of Alito’s dissent, I’m going to pick it apart; I think it’s the weak point in Burt’s argument.

    I’ll start with his opening statement on the different outcomes people with differing ideologies might desire:

    The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by
    government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.

    This is a hodgepodge of positive rights that don’t exist; there is no due-process right to not be limited by government regulation (sorry, Libertarians!), there is not due-process right to a variety of government benefits that the government has not actually approved, and as always, I am unclear what ‘postmodern’ actually means.

    There is a positive right to marry; that has been established by legal precedent; and that right includes a slate of benefits (and responsibilities) that were denied loving couples in same-sex relationships. But conflating non-rights such as the relief from regulation or right to benefits that haven’t been made government policy seems an odd thing to me; he’s conflating a positive right (to marriage,) to the non-rights people (including me,) often perceive as rights. You’ve all taught me the difference here.

    Much of the middle goes toward his closing, and the argument here has deep roots of expression; in particular, the fears of retalliation that are often expressed by a group that’s long suppressed another group. Slavery being the prime example; but I’m sure there were some men afearing what women would do (and prohibition is a good example) to retaliate against a history of subjugation.

    Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

    It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws thaat denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

    Being afraid of the consequences of your actions, in other words, is acceptable reason to continue discriminating? Is that what he’s saying? How is this, then, not a violation of the 14th?

    Personally, I find it nonsensical. If you think that others will shame you for this; that’s the price one pays for sticking to ones beliefs. I felt that shame very much at the beginning of our invasion of Iraq; our president said, “you’re either with us or you’re with the enemy,” so calling me a traitor for not supporting the war effort. Quakers shoulder that difficulty in war as they conscientiously object to war, and refuse to take a role in active combat.

    But to avoid dealing with an equal protection issue that is a matter of due process (my brother’s marriage being recognized by another state, for instance,) because of fear of retribution treats traditional-marriage advocates like children, unable to handle the consequences of their expressed desire to continue discriminating.

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  10. This is an outstanding piece on multiple levels — thanks for writing it.

    Off on a tangent, I’m taking small wagers on how many of the Justices who were all about democracy in their dissents in this case will be having no truck with democracy and the states as laboratories and that sort of thing tomorrow in Arizona v. Arizona.

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  11. I’m disappointed that this was a 5-4 instead of, oh, a 7-2 decision.

    To fall back on the whole “Marriage in the Eyes of God” vs. “Marriage in the Eyes of the State” distinction, it seems to me that Thomas is kinda correct with what he says about marriage and that’s fine as far as it goes, but you can’t really go from there to “and that’s why it’s okay for this group of folks to change the name of ‘surviving spouse’ on a death certificate”.

    At the end of the day, the discussion is over whether it is appropriate for the gummint to say to these guys “yeah, we really only want differently sexed people signing this line on the government form”.

    Someone claiming that they have the right to sign their name on that line is a fairly straightforward rights claim. The argument that it is right and proper for the government to say “okay, it’s blank then” is one that should have the burden of proof rather than the one that says “I sign my name here on the surviving spouse line.”

    It’s a pity that so many justices spent more time on the rights of the government than the rights of the citizen in question.

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      • One thing occurs to me about this distinction.

        For many years, a cadre of activists, or at least advocates, have held up marriage as an example of why there cannot — CANNOT — be such a thing as separation of church and state. You need both to work in harmony to have marriage, you see.

        Those folks are now finding themselves at the very forefront of the response to Obergefell saying “Please keep the state out of our churches!”

        This, Alanis, is actual irony.

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    • I don’t get this one either.

      “Well, sure they can live together. I don’t like the idea, but it’s not like it makes any sense to call the cops on them. And if they can find a minister to do a ceremony, it’s not a church I’d belong to, but whatever. And if they call themselves married, well, they’re not, but my brother-in-law calls himself a mechanic and he doesn’t know which end of the wrench to hold.

      But filing joint income tax? That’s going too far!”

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  12. This was highly informative, and eagerly awaited! I an conflicted though about your reading of Thomas. IF we take the definition of dignity to be “the state or quality of being worthy of honor or respect” then I think what Thomas is saying is that Solomon Northup did not stop being worthy of respect when he was kidnapped into bondage, or regain that quality 12 years later after he was freed. That quality was embedded in him irrespective of what rights he was granted by the government. Certainly the government did not actually grant him the state of being respected as a human being during his bondage, but that does not change the fact that he was always worthy of it.

    Dignity is a slippery term, and I appreciate the way Kennedy uses it to capture a complex legal, cultural, and personal status. But the down-side of slippery terms is that others can bend them to their own ends. I think that’s what Thomas is doing here, and though it would have been better if he had genuinely considered Kennedy’s definition before using his own, I didn’t read his interpretation as particularly galling or offensive.

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    • You know, Thomas has a vague outline of an actual point in that passage. But it’s a very seriously botched argumentum ad Hitlerum — there are places you don’t go in rhetoric unless you’re dead certain you know why you think you want to go there. By accusing the majority of poorly defining “dignity” and then using that term to describe slaves and prisoners, Thomas suggests that his concept of “dignity” is indeed very different from what the majority is talking about: at the expense of a substantial hunk of credibility.

      Some here have suggested that all that matters is Thomas’ internal logic in his reasoning, and suggest that he ain’t that bad, at least when viewed through that lens. While logical coherence is a necessary element of a good legal opinion, it is not a sufficient one. Thomas’ opinion is not so bad from a logic games perspective. But does he point the way to justice? (Whatever that term means to you.)

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      • It’s also odd to see Thomas start off

        Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships.

        We know what Thomas’s answer was to people who did claim that: it’s unfortunate but not unconstitutional.

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      • I think Thomas has more than the outline of a point here: I tend to side with him on what is the best understanding of the term dignity. There is great human dignity in suffering while being denied basic rights to challenge one’s condition. How can we not understand Justice Thomas’ inclination to look back at the legal status of slaves and not see human dignity in their suffering and their struggle? I can certainly see where he would have a fundamental reaction to Kennedy’s understanding of dignity being so dependent on a government-granted legal status. (So many different terms. I just realized I may be mixing all this up with the role of ‘nobility’ of all this. I have to agree that it would have served Kennedy better to try for a bit more economy of concepts in this. Anyway.)

        I also don’t think that it reflects well on Kennedy to so clearly buy in to such a strong notion of the dignity-lending role of marriage for society’s view of romantic couplings. It’s clear that Kennedy really subscribes to that idea. To which I say: I think there is dignity in any committed, long-term relationship. (But then I could see my deviant self finding dignity in a one-night stand under the right conditions, too.) What does this say about how Justice Kennedy views romantic couples who don’t have and don’t seek the status of marriage?

        It’s a question that stands out to me, but it’s not really important to Kennedy’s argument. A judge in Kennedy’s place need not endorse this dignity-granting role of marriage: all he needs do to include it in an account of the role marriage plays in society is to recognize the role it is playing.

        I’m not sure I agree, though, even with that. Perhaps I’m wrong, but it seems to me more like what marriage grants to a coupe is status and acceptance. It seems to me that preserving dignity depends more on the subjective determination of those who stand to lose it. You retain you dignity by suffering slings and arrows with grace (r something like that). That seems to be Thomas’ point. So if I were AMK, I might have chosen other terms here. Status; acceptance, something like that.

        The question would then be, if those were the terms he had chosen, would the decision have had less force, or indeed would a threshold for what constitutes a fundamental right then not have been met? Does a law (which violates equal protection we should point out) that denies a group status or acceptance, but perhaps does not deny them dignity, deny them due process of a fundamental right? Or are states not required to guarantee everyone status and acceptance, but cannot deny them dignity? (I.e. is the particular term dignity important in this ruling, or could Kennedy gone of a term a bit closer to the social quantity that marriage really confers here?)

        Regardless, I think this is the kind of discussion that is a reason that some analysts on the pro side wish the decision had been more thoroughly based in equal protection proper, rather than the “synergies” between equal protection and due process. (Which is not to say that JAMK is wrong to take notice of those synergies.)

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  13. That’s because I’m pretty sure that y’all are smart and can handle the real stuff, not watered-down pablum or the shadows on the wall left over after partisan lensing. That’s right, an Allegory of the Cave metaphor, because I roll that way, even on the Shabbat.

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