Lawyers all around the country are drooling like a bulldog eying off a cat with no legs at the thought of yet another blistering Scalia dissent on gay rights. So much fun.
As I see it, the Supreme Court should go 6-3 for the right to marry, Kennedy delivering the majority judgment. Marriage fundamental right, laws fail at any level of scrutiny because duh, laws invalid under the 14th amendment, compulsory fuck-you Scalia citation, rousing ending, bing, bang, boom. Where’s the cake and champagne?
I just can’t see Kennedy voting against or going for weasel words to limit the effect of the judgment. The steady advancement of gay rights in the Supreme Court most ensures Kennedy’s place in the history books and (more importantly) the law texts. Lawyers do love to have their name on a precedent that’s going to be cited a hundred years from now.
This is not in any way to suggest mercenary intent. Kennedy’s judgments in Romer, Lawrence and Windsor clearly indicate that gay rights are something he genuinely and passionately supports, and has patiently and firmly worked to expand.
See Romer in 1996:
The primary rationale the State [of Colorado] offers for Amendment 2 [prohibiting any laws to protect homosexuals against discrimination] is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. “[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . .” Civil Rights Cases, 109 U.S., at 24.
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.
See Lawrence in 2003:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
See Windsor in 2013:
DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
As has been noted in several recent District Court judgments which I seem to recall reading or at least dreaming up, if you stir up the “State” and “federal” references in that paragraph and season it with a bit of Loving, you’ve basically written the final paragraph of Kennedy’s upcoming judgment in Obergefell v Hodges et al, et al for him.
It boggles belief that Kennedy would sully his legal reputation by overlooking or distinguishing his own judgments in Romer, Lawrence and Windsor in order to decide that States can go around to gays’ houses and poke them in the eyes with a stick if they ask to get married, not least due to the threat of Ruth Bader Ginsburg calling him a softcock in the lunch room for the rest of his career, and generations of law students thinking he’s a bit of a dick. I’m looking at you, Byron White.
I think Roberts will vote with the majority, because he is a man who always has both eyes, two soft hands and a buffing rag on his reputation. Barring accidents or Tony Scalia going berserko with an icepick, Roberts has another twenty or thirty years as Chief Justice. He knows that freedom to marry is coming, sooner or later, and he’s not going to miss his share of Kennedy’s reflected glory or allow the Roberts Court to hand down a Plessy v. Fergusonesque fuck-you-with-our-state’s-rights to the faggots, which the same Roberts Court is then going to have to overturn ten years from now, when gay marriage is legal everywhere but one or two bumblefuck places like Kentucky and New Hampshire, in a 7-2 decision written by Justice Ginsburg (Chief Justice Roberts and Justice Scalia dissenting) which consists only of the words “Motion granted because Anthony Kennedy and John Roberts are, and were, softcocks.” How embarrassment. How humiliation.
Besides, Roberts has more important matters to devote his attention to like gutting Obamacare and giving corporations the right to vote and bear children.
I’d love to see an RBG concurring judgment consisting of just a ten minute video loop of her reading out the best bits of Scalia’s dissents in Lawrence and Windsor and laughing her arse off, but I suspect she would not want to step on Kennedy’s moment of glory in any way, because RBG is class.
Scalia, to pick a counter example entirely at random, is not class, being, as he is, an arsehole. Scalia is going to be livid. He will rant. He will rave. He will pontificate and huff and puff and slaver about the coming dark days of people marrying hamsters and genderless bathrooms*, until his head explodes. It will be glorious, and a little bit like this:
* I’m not sure how one goes about marrying a genderless bathroom, or indeed any kind of room, but I’d give you fair odds that Brian Brown or Mags Gallagher will be railing against it sometime soon.
