I don’t have time right now for a comprehensive analysis like with
the Obamacare case. So here are some quick thoughts and I may follow up
with more details at a later time.
1. I agree with the result. I think the Constitution
does protect a right to same-sex marriage. And I think the result in this
case is the natural extension of existing precedent. There were multiple
analytical bases to get to this result, all of which I find persuasive.
2. However, I think the issue is a close call. Thus, a
5-4 result is both unsurprising and justified. In my view, the majority
is correct, but by a small margin. The dissenters are on very firm ground
in disagreeing with the result, and even firmer ground in raising concerns
about Kennedy’s interpretive methodology.
3. Kennedy has become quite a master at the use of sweeping
language. Much of what he wrote is beautiful. But beauty needs to
be backed up with analytical rigor. And in the latter department,
Kennedy’s opinions is lacking. Not like in Lawrence v. Texas (the
2003 sodomy case), but it is still too all-over-the place. In addition,
Kennedy appears to have finalized his rejection of the long-established
framework for addressing due process and equal protection issues (at least in
“family privacy” cases). I wish he had been more explicit about the fact
that he was doing so.
4. Roberts’s dissent is very solid. He is a terrific
writer. And much of his analysis is excellent (though he does overstate
the case in a number of places).
5. As I said above, I do think the dissents make important
points about the dangers of Kennedy’s sweeping language and the interpretive
methodology it suggests. However, I ultimately think their worries for
democracy are somewhat misplaced. The Court will never go as far as they
fear, even with Kennedy’s broad rhetoric available as a tool. Moreover,
the result today is not as extreme as Roe, which remains at the outer boundary
of “substantive due process”—the source of the constitutional right to
privacy/liberty/autonomy. But the dissenters’ concerns are certainly
understandable. An honest reading of Kennedy’s opinion could easily
justify some pretty dramatic results. Nonetheless, the better reading is
a more circumscribed view of constitutional liberty. In other words, Kennedy’s
sweeping language must be read in the context of the history of “family
privacy” cases—marriage, contraception, abortion, initiate relations.
Limiting his language to that domain, today’s case does not create quite the
danger that the dissenters contend. Again, though, there are legitimate
bases to stretch the case beyond family privacy, and then the dissenters fears
could, in theory, be realized.
6. Some news reports have questioned how Roberts can be “on
both sides” in these two cases--the Obamacare case and this one. But
there is nothing contradictory about what Roberts
did. In each case, he took the side of judicial restraint based on
extremely plausible interpretive arguments. Roberts may be wrong in one,
both, or neither of the cases. But his approach was deeply principled.
7. I think this is a very good day for constitutional
liberty generally and a truly great day for GLBT rights specifically.
No comments:
Post a Comment