June 26, 2015

#GayMarriage: 4 #SCOTUS dissents, 0 new arguments

Four Justices, four vacuous opinions
Unfortunately, after writing the 6-3 majority decision yesterday on Obamacare exchange subsidies (and seeing fellow justice Kennedy join him, reversing his original vote opposition to Obamacare), Chief Justice John Roberts acted a bit like Antonin Scalia today.
Roberts from bench: "Today 5 lawyers have ordered every state to change their definition of marriage. Just who do we think we are?"

Gee, just yesterday, Scalia was saying that, in essence, "6 lawyers have ordered every state to change their definition of the word 'state.' Just who do we think we are?" 

On this case, each of the four dissenters — Roberts, Scalia, Alito, and Thomas — wrote his own dissent. They can't even agree what's wrong legally with gay marriage, just that they don't like it. (Yes, I know they concurred in each others' dissents, but the fact that four separate dissents were written still shows they disagree with each other on the primary reason gay marriage is wrong.) 

More parsing of the dissents, from the full opinion, reveals just how vacuous they are.

Roberts was partially joined by Scalia and Thomas. If "this Court is not a legislature" is the best opening argument you can find for tap-dancing around the 14th Amendment, and ignoring the obvious parallels to Loving, you're weak tea indeed. And, to extend that parallel and refute your next sentence, no, on Loving, and in many other cases, the Court has indeed said just what the law should be.

Later, his dissent tries to explain away Loving parallels, noting that previous gay/lesbian petitioners raised that and were rejected. Yeah, well Loving cases themselves were once rejected, both interracial marriage, and just interracial marriage. That's why Think Progress claiming that Roberts' dissent is more bad news for conservatives is tendentious at best.

Beyond the above, per Roberts, I could almost extend his argument to say stare decisis on Plessy v Ferguson. Of course, Brown vs Board of Education trumped Plessy.

Next, he goes to a traditionalist-presentist stance, invoking the old "marriage for conception" argument. This has repeatedly been refuted.

Scalia and Thomas then added their concurring dissent with the this claim gay marriage is a "threat to American democracy." For Scalia, at least, I get the feeling that this was more important. And, by his logic, then, the Supreme Court IS supposed to be a legislature, bowing to the tyranny of actual, or perceived, or finger-in-the-wind tested majoritarianism.

The final laugh is the pair them, especially Scalia, calling out Kennedy for "hubris."

Thomas, to whom Scalia concurred, then tried to pull an economics rabbit out of his hat, claiming that marriage is a "government benefit" that's neither a right nor entitlement, ignoring the IRS, state tax codes, etc. Fine, then, your actual argument should have been to overrule any government benefit for ANY marriage.

He then, without irony as a minority, chides people for reading too much into the Due Process clause of the 14th Amendment.

He ends with the old "religious liberty" argument, as big a red herring as any.

Alito then brings in the "states rights argument," which in turn ignores the "full faith and credit" clause" of the Constitution itself. Like the Chief tap-dancing around Loving, Alito does the same here.

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