#GayMarriage and the false hopes of John Roberts vs Anthony Kennedy

By now, everyone this side of Outer Mongolia with an Internet connection knows that the U.S. Supreme Court just ruled that gay marriage is the law of the land.

And, Anthony Kennedy wrote a pretty broad opinion, per Scotusblog:

The opinion seems to go out of its way not to state a standard of scrutiny. Instead, it says, "It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." That's page 22.

It elsewhere notes Kennedy's focus on "dignity" and "autonomy."

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?" 

Per some blogging friends, his Obamacare rulings may simply be as a Big Biz Republican vs a Tea Party Republican.

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. And, I don't need to immediately read through each of the four dissents to note that four separate dissents is the main talking point.

Meanwhile, Texas' Lite Guv, Dan Patrick, has already contacted Texas "Attorney General" Ken Paxton to ask if county clerks can ask for personal religious exemptions in refusing to issue marriage licenses to gay or lesbian couples.

Back to SCOTUS and the main theme.

I should have known better on Roberts, though. Yesterday, as I blogged, while he kept the court on O-care, he refused to agree with Kennedy that "disparate impacts," even if not intentional, were grounds to sue on fair housing issues.

That said, a bit more parsing of the dissents, from the full opinion. 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.

Kennedy, on the other hand, IS evolving on some issues. Last week, in an under-the-radar issue, on a case about jury selection issues, he moved beyond that to raise major questions about solitary confinement in prisons. This is something that deserves more airplay:

In a powerful five-page concurrence in Davis v. Ayala, Kennedy criticized the widespread use of solitary confinement in American prisons, which he said affected at least 25,000 inmates in the United States. … 

 “Research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price,” he summarized. 

 Kennedy’s critique of solitary confinement in Davis came without warning or fanfare. Davis was not a case about solitary confinement at all; the Court had accepted it to address peremptory challenges during jury selection. … 

 Solitary confinement is a new battleground for the Court’s second-longest serving justice, but not a surprising one. Few justices on the Supreme Court have wielded the Eighth Amendment as expansively as Anthony Kennedy. … 

 Although Kennedy addressed solitary confinement specifically, he also invoked mass incarceration in general and the national debate surrounding it. “There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular,” he noted. Perhaps hoping to reach this broader public, Kennedy wrote without dense legal jargon. … 

 But Kennedy’s concurrence also seemed to be directed toward the American legal community, whose disengagement from prison issues he has previously lamented. “In law school, I never heard about corrections,” he told a congressional hearing on March 23, two weeks after the Davis oral arguments. “Lawyers are fascinated with the guilt/innocence adjudication process. Once [it] is over, we have no interest in corrections. Doctors and psychiatrists know more about the corrections system than we do.”

With people like Chelsea Manning put in solitary at the whim of our constitutional law scholar president, we need to talk about this more.

Now, tying this to another issue on radar screens: Abortion.

Kennedy, in my opinion, will never become more "liberal" on abortion issues. And, Hobby Lobby shows that he's still some kind of conservative Catholic on contraception.

However, I am halfway confident that he'll maintain "balance tests" so that he never supports going back before Roe.

And, him being the swing vote on a "Stay" saying Planned Parenthood et al can keep their clinics open pending SCOTUS hearing the case on Texas' abortion law may be a "tell" on what might be a bright line for him.