Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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130 Responses

  1. Avatar veronica d says:


    Forgive me for being terribly ill-informed about things, particularly my own issues, but is this it? Is this really it? Did we really totally win?

    It almost seems — well, we get some many drips and drabs of victory, here and there, little dashes. Is this the big one?Report

  2. Avatar Dave says:

    Happy day!!! Screw that. I’m now a wanted man in 50 states. My traditional marriage is going to be destroyed by the hordes of gay men that are now collecting outside my house seeking my hand in marriage.

    Thank goodness for the Second Amendment and to hell with the Supreme Court and it’s unprincipled judicial activism and bench legislation!!!Report

    • Avatar Richard Hershberger in reply to Dave says:

      Sadly, it seems not to work that way. Here in Maryland, SSM has been the law of the land for several years now. Yet no guy has so much as hit on me. Indeed, I haven’t been hit on by a guy in over a decade. This correlates with my getting married to a woman. I prefer to assume that since then I have exuded ‘married hetero’ vibes, since the alternative explanation is that I no longer Have It.Report

    • Avatar DavidTC in reply to Dave says:

      My traditional marriage is going to be destroyed by the hordes of gay men that are now collecting outside my house seeking my hand in marriage.

      Only gay *men*? And now we see how the liberals are the real sexists.

      This is yet another example of the sexist homosexual agenda, denying opportunities to gay women. They should have just as much right to gay marry men as gay men do.Report

  3. Avatar Saul Degraw says:

    Choice quote:

    “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.”Report

  4. Avatar LeeEsq says:

    This is going to go down as the Loving v. Virginia of the LGBT movements. It has been a very good two days for the United States thanks to the Supreme Court. Even if you dislike same-sex marriage or the ACA, you probably do like the Constitution and democratic government. The decision to create nation-wide same sex marriage and uphold the ACA affirmed the Constitution and the norms of American government.Report

  5. Avatar zic says:

    I don’t do twitter, but watching the twitter feed on the side bar is pretty awesome right now.Report

  6. Avatar Burt Likko says:

    Also, there was a second decision: Johnson v. United States. Yesterday, I predicted “petitioner prevails against the Government, 7-2, majority opinion by Scalia, dissent by Sotomayor joined by Kagan.”

    I got the result and the majority author, right but the breakdown wrong. “SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. KENNEDY, J., and THOMAS, J., filed opinions concurring in the judgment. ALITO, J., filed a dissenting opinion.” Scalia majority, 6 (+2) to 1, with Alito, of all of the Brethren, the lone dissenter. “Ex-con with a gun” is still a crime, but not a valid basis for enhancement of a sentence.

    But that case seems to pale in importance to Obergefell v. Hodges.Report

    • Avatar Oscar Gordon in reply to Burt Likko says:

      Not as big of a deal, but still pretty important given that it damages a favorite tool of prosecutors to make things even more miserable for people who don’t always deserve it.Report

  7. Avatar greginak says:

    SCORE! A good week all around i think.Report

  8. Avatar Burt Likko says:

    Also, I’m going to be sorely challenged to digest the opinion. This is really Kennedy’s best work to date:

    That history [of gender-differentiated 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.

    Lawyerly, respectful, firm, and elevated. Classic Kennedy. Really fantastic legal writing.

    Also, there is so much interplay between the majority opinion and the dissents that it’s like unraveling a cat’s cradle to reconstruct the arguments that must have been going on in chambers.Report

      • Avatar Burt Likko in reply to Saul Degraw says:

        Yeah, I think I have to at least address the principal dissent in a case digest. But there are four dissents here, and it’s hard to point out which is the “principal” of them. Each one is remarkable for its own reasons.Report

      • Avatar Burt Likko in reply to Saul Degraw says:

        Just got through Roberts’ dissent. I do believe my former very high degree respect for the Chief has fallen a point or two. Going to the Lochner well three times? WTF!

        My colleague just told me “Wait until you get to Thomas.” Not looking forward to it.Report

        • Wait until you get through Scalia’s.

          I would hope that however many points CJOTUS lost with you over this opinion, Scalia has lost more over this week.Report

          • Avatar nevermoor in reply to Michael Drew says:

            The three jokers don’t have any points after King.Report

          • @michael-drew

            What’s wrong with the logic of Scalia’s dissent, if anything?Report

            • This, principally:

              “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.”

              But the greater problem is the tone and tenor. I believe Justice Scalia has become a mortifying embarrassment to this country in the way he conducts himself rhetorically on our highest court.

              And he’s aware of it:

              “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.”Report

              • Not clear to me why the quoted sentences indicate a logical defect.

                As for “tone and tenor,” I suspect one’s reaction to Scalia’s style will greatly depend on the decision one prefers – so a subjective judgment. That’s why I refer to his logic. I think there is a problem with the logic of the majority opinion, which Scalia gets at, and which is evident in the passages OGE Likko uses above as an example of Kennedy’s “best work to date.” Addressing the logical problem, however, causes discomfort to those strongly committed on the political or substantive question, a group from whom Scalia pointedly seeks to separate himself.Report

              • Few if any of those states allowed marriage between blacks and whites, and no one doubted the constitutionality of that. If Scalia’s argument holds, Loving vs. Virginia was equally invalid.Report

              • I believe that Scalia’s views on Loving v Virginia go to strict scrutiny. He accepts that any law meant to preserve white supremacy invites the latter, under Equal Protection. He does not accept that the same argument applies to to homosexuals in relation to marriage. Discussed here: See comments from “Jiffy,” at #10, for a Scalia-sympathetic rendering.

                Apparently, if not for the 14th Amendment, a consistent argument from Scalia’s perspective might be that anti-miscegenation laws could and should also properly be left to the states or the democratic process. Even with the 14th Amendment, I suppose it’s conceivable, perhaps in some speculative scenario, that an anti-miscegenation law could survive strict scrutiny.

                It is certainly possible in Scalia’s world for the democratic process to reach decisions which large numbers of people, including Scalia himself, may dislike, and with justification, but which the Court cannot and should not seek to overturn, but my purpose here isn’t to defend Scalia in general terms. I was asking what was wrong with his dissent in this case. That, if you were right, his reasoning ought to prevent him from approving of Loving would not be a defect in his argument as such, but an implication to be dealt with as a separate matter.Report

              • It’s much simpler that that. If a method of reasoning (in this case, that the opinions of people who created a law on its possible consequences) is sound, it will lead to correct results. Since it leads to the conclusion that Lovnig vs. Virgina was decided incorrectly, something Scalia himself disagrees with, it is not sound. QED.

                Which is unsurprising. Scalia doesn’t really think he has a one-sentence dismissal of the majority opinion; he’s just channeling his inner Rush Limbaugh.Report

              • If a method of reasoning (in this case, that the opinions of people who created a law on its possible consequences) is sound, it will lead to correct results.

                “Correct” results are not the same as “welcome” results. When correct reasoning based on the law leads to unwelcome results, we have the option of seeking to change the law. Scalia is disturbed by the resort to the alternative of seeking to change what we mean by “correct.”Report

              • Keep going. Was Loving vs. Virginia correctly decided? If so, the method fails.Report

              • @mike-schilling
                When you say “correctly decided,” do you mean to ask whether I like the result or do you mean to ask whether I like how the result was achieved? I’m not able to offer an opinion on the second question that I would think anyone else ought to find interesting. I can however argue in favor of the distinction. Surely you understand that it exists. I’m not sure whether you accept that it deserves to be taken into consideration.Report

              • The latter. (I do not for a minute doubt that you like the result.) And I’ve never heard any member of the Court, past or present, argue otherwise. It was, after all, a unanimous opinion,Report

              • Well, I’ve already said that I see no reason why anyone should be interested in my opinion on the second question. I’ve never made a study of the case.Report

              • The issue is not your opinion, but Scalia’s. Unless he considers L. v. V. to have been made on improper grounds, something he’s never in any way indicated, his reasoning fails as soon as it’s applied to the obviously analogous case.Report

              • He would dispute that the analogy is sound and instructive, for reasons discussed at the link I provided earlier, and as I’ve touched on in other comments here and as Michael Drew has also discussed.Report

              • I’m sure he would dispute it, but that argument is irrelevant. Wither you can fully judge the application of a law by what the people who passed it thought it would do, or you can’t. Answer: you can’t.Report

              • Avatar Saul Degraw in reply to CK MacLeod says:


                Do you think there is any logically sound argument that Scalia would have joined in favor of SSM?

                I am not much of a betting man. My bet on this would be no though.Report

              • Avatar CK MacLeod in reply to Saul Degraw says:

                That question, OG Degraw, presumes the possibility of a “logically sound argument… in favor of SSM” – so amounts to another version of the same fallacy (petitio principii) that Kennedy and most SSM proponents rely upon, as a matter of logic or rhetoric. That the logic would be unsound in this way would not make the position unsound – one might still support SSM for reasons other than logical or legal-logical necessity. Scalia acknowledges as much, and argues, of course, that these are precisely the kind of decisions that the Court should see itself as barred from making, not least for the sake of preserving its special role in our system.Report

              • Avatar nevermoor in reply to CK MacLeod says:

                The logically sound argument is simple. Civil marriage is a government-run benefit program that provides significant benefits to those qualified to take advantage of it. Some of those are financial (tax breaks, access to employer benefits, etc.), some are purely legal (access to hospitals, adoption rights), and others are founded in dignity (e.g. civil union = separate but not-really-equal). The government is granting those benefits to some people, but not others, based purely on the person’s gender. Which is the opposite of equal protection, and for no compelling state interest (all the arguments about why heterosexual marriage deserves state support-like procreation-break down because the state ALSO allows heterosexual marriages that fly in the face of those interests).

                There is, of course, a strong religious interest in that discrimination (at least for certain belief systems), but it should be obvious to everyone that governments cannot claim an interest in enforcing religious doctrines purely for that reason.

                All that said, this is clearly the “judicial activism” decision, in much the same way that the dissent in King wanted to be activist. Homosexuals are not a protected class in federal law (though gender is), so the court has certainly created a new right in the narrow sense. That said, the SC received a live dispute challenging the constitutionality of some laws that treated people differently based on their gender and/or the gender of those they loved and had no real choice but to reach the merits. And, from my view, got it right when they did so.Report

              • Avatar gregiank in reply to nevermoor says:

                Actually civil marriage is mostly a standardized form of a legal contract. Now all people can use this standard type of contract to get the benefits of marriage. There are, as you note, some extras like tax benefits but those are legislated. But civil marriage is just a contract that the gov has set up and will offer you a court to argue in if need be.Report

              • Avatar nevermoor in reply to gregiank says:

                I’m not sure what this refutes. It’s a contract that conveys rights and privileges that was only offered to some Americans but not others on account of their collective gender.Report

              • Avatar CK MacLeod in reply to nevermoor says:


                I don’t believe the majority accepts or would adopt your arguments regarding what you call a “collective gender,” though I do think that the majority pursues similar highly dubious logical or pseudo-logical constructions based on “equal protection.” I hope you will forgive me, however, if I stop here, and say that I am not interested in starting another debate about marriage equality in the OT comment threads.

                Maybe after OG Likko has published one of his usual expert and engaging critiques of the argumentation, I’ll be drawn into the debate again. My initial question to OG Drew was as to the flaws, if any, in Scalia’s logic. Scalia’s dissent is written with demonstrative lack of interest in the underlying matter, though obviously must address the views of the majority as stated. His logic is also a counter-logic or a claim of better logic, and can, I think, be assessed as such.Report

              • Avatar Michael Drew in reply to CK MacLeod says:

                Just as there was doubt about whether the People decided with the 14th Amendment to prohibit the limitation of marriage to same race couples owing to the widespread persistence of such limitations for decades and the persistence of them for a hundred years after enactment, so there is doubt whether the People decided to prohibit the limitation of marriage to opposite-sex couples with that Amendment owing to the the widespread persistence of such laws for a hundred and fifty years after enactment. This is notwithstanding any disanalogies Scalia insist upon between these issues.

                Those (dis)analogies are properly part of an argument about whether in fact the 14th Amendment gurarantees the right to marry a woman of his or her choice to every man and woman. The problem with Scalia’s argument is not that he has the position that those disanalogies how that one of these rights exists and the other doesn’t. The problem is his use of the existence of these laws to show what was “decided” by “the People” at the time of enacment. Hardly was there any more thought at that time that the 14th Amendment disallowed the limitation of marriage to same-race couple as the limitation to opposite-sex couples. Scalia is simply granting himself an assumption about what it is there is “no doubt whatsoever” the People did or didn’t decide at the time of the enactment of the 14th Amendment, and thus declaring that there ned be no further argument about it. This when he has a different stance about a similar situation with regard to an analogous right concerning the same Amendment – again, even if there are disanalogies between these arguments. The part of the analogy that relates to how he seeks to resolve “these cases” by appealling exclusively to the expectations of contemporaries holds perfectly. There is just as much doubt that the People decided in 1868 to prohibit the limitation of marriage to couples of the same race as that they decided not to prohibit the limitation of marriage to opposite-sex couples.Report

              • Avatar Mike Schilling in reply to Michael Drew says:

                That is, Scalia, who insists that he’s sticking to the Real Constitutionn while the other side makes shit up, is making shit up.Report

              • Wait until Monday and Arizona v. Arizona. There ain’t a word about citizen initiatives in the Constitution, so they’re all going to be making sh*t up.Report

              • My money is on Arizona, though it might be very close.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                I just want to note that I never claimed a flaw in Scalia’s logic. I’m not saying there isn’t one, but my claim was just that I hope that this week’s dissents cause a greater decline in Br. Likko’s esteem for Scalia than does Roberts’ dissent in King cause a decline in his esteem for Roberts.

                I understand the distinction Scalia argues for here – it’s basically the “homosexuality is a behavior and therefore can be chosen; race or gender are not elective” argument, combined with the convenient fact that Virginia’s old law happened to simply baldly state its inention to preserve “white Supremacy,” making the case that the intent of the law in Loving was race-based discrimination, whereas in Lawrence it was some ostesnsibly not-discrimination-based reason to want to regulate homosexual sexual behavior.

                To me the problem with the quoted passage is that it betrays a profoundly impoverished view of how constitutional meaning develops over time. The idea that because no one at the time thought the 14th Amendment would mean that there is an equal protection right to SSM and it’s that simple is basically sophomoric as a matter of legal analysis.

                There is simply nothing dispositive whatsoever about people not suspecting the equal protection clause would have that meaning at the tiem that dictates that it doesn’t. Views in society at the time were not remotely configured so as to test the question. Maybe such a meaning inhered in those words then, and maybe it didn’t, but no mattter what all of the legal meanings implied by the text of the 14th Amendment were, by universal understanding, going to hashed out and debated in courts over the course of decades. That’s how this machine works.

                So why shouldn’t we find out that a right to marry a person of the same sex is contained in that language fifteen decades later? No reason that is dictated by the fact that no one at the time expected it to be so. No one at the time knew exactly what rights inhered in the 14th Amendment, just as no one at the time of enactment any clause of the constitution knew exactly what rights inhered in any clause of it. We quite truly have to enact it in oder to find out what it means (pretty far in the future, too). People had sometimes more but more often less accurate expectations of what those meanings would turn out to be in different cases, but no one at the time of enactment could ever be dispositively “right” about what the meaning of a clause of constitutional text would be a hundred years hence.

                That’s the logical flaw in the quoted passage I provided. It’s sophomoric, reductive, lazy – and wrong.

                And as to tone, no, it’s not about being on the other side of the issue from him. I’m on the other side of the issue from Alito on everything too, but I am consistently impressed with his seriousness of purpose and basic respectfulness of language in his opinions. Scalia has gotten to the point where he seems to think he’s senior enough, or great enough, that the standards of basic professionalism for a judge shouldn’t apply to him. There is no accountability for any of thos Justices, and no one takes fuller advantage of it in engaging in conduct unbefitting a holder of such an esteemed chair in our system as does Scalia.

                He has big britches, and he’s still too big for them.

                Oh well. I won’t say he has to go, because he doesn’t. Which is the point.Report

              • Avatar zic in reply to Michael Drew says:

                I might be way off, but I thing a good analogy here is The Clean Air Act; when it was written, carbon was not considered a pollutant; but it regulated the things that we come to realize are threats to air quality, including carbon.

                The intent is the goal; not the specifics of the intent when it was specified.Report

              • @michael-drew

                I don’t think you have properly described the use that Scalia is making of the observation on the universality of OSM at the time of the writing of the 14th Amendment. He is specifically NOT excluding SSM from possible inclusion in the institution. Your argument, or argument about his argument, would apply if his argument was that the Constitution or the 14th Amendment must be thought to define marriage once and for all as OSM, since no one in 1868 had any inkling that someday someone might want to re-define it.

                What Scalia is arguing against is the notion, which he finds absurd, that the 14th Amendment implies a necessary removal of the issue from democratic political decision-making or normal legislative processes, thus his concluding sentence: “Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.” He is arguing against a new “prohibition,” not in favor of any old one except the general presumption of a prohibition on prohibitions – aka political freedom, or in other words a deferral to the democratic or normal legislative process or “public debate.” For him, the case remains open or should remain open. For the majority and those celebrating its decision, the case is closed.

                I also don’t think you have correctly described Scalia’s views on the role of “orientation” in relation to the theoretical equal protection right to marry. A person attracted exclusively to members of the same sex can still marry someone of the opposite sex. We, of course, generally presume that the resultant marriage will not be a personally or emotionally fulfilling marriage, and the SC majority – along with, I think mistakenly and against their own interests, many on the other side – has in fact sought to define marriage as an institution of personal and emotional fulfillment exclusively. It is a feature of the contemporary scene or of our times, but not a universal feature of human societies, that we imagine the alternative as something almost or actually horrific.

                The last is an aspect of the circular argument or petitio principii problem. If the underlying question is the definition of marriage, then to enter into the discussion assuming a particular definition is not to enter into a discussion at all. When Kennedy writes, “Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities,” he is presuming that the “marriage” that “petitioners seek” is or can be the same “marriage” that traditionalists seek to protect, or that “marriage” is exclusively what the petitioners say it is – an institution for personal and emotional fulfillment of individuals in exclusive relationships of two, without regard for gender – and not what traditionalists say it is or also is (and must be).

                If you were to accept the traditionalist definition, then, indeed, same sex couples would be eternally barred from marriage or what we call “marriage,” but complaining about that fact would be like complaining about the force of gravity as an unfair constraint on our need to be able to leap over tall buildings when they are in the way.

                This is not an argument for the traditionalist view, or in favor of another version of the same non-discussion, only with opposite presumptions.

                The personal emotional fulfillment – or sense of well-being and acceptance – of citizens may certainly be taken as a valid goal of government, but it is not the only goal of government, or the only way to define the welfare of citizens. It is arguably a very narrow view of “life, liberty, and pursuit of happiness,” though one that, I suspect, many of our fellow citizens have lost the ability to recognize as narrow or even conceivably diminishable.Report

              • Avatar DavidTC in reply to CK MacLeod says:

                he is presuming that the “marriage” that “petitioners seek” is or can be the same “marriage” that traditionalists seek to protect, or that “marriage” is exclusively what the petitioners say it is – an institution for personal and emotional fulfillment of individuals in exclusive relationships of two, without regard for gender – and not what traditionalists say it is or also is (and must be).

                To repeat for those who haven’t been in this discussion before, because CK often seems strangely reluctant to actually *state* what this ‘traditionalist’ view is, here it is: A major purpose (If not the only purpose) of marriage is to create and raise children.

                And the courts ignored that argument because what ‘traditionalists’ say is nonsense they have literally just created at this moment to argue against same sex marriage. Now, traditionalists may, in good faith, actually believe the stuff. But it’s still completely made up. It has no historical accuracy at all.

                Marriage, as an institution, has never existed in order to create children. Not as a main purpose, not even as a side purpose. No society has ever stated that as the purpose of marriage, no society ever creates laws around that premise. (I used to keep saying ‘almost’, because I really do expect at some point someone will drag up *some* society…but so far no one has.)

                No one needs to make sure humans *produce* children, and the entire concept is surreally stupid. Children get created all the time. Without marriage law and marriage societal norms they get created *haphazardly*, which causes problems for society. If anything, marriage customs in a society result in *less* children (As people are restricted to their sexual partners), not more.

                Marriage exists (Or rather, one purpose of it is) so that men know who their children *are*. Marriage is *identify* children, not to *create* them. Marriage exists to put the creation of children in a structure.

                Now, moving on to ‘raising children’: The reason to identify children is, of course, to know who should raise them, so marriage does, in a sense, exists ‘to raise’ children. Additionally, we have found marriage a good structure for raising children, and we do, sometimes, think people who are going to raise a child should get marriage. Sometimes we even *demand* they get married.

                It is a bit far to assert that raising children is the *only* purpose of a marriage, but I’ll accept it as *a* purpose of a marriage, and if people ignore all the other parts of marriage, I guess it is possible to argue that only people who can ‘raise children’ get married. This is not how our laws actually *work*, so it’s a bit suspicious it’s suddenly become a requirement when SSM showed up, but it at least is *reasonable* as a hypothetical requirement, and might even have a bit of a historic justification.

                But that being in opposition to SSM, of course, completely fall apart because of adoption. As I’ve pointed out before, adoption is literally one of the oldest ‘legal’ concepts on the planet, something that existed before we were even human. People, married couples and otherwise, have *always*, knowingly, raised children that were not theirs.

                And thus, according to some of our oldest traditions that exist, gay couple are indeed capable of raising children. And, thus, under the logic, they should be allowed to marry.

                In summary, the ‘traditionalists’ may, indeed, have a view of marriage they hold that is incompatible with gay marriage…but it is a view of marriage they have, in the past two decades, invented to *be* incompatible with gay marriage, and is not compatible with any view of marriage ever held by any society before. And it’s sorta stupid on top of that because of the weird idea humans need an incentive to produce children.Report

              • Avatar Mike Schilling in reply to DavidTC says:

                The purpose of marriage is to produce white children , which is why marriage between slaves made no sense.Report

              • Michael Drew: And as to tone, no, it’s not about being on the other side of the issue from him. I’m on the other side of the issue from Alito on everything too, but I am consistently impressed with his seriousness of purpose and basic respectfulness of language in his opinions.

                From the perspective of someone seeking to uphold the standards of the Court for probity, Kennedy’s “beautiful” statements in the majority opinion are at least as problematic as Scalia’s scathing and intermittently colloquial language in his secondary dissent.

                Put simply, if you believe Kennedy’s logic is arbitrary and the majority decision merely willful (and for that matter think the praise his language has received is at best overdone), then you may suspect him of having sought to hide his crime against legal idealism under a purple prose-cloak of (apparently quite effective) demagogy: He flatters everyone else on his side as beautiful souls doing good in the world. Most people like being praised in that way, and gladly reciprocate the sentiment, don’t like having the orgy of mutual self-admiration interrupted, and don’t notice that they are being implicated in a conspiracy.

                We are supposed to receive, and rely on, impartial reason from the Court, not bows for applause in anticipation of rainbow displays from the crowd and its tribunes. The inability of the Court to please us in all our aspirations is supposed to return us to the democratic or, if necessary, the constitutional process. Instead, or so goes the fear, the democratic process atrophies (or continues to atrophy), political decay worsens, and the possibility of public reason recedes.

                …and I still don’t think you’ve grappled with the problem as it specifically relates to the argument of Scalia’s you originally isolated. The problem can be phrased as the sacrifice of one form of freedom or democratic possibility in favor of another, disagreement over how much weight they deserve to be given, and, for some or in the eyes of some, a refusal to acknowledge that any “equity-balancing” at all, rather than the unambiguous realization of an eternal good, has occurred.Report

              • Beauty or lack of beauty is beside the point. The question, as you say, is whether the argument stands up.

                But justices disagree about that question in cases all the time. It’s no excuse for abandoning professionalism and judicial collegiality.

                What Scalia doesn’t realize is that the disrespect he advertises for colleagues comes out to us the people as disrespect for the institution he serves. We form our own separate opinions of the intended targets of his contempt (and judge him for his, and his intemperance in expressing it).

                You’re right that I don’t grapple specifically with the argument about, essentially, whether federal democracy (the freedoms protected by the federal constitution being democratically won) trumps the tradition of state democracy in this area (marriage law being a traditionally state-controlled area of law). That’s because that is a legitimate ground of contention on this issue, and I don’t claim that Scalia’s entire position on that is as woefully defective as the particular argument I do highlight.

                Obviously I come down on the other side from him on the question, but that wasn’t the basis for my clam that Scalia’s work here is lamentable. Rather, that was the simplistic approach he takes in passage I originally highlighted. Scalia makes more arguments than that, but he also claims that the simple fact alone that laws limited marriage in this way in 1868 and people didn’t expect the 14th Amendment would change that as, all on its own, dispositive of any claims that the 14th Amendment might in fact dictate “the sacrifice of one form of freedom or democratic possibility in favor of another [or resolve] disagreement over how much weight they deserve to be given.”

                I don’t grapple with that because that is the larger substance of the debate, and it’s not that Scalia has no valid arguments to make about it. But it’s above my level of knowledge to assess all the claims in that debate (Scalia’s and everyone else’s). My point was that a particular claim he made about a very simple set of facts (that laws existed on this point a the time of the enactment of the 14th Amendment that no on expected would be affected by it) is analysis that is not worthy of how this question should be considered at this level of our democracy. It’s just inadequate thinking.Report

              • Avatar zic in reply to Michael Drew says:

                To me, the real way to make the point he was going for (that the 14th shouldn’t expand beyond its original reconstruction-intent) would be that women were not included in the full rights of citizenship by the 14th, but by the 19th amendment; but I’m also unaware if there were legal challenges that put the matter under the courts’ purview.Report

    • Avatar Kazzy in reply to Burt Likko says:


      While I found Kennedy’s writing similarly beautiful, I’m curious how relevant what he said there was to the case. Or, perhaps, how relevant it should have been? Maybe I don’t understand how the law works in general or SCOTUS in particular, but it seems to me it shouldn’t matter what the petitioners’ view on marriage was as much as what the law said about sexual orientation, equal protection, states rights, and the like.

      Is this just part of the ongoing politicization of the court? I understand two people can look at the same law and walk away with different understandings. What confuses/alarms me is that if this case had been about a conservative issue but challenged the same legal framework, many of the justices would have found themselves on the other side.Report

  9. Avatar Stillwater says:

    Ahh. So Roberts safely throws in with the conservative block in this issue to re-establish his street cred. He’s bonafide! (Only half kidding.)Report

  10. Avatar Tod Kelly says:

    Like the King case, this is one where the ruling seemed to be fait accompli the moment the justices decided to hear the case. So I can’t claim to find the ruling dramatic, in the sense that I might have ever been on pins and needles wondering how the verdict might come out. Still, it seems well worth taking the time to celebrate the historic enormity of this, and I have every intention of doing so.

    @burt-likko is right: This is a great, great day.Report

    • Avatar Burt Likko in reply to Tod Kelly says:

      Well, Andrew Sullivan as so often hits an important note:

      History is a miasma of contingency, and courage, and conviction, and chance.

      It didn’t have to turn out this way. As we grownups know, in real life, the good guys don’t always win. This case could have turned out different. Kennedy is also a great federalist and could have been persuaded by the claim that marriage is an area of traditional plenary state jurisdiction. The political winds might have been blowing in a different direction, leaving the Court less comfortable with orienting itself against the majority and finding a way to punt rather than decide.

      But it did turn out this way. Which is why today is a day to celebrate. I wore my American flag tie to work today because today I’m proud to be a lawyer and proud to be an American. And I’m a bit disappointed in my co-workers that they don’t feel the same way and worse, that some of them seem to be quietly upset at learning the reason for my display of patriotism. But that disappointment doesn’t change the fact that today, our law and our government and our nation has become a more perfect union and a better realization of the high ideals that are the foundation of who we are as a people.Report

      • Avatar Tod Kelly in reply to Burt Likko says:

        I always thought that this was a case they took in order to put it to rest and allow SSM to be legal.

        Call me cynical, but I honestly believe if Kennedy had broken the other way that Roberts would have been the fifth vote needed.Report

        • Avatar nevermoor in reply to Tod Kelly says:

          Entirely possible. Roberts is a conservative, yes, but he’s also a legal thinker (unlike the three clowns, who are mere justifiers at this point). He also understands that the paragraph in history books would read “The Roberts court ensured that discrimination against LGBT Americans would continue another X years until…”Report

    • Avatar Michael Cain in reply to Tod Kelly says:

      Like the King case, this is one where the ruling seemed to be fait accompli the moment the justices decided to hear the case.

      Yes. The Court had been sending awfully clear messages through the cert process that this was a done deal and they expected all of the Appeals Courts to get in line without the SCOTUS having to actually accept a case.Report

  11. Avatar North says:

    I note with pleasure that this is coming down on the eve of Minneapolis Pride, so it’s gonna be a wild weekend in the twin cities.Report

  12. Avatar Jaybird says:

    Same Sex Marriage legalized in all 50 states. Women, minorities hardest hit.

    (Honestly, this is very good. I’m sorry that it was 5-4.)Report

  13. Avatar nevermoor says:

    Well, time for me to eat crow. It turns out that SSM is, in fact, ruining heterosexual marriage.

    My bad.Report

    • Avatar Will Truman in reply to nevermoor says:

      There was actually some movement to avert precisely this situation[1], by removing them from the process. Unfortunately, it doesn’t look like it was enacted.

      [1] Which case, of course, criticized by Daily Kos and others, who would seem to prefer this sort of standoff rather than allowing gays (and straights) to get married more easily.Report

      • Avatar nevermoor in reply to Will Truman says:

        Meh. Given one can spend thirty seconds online and become “ordained” sufficiently to conduct ceremonies I’m not actually worried about it. Just couldn’t resist that spin.Report

    • Avatar Saul Dregraw in reply to nevermoor says:


      Of course the South is bringing back mass resistance. Stay classy, Southerners, you were wrong 50 years ago and you are wrong today.Report

  14. Avatar Damon says:

    ““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. ”

    That’s some straight up polyamory bigotry right there!Report

  15. Avatar James K says:

    Congratulations, a big day for the US.Report

  16. Avatar gingergene says:

    The Onion made me laugh out loud:

    June 28, 1969: Riots break out at Stonewall in Greenwich Village in history’s only example of useful protest against being asked to leave a bar


  17. Avatar Maribou says:

    I was saying to someone today that I’m not surprised by the verdict but I *am* profoundly amazed to not be surprised at the verdict – only because teenager me would’ve NEVER EVER expected this to happen in one country before she was an old old woman, let alone both of the ones she’s lived in and a bunch more besides. She started arguing for it when she was 14, and got LOUD about it by the time she was 18 – but she thought she was helping in her small way to lay groundwork for much later on, not, you know, actually changing what things would be like for her and her friends 20 years down the road.

    All of the me’s are astounded today.

    Also it’s amazing how much more welcome in a foreign country one can feel by the simple act of being allowed to marry someone of any gender there – despite already being happily married, and thus not directly affected in my choices at all. Nothing will change for me, individually, because of this verdict, but things *feel* so very different for me individually, nonetheless. And not just because of the question of “well, what if something happened to Jay and… (insert 10 more what if’s here)?”

    Not saying this is the tipping point that would finally convince me to seek US citizenship, but the scale is significantly less unbalanced than it was 5 years ago.Report

  18. Avatar Burt Likko says:

    Hey all. Day job, marital obligations, and political obligation from day job have kept me busy most of the day. Just now getting home to write and its late. Will attend to the digest tomorrow.Report

  19. Avatar David says:

    CK MacLeod:
    @Michael Drew

    The personal emotional fulfillment – or sense of well-being and acceptance – of citizens may certainly be taken as a valid goal of government, but it is not the only goal of government, or the only way to define the welfare of citizens. It is arguably a very narrow view of “life, liberty, and pursuit of happiness,” though one that, I suspect, many of our fellow citizens have lost the ability to recognize as narrow or even conceivably diminishable.

    It’s a bit of a side note to the core of this set of comments, but if there is a positive definition of what a traditional definition of marriage fulfills that is not “personal emotional fulfillment” with its concomitant accordance to the children of a wedded pair of social acceptance, I’d be curious to hear what it is. I will preemptively note that given the various ways in which infertile couples can “traditionally” marry, I don’t think that procreation passes the test here – that’s not what you get from traditional marriage as it exists in our body politic currently. So what is the other, different public value that it offers? And is there a resolution around how we update the understanding of marriage that preserves that value as much as possible? These seem to be relevant policy questions, but I’ve never really heard an answer – and I do think there are some around social cohesion that might actually apply, much as I don’t find them a convincing reason not to ascribe the right of two consenting adults to marry under our current laws.Report

    • Avatar CK MacLeod in reply to David says:

      David: if there is a positive definition of what a traditional definition of marriage fulfills that is not “personal emotional fulfillment” with its concomitant accordance to the children of a wedded pair of social acceptance, I’d be curious to hear what it is.

      As I said above, I don’t want to get drawn into a “marriage debate” today. I’ll answer briefly that the purpose of marriage in the traditional view, typically, will be its role in the organization of society and its “reproduction” in multiple senses of the term. So, a first objective would be survival at all, or “life” as the precondition for any “liberty” or “pursuit of happiness” at all. This goal is implicitly a social goal, and an interest of the state and society as a whole, not conditioned or dependent on the subjective “sense” of “personal” fulfillment” or “well-being” of any member of society in particular at any given time.Report