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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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50 Responses

  1. Burt Likko says:

    I know a number of people have wondered why I’ve taken so long to finish my promised digest of the case and, uncharacteristically, been absent from this weekend’s discussion of it.

    Professional and personal obligations overtook me from tackling the case on Friday, the day the case was handed down. I’d really been expecting it on Monday, June 29, but the Court does what it does, not what’s necessarily convenient for writers like me.

    Besides, we’ve had, what, five other posts about it since the case was handed down right here on these pages? Every columnist, writer, magazine, and newspaper in the country and many globally have written about what the decision is and what its import will be. So I figured, take the time to look at it from a different perspective.

    So today, late Sunday morning. is the first chance I’ve had to re-tackle the matter. I hope you all enjoy it.Report

    • zic in reply to Burt Likko says:

      @burt-likko this is really wonderful; much akin to my own responses, though I have not nearly as much understanding of the legal grounding — but I know I have a very good eye and ear for good legal grounding.

      I struggled with the section on Alito, and think it’s because of missing blockquotes; would you check that section please? Then I’ll re-read it.

      Thank you, this is a stupendous addition to the conversation.Report

      • Burt Likko in reply to zic says:

        Will do shortly, my friend.Report

      • Burt Likko in reply to zic says:

        Appreciate the callout; I’ve added a substantial portion to Alito’s Glucksberg reasoning. I hope this makes it easier to see where he’s coming from and how he gets where he does. Like me, you don’t have to agree with him, but he goes about his business in easily the most professional and lawyerly way of the various dissenters.Report

  2. three of them are examples of just how badly things can go when a lawyer misuses the contents of her epistolary toolkit.

    I see what you’re doing there, but it looks odd when all three were actually written by hims.Report

  3. Personally, I think it’s hard to understate the importance of this groundwork, sociological though it is.

    ITYM “overstate”.Report

  4. Saul Degraw says:

    Excellent post, Brother Burt. I honestly don’t think I could do an in-depth reading and discussion of judicial reasoning like this so I am a bit jealous. Jelly in the popular parlance.

    Interestingly, you have done the most substantial defense of the majority decision. I have seen other liberals express frustration that it gets to the right result but might be a bit thin on legal reasoning. There have been comparisons between Kennedy’s writing in this case and Douglas’ writing in Griswold. Right decision but in need of tuning up later on. Though everyone on the pro-SSM crowd does seem to love this paragraph:

    “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.”

    I admit I teared up when reading this as well.

    I don’t know the purpose of Scalia’s writing style anymore. He seems to be coming the cantankerous old man of the bench and his dissents on high-profile cases seem to be sarcastic, insulting, and not much of anything else.

    You are right about Thomas and his narrow frame-work on what liberty means. Interesting his most salient point was buried in a footnote:

    “The majority also suggests that marriage confers ‘nobility’ on individuals. I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more ‘noble’ than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.”

    Now this does not make the majority decision wrong but it is a fair point.

    There is something I’ve noticed about a lot of rhetorical choices especially by us weirdos who spend a lot of time arguing about politics on-line.

    Libertarians and the Right-Wing generally place a lot of stock, time, consideration, and effort into the formal tools of logic and rhetoric. They seem to love various Latin rhetorical terms and devices like petitio principii. I also see the right-wing and/or libertarians talk about First Principles more. There is a seemingly strong stress on First Principles in a lot of on-line writing from the Right-wing and Libertarians.

    I honestly this sort of talk really pompous and off-putting. I imagine a bunch of inane young men in bowties* standing about and impressing each other with Latin terminology. I am not into First Principles generally because they seem like a way of maintaining the status quo and controlling the terms of debate. Why do I have to accept some right-winger nut jobs First Principles?

    Now the rhetoric of the Left can leave stuff to be desired often as well. I think the Left is equally attracted to their own magic words theories and terms like microagression and can be dismissive of those who offer the tiniest critiques of said terms. There are times we go too much for poetry and not enough for rationality like in Griswold.

    *Right-wing young dudes seem to love bow ties for inexplicable reasons.Report

    • Burt Likko in reply to Saul Degraw says:

      To be sure, words like nobility and dignity (and privacy and liberty) seem to defy precise legal definition. You’re probably less okay with that as part of legal reasoning if you dislike the holding.Report

      • Saul Degraw in reply to Burt Likko says:

        I would say that the problem of words and rhetoric in the United States is this:

        1. We have always been a Democratic Republic. We never had a nobility or an aristocracy in the truest sense. It is true that the original Republic had a very limited franchise but this was expanded to all white men fairly quickly (by Jackson’s first election) and much more slowly to minorities and women. I don’t think attempts to found an aristocracy in the U.S. were ever very serious.

        2. As such, we have never had a monarchist party. There have always been monarchist parties in Europe even in countries where the monarchy was long gone like Third Republic France. In short, there were always people in Europe with power and influence who were skeptical of democracy and the like.

        3. Those arguments exist in the U.S. but are really non-starters. I can’t imagine any scneario in which a person making arguments against democracy gets elected in the United States. Anti-democracy arguments are usually associated with dweebs who can’t get dates and are too impressed by their own intelligence. This means that people on all ends of the spectrum portray themselves (and probably see themselves) as to the true definers of liberty, decency, freedom, etc.

        4. TL,DR, In the U.S. liberty and freedom mean all things to all people.

        I suspect that when people use formal rhetorical terms, they like the idea of sounding cold and rationalistic. Notice how liberals are always dismissed as bleeding hearts who can’t see humanity for the wretched mess that it really is.Report

    • “I wear bowties to attract women.”

      “But they don’t attract women.”

      “I was misinformed.”Report

    • LeeEsq in reply to Saul Degraw says:

      Liberals wanted the decision to be based on the equal protection of the laws clause rather than due process so you can also get LGBT people declared to be a in a quasi-suspect or suspect class. This would mean that laws that discriminate against them would have to pass intermediate or strict scrutiny to be Constitutional.Report

    • Murali in reply to Saul Degraw says:


      I don’t know why other people invoke principles, but this contempt for principles that I sometimes see on the left should be worrying. It reveals a lack of serious thought about matters of justice and morality. The reason being that the only way one could condemn first principles is if one thought that one’s own moral intuitions were adequate to the task of accurately discerning right from wrong. But once you start trying to examine whether your moral beliefs are supported by good reasons, you inevitably start looking for more general and fundamental principles which would stand in that reason giving relation.*

      This is not to say that the left is necessarily hubristic or anti-reason. I know many high liberals who arrive at their position from first principles (a lot of them happen to be academic philosophers). Neither am I saying that the right is particularly congenial to reason. On internet discussions, I notice that people on the right often latch on to principles as an excuse for their beliefs regardless of whether the principle is independently plausible. Certainly, a lot of the principles social conservatives invoke against SSM and freer immigration are poorly thought out. Hell even libertarians (Rand and Rothbard come to mind) marshal poorly grounded principles for their arguments.

      *I know moral particularists have something to say to that, but particularists are just confused as to the nature of reasons and of morality. A justifying reason makes the conclusion more probable. Particularists believe that reasons are particular (i.e. that there is no general account of how reasons apply to particular cases. Something may be a reason in one case but not in another and there will be no further principle to explain/justify the difference). However reasons which are particular fail to make the conclusion more probable. They merely pass the buck.

      Also, part of what goes on in moral reason giving is to signal a willingness to abide by the requirements of morality even when it is against one’s own interests to do so. When one adopts a particularist approach to ethics, one appears to be trying to have it both ways, effectively saying that “this reason applies to thee but not to me”. Non-general reasons thus, cannot signal such a willingness to abide by the moral requirements.Report

      • CJColucci in reply to Murali says:

        In my long experience with people who seem to think they reason from First Principles, the First Principles don’t actually do any useful work and are generally after-the-fact justifications for results put into pompous language. The arguments resulting from them usually amount to long-winded ways of saying: If A then A. A. Therefore, A.
        But maybe you know a different crowd, and could provide some examples.Report

  5. “judicial Putsch”

    As you noted, where Roberts makes a fumbling attempt at the argument at Hitlerum, you know who goes straight there. But what else would you expect from the judicial putz?Report

  6. This is the best thing I’ve read about the decision. Period.Report

  7. Kolohe says:

    Like everyone else said, fine work as usual. I still think the dissent has a small point in that Kennedy’s language is so ‘poetic’ that is does distract from what should be a staightforward logical case of ‘equal protection means equal protection, mother fishers’.

    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.

    Like here. Is the ‘their’ of ‘their immutable nature’ talking about the privileges and responsibilities or to the respondents? I think it’s the the latter, and if so, so what if it’s mutable or immutable? What difference at this point does it make if sexual identity is hardwired or not? Rights are rights.Report

  8. zic says:

    Thomas treatment of ‘nobility’ is highly amusing; a rhetorical word play that is unworthy of a first-year debate student.

    no·bil·i·ty n??bil?d?/ noun
    1. the quality of being noble in character, mind, birth, or rank.
    synonyms: virtue, goodness, honor, decency, integrity; More
    2. the group of people belonging to the noble class in a country, especially those with a hereditary or honorary title.
    “a member of the English nobility”
    synonyms: aristocracy, aristocrats, peerage, peers (of the realm), lords, nobles, noblemen, noblewomen, patricians; informalaristos,
    “a member of the nobility”

    As Saul pointed out below, we don’t have a noble class in the US, in the sense of definition 2. So ‘nobility’ must pertain to definition 1, the quality of being noble in character, mind, birth, or rank. Does marriage create noble character?

    I’ve certainly read a lot of bull crap about the ‘civilizing’ impact marriage (to a woman) has on men that leads me to believe that it helps create more-noble character in many men. It’s silly and discriminatory to presume that this is purely the influence of women and not the influence of committed relationship.Report

  9. CK MacLeod says:

    Thanks as ever only more so for this work, OG Likko. I’ll need some time to absorb it!Report

  10. References to the Magna Carta puzzle me. It’s entirely about safeguarding the rights and privileges of the barons against the sovereign, and says nothing (literally nothing) about individual liberty as we understand it today. Nor was it the first step in devolving power from an absolute ruler towards to local nobility; John was an exceptionally weak and incompetent king, and later, stronger kings exercised far more power. There’s nothing in American law that derives from it, unless you make a very strained analogy between king vs. barons and federal vs. state government. What does invoking it mean other than “I went to college”?Report

    • Saul Degraw in reply to Mike Schilling says:

      I suspect that appeals to the Magna Carta appeal to the idea that everything needs to be rooted in tradition of some sort of not. It is the same thing that has people talking about fundamentals and first principles over and over again and worrying whether there arguments fit within latin rhetorical terminology. Remember that there is a large right-wing movement called the Frozen Constitution or Constitution in Exile movement and they love Thomas much more than they love Scalia.Report

    • Morat20 in reply to Mike Schilling says:

      IIRC, American law does but only insofar as English common law is rooted (way, way, way back in the day) in the Magna Carta, and then we stole English Common law because the folks who handled the Revolution and post-Revolution stuff were, for the most part, really familiar with English Common law so it got absorbed into our system. (It also works. It’d been around a very long time when we copied it and used it to jump start our legal system. A lot of the kinks had been worked out).

      I dunno, though. There’s always this desire in the back of some minds to find some single, unalterable truth and there make your stand, to find a rock to build your whole world on.

      Life’s fluid and every changing, and even your roots have to be adaptable. Find yourself a tree, something solid but that can grow and change. Because that rock? It’ll crack underneath you, in the end. The Tree will bend.Report

  11. Dave says:


    I haven’t read the whole thing yet since I’m going about my normal Sunday (I’m surprised I’m even here), but just to point something out, Lochner v New York was a maximum hours case not a minimum wage law.

    Still, I’m flabbergasted that the Lochner myth still exists since it’s debunking began about 25 years ago. Talk about making a mountain out of a molehill. I’ll comment on the rest when I get a chance.Report

    • Morat20 in reply to Dave says:

      The Volokh Conspiracy had a huge set of posts about rehabilitating Lochner, I think because someone on the VC wrote a book.

      Sadly I ignored the whole series and couldn’t even begin to tell you what was being rehabilitated about Lochner or why.

      But if this ‘anticanon’ is actually a thing, I suspect they were really out in the weeds if they’re trying to rehabilitate it.Report

      • Dave in reply to Morat20 says:


        David Bernstein wrote a book about it, and a really good one. I’m not sure if you would necessarily agree with some of the conclusions, but the one thing of note about his book is that nowhere does he make an argument that the decision was correct.

        He doesn’t have to, and that’s pretty much the point of it. Lochner v New York could have gone either way. Both the majority and the dissent pretty close (i.e. 8 of the nine justices acknowledged the then liberty of contract jurisprudence and agreed with the methodology applied to the decision).

        The question was whether or not the occupation of bakers was dangerous enough to warrant a maximum hours regulation justifiable as a health law under the traditional state police power (a similar law for miners was upheld 7 or 8 years earlier in Holden v Hardy). Both sides submitted facts. The majority went with one set of facts. The dissent suggested that it should have deferred to the facts presented by New York State.

        Where’s the anti-canon? That the Court failed to defer to the majority? If that qualifies a case as an anti-canon, then we may as well add a whole host of civil liberties cases to the mix, including the focus of this post. I have a feeling that we don’t want to go there.

        Was Lochner ideological? I don’t think so. To the extent that there was an ideological connection to the liberty of contract, it would have been to property rights. That would explain the Court’s resistance to minimum wage laws, even when it pertained to businesses affected by the public interest.

        As it is, Lochner was pretty much overturned in 1917, about 20 years before West Coast so to the extent Lochner should be rehabilitated, we can start by understanding what it really represented as opposed to comparing it to cases like Dred Scott and Korematsu.Report

        • morat20 in reply to Dave says:

          I had no idea the anticanon was a thing until I read this post, so I can’t exactly defend the decisions placed in it. I only noted that Lochner was apparently placed IN said anticanon.

          And then I mentioned that the VC had a whole series of posts on it, and someone wrote a book on it.

          Honestly, 90% of what provoked my comment was hearing this ‘anticanon’ thing made me finally get the tone of the Lochner posts and titles on VC. I was totally unaware that Lochner had such a history in the legal profession, but learning that put said posts in perspective).

          But I’d be happy to ALSO learn why it’s anticanon, and perhaps if Burt is bored one day he can explain. 🙂Report

    • Burt Likko in reply to Dave says:

      I was just reminded that the Lochner era did see a striking down of a minimum wage law (in the District of Columbia) on grounds of “freedom of contract” as a facet of substantive due process — but @dave is correct that the case was not Lochner itself. Adkins v. Children’s Hospital (1923) 261 U.S. 525.Report

      • Dave in reply to Burt Likko says:


        Yes, and one can make a case that there was an ideological position taken in that case. It was a business affected with a public interest and since Munn v Illinois, price regulations constitutionally valid. The argument against wage regulations is exactly the same against price regulations (i.e. taking of property) so if prices can be regulated, why not wages?Report

  12. Michael Drew says:

    To me this is the beating heart of the decision in terms of law:

    The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

    Given its source (a conservative justice) and placement (not dictum, not in a dissent, but at the center of the argument in a socially transformative opinion announcing dramatically new law), this is like a thunderbolt of fundamentally important legal theory-in-practice from above.

    The various parts of the argument establishing that marriage (to the person one loves) is fundamental right and that there is no legitimate reason to deny it to people based on sexual orientation are of course also historically important. But they, as many activist-observers have pointed out, are somewhat limited as doctrine to this specific matter, and fall slightly short of announcing a new general framework for the protection of gay rights general (i.e. an explicit categorization as a suspect class and thus the requirement for strict scrutiny to allow a law denying equal protection or due process).

    OTOH, the language I quote (from your quote, though I have read it and re-read it myself repeatedly since Friday) to me seems like it could be the source of at present untold new claims of personal liberty (or for that matter of government prerogatives) that develop alongside changes in public attitude. Though maybe I’m wrong about this, and and this view is long-established in Kennedy’s jurisprudence.

    Note, though, that this view is not formally a rejection of originalism, at least arguably not. It’s actually an originalist claim: that the original public meaning of various phrases in the Bill of Rights and the 14th Amendment (and I don’t know how he’d then deny in much of the rest of the constitution, excepting things like the required number of Senators, ages of officials, terms in office, etc.) were written specifically to be able to accommodate changes in the public understanding of the practical meaning of the kind of liberties they seek to protect. So that laws on the books at the time (whose constitutionality no one thought would be challenged by new constitutional provisions), or other unquestioned assumptions about what these provisions would mean, are absolutely no bar to finding either that 1) these provisions all along protected rights it wasn’t recognized they protected, and the system simply hadn’t uncovered that, or 2) given changes in the reality and understanding of injustice, the practical meanings of constitutional provisions have, according to their original intended purpose, taken on legal meanings they did not initially have. (I think it is more often and rightly going to be 1 than 2.)

    In the short term I think the language establishing marriage as a fundamental right (so long as you only want to marry one person) and barring discrimination in t will probably be that parts of this decision that courts most use to build upon. But over time, I think the language about the Framing generation(s) recognizing that injustice is not always seen in real time, and for that reason entrusting a charter of protecting freedom “as we learn its meaning” will be the more significant source of legal change.

    I found this piece to be helpful in thinking about Kennedy’s opinion and arriving at this view:

    • Lemme see if I grok you, @michael-drew . The original public meaning was to defer to future generations’ understanding?Report

      • Pretty much, yep. That it was understood that the full meaning of these promises of liberty would come into view only over time as the character of the Republic became more known – as opposed to actually changing their meaning and truly new meanings coming into being in the text due to changing facts in the country. That’s the interpretation advanced in that SCOTUSBlog entry, and I would guess it’s what Kennedy would tell us is the basic nature of his point in the passage, as well. I.e., I think he would not tell us “I’m a living constitutionalist now (or always have been),” but that he’d say something like, “Settling initial indeterminacies of meaning over time by illuminating practical meaning in light of greater awareness of how the nation and its conscience developed over time is the real nature of the right kind of originalism.”

        This is, to be sure, a pretty subtle distinction. I’m actually not totally sure that, if he would insist on this view but also insist that it is originalism and not living constitutionalism, that it would matter, to the extent we followed him, whether we then called ourselves originalists or living constitutionalists. I tend to think there is still a distinction, but I’ve been thinking about it all day, and I definitely don’t have it clear for myself yet.Report

  13. zic says:

    Since Burt is so fond of Alito’s dissent, I’m going to pick it apart; I think it’s the weak point in Burt’s argument.

    I’ll start with his opening statement on the different outcomes people with differing ideologies might desire:

    The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by
    government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.

    This is a hodgepodge of positive rights that don’t exist; there is no due-process right to not be limited by government regulation (sorry, Libertarians!), there is not due-process right to a variety of government benefits that the government has not actually approved, and as always, I am unclear what ‘postmodern’ actually means.

    There is a positive right to marry; that has been established by legal precedent; and that right includes a slate of benefits (and responsibilities) that were denied loving couples in same-sex relationships. But conflating non-rights such as the relief from regulation or right to benefits that haven’t been made government policy seems an odd thing to me; he’s conflating a positive right (to marriage,) to the non-rights people (including me,) often perceive as rights. You’ve all taught me the difference here.

    Much of the middle goes toward his closing, and the argument here has deep roots of expression; in particular, the fears of retalliation that are often expressed by a group that’s long suppressed another group. Slavery being the prime example; but I’m sure there were some men afearing what women would do (and prohibition is a good example) to retaliate against a history of subjugation.

    Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

    It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws thaat denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

    Being afraid of the consequences of your actions, in other words, is acceptable reason to continue discriminating? Is that what he’s saying? How is this, then, not a violation of the 14th?

    Personally, I find it nonsensical. If you think that others will shame you for this; that’s the price one pays for sticking to ones beliefs. I felt that shame very much at the beginning of our invasion of Iraq; our president said, “you’re either with us or you’re with the enemy,” so calling me a traitor for not supporting the war effort. Quakers shoulder that difficulty in war as they conscientiously object to war, and refuse to take a role in active combat.

    But to avoid dealing with an equal protection issue that is a matter of due process (my brother’s marriage being recognized by another state, for instance,) because of fear of retribution treats traditional-marriage advocates like children, unable to handle the consequences of their expressed desire to continue discriminating.Report

  14. Michael Cain says:

    This is an outstanding piece on multiple levels — thanks for writing it.

    Off on a tangent, I’m taking small wagers on how many of the Justices who were all about democracy in their dissents in this case will be having no truck with democracy and the states as laboratories and that sort of thing tomorrow in Arizona v. Arizona.Report

    • Roberts, dissetning in A. v. A:

      What chumps! Didn’t they realize that all they had to
      do was interpret the constitutional term “the Legislature”
      to mean “the people”? The Court today performs just such
      a magic trick with the Elections Clause.

      So much for gentlemanly and pleasant .Report

      • To be honest, I expected this one to come out the other way. The swing vote appears to have been Kennedy — a California boy, one of only two justices from states with citizen initiative processes and the only one so far as I can tell who did legal work in an initiative state.Report

        • I did a gloss on this case — you are probably far better-equipped than I to dig in to the details. Interested?Report

          • At least taking a swing at it, probably. IANAL and am not particularly well-equipped to do the sort of detailed legal analysis you do so well. My interest has always been rooted in the citizen initiative aspect, as any one who has been paying attention knows. From that perspective, I certainly want to wait and see if Hickenlooper v. Kerr is on the clean-up order list tomorrow. The question there is largely whether a group of legislators have standing to sue when the representative body is stripped of certain lawmaking powers by initiative — a question that A v. A seems to settle.Report

      • I observe as much in my synopsis of today’s cases. I’m so disappointed in the Chief.Report

  15. Jaybird says:

    Do as I say, not as I do, Your Honor?

    See it as “punching up vs. punching down”.Report

  16. Jaybird says:

    I’m disappointed that this was a 5-4 instead of, oh, a 7-2 decision.

    To fall back on the whole “Marriage in the Eyes of God” vs. “Marriage in the Eyes of the State” distinction, it seems to me that Thomas is kinda correct with what he says about marriage and that’s fine as far as it goes, but you can’t really go from there to “and that’s why it’s okay for this group of folks to change the name of ‘surviving spouse’ on a death certificate”.

    At the end of the day, the discussion is over whether it is appropriate for the gummint to say to these guys “yeah, we really only want differently sexed people signing this line on the government form”.

    Someone claiming that they have the right to sign their name on that line is a fairly straightforward rights claim. The argument that it is right and proper for the government to say “okay, it’s blank then” is one that should have the burden of proof rather than the one that says “I sign my name here on the surviving spouse line.”

    It’s a pity that so many justices spent more time on the rights of the government than the rights of the citizen in question.Report

    • Jaybird in reply to Jaybird says:

      Huh. That might be the last time I might need to make the whole MEG vs. MES distinction.

      MES, after all, is settled. As such, the only thing we can really argue about now are the contents of the thoughts of the Mind of God.Report

      • Burt Likko in reply to Jaybird says:

        One thing occurs to me about this distinction.

        For many years, a cadre of activists, or at least advocates, have held up marriage as an example of why there cannot — CANNOT — be such a thing as separation of church and state. You need both to work in harmony to have marriage, you see.

        Those folks are now finding themselves at the very forefront of the response to Obergefell saying “Please keep the state out of our churches!”

        This, Alanis, is actual irony.Report

    • Mike Schilling in reply to Jaybird says:

      I don’t get this one either.

      “Well, sure they can live together. I don’t like the idea, but it’s not like it makes any sense to call the cops on them. And if they can find a minister to do a ceremony, it’s not a church I’d belong to, but whatever. And if they call themselves married, well, they’re not, but my brother-in-law calls himself a mechanic and he doesn’t know which end of the wrench to hold.

      But filing joint income tax? That’s going too far!”Report

  17. trizzlor says:

    This was highly informative, and eagerly awaited! I an conflicted though about your reading of Thomas. IF we take the definition of dignity to be “the state or quality of being worthy of honor or respect” then I think what Thomas is saying is that Solomon Northup did not stop being worthy of respect when he was kidnapped into bondage, or regain that quality 12 years later after he was freed. That quality was embedded in him irrespective of what rights he was granted by the government. Certainly the government did not actually grant him the state of being respected as a human being during his bondage, but that does not change the fact that he was always worthy of it.

    Dignity is a slippery term, and I appreciate the way Kennedy uses it to capture a complex legal, cultural, and personal status. But the down-side of slippery terms is that others can bend them to their own ends. I think that’s what Thomas is doing here, and though it would have been better if he had genuinely considered Kennedy’s definition before using his own, I didn’t read his interpretation as particularly galling or offensive.Report

    • Burt Likko in reply to trizzlor says:

      You know, Thomas has a vague outline of an actual point in that passage. But it’s a very seriously botched argumentum ad Hitlerum — there are places you don’t go in rhetoric unless you’re dead certain you know why you think you want to go there. By accusing the majority of poorly defining “dignity” and then using that term to describe slaves and prisoners, Thomas suggests that his concept of “dignity” is indeed very different from what the majority is talking about: at the expense of a substantial hunk of credibility.

      Some here have suggested that all that matters is Thomas’ internal logic in his reasoning, and suggest that he ain’t that bad, at least when viewed through that lens. While logical coherence is a necessary element of a good legal opinion, it is not a sufficient one. Thomas’ opinion is not so bad from a logic games perspective. But does he point the way to justice? (Whatever that term means to you.)Report

      • It’s also odd to see Thomas start off

        Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships.

        We know what Thomas’s answer was to people who did claim that: it’s unfortunate but not unconstitutional.Report

      • I think Thomas has more than the outline of a point here: I tend to side with him on what is the best understanding of the term dignity. There is great human dignity in suffering while being denied basic rights to challenge one’s condition. How can we not understand Justice Thomas’ inclination to look back at the legal status of slaves and not see human dignity in their suffering and their struggle? I can certainly see where he would have a fundamental reaction to Kennedy’s understanding of dignity being so dependent on a government-granted legal status. (So many different terms. I just realized I may be mixing all this up with the role of ‘nobility’ of all this. I have to agree that it would have served Kennedy better to try for a bit more economy of concepts in this. Anyway.)

        I also don’t think that it reflects well on Kennedy to so clearly buy in to such a strong notion of the dignity-lending role of marriage for society’s view of romantic couplings. It’s clear that Kennedy really subscribes to that idea. To which I say: I think there is dignity in any committed, long-term relationship. (But then I could see my deviant self finding dignity in a one-night stand under the right conditions, too.) What does this say about how Justice Kennedy views romantic couples who don’t have and don’t seek the status of marriage?

        It’s a question that stands out to me, but it’s not really important to Kennedy’s argument. A judge in Kennedy’s place need not endorse this dignity-granting role of marriage: all he needs do to include it in an account of the role marriage plays in society is to recognize the role it is playing.

        I’m not sure I agree, though, even with that. Perhaps I’m wrong, but it seems to me more like what marriage grants to a coupe is status and acceptance. It seems to me that preserving dignity depends more on the subjective determination of those who stand to lose it. You retain you dignity by suffering slings and arrows with grace (r something like that). That seems to be Thomas’ point. So if I were AMK, I might have chosen other terms here. Status; acceptance, something like that.

        The question would then be, if those were the terms he had chosen, would the decision have had less force, or indeed would a threshold for what constitutes a fundamental right then not have been met? Does a law (which violates equal protection we should point out) that denies a group status or acceptance, but perhaps does not deny them dignity, deny them due process of a fundamental right? Or are states not required to guarantee everyone status and acceptance, but cannot deny them dignity? (I.e. is the particular term dignity important in this ruling, or could Kennedy gone of a term a bit closer to the social quantity that marriage really confers here?)

        Regardless, I think this is the kind of discussion that is a reason that some analysts on the pro side wish the decision had been more thoroughly based in equal protection proper, rather than the “synergies” between equal protection and due process. (Which is not to say that JAMK is wrong to take notice of those synergies.)Report

  18. Burt Likko says:

    That’s because I’m pretty sure that y’all are smart and can handle the real stuff, not watered-down pablum or the shadows on the wall left over after partisan lensing. That’s right, an Allegory of the Cave metaphor, because I roll that way, even on the Shabbat.Report