My friend Trevor Burrus does a superb job calmly explaining the Obergefell decision to some ranting loon.
My favorite bit is when the loon says that the Tenth Amendment "came before" the Fourteenth Amendment. As if that somehow makes it more important than the Fourteenth. (Hint: later amendments trump earlier ones.)
What is the right at issue in the same-sex marriage case? Justice Kennedy explains that it’s not just a right of two people to form a relationship: it’s the right to state recognition and respect of that relationship. Marriage, he writes, “supports a two-person union”—it’s not the union itself, but a state certification of that union that provides “recognition, stability, and predictability,” as well as a removal of “stigma” that might apply to unrecognized marriages. More, the law provides a “constellation of benefits” on the condition of marriage: “[states] have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority…” etc.
The past several days have brought some Supreme Court rulings that are uncongenial to many conservatives and libertarians: in King, the Court ruled that subsidies under Obamacare are available in federal as well as state exchanges; in Obergefell, the Court ruled that the Fourteenth Amendment does not permit states to ban same-sex marriages; today it ruled that the Arizona election districting rules are constitutional even though those rules were established by a ballot initiative and not by “the legislature,” as the Constitution provides. The reaction to some of these rulings among some has been little short of hysteria. One writer claims that Chief Justice Roberts has “overthrown” the Constitution. Reason says the Supreme Court “fucked us” (though they try to be cleverer about it). A twitter user says that the Supreme Court is now more lawless than the Stuart monarchs…and so forth.
The outcome is right, but once again, Justice Kennedy’s efforts to produce something lasting and profound is a failure, and results in an opinion easy to ridicule, and lacking the logical infrastructure necessary to support the conclusion. That lends undeserved credence to the wrongheaded dissenting opinions, and particularly Justice Thomas’s, which is the best of them, but leaves the most important questions totally unaddressed. In short, all the opinions are sloppy or beside the point, and while the result is good, these flaws in the reasoning bode ill for the future.
The problem comes at the confluence of the Due Process of Law and Equal Protection Clauses. Due Process of Law forbids the government from taking away your life, liberty, or property for arbitrary reasons or in arbitrary ways. So, for example, the government can’t take away your stuff or throw you in jail on a “because I say so” basis. Equal Protection, on the other hand, says the government cannot discriminate against you—it can’t treat you differently from other people, without some good reason. The two things do, indeed, tend to overlap: for you to be discriminated against for no good reason (Equal Protection) is a kind of arbitrary treatment (Due Process of Law). But they are not always the same thing. The government can take certain things away from you without violating Due Process of Law, because you had no right to those things; yet that same deprivation might violate Equal Protection because it is taking those things away on a discriminatory basis.