Scalia said go “ask the nearest hippie.” So I did. On Gay marriage, John Roberts, Outkast, and Rosé.

SCALIAIn his dissent of the majority opinion in Obergefell v. Hodges, Justice Scalia referenced the value of asking your nearest hippie tough, complex questions about constitutional interpretation and the meanings of intimacy and expression.

So I did.

I don’t live in Marin County or Ojai; I live in Chicago but presently reside in D.C. so my nearest hippie is of the urban, erudite fashion, rather than the bell-bottomed kind. She uses cloth diapers though so she’s basically a hippie (to Scalia).

We didn’t talk about intimacy, expression, or spirituality. Instead we focused on the constitutional issues we both noticed from the decision and dissents in conversations. By the end of the mostly textual discussion, we I thought other people were probably having similar conversations this weekend. In the spirit of inclusivity, we decided to celebrate Scalia’s call to action by publishing the transcript of our Q&A from the weekend. We casually explore our mutual love of constitutional questions, same-sex marriage topics, and the Obergefell case. Ladies and gentleman, I present Cara & Christina on Con Law: The Same-Sex Marriage Cases edition.

Christina (aka, “The Hippie”): Having just read the opinion and the dissenting opinions, I am at a bit of a loss. I do feel like the majority made a pretty well constructed legal argument for the decision. All those not in agreement clearly feel like the majority is legislating from the bench. However, do they feel that the decisions made by the court to outlaw bans on interracial marriages were wrong? What those judges in that decision did was no different.

Cara: No. Roberts thinks that, ultimately, no Constitutional language says anything about the definition of marriage (who can marry, how old the couple must be to marry, etc.); the states have and should hold the power to define those policies, not the federal government. This is a federalism argument – states have powers to make all the laws not expressly written in the constitution. The Loving v. Virginia case, which was the 1967 interracial marriage case, is a solid, established precedent the minority respects.

But that case wasn’t about defining marriage with respect to the genders of the couple. Loving, and other precedents, all used language about marriage in different circumstances but always among heterosexual couples, not same-sex couples. To interpret old precedents in the way the majority did, which was inclusive of same-sex couples, is what’s called a broad interpretation. That’s what Roberts and the minority group do not support. Their argument is akin to this: “look, we accept the decisions in the old cases, but all those involved hetero couples, not gays, so you can’t use them in the same way.”

Christina/Hippie: I’m disappointed by the dissents – only because I don’t feel like they back up their opinions with any real legal standing. I was expecting more legal issues than religious banter about why families were created/protected to begin with. It seems the dissenters were grasping at straws to condone discrimination. The cases they cite seem by far more dated and opinion-based.

Cara: Those cases are dated but the majority cites the same cases and there are really only three significant cases that are about the right to marry – Loving v. VA, Turner v. Safley, and Baker v. Nelson. The justices, even Kennedy, spent considerable time during the oral arguments focusing on the history of marriage as being a union between a man and a woman for a “millennia,” one in which procreative purposes were at the heart of the union. The dissents written speak to a desire to retain that historical definition of marriage because, they think, how could centuries of history be wrong?

What did you think of Roberts’ take on the precedents?

Christina/Hippie: Roberts says that the precedents set by the Loving and Zablocki cases did not change the “presumable definitions” of what a marriage was, however it most certainly removed restrictions placed upon the petitioners. The fact that he again references a definition that was never implicitly written (and was furthermore not defined in either of those decisions) seems to be a stretch because at best, the definition was implied. The majority has simply removed another restriction on the implied definition.

Why even waste time explaining that marriage is between a man and a woman if your whole argument is that this is a state issue?

Cara: One thing to remember is that dissents can’t be used as precedents in future cases. You can’t argue something from a dissent during oral arguments or in future litigation. So why write them? Sometimes they’re written to check the majority by explaining how exactly they got the decision wrong. Sometimes they’re written for future lawyers as a way of hinting at what precedents or points should’ve been made in this case that could be used in a future, similarly situated case. And believe me, there will be more litigation about this decision. Discrimination cases (performing wedding ceremonies, employment discrimination) will no doubt pop up in the lower courts. The cover of today’s New York Times had an article about this very fact.

Christina: My favorite part of the whole majority opinion was when Kennedy referenced the First Amendment and the right of everyone to continue to openly display how they feel about this and other issues. I know everyone is caught up in his last paragraph about love and why everyone should be able to seek it (marriage), but the urging of everyone to continue using the freedom of speech as recourse just spoke to me.

Cara: Word. In the spirit of agreeing on differing opinions and values, we all celebrate that right. What wine goes best with celebrating the Bill of Rights, since Roberts expressly said not to celebrate the Constitution?

Christina: Rosé, er’day, right?!

Cara: What music goes best while reading the opinion or dissents?

Christina: Rosa Parks, Outkast; Started From the Bottom, Drake; We Are The Champions, Queen

I think some of the more outrageous comments Roberts made were about how same-sex couples are free to live their lives and “raise their families as they see fit”. Are they? For the DeBoer case, it would appear that they are not exactly given the opportunities he says they have. If the child that was adopted by one parent happens to be injured and the adopting parent is somehow incapacitated, the other parent does not have any legal standing to determine healthcare decisions for that child. Does Roberts really feel like that is adequate for raising their families as they see fit? Thomas also makes light of this in his dissent where he says that people aren’t restricted to where the live or conduct their business. So if a same-sex couple wants all the benefits provided to all opposite sex marriages – they should simply make sure they live in a state that recognizes their relationship as such. But in the Bourke case, isn’t one of the petitioners in the military and forced to move from state to state? If that is so, you aren’t really given the option (other than quitting your job) to stay in a state that recognizes your union.

Cara: Great observation! These sticky personal, financial, and legal obstacles are what made these cases so perfect for the SCOTUS to hear. The petitioners all came from states (OH, MI, KY, and TN) that had laws that not only inconvenienced the couples’ ability to simply marry, they also significantly burdened their abilities to move, work, and raise a family – things opposite sex couples do not have the same degree of difficulty when faced with. The fact that same-sex couples could purposely move to a gay-marriage state and then be forced to move due to a job change or military reassignment emboldened their case and 14th Amendment arguments. Unless you have a substantial income or independent wealth, you lack the privilege to remain in that state because you risk losing your job, benefits, and retirement or pension. This is an unreasonable burden the majority was compelled by.

Christina: Roberts’ claims that the protections and benefits being sought by the petitioners are not tangible. He says hospital visitation rights and spousal status are not specific enough. How about the tax benefits a couple receives when married? Are those not tangible? That seems to be a very real benefit not afforded to same-sex couples in states that do not recognize their unions.

Also, while I can appreciate the use of sarcasm in most realms, I’m not sure I can condone it in a dissent to a case before the Supreme Court. Scalia goes over and above with his tone throughout his entire argument. It is hard to take his argument seriously when he is so demeaning to anyone that thinks differently then him. Again, I enjoy sarcasm, but this was really over the top.

Cara: If you read more of Scalia’s dissent you notice that’s his thing. When I first started reading them, I was put off too because I was all like “This is the HIGHEST Court in the land! Due respect, sir!” Once it became my job to read the dissents, I quickly learned to love reading Scalia’s and appreciate his humor, his inflections, his overuse of em dashes, and the parenthetical moments when it’s like he’s talking to me rather than to the Supreme Court. (i.e. the “hippie” comment) It can come off as smug and arrogant but his knowledge of history and use of language are superb.

Speaking of Scalia, did you catch the part in his dissent when he criticized his colleagues for lacking diversity?!

Christina: YES! He talked about how the nine justices are not even remotely representative of the people of this nation. He says that most are from same geographic regions, have similar educational backgrounds, and do not represent the major religions in this country. But he goes on to say that shouldn’t matter because they are supposed to be ruling on issues of law. What interests me about this is that I actually agree with him.

Cara: Gotta love the bizarre irony of Scalia disparaging his branch of government for its homogeneity. Should we do this again next term?

Christina/Hippie: Definitely! Peace, girl.

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