Sunday, June 28, 2015

Up too early on Sunday Morning....

The more I read about the Supreme Court's decision, the more I realize the talking points are coming from the four dissenters.

For example:

Underlying all of this seemed to be an anxiety, one expressed in Justice Alito’s dissent, that the decision would get anyone who didn’t agree with it labeled a bigot. “Forty percent of Americans still oppose it. We need to treat those people with respect and not just fall into liberal groupthink that they’re all just bigots,” Kurtz said. “If someone doesn’t wholeheartedly agree, they are going to be called bigots, or that they’re anti-constitution,” Lee said.

And this:

It was no surprise that the Supreme Court held Friday that there is a constitutional right to same-sex marriage. It is very difficult to distinguish the case from Loving v. Virginia, which in 1967 invalidated state laws forbidding miscegenation. There was, as an economist would say, a “demand” (though rather limited) for biracial marriage, and it was difficult, to say the least, to comprehend why such marriages should be prohibited. In fact the only “ground” for the prohibition was bigotry. The same is true with respect to same-sex marriage. No more than biracial marriage does gay marriage harm people who don’t have or want to have such a marriage. The prohibition of same-sex marriage harms a nontrivial number of American citizens because other Americans disapprove of it though unaffected by it.

I have to demur that more than ever I'm surprised when this Court feels itself bound by precedent, although I am also gratified.  Still, I agree; the case before the Court was virtually indistinguishable from Loving.  Unless the Court was going to repudiate that decision (which the dissents do, at least sotto voce), what other outcome was possible?  And perhaps this is why Justice Alito is so concerned with the effects of bigotry.  Because the guilty dog barks loudest.  Because they can't really justify their feelings (which is all they seem to muster) against same-sex marriage, and they know it.  And i tis their feelings, their delicate sensitivity to personal criticism, that seems to matter most to the dissents.

I wondered why Ken Paxton and Greg Abbott had their Hobby Lobby talking points down so quickly on Friday.  Obviously it's because they had staff reading the dissents and picking up the clues, stale and tasteless as those bread crumbs are, leading down a trail to a dead end.  Maybe I should read these dissents for more information.

Or maybe I should just ignore them.  I think they've lowered the quality of Supreme Court opinions to  a new basement.  Better if someone just takes their shovels away; that hole's deep enough.*

*Because I have to say, to me, this is damning with faint praise:

“The two best opinions Roberts has written on the court are his opinion in the Obamacare and gay marriage cases,” said Walter Dellinger, who served as acting solicitor general in the Clinton administration. “While I don’t agree with his bottom line in the same-sex marriage case, he wrote the most respectful and best-reasoned argument for allowing the democratic process to run its course. None of the advocates defending bans on same-sex marriage at the court came close to articulating as good an argument as Chief Justice Roberts.” 


  1. It would be funny for Thomas to repudiate Loving in so far as it would make his own marriage illegal in the state he lives in. But he hasn't had any problem with deciding that's different when it applies to him. And, of course, it's easy for them to say that in 2015 because there is no prospect of that practice being revived.

  2. Nobody wants to oppose Loving; it's as unthinkable as praising the result of Plessy or Dred Scott.

    But how to distinguish the legal issues in Loving from the case decided Friday? They can't, so having neither facts nor law on their side, the dissents pound the table.