One of the real oddities of being a lawyer is that the law is a matter of frequent political discussion and you can't see that the same way that other people do.
For instance, since the death of Ruth Bader Ginsburg there's been all sorts of discussion about her role in "protecting" various rights that liberals champion. It's really odd, as championing rights or claims of rights may be a role for lawyers, but not judges.
Nine times out of ten, judges don't even look at it that way. They're not supposed to be thinking "I'll make that a right!" or "that oughta be a right!", or whatever, and they usually don't. For this reason, the way that lawyers and judges generally look at seminal cases isn't even close to the way that lay people do Indeed, lawyers don't usually think of rights being "created" so much has having been "discovered" or "developed".
Which is also part of the reason that courts routinely surprise people in regards to rights, leaving people to stomp off all mad as they are thinking politically. They feel that something should or shouldn't be a right, and the Justices must, in their hart of harts, know that and that they're accordingly acting badly by not agreeing with them. . . the big robbed bullies.
Well, to those people I suggest reading the United States Supreme Court opinion The Antelope. In that case the United States Supreme Court discussed how slavery was against the Natural Law and abhorrent, but still legal. A lawyers way of looking at it, at the time. We'd regard it as abhorrent now, to be sure, but frankly there's all sorts of things that courts treat more or less the same way today, but without the reference to Natural Law.
Of course, every once and awhile, the courts just make stuff up, which is upsetting to lawyers who like the law to be capable of rational discernment and for precedents to mean something. That's why we criticized the Obergefell decision strongly when it was delivered in 2015. As we noted at the onset of that long entry, we weren't writing on homosexuality itself, or on same gender marriage, but on the court fairly clearly usurping legislative powers in order to leap out ahead of legislatures.
We've taken that post down a couple of times in realization that most readers won't understand its premise. Perhaps we should have just stated the elements of that premise plainly, in a way that was accepted law prior to it. That would be:
1. It's always been the law that the Federal government had no role in defining marriage. States were free to do that, and to define it traditionally, limit it in ways they wanted to, and the like. Unless you were arguing for an application of traditional concepts of Natural Law (which actually were referenced by the United States Supreme Court loosely in regard to this overall topic in the 1970s), there was never a prohibition precluding a state from defining members of the same gender as capable of contracting a marriage. Quite a few states already had by the time of the court's decision in 2015.
2. The only exceptions to this were found in other areas. Loving v. Virginia, for example, dealt with affording rights to equally situated people based solely on race, something that American law has more or less legislatively prohibited since the 1860s, and which took a Civil War to perfect. People might argue that Obergefell was merely an extension of that, but that fails to understand that marriage laws stem from the state's desire to protect itself against unfunded children, not to ratify love or attraction. In Obergefell, the Court actually also redefined that, which is universally contrary to every prior definition of marriage or concept of it. You hope the people love each other, of course, but passionate love in the romantic sense wasn't a requirement of the law.
Obergefell really looked like an example of five elderly folks trying to jump ahead of what they saw to be a national trend and seizing credit for its development. With the trend lines being what they were at the time, if they'd simply abstained from doing anything the way that they traditionally had, by now, 2020, my guess is a majority of states would now recognize same gender marriage and those that didn't allow it to be contracted in their states would have to recognize it under the Equal Protection Clause, which as the ruling of the Wyoming Supreme Court prior to Obergefell. Indeed, I can see where the United States Supreme Court could have, in that instance, essentially said, "well, it seems like most states are recognizing it so now everybody has to for some reason we'll now make up. . ." and have had at least Chief Justice Roberts on their side.
As they didn't do that, we predicted in 2015 here that Obergefell wouldn't sit well and the court would end up revisiting the topic in a new and tainted atmosphere.
We just didn't see how quickly that was likely to be.
Pretty quick.
Recently some appellate cases were up for certification to the Supreme Court. When the Court rejects to take up an appeal, that's a type of decision in and of itself, but only rarely one with commentary. Just recently, in looking at the appeal of Davis v. Ermold et al, which the court declined to take up, there was the rare feature of two opinions to the rejection. These aren't really dissents, as some have claimed, as you can't dissent from an opinion that isn't issued, but it is a rare shot across the bow by two previously dissenting justice. Their opinion read:
Cite as: 592 U. S. ____ (2020) 1
Statement of THOMAS, J. SUPREME COURT OF THE UNITED STATES KIM DAVIS v. DAVID ERMOLD, ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 19–926. Decided October 5, 2020 The petition for a writ of certiorari is denied. Statement of JUSTICE THOMAS, with whom JUSTICE ALITO joins, respecting the denial of certiorari.
In Obergefell v. Hodges, 576 U. S. 644 (2015), the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text. Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs. Id., at 711 (ROBERTS, C. J., dissenting); id., at 734 (THOMAS, J., dissenting). The Court, however, bypassed that democratic process. Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often “decent and honorable,” id., at 672, the Court went on to suggest that those beliefs espoused a bigoted worldview, ibid. See also id., at 670 (noting that such a view of marriage is “demean[ing]” to gays and lesbians because it “teach[es] that gays and lesbians are unequal”); id., at 671 (describing the view of marriage dictated by the religious beliefs of many as “impos[ing] stigma and injury”); id., at 675 (characterizing the traditional view of marriage as “disrespect[ful]” to gays and lesbians). The dissenting Justices predicted that “[t]hese . . . assaults on the character of fair minded people will have an effect, in society and in court,” id., at 712 (opinion of ROBERTS, C. J.), allowing “governments, employers, and schools” to “vilify” those with these 2 DAVIS v. ERMOLD Statement of THOMAS, J. religious beliefs “as bigots,” id., at 741 (opinion of ALITO, J.). Those predictions did not take long to become reality.
Kim Davis, a former county clerk in the Commonwealth of Kentucky, was responsible for authorizing marriage licenses. Davis is also a devout Christian. When she began her tenure as clerk, Davis’ sincerely held religious beliefs— that marriage exists between one man and one woman— corresponded with the definition of marriage under Kentucky law. See Ky. Rev. Stat. §402.005 (1998); Ky. Const. §233A (2004). Within weeks of this Court granting certiorari in Obergefell, Davis began lobbying for amendments to Kentucky law that would protect the free exercise rights of those who had religious objections to same-sex marriage. But those efforts were cut short by this Court’s decision in Obergefell.
As a result of this Court’s alteration of the Constitution, Davis found herself faced with a choice between her religious beliefs and her job. When she chose to follow her faith, and without any statutory protection of her religious beliefs, she was sued almost immediately for violating the constitutional rights of same-sex couples.
Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last. Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws. It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law.* But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.
Moreover, Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss. For example, relying on Obergefell, one member of the Sixth Circuit panel in this case described Davis’ sincerely held religious beliefs as “anti-homosexual animus.” 936 F. 3d 429, 438 (2019) (Bush, J., concurring in part and concurring in judgment). In other words, Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals. This assessment flows directly from Obergefell’s language, which characterized such views as “disparag[ing]” homosexuals and “diminish[ing] their personhood” through “[d]ignitary wounds.” 576 U. S., at 672, 678. Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy. See Campaign for Southern Equality v. Bryant, 197 F. Supp. 3d 905, 910 (SD Miss. 2016) (recognizing the plaintiffs’ argument equating an accommodation allowing religious objectors to recuse themselves from signing same-sex licenses with impermissible discrimination); Brush & Nib Studio, LC v. Phoenix, 244 Ariz. 59, 66, 418 P. 3d 426 (describing owners of wedding studio who declined to participate in same-sex weddings for religious reasons as treating homosexuals like “‘social outcasts’” (quoting Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9))).
* * *
This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari. Nevertheless, this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.” 576 U. S., at 734 (THOMAS, J., dissenting).
*Under this Court’s precedents, “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes scribes) conduct that his religion proscribes (or prescribes).” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 879 (1990) (internal quotation marks omitted). As a result of Smith, accommodations for those with sincerely held religious beliefs have generally been viewed as the domain of positive state and federal law. See, e.g., Klein v. Oregon Bureau of Labor & Industries, 289 Ore. App. 507, 543– 546, 410 P. 3d 1051, 1074–1076 (2017) (rejecting a Free Exercise claim under Smith).
That's a clear signal that two of the conservative justices don't like what occurred.
It's also a recognition of something else we noted. Justice Anthony Kennedy's opinion was so badly drafted that it would result in endless additional litigation. Kennedy didn't recognize that at the time, which was typical for Kennedy, who seemed not to be able to grasp that there really aren't any limited Supreme Court holdings and who then would go off and sulk when people didn't like them.
In this case, some people really didn't like the decision and the net result, in part, was Donald Trump. Trump, in his 2016 race for the Presidency, actually made a comment in one (but only one) interview about there being a need to "reverse" Obergefell. Most legal analysts would have regarded the chance of a near term reversal as impossible.
Most still would, but as this opinion notes, the court has already had to attempt to fix Obergefell in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, which we previously also wrote about here some time ago. So what does this mean now. Is the court going to reverse Obergefell?
Well, nobody knows, of course, but it's impossible not to note that two of the dissenters in 2015 have criticized this opinion and it was a 5 to 4 opinion. One of the justices who was in the majority, Ginsburg, is now dead and another, the opinion's author, has retired. Ginsburg's replacement is a textualist, and Thomas and Alito have specifically referred to the text of the Constitution in there comments.
If the matter came up today, squarely, my guess is that Alito and Thomas would reverse Obergefell and they're so much as asking for the opportunity to do that. My guess, and its just that, is that Barrett would as well.
My further guess, however, is that Roberts, who dissented in Obergefell and who was very critical of it, wouldn't. He's hold the opinion, I suspect, that this case is now stare decisis and therefore it is what it is. But that's one vote. What about the two new post Obergefell justices?
Nobody knows.
So what would happen if it were reversed?
All we can know with certainty is that the law would return to the status quo ante, and therefore this topic would be up to the states. As we've repeatedly noted here, none of the "conservative" justices are really that. They're textualist or originalist, they're not jurisprudential conservatives. If you had the latter, you could end up with a radical departure from what we've had in the past which would be a philosophical rejection of the premise of Obergefell, but that won't happen. All that would happen is that the topic would return to the states. States that had laws on the books allowing for same sex unions still would. States that disallowed them still would. It'd be back to the legislatures once again.
And here's where the real irony of the situation is to be found, and its one that we warned about before. In 2015, in the last year of President Obama's administration, there was a national trend towards redefining marriage to include same gender couples. Obergefell coopted the trend and ended it. Prior to Obergefell it had been widely argued that redefining marriage was a limited effort by its very nature. The court, however, converting it into a Constitutional matter unleashed a host of much more sweeping arguments that have now really gotten into society. While they've been successful, there's good evidence that they're deeply unpopular in some quarters. While its generally been missed, and we have yet to post on it ourselves, there's a deeply cultural conservative movement that's on the rise in the post Boomer generations and which is demographically a rising nearly inevitable rising tide. Therefore, if this issue come back in the next few years and Obergefell is reversed it'll not only unleash a battle in the culture war of epic proportions, it may usher in a coming demographically and culturally supported counter tide earlier than it would have occured, and it will be likely the case that those who urged the courts to take on this issue and usher in change will wish that they had not done that, but that instead they're relied upon the legislative success they were then having.
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