Today in Supreme Court History

Today in Supreme Court History: June 26, 2003, June 26, 2013, and June 26, 2015

|The Volokh Conspiracy |

6/26/2003: Justice Kennedy writes the majority opinion in Lawrence v. Texas.

6/26/2013: Justice Kennedy writes the majority opinion in U.S. v. Windsor.

6/26/2015: Justice Kennedy writes the majority opinion in Obergefell v. Hodges.

Justice Anthony Kennedy

NEXT: Inhuman Conditions

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  1. Three terrible, unconstitutional and political decisions. Good choices.

    1. I didn’t know you were gay, Sam! Glad you decided to “come out”!

      1. I like how you people try to insult others by declaring them homosexual.

        What is it about homosexuality you find so revolting that makes you want to hurl accusations of it as an insult?

        1. It’s not an insult, Sam. I compliment you on being open about your orientation. Has your husband come out too?

          1. I like how you people try to insult others by declaring them homosexual.

            What is it about homosexuality you find so revolting that makes you want to hurl accusations of it as an insult?

          2. And you mean “life partner”, since husbands can’t have husbands.

            1. Ok, if that’s your preferred term. How is he with you “coming out”? Does your family know? In my nephew’s case it was a gradual process. . . they eventually noticed that he didn’t seem to be attracted to girls. Finally he got a boyfriend and now it’s known to everyone in the family but still unspoken. That’s how these things work themselves out, at least in conservative cultures like the one I grew up in.

              1. It really does warm my heart to see even the tolerant people using gay as an insult.

                It’s tell that strongly suggests you understand and grok some very hard truths about some people’s choices.

                1. Sorry, Sam. You’ve “come out” online and I’m not going to let you retract it. I know it’s not easy but you’ve chosen your path. I’m not being mean about this . . . in my previous life as a social worker I dealt with this kind of situation. I recognize the process is not easy.

                  Perhaps discussing other aspects of being gay. Has it been an issue in your life as to whether to be “straight acting” or not? A lot of gay men can’t stand real-life examples of the limp-wristed stereotype. Or is that itself a kind of oppression? I’d appreciate your thoughts on this.

                  1. Again, you insist on trying to insult me by accusing me of being gay.

                    I believe I know why some people are not particularly fond of the lifestyle (I like to call it the Four S’s of Sodomy – Sadness, Suicides, STDs, and Shame), but why do you insist on using it as an insult?

                    1. You seem to fit the “self-hating gay” profile. We should explore this. Remember, you’re the one who brought it up.

                      When did you first realize you were gay? This is a different question than noticing your friends were attracted to girls and you weren’t. When did you first feel attracted to a boy? (For most gay men, it was around age 15 or so.) Who was it? How did it make you feel? Take your time — we’re not on a schedule here.

                    2. @captcrisis

                      Again, why do you use “gay” as an insult?

                      “When did you first feel attracted to a boy? (For most gay men, it was around age 15 or so.)”

                      Isn’t 13, 14, 15 the age that most adult gay men target for their “chickenhawking”.

        2. We’re out of “reply” buttons unfortunately. So this is responding to your comment of 11:25. I note immediately and with some surprise your entrance into dangerous territory. I again respect your courage, but let’s get focus on your attraction to other adult males. I recommend you indulge in it without shame. Normally I would encourage you to put yourself in situations where you are in close contact with (other?) attractive males, but in the Covid-19 world that is not possible. Instead I encourage you to search online for attractive bodies and . . . um . . . indulge your innermost feelings. It’s a fair bet that someone in your position has already seen a great deal of pornography, but that’s not what I mean. Appreciate the beauty of the well-exercised male form.

          We’re both busy people. Can you report to me in a week?

          yours,
          captcrisis

    2. Is it terrible because they’re unconstitutional or political? Or is it terrible because of the outcome itself to you? I.e. do you actually think states should pass laws based on anti-gay animus and people in prison for life for “sodomy.”

      1. Which laws were based upon “anti-gay animus” and is anti-x animus somehow a premise that is unconstitutional?

        Aren’t many laws based upon animus towards something?

        I don’t like courts making law or striking laws because of their personal beliefs, but hey that’s just me I’m not a Law Talking Guy.

        1. No. I mean as a normative matter. Do you think society should base laws and it’s attendant state violence based on how much it hates gay people?

          1. Which laws are you referring to?

            1. Anti-sodomy laws in particular. You believe the decision in Lawrence is terrible. But also Amendment 2 in Romer which singled out gay people for a special legal disability that no other group had.

              1. Do you think unprotected sodomy has any harmful side effects on society beyond the consenting adults participating? And were the anti-sodomy laws only for gay males?

                Another way to view Amendment 2 was that it forbid granting gay people extra legal rights and thus was ensuring they were treated just like any other sexual lifestyle choices. Not legally favored nor disfavored.

                1. They were legally disfavored because they were the only group that was singled out for that treatment. Amendment two would be a much different law if it broadly prohibited protected classes in general based on a wide variety of characteristics.

                  And no. It doesn’t harm society anymore than strait sex between consenting adults “harms” society. The Texas one was only aimed at homosexual acts. The Georgia one in Bowers applied to all acts of “sodomy,” which would obviously criminalize the sexual conduct of a massive amount of the population.

                  1. So you’re stance is that it’s okay to legally favor specific groups , but it’s not okay to block specific groups from gaining that legal favoritism?

                    Am I understanding your position?

                    “And no. It doesn’t harm society anymore than strait sex between consenting adults “harms” society. ”

                    I don’t think the facts support that conclusion. The impact of AIDS alone undermines that belief. The federal government spends $30B on AIDS programs each year, that’s as much if not more than Cancer and NASA combined.

                    Doesn’t ($30B/year) spent on AIDS, whose incidence is still predominately among homosexuals, eclipsing cancer spending (only $5B/year) suggest high-risk sodomy causes more harm than natural sex? A near zero percent of AIDS is spread from natural intercourse.

                    1. Sam, talk to anyone who does family law and you’ll find out that irresponsible heterosexual activity (usually in the form of welfare payments for unwed mothers) costs the taxpayers every bit as much as irresponsible gay activity. Oh, and your claim that “a near zero percent of AIDS is spread from natural (sic) intercourse” is flat out wrong. In most of the rest of the world — sub-Saharan Africa, India, Southeast Asia — HIV transmissions are almost entirely heterosexual. Your claim may be true for the United States, but the US isn’t the entire world.

                    2. @Krychek_2

                      How HIV transmissions are happening now, considering how they started, further demonstrates my point, not yours.

                    3. Additionally, @Krychek_2

                      What do you think a government or a society should do with irresponsible behavior that harms and burdens others? Encourage and protect it? Discourage it? Disfavor it? Nothing?

                    4. Sam, the evidence is that HIV started as a mostly heterosexual phenomenon in sub-Saharan Africa. But for sake of argument, suppose AIDS were 100% a gay phenomenon; the point still is that heterosexuals are every bit as irresponsible as gays are in terms of producing unwanted children that the taxpayers end up raising, domestic violence, statutory rape, and other bad behaviors. The idea that gays have somehow cornered the market on irresponsible behavior is just nonsense.

                      And the underlying problem is that all humans are prone to irresponsible behavior. Some of it is more harmful than others. But in point of fact, a significant chunk of our health care costs would go away if people would stop smoking, stop eating junk food, lose weight, and exercise. Should we treat bad dietary habits the same way you would advocate treating gays? They cost the taxpayers every bit as much.

                      So I think the answer to your question is that on the one hand, the government do nothing to encourage irresponsible behavior, while on the other hand, recognizing the reality that bad behavior is not going to go away. And by the way, since marriage does encourage people to settle down and be more stable, perhaps opposing gay marriage is counterproductive. It won’t be a 100% fix but it would help.

                    5. “Sam, the evidence is that HIV started as a mostly heterosexual phenomenon in sub-Saharan Africa.”

                      It just happened out of the blue? Like in parallel to how AIDS started elsewhere?

                      ” The idea that gays have somehow cornered the market on irresponsible behavior is just nonsense.”

                      That idea also happens to be strawman.

                      “Should we treat bad dietary habits the same way you would advocate treating gays? They cost the taxpayers every bit as much.”

                      Where am I advocating for any particular outcome? I simply don’t subscribe to people’s pink-washed version of things.

                      “So I think the answer to your question is that on the one hand, the government do nothing to encourage irresponsible behavior, while on the other hand, recognizing the reality that bad behavior is not going to go away. ”

                      That’s it? Society and Government shouldn’t encourage it, and just recognize it and force everyone to bear it’s costs? We shouldn’t discourage it? Or disfavor it by some other means? Is that what Society and Government does for those other ills you mentioned?

                      Simply doesn’t encourage it but recognize it exists?

                      “And by the way, since marriage does encourage people to settle down and be more stable, perhaps opposing gay marriage is counterproductive. It won’t be a 100% fix but it would help.”

                      While I agree that we should encourage them to enter into long-term, monogamous, age-appropriate relationships thus hetero-norming them, I don’t think gay marriage does that, since it’s fundamentally different than natural marriage.

                    6. “That’s it? Society and Government shouldn’t encourage it, and just recognize it and force everyone to bear it’s costs? We shouldn’t discourage it? Or disfavor it by some other means? Is that what Society and Government does for those other ills you mentioned?”

                      What would you suggest as an alternative? We’re not barbarians; people who are dying of smoking, obesity or AIDS are not going to be allowed to die in the streets without medical care. At the front end, actually preventing people from engaging in the behaviors that cause those ills would require totalitarianism Joe Stalin could only dream of. If you have some other alternative to propose, let’s hear it, but I don’t see any way around the twin facts that (1) most people behave irresponsibly and (2) we’re too humane to subject people to the full consequences of their irresponsibility.

                      “While I agree that we should encourage them to enter into long-term, monogamous, age-appropriate relationships thus hetero-norming them, I don’t think gay marriage does that, since it’s fundamentally different than natural marriage.”

                      Gay marriage *is* natural marriage, but leaving that aside, how is it fundamentally different, other than anatomy? Most of a marriage consists of doing laundry, paying bills, saving for retirement, taking trips together, raising children if you have them, having date night, and, oh yes, having sex. What do straight couples do that gay couples don’t, or vice versa? Gay couples want the same things out of marriage that straight people do: emotional and financial security, someone to come home to and share life with, someone to love and be loved by. I’ve yet to hear any compelling argument for how gay people are fundamentally any different than straight people.

                      Which, by the way, is a big part of the reason we have gay marriage. Once people get that — that gay people really aren’t any different from them, other than who they prefer to share their lives with — the arguments against gay marriage essentially evaporate.

      2. I think it is a good example of the slippery slope.

        1. Well . . . soap and bubble bath . . . slippery slopes . . .

    3. I wouldn’t necessarily have a problem with these decisions if they would actually be generally applicable precedent.

      Unfortunately, these are the worst types of decisions that only apply to a small minority of the population. The rest of us continue to live under a different set of laws.

  2. Blue generation!

        1. The lamentations of their women continue . . . just look at this blog.

  3. “Once is happenstance. Twice is coincidence. Three times is enemy action” James Bond [not gay]

    1. I’d call Bond a fairly obvious example of “reaction formation”.

    2. Auric Goldfinger said that, not James Bond. You know, the bad guy?

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