Today in Supreme Court History: April 28, 2015

4/28/2015: Obergefell v. Hodges argued.

Comments

[Dan Schiavetta]

Crawford v. Marion County Election Board, 553 U.S. 181 (decided April 28, 2008): Indiana law requiring photo ID to vote did not violate Equal Protection (6 - 3 decision)

Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212 (decided April 28, 2022): emotional distress damages not available under Rehabilitation Act of 1973 or Affordable Care Act (physical therapist did not provide sign language interpreter for deaf and blind client)

Vieth v. Jubelirer, 541 U.S. 267 (decided April 28, 2004): no justiciable question presented by Pennsylvania Republicans’ political gerrymandering, no matter how obvious (the Pennsylvania Supreme Court seemed to disagree, striking down a subsequent map that “clearly, plainly and palpably” violated the Pennsylvania Constitution, 645 Pa. 1, 2018)

Edwards v. United States, 523 U.S. 511 (decided April 28, 1998): sentencing judge can permissibly find that defendants distributed crack (as well as cocaine), which the Sentencing Guidelines treat more harshly, even though verdict did not necessarily involve crack

Richards v. Wisconsin, 520 U.S. 385 (decided April 28, 1997): no-knock entry (with warrant) justified because police were aware defendants knew it was the police at the door (of a motel room) and waiting for response would give them chance to flush the cocaine

Meese v. Keene, 481 U.S. 465 (decided April 28, 1987): the term “political propaganda” as used in the Foreign Agents Registration Act (“intended to influence foreign policy”) is content neutral and therefore no First Amendment impediment to registration and disclosure requirements for materials so designated by the Department of Justice (Canadian films that a California state senator wished to show, dealing with nuclear war and acid rain)

Costarelli v. Massachusetts, 421 U.S. 193 (decided April 28, 1975): In Massachusetts, trial for certain criminal offenses was without jury -- but if found guilty, can “appeal” and get a de novo jury trial in Superior Court. Does this system violate Sixth Amendment right to trial by jury? No jurisdiction to hear a direct appeal as to this; defendant must go through to Massachusetts’s highest court (he never got that far -- perhaps he was acquitted?). (Massachusetts has since eliminated this two-tier system.)

Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (decided April 28, 1975): reports given to Renegotiation Board (watchdog agency as to excessive defense contractor profits) are not “final opinions” disclosable under the Freedom of Information Act (Dick Cheney fought tooth and nail, mostly successfully, in resisting disclosure of documents as to his pre-9/11 Energy Task Force -- this holding was probably helpful to him)

Beauharnais v. Illinois, 343 U.S. 250 (decided April 28, 1952): upholding against First Amendment attack Illinois statute criminalizing materials “portraying lack of virtue in a class of citizens” (white supremacist handing out broadsheets accusing black people of rape, murder, etc.); if there can be criminal libel against individuals, there can be such against classes of people (this case, with opinion by the Jewish Justice, Frankfurter, with recent memories of the Holocaust, has in effect been overruled by later First Amendment jurisprudence, see discussion in Nuxoll v. Indian Prairie School District, 523 F.3d 668)

Zorach v. Clauson, 343 U.S. 306 (decided April 28, 1952): (no, this was not Zorach from “Space Ghost Coast to Coast”, a great show) “release time” from public school to attend religious classes is Constitutional (we Catholic kids were let out an hour early for the bus, though with Catechism added in, we ended up getting home an hour later than everyone else)

[not guilty]

Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), the first decision recognizing a constitutional right to marry a person of the same sex, is now more than two decades old. Obergefell v. Hodges, 576 U.S. 644 (2015), extended that right nationwide.

Will the Chicken Littles who forecasted doom now admit that the sky hasn't fallen since that recognition?

[Brett Bellmore]

Let's see, the judicial drive to impose SSM on an unwilling country really kicked off in 1999, with Baker v Vermont. SSM is losing at the polls, but starts winning in the courts. By the time Obergefell rolled around, all democratic opposition to SSM being legalized had already been crushed by the courts.

Admittedly marriage rates have been declining since the early 80's, probably thanks to the War on Poverty. All you can really say is that the courts redefining "marriage" didn't slow that trend any. Certainly the marriage rate really started dropping off a cliff about the same time as Obergefell, but I'd be reluctant to posit a causal connection, because all that case did was end any hope the Court was going to undo what the lower courts had already accomplished.

My chief objection to the judicial imposition of SSM was just that: That it was a judicial imposition of something that was none of the courts' business. They just got caught up in a fad, and decided to impose their will on unwilling nation without any REAL constitutional basis, just because they thought they were right, and nobody could stop them. So long as a large enough minority in Congress to stop a constitutional amendment had their backs, nothing could be done to effectively oppose them.

Did the forced legalization of SSM mess up marriage? I doubt it, not enough 'gays' actually wanted to marry to have that effect, and marriage was already on the rocks for other reasons.

What terrifies me is wondering what the next fad will be, now that they've realized they have this power.

[not guilty]

The courts did not "redefine" marriage. Obergefell was decided on June 26, 2015. Everyone who was eligible to marry on June 25 remained eligible to marry on June 27. The judicial decisions which culminated in Obergefell merely expanded the universe of persons authorized to marry the person (s)he was in love with.

[Mr. Bumble]

The 14th Amendment: Is there anything it can’t do?

[SRG2]

Forget the court's business - why was it anyone's business who someone else wanted to marry?

[JasonT20]

Meant to reply to Brett

[Dr. Ed 2]

What I have always said is that a license is a governmental permission to do something -- and a government with the power to issue the license also has the power to revoke it and to punish the doing something without one.

So why would anyone want to give the government power to dictate whom you can lice with?

[Noscitur a sociis]

As usual, if you want the dumbest possible take, Dr. Ed is happy to provide.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

As usual, if you want the least responsive response, trigger a snowflake statist.

[Brett Bellmore]

As a policy matter, I honestly don't mind SSM. I don't think that's what the word meant, and that the courts had not remotely the constitutional basis needed to just casually ignore democratic opposition as expressed in multiple state ballot initiatives, but if the legislatures had been in the lead on this, I'd have seen no real problem with it. The entire problem from my perspective is that it isn't something the courts were entitled to do.

I can't help but recall that one of the chief arguments that killed the ERA's prospects of ratification was that it would mandate legalizing SSM. I guess in the end the courts weren't going to let refusing to ratify an amendment they approved of matter.

[Drewski]

If it's not the courts' business, do you think Loving v Virginia should also have been thrown out and that race-mixing marriage laws are valid exercises of legislative authority? If not, distinguish.

[Dr. Ed 2]

Loving v VA resulted in children.

[not guilty]

No, Dr. Ed 2, lawsuits don’t result in children. Children come into existence through more enjoyable activities.

[Dr. Ed 2]

Read the dissents in Goodridge -- marriage was a license to create children.

[JasonT20]

Sometimes dissents have important things to say. If that was as important a point to what the dissents argued as you suggest, this was not one of those times.

[not guilty]

Marriage does not create children, either. And the creation of children requires no license. The union of a viable sperm and a viable egg creates a child. The gametes know nothing of the marital status of their progenitors, who may be married to one another, unmarried to anyone, or one or both may be married, but not to the other progenitor.

[JasonT20]

When someone wants to deny infertile couples and couples with no desire to have children the ability to marry, then the procreation argument might be relevant to this issue.

[ReaderY]

Because, as Justice Blackman and Potter Stuart said, Loving concerns racial discrimination, which the constitution specifically addresses.

[not guilty]

Loving v. Virginia was based on both equal protection and substantive due process guaranties. "These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment." 388 U.S. 1, 12 (1967).

That is perhaps the only substantive due process right that Justice Clarence Toady approves of. See, Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2301 (2022) (Thomas, J., concurring). I suppose that he thinks that, like affirmative action, substantive due process is a really crappy idea for anyone whose first name is not Clarence or whose last name is not Thomas.

[JasonT20]

The government’s role in marriage has always been to legally establish who is married. That way, when the government or private entities decide to extend benefits, privileges, or responsibilities to people that are married, there is an objective standard to apply as to whether two people are married.

Having rules and regulations to determine whether two people are married will have to entail deciding who can be married. The government then has to clear the bars of due process and equal protection when setting those rules.

This was always a fairly simple exercise to me. If you acknowledge that some people are romantically attracted to members of the same sex (and that it isn’t some sort of ‘perverted’ or ‘deviant’ behavior), then it is obvious that denying them to ability to be legally married under the eyes of the law does not clear the basic rights of due process and equal protection. It is only the people that don’t want to acknowledge those facts that refuse to come to that conclusion.

They just got caught up in a fad, and decided to impose their will on unwilling nation without any REAL constitutional basis, just because they thought they were right, and nobody could stop them.

Whether "the nation" was "unwilling" or not, rights should be respected. You are presuming a lot of agreement with your perspective that is not in evidence, and the constitutional basis is quite obvious. It is the originalists that wanted to imagine how the people that wrote the Constitution and the 14th Amendment thought about same sex relationships that were going outside of the text. I sense a theme there...

[Dr. Ed 2]

Goodridge was based on the Mass ERA and NOT equal protection.

[JasonT20]

Does the Massachusetts ERA have a substantially different effect than the Equal Protection Clause?

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93/Section102

Looks to me like the Massachusetts law is really specific about what it covers, but it still has the same principle at its core: the law must apply equally to everyone.

[Dr. Ed 2]

Marshall based her decision on this:

Article CVI.

Article I of Part the First of the Constitution is hereby annulled and the following is adopted:-

All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

[JasonT20]

Like I said, that looks pretty much what any reasonable person would think that Equal Protection of the law means.

[Brett Bellmore]

"Whether “the nation” was “unwilling” or not, rights should be respected."

Once you've established that they actually exist. And when the courts are establishing whether a right exists, it should be on legal grounds, not their personal views.

[JasonT20]

The right to marry a person of one's choosing seems pretty obvious to me, if you're looking to decide whether that right exists. Governments established the parameters of legal marriage when it passed the laws surrounding it. Any restrictions on who one person can choose to marry could not be based on purely personal moral views of lawmakers (definitely not religious views). Especially not personal views that are arbitrary and capricious, and that would deny people the equal protection of the law.

[Mr. Bumble]

Moved

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Official Legal Blog of America's Vestigial Conservative Bigots (Of Many Stripes).

[Krayt]

Ironically, to religious folk, it's god that marries you, not the government, and that needs no government approval.

[Rev. Arthur L. Kirkland]

Most religious folk -- especially the fundamentalists -- are bigots.

Not all. Not nearly.

But most.

Religion neither improves gay-bashing, for example, nor transforms that old-timey bigotry into anything other than bigotry. A religious homophobe is just an especially gullible bigot. And a strong candidate to be a fan of a white, male, conservative blog.

[Dr. Ed 2]

Goodridge is part of the split that got us Trump & MAGA. It was decided by GOP appointed justices and at least two constitutional referendums to reverse it were defeated in the General Court by the MTA, both boosting their power and making them more about the leftist agenda than education.

Goodridge set the stage for the tranny bathrooms and the rest that we are dealing with now.

[JasonT20]

Goodridge is part of the split that got us Trump & MAGA.

I trace Trump and MAGA back a lot further than that. It has been a long battle within conservatism to define it as being an intellectual movement based on ideas or as a reaction to threats to the dominant social order. Go back to the post-WWII era and figures like William F. Buckley, and you see the beginnings of the intellectualism influence of conservative thought, but it never totally repudiated the reactionaries like the John Birch Society. The truth is that, just like now, it was rare for mainstream conservatives to do more than keep the more obvious racists, sexists, antisemites, and other bigots at arms length.

From Nixon's "Southern Strategy" of "law and order", to "Reagan Democrats", and culminating with the Religious Right, cultural grievance became the stock and trade of the Republican Party. That is what the culture wars have always been about. The segment of the population that says that they revere 'traditional values' is really looking to hold on to a dominant position in the cultural hierarchy. Being in the position to decide what is moral and right for all Americans is a kind of power that they don't want to give up.

Right-wing talk radio (Rush Limbaugh being the king of that format) showed how social and political commentary that fed people what they wanted to hear was a huge money-maker. What they wanted to hear, of course, was about how they were right to think and believe what they did and how the opposing side was wrong, stupid, and/or evil. Rupert Murdoch and Roger Ailes realized how much money they could make doing the same on 24/7 cable news. After all, there was never going to be enough demand for actual news to fill that much time. And competing with entertainment in prime time with straight news and reasoned analysis was also a ratings loser. The winning formula was always to turn news into entertainment. And entertainment needs protagonists and antagonists.

When news became entertainment, it was only a matter of time before politicians with success as entertainers started winning elections. I would never have guessed that a billionaire with a history of failed business ventures, that had inherited a substantial amount of his wealth or otherwise benefited from following his extremely wealthy father into his business, and that had twice (almost literally) traded in his wife for a newer model would become a standard-bearer for evangelical Republicans and working-class white voters eager to stick it to the 'elite' and the 'establishment'. But then again, his one unqualified success was as a reality TV star, so maybe it shouldn't have been that surprising.

[ducksalad]

"Will the Chicken Littles who forecasted doom now admit that the sky hasn’t fallen since that recognition?

I've got no problem with SSM, and I don't think the sky has fallen.

However, ng, I'm kind of surprised *you* don't think it's fallen. The SSM issue likely shifted enough voters to Trump to win him the election, considering how close it was. Some fraction social conservatives normally disgusted with Trump's personal behavior might have otherwise stayed home or voted third party.

As a result you got Trump, along with Gorsuch, Kavanaugh, and Barret. I think they're all decent justices but I'm surprised you do.

[Nige]

[ducksalad]

Obergefell and the debate surrounding it put a final end to the idea, already fading, that marriage was primarily about state permission to have sexual intercourse.

Instead, it’s supposed to be about hospital visits, joint tax returns, and some default rules about division of property and inheritance. And according to Justice Kennedy, state-bestowed “dignity”.

So my question: since that’s what it’s about, why shouldn’t we allow siblings to marry? Can’t see any reason to think siblings shouldn’t file a joint tax return or inherit by default or not have "dignity". And realistically, the presence or absence of a marriage license isn’t going to affect whether they engage in unprotected sex that could lead to birth defects.

I’m serious, what’s the argument against?

[Dan Schiavetta]

The state recognizes certain relationships and not others. "The life of the law has not been logic, but experience." Common experience shows that gay couples can form stable, happy, healthy, lifelong relationships. This is not true of polygamy and certainly not true of incest.

[Mr. Bumble]

Based on what? Your personal knowledge?

[Nige]

The main reason is deeply ingrained social taboo. You're not going to overcome that easily. The number of people who would see that as enough of an injustice to engage in activism is probably miniscule.

[not guilty]

Ducksalad, if you are hot to marry your sibling, go ahead and sue. A lawsuit needs at least one plaintiff, and someone needs to pay the litigation expenses. Go ahead and make your evidentiary record before a federal district court. I doubt that A-list litigators like Ted Olson and David Boies will be eager to join forces on behalf of incest practitioners, though.

[ReaderY]

For Beauharnais v. Illinois, all the protesters would have had to do is upgrade their vocabulary and use words like “genocide” and they’d fit right in with what today’s left is selling.

[ReaderY]

Beauharnais was circulating a leaflet “to halt the further encroachment, harassment, and invasion if white people, their property, neighborhoods, and persons, by the Negro.

Sound familiar?

Then read this.

“If persuasion and the need to prevent the white race from being mongrelized by the Negro will not unite us, then the aggressions…rapes, rabberies, knives, guns, and marijuana of the Negro, surely will.”

Sound familiar?

Be grateful for small signs of progress. At least the protestors obstructing today’s college campuses aren’t shouting that the Israelite is corrupting them with marijuana.

Otherwise it’s about the same.

[JasonT20]

Sound familiar?

Not really. Maybe actually quote an example of what you're talking about if you're going to compare it directly with something else that you are quoting.