User talk:Iangoeswest

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Hi. Thanks for joining.--Bob^{"I think you'll find it's more complicated than that."} 20:00, 29 September 2014 (UTC)

Some initial thoughts on Obergefell

I'm organizing my thoughts on today's SCOTUS decision and thought I'd sandbox them here; they have insufficiently cohered for me to post them in a more targeted forum. I know some legal minds lurk here (as I tend to do) and I invite insights or criticism as folks wish. While not meaning to be esoteric, I do frame my ideas through the lens of 'traditional' Constitutional analysis; that is, when I discuss something like "fundamental rights" I use that term as it is usually used in the context of Constitutional analysis rather than in its more holistic sense. I don't do so to exclude anyone's insights, but to frame my own.

My investment in the issue is to some degree armchair but with more skin in the game than, say, Justice Scalia admits to in his (not entirely honest) dissent. I am both a student and teacher of Constitutional law and followed the development of the case with more than passing interest. For what it is worth - in either direction - I live in a place and scene where same-sex marriage is generally seen as normal and is about as well-integrated as I could imagine it to be anywhere in America of 2015. Lest the context of my thoughts be mistaken, I "support" the issue in every way that I think matters, that is, with my professional energy, my pocketbook, and the world I help to craft for my children, who are of sufficiently tender years as to be generally unaware that there's any group of people who finds same-sex couples odd or controversial.

And I say the above by way of wind-up, because the real issue I'm trying to unpack is that I found this a deeply problematic decision. I'm on vacation 6 hours behind Washington, and woke up before the sun was out to download and read the opinion, correct in my suspicion that it would be announced today. And I read it, and had a couple of cups of coffee, and read it again, and went out to my day and came back and read it a third time, and I'm just scratching my head over here.

"Fundamental Rights," it seems to me, was an odd and unsteady ground on which to build the edifice of this Right. The opinion does NOT do a good job of aligning this "fundamental right" with others found by the Court in the last few decades. Denuded of the pleasure of the outcome itself, I don't think it builds a particularly robust case for the right in a Constitutional sense. The takedown urged by the 4 dissents are largely unanswered by the main opinion. At the end of the day, it is difficult to square the opinion against the criticism at the heart of the dissents (the better of them, anyway), which is that this right has been found fundamental only because 5 Justices decided it was so.

Now, that's certainly enough, and I do not join the sentiment (urged by the Chief Justice, which at the end of the day was the best of the dissents) that proponents should have waited for political processes to play out; Marshall's response to that suggestion adequately, and (to my eyes) for all time dispensed with that canard 60 years ago. Suffice to say, it's not my business to tell some other group suffering under the law that they should wait for better days. As I say, I am happy with the outcome.

But reasoning matters, and this was lousy reasoning, and I'm yet to find the voice articulating that fact - the usual strong minds at SCOTUS Blog seem either to defend it as a watershed triumph (it did not read that way to my eyes) or to criticize it, each based on their own value-driven feeling of the underlying issue (with apologies to the authors on that blog, which I surely have not read as closely as I ought to). What I'm not seeing are the people saying yes, OF COURSE the Court should have decided as it did, but not on the basis of what was ultimately superficial jurisprudence.

The jurisprudence of Fundamental Rights is awfully hidebound and is in my opinion a lousy mechanism for expanding rights. There is nothing structurally in the Constitution which demands this approach; there are others that feel more natural and intellectually satisfying. Keying, as we do, questions of Fundamental Rights to those interests 'deeply enshrined in the history and conscience of our people,' it makes for a poor palette from which to paint a novel scene. Fundamental Rights is a good approach when government is trying to take away something which has been, but feels a less honest fit when trying to create something new.

There is something very back-slappy about the whole affair, as if the Court woke up one day and realized all of a sudden that gays are people too, or that they woke up and realized that marriage "matters" to gay people just like anyone else. It just doesn't read right to me (this very notion is the inchoate one which I'm wishing to tease out by sandboxing it here).

Here's the thing: the issue is one which is so much more readily and naturally understood as an issue of Equal Protection. The focus should not (cannot?) be on people's sexual practices, which are really none of the government's (or anyone else's) business. It isn't about people being "gay" and what that does or doesn't mean in our ever-evolving polity. If Sally wants to marry Betty, and Joe wants to marry Betty, and only Joe is allowed to, then Sally is being discriminated against on account of her gender, and when the government discriminates on account of gender, it needs a REALLY GOOD REASON to do so. This issue - this very formulation - was brought up by the Chief Justice himself during oral argument, but got no traction in the opinion.

Which is a shame, because it would allow us to talk about the issue for real and not just pat ourselves on the back for our faux-tolerance. There is no good reason to discriminate against same-sex couples from a governmental point of view - and when I say "no good reason," I mean that the best minds on the subject had the opportunity to make their case, and they came up with nada that sounds in logic or policy - just the same old, basically religious bullshit. And you don't get to make SECULAR GOVERNMENT from RELIGIOUS BULLSHIT.

I may be answering my own question here - it may be that the only way to hold the fragile coalition of 5 Justices together was to avoid saying, directly, what needs to be said, which is that there is no particular reason for government to "respect" viewpoints which discriminate in impermissible ways.

They have come at the answer precisely backwards - they should say with full-throated clarity that "the gender of the person with whom I share my bed is of no substantial interest to the government," rather than "society has progressed far enough that we recognize that even sodomites are entitled to the sacred estate of marriage."

I am of course happy for the individuals who could wait no longer, and perhaps am insufficiently plugged in to just how big a thing this was for how many people. I'm sandboxing this on my own user page because I'm not looking to take even a shred of spotlight or to cast even a drop of rain. Such a decision - on any grounds - would have been unthinkable a short time ago.

But that said, I play Constitutional longball. I believe this a problematic decision, grounded in the weaker of the theories which might have supported it, a theory of jurisprudence ("substantive due process") which is not ascendant in the Court.

I have much more to say and may sandbox further before it coheres; this is the most of my thoughts I've put out here, figuring it as good a place to start as any.Iangoeswest (talk) 08:48, 27 June 2015 (UTC)