Obergefell: a “reverse Dred Scott”?

Robert’s dissenting opinion (and this holds true for the other conservative justices’ dissents) amounts to a charge of judicial activism and asserts that this is an issue best left to the legislature. (Robert’s opinion of the importance of the legislature seems to me at odds with his opinion in Shelby, where he overturns a thoroughly researched and overwhelmingly supported civil rights law, apparently because of the justice’s own assessment that it’s no longer necessary.)… The petitioners are not being denied a right, according to Roberts, which would be protected by due process, but are asking for a new right that does not yet exist. He concludes by posing the question of:– if the court can redefine marriage from opposite sex to same sex, cannot it not also redefine it as occurring between two people and several (i.e., why not bigamy?). He also says there might have been room for the court to have justifiably upheld for equal protection on narrower grounds (i.e., hospital visitation rights, taxes, etc.)

Kennedy, writing for the majority, meanwhile tries to derive an essential idea of a right to marriage based on the court’s other opinions on the subject, adducing four principles. I felt that his strongest or most concrete point, though I’m not sure he comes out and directly says it, was that married couples enjoy so many legal privileges over unmarried ones (in laws with respect to inheritance, taxation, hospital access and medical decisions, etc.) that to deny some couples this right, whatever their composition, must constitute an infringement of the Equal Protection clause.


Can’t say I’ve felt very comfortable with any of the decisions of the Roberts court that I’ve so far read. Citizens United: I thought Stevens’ dissent far stronger than Robert’s majority argument (and the wrong decision). Shelby: I thought Ginsburg’s dissent stronger than Robert’s majority opinion, and the wrong decision. Heller: I thought Stevens’ dissent and Scalia’s majority more or less equally well argued (after correcting for my bias) and the wrong decision…. How you stand on Obergefell, as a legalistic matter, seems to depend crucially on your view of the scope of the due process clause, and I did not understand well the peculiarities and history of that dispute. On balance, however, I found Robert’s dissent a bit stronger than Kennedy’s majority, yet that the majority upheld the right decision — and wondered if there was something of a “reverse Dred Scott” feeling to the whole thing. Working on a very shaky remembrance of that case, I feel it was decision well-grounded in the Constitution that substantiated something today found morally abhorrent (that a person can be property), whereas Obergefell, is on morally stronger, but constitutionally weaker, grounds…. That idea leads me to imaginatively yet irrelevantly wonder (and, so wondering, conclude): if Dred Scott had been argued in Scott’s favor, what about race and slavery in the U.S. would have changed?)

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