The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

b599a34c0d512e42e3f5277e172bbebcd745dd98Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others.

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Who Needs Words Anymore?

emoji press releaseMy worst fear has been realized: we can now stop writing in words.

Last week, Chevy issued a press release written entirely in emoji (except for its hashtag line #ChevyGoesEmoji). Emoji are the little graphics that appear all over the digital world. You’ve probably gotten emails or text messages that include them: a thumbs up sign; a little yellow smiley or angry or sad face; a dog; etc. I’ve done a screen capture of a portion of that release that you can see above. According to one journalist, the press release was “utterly incomprehensible.”

The press release introduced the 2016 Chevy Cruze and seemed to be an attempt to appeal to millennials—the younger generation generally born between the early 1980s to the early 2000s. While the company released its English translation the following day, those in media attempted to decipher the emoji version.

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Persuading People Who Don’t Want to Be Persuaded

I just finished a recent book by Steven D. Levitt and Stephen J. Dubner. If the names Levitt and Dubner sound familiar, it’s because you may have heard of their popular (and interesting) Freakonomics books (here and here). In the book I just finished, Think Like a Freak, Levitt and Dubner set out to teach readers how to “retrain [their] brain[s]” so that they, too, can “think like a freak.” The book defines what it means to “think like a freak” (it’s not a bad thing; it’s critical and curious thinking with a twist), and offers its step-by-step guide. But one chapter stuck out to me as particularly relevant to lawyers (and law students): How to Persuade People Who Don’t Want to Be Persuaded.

Now, the easy thought here is that this advice will apply to brief writing. And, yes, that’s true, but I think we can think of persuasion more broadly. Even a lawyer’s “objective” work has an element of persuasion to it. A demand letter must “persuade” its reader to comply; an internal office memo must “persuade” its reader that the analysis is the correct (or at least best) one.

So, what do Levitt and Dubner say?

First, we must “understand how hard persuasion will be—and why” (168).

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