Judges & Judicial Process – Page 22 – Marquette University Law School Faculty Blog

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

Post author:Lisa A. Mazzie
Post published:July 8, 2015
Post category:Civil Rights Constitutional Interpretation Constitutional Law Human Rights Judges & Judicial Process Legal History Political Processes & Rhetoric Public

Rainbows 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 26—Lawrence 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.

The Problem with Justice Thomas’s Dignity Argument

Post author:Anna High
Post published:July 2, 2015
Post category:Constitutional Law Judges & Judicial Process Public U.S. Supreme Court

Justice Thomas, in his fervent dissent to the Supreme Court’s decision to invalidate same-sex marriage bans, has some interesting things to say about the concept of dignity. His view of human dignity is that it is innate and therefore inalienable: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them.”

The punchline, of course, is that the majority’s reasoning, which relies heavily on a Constitutional reading that sees dignity at the heart of liberty and the Due Process Clause, is flawed – gays and lesbians are not deprived of dignity (and therefore liberty) by their inability to marry, because “the government cannot bestow dignity, and it cannot take it away.” Essentially, Justice Thomas says, as long as the state leaves me alone, my liberty and dignity are intact.

Justice Thomas’s invocation of slavery and internment to illustrate his qualms about the dignity argument arguably undermines the moral force of his point. Moreover, it rests on a narrow and theoretical concept of dignity.

ObamaCare Upheld . . . Again

Post author:Edward A. Fallone
Post published:June 25, 2015
Post category:Health Care Judges & Judicial Process Public U.S. Supreme Court

Today the U.S. Supreme Court announced its decision in the widely anticipated case of King v. Burwell, ruling that the language of the statute authorizes tax credits for individuals who use health insurance exchanges set up by the federal government as opposed to the states. The result of the ruling is that the Affordable Care Act continues to operate and that millions of previously uninsured Americans will continue to receive health insurance under ObamaCare. Many observers had predicted an adverse ruling from the Court, and a period of uncertainty (if not chaos) if the use of federal health insurance exchanges was struck down. Today’s ruling by the Court means that there will be no disruption in the workings of the Affordable Care Act. Coupled with this week’s passage of “fast track authority” for a Pacific trade bill, the ruling also cements a record of legislative accomplishment for President Obama that will add to his legacy.

Somewhat surprisingly, the Court voted 6-3 in favor of the Administration’s proffered reading of the statute. Some observers had predicted a narrower margin. Chief Justice John Roberts wrote the opinion for the majority. The Chief Justice’s opinion also was crucial in upholding the Affordable Care Act in the NFIB v. Sebelius case in 2012, and it therefore appears that future historians will inevitably evaluate John Roberts’ career as Chief Justice in light of his prominent role in the survival of ObamaCare.