Is there a decent chance SCOTUS won’t overturn Obergefell v. Hodges and Lawrence v. Texas?

[politicallefty]

I don't think there's any chance they overturn Lawrence, which certainly Kavanaugh, certainly Roberts, probably Gorsuch, and probably Barrett would all sustain. I think the odds that they overturn Obergefell are, like, 10%, but that seems more real for a number of reasons. There are plenty of ways to read the Constitution which imply the decision in Lawrence, but I think Obergefell (and for that matter Roe) are much more blatantly made up.

I suppose I could be wrong, but I just don't think the Court wants to reopen those issues. There's a lot I think this Court wants to go after, but I think they'll just avoid the issue.

I'm more confused as to how you think Lawrence is perfectly sound while Obergefell is not. If there's one major issue I have with Obergefell, it's that it didn't have a more solid foundation in the Equal Protection Clause itself as opposed to relying more on the Due Process Clause. Do you share Justice O'Connor's view in her concurrence in Lawrence?

[politicallefty]

Basically, yes; I also think there's a general shift towards the Court interpreting privacy rights in a more broad way that's taken place in the 2010s, such that it's really difficult for me to see Lawrence overturned.

By contrast, the thing with Obergefell is that no conservatives really think it was decided correctly and it's protected entirely by a lack of desire to rehear the matter or reopen the controversy. Given the Senate makeup the judiciary is broadly continuing to get more conservative over time, and while I think Obergefell is fine with the current Court I really don't know how it might fare in a court that's 7-2 or 8-1 conservative.

I was more getting at as to why you think Obergefell is more unfounded in the Constitution than Lawrence. The majority opinion in Lawrence is based on substantive due process, which most conservatives don't tend to invoke in this day and age. It's essentially the logical successor to many Warren Court decisions, such as Griswold and Roe (yes, I know Roe was 1973, but it was a Warren Court decision in spirit). Justice O'Connor's concurrence on Equal Protection Clause grounds only argued that male-male sodomy statutes are facially constitutionally when they don't cover or apply to male-female relations. I'm not sure what you're referring to in terms of a newfound broad construing of privacy rights (at least outside of criminal procedure).

As I said above, I think Obergefell could've been written on a more solid foundation than was done, particularly with respect to the Equal Protection Clause. Justice Kennedy always seemed loath to establish a standard of review of sexual orientation (unless his viewpoint was that discrimination always failed rational basis, though he only mentioned rationality in Romer v. Evans). However, there are many in conservative legal thought who agree that same-sex marriage is protected by the Constitution. I've read a multitude of reasoning, ranging from the fundamental right to marry (established in Loving) to discrimination on account of sex. While I agree with both rulings, I think the precedential and textual basis for the right to same-sex marriage is much stronger.

If the Court somehow gets to a 7-2 or 8-1 conservative majority, that's a revolutionary change in the legal landscape, far beyond what this 6-3 majority can do or even probably conceive of. I think there is a point where the Court can lose legitimacy.

[politicallefty]

Next, to examine the problems with your theory that bans on same-sex marriage are exactly the same as bans on interracial marriage, let's start by thinking about four fictional people: Ricky, Lucy, Fred, and Ethel. As we think about them, suppose from the outset, that we don't know -- and that we don't CARE -- what sexual orientation any of the four of them are; they could all be heterosexual (a 0 on the old-fashioned Kinsey Scale), they could all be homosexual (a 6 on the Scale), or they could be any degree in between, such as bisexual or pansexual (1, 2, 3, 4, or 5). Now suppose the four of them decided they want to pair up and become two married couples. The traditional, common-law definition of marriage -- de facto identical to the laws adopted by tens of millions of voters in most of the states in the United States during the period prior to 2013 -- says that Ricky can get married to Lucy or Ethel, but not to Fred, and likewise, Lucy can get married to Ricky or Fred, but not to Ethel. Thus, all four of them are being treated equally -- the exact same way as one another -- because they all have TWO options of who they can get married to.

If those traditional/common-law bans on same-sex marriage get repealed -- one way or another: by voters (three states in the US and the entire country of Ireland), by legislatures (eight states in the US, and by some other countries such as Germany), or by courts -- then those four people have THREE options for who they can get married to instead of two. The change in the law results in an expansion of the options of whom one can get married to. The fact of expansion of options IS similar to the phenomenon of legalization of interracial marriage, but it still is not exactly the same.

When interracial marriage was illegal, whites were allowed to marry any other white person (OF THE OPPOSITE SEX)(and not certain close relatives), and all nonwhites were allowed to marry other nonwhites (DITTO)(and ditto). But that law gave white people a larger pool of potential marrying partners than nonwhite people. "There's a lot of fish in the sea," is an expression that was more meaningful for whites than for nonwhites. This is a point that I believe the SCOTUS should have made in the Loving opinion, but Chief Justice Earl Warren forgot to make that point. I do approve of the Court's conclusion in Loving, and most of what was said in Section 1 of the opinion, but the opinion could have been better by pointing out the larger-pool-of-marrying-partners point I just discussed, as well as point out the several decisions that the Court had been making from Brown v. Board of Education on through McLaughlin v. Florida -- striking down ALL de jure segregation of the white race from nonwhite races in public education, public golf courses, public beaches, parks, courthouses, and even cohabitation. After the Court forbade all of those instances of de jure segregation of the races, it was only logical to come to the conclusion that de jure segregation of the races in terms of marriage was the next -- LAST -- step of the process of forbidding de jure racial segregation.

That is not at all comparable to bans on same-sex marriage, because those bans integrate the sexes, the exact opposite of segregation. Bans on same sex marriage do not even segregate gay couples from straight couples; they require all marriages to be HETEROSEXUAL MARRIAGES and do not allow HOMOSEXUAL MARRIAGES AT ALL. Bans on same-sex marriage ban Lucy-Ethel marriages just as much as they ban Ricky-Fred marriages, which is to say that both sexes are treated the exact same way. The victims of this specific kind of discrimination are homosexuals compared to heterosexuals, not women compared to men!!!

Furthermore, can you imagine what would have happened in 1967 if some Ricky-Fred couple, and/or a Lucy-Ethel couple had asked the SCOTUS for the "equal right to get married to the person I love"? A lawsuit like that would have lost before The Supremes in 1967 by a margin of at least 6-3, maybe larger.

Furthermore, the Loving decision did not unleash of floodgate of millions of people eager to get married to a member of an "opposite" race (whites getting married to nonwhites and vice versa); most whites still get married to whites, most blacks still get married to blacks, most Asians still get married to Asians, and so on. Interracial marriages are still a small minority of all marriages that occur. But legalization of same-sex marriage does unleash a floodgate of tens of thousands of gay couples who wished to get married, and who now can.

I wish I could quote here some lengthy excerpts from Chapter 3 of a book called "Same-Sex Marriage and the Constitution," written by a law scholar by the name of Evan Gerstmann. In that chapter, 23 pages long, he thoroughly dissects all of the legal arguments in favor of the view that "bans on same-sex marriage can be viewed as forms of sex discrimination," and he completely, emphatically rejects those arguments. The most succinct quotes of his that I will include here are:
[A formal legal argument that same-sex marriage ban is gender discrimination] "is deeply, fundamentally dishonest. It is based upon the dubious assertion that the ... ban is best understood as a policy that discriminates against women. It would be difficult to say this to gay men with a straight face.
"It is obvious that the group that is being discriminated against is homosexuals, be they male and female. They are the ones who are being told that their love and commitment is not worthy of being solemnized by marriage; that their relationships are not worth the legal protection that marriage would bring; that their life partners cannot be stepparents to their children; and so forth. To say that this is about discrimination against women instead of gays and lesbians is blatantly misleading. It is the use of law to manipulate categories and to mislead rather than to cast light, as Loving did, upon the true nature of state-sponsored discrimination.
"The law serves its highest purpose best when it serves the side of truth and strips away the obfuscations of prejudice. This purpose was served when the [US Supreme] Court declared that Virginia's antimiscegenation laws were a pillar of 'White Supremacy' rather than a neutral system of laws that treated the races equally." ...
"Fundamental differences between interracial marriage and same-sex marriage mean that the same-sex marriage ban cannot honestly be viewed as gender discrimination."

I don't believe you can decouple discrimination on the basis of sexual orientation from sex discrimination. The two are intrinsically and inherently related. Marriage laws have never been statutorily constructed based on sexual orientation. Where they have been explicitly defined, it is based on sex (i.e. man and woman). In your first example, the individuals in question are being treated equally in some ways, but they are still being discriminated against in other respects. In your example, the fact that Lucy cannot marry Ethel is not somehow countenanced by the fact that Ricky cannot marry Fred and vice versa. Lucy cannot marry Ethel because she is a woman while Ricky would be permitted to do so because he is a man. That is without question the essence of sex discrimination.

The motivation is not relevant when the statute itself is designed to differentiate based on sex. As the Court noted in Craig v. Boren:

Analysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that distinguish between males and females are "subject to scrutiny under the Equal Protection Clause."

I would also point out that the author you quote only mentions discrimination against women. Sex discrimination does not just work in that one sole direction. Mississippi University for Women v. Hogan was quite noteworthy in being a case where discrimination (in particular, exclusion) against men was found to be unconstitutional.

You also note what likely would have happened if the question of same-sex marriage had reached the Court in 1967. I don't think you're wrong in your supposition or the likely outcome. On the other hand, if you go back 48 years prior to that decision, do you really think the Court would've struck down laws barring interracial marriage in 1919? I certainly don't think so. There were only 16 states that banned interracial marriage when Loving came down in 1967. That was also at a time when just 20% of Americans approved of interracial marriage (17% among whites and 56% among non-whites). Prior to 1948, 30 of the then 48 states had anti-miscegenation laws. There's no way those laws wouldn't have been upheld prior to the Warren Court.

There are a couple points here that make a distinction, though; first of all is that the Fourteenth Amendment doesn't specifically list sex discrimination (or any other kind of discrimination) as banned the way Title VII did in the language ruled on in Bostock. There are some debates as to whether or not the Fourteenth Amendment bans sex discrimination - this is a major part of the debate over the ERA - and I believe Justice Thomas has stated at least once that he does not believe the Constitution prohibits sex discrimination at all (I may be misattributing a quote from another jurist here, though). Even without that, though, the specific text Gorsuch cites to make his argument in Bostock doesn't exist here except in previous Supreme Court precedent, and Gorsuch himself is generally more open to questions of original intent when dealing with the Constitution itself when compared to statutes where he almost always goes for the grammatical, plain-meaning approach.

I agree with you here. I think some on the left are too optimistic about Gorsuch when it comes to the Equal Protection Clause. His philosophy on constitutional interpretation is not the same as his statutory interpretation. He is without question very principled in his judicial philosophy and has no problem following it wherever it takes him. However, he is still an originalist with respect to the Constitution. I certainly wouldn't compare him to Thomas, who's generally in a different world from everybody else. We really haven't seen many Equal Protection Clause cases in recent years though.

[politicallefty]

I can and I always will decouple them.
It's true that there is a relationship between them. That's because the definition of sexual orientation includes an observation about the sex of the person AND the sex of who they are attracted to (male, female, both (or neither)). The same does not work in reverse: you can talk about any person's sex and be ignorant of - indifferent toward - that person's sexual orientation. So one definition is embedded within the other, not the other way around. But the definition of sexual orientation MUST include a variation on the word ATTRACTION. Without that word, there is no definition of a sexual orientation. The definition of sexual orientation MUST include an observation about TWO people -- the one who feels attraction and the one who is the object of attraction. The definition of sex is clearly identifiable by referring to only one person.
You referred to two SCOTUS cases dealing with the subject of sex discrimination. I can easily refer to many more than those two. The two cases you mentioned -- Craig v. Boren and Mississippi University of Women v. Hogan -- both dealt with policies that were discriminatory toward men, treating men worse than women. I can name even more cases, such as Orr v. Orr (alimony law), Michael M. v. Superior Court of Sonoma County (statutory rape law), and Rostker v. Goldberg (the draft). Plus there are also cases addressing affirmative action programs for women, challenged by men, such as Johnson v. Transportation Agency, Santa Clara County. So sex discrimination can and sometimes does work both ways, often treating women worse than men, but sometimes the opposite occurs. But the same thing cannot be said about sexual orientation discrimination, right? Whenever somebody - anybody - has a policy of engaging in discrimination based on sexual orientation, who is always going to be treated worse: gay men, lesbians, and bisexuals (worse than straights)? Is it possible that some straight people will get treated worse than gay people? Like, in some sort of far-fetched hypothetical? If so, it is only going to be in a far-fetched hypothetical, not in reality.
I can, and I always will, see numerous differences between sex and sexual orientation. I won't equate them; I will only see a one-way ratchet of one definition being embedded within the other.

I'll start by saying that I do not believe all of the cases you mentioned support your viewpoint. Orr v. Orr supported the Equal Protection Clause claim. I think Rostker v. Goldberg was wrongly decided. I feel it's a blatant violation of the Constitution, but it doesn't surprise me on account of the Supreme Court's reluctance to get involved in military issues. It has not been overturned though, so I digress. However, it does indeed work both ways. Discrimination will always be discrimination. It doesn't matter which side is treated better or worse, which is exactly why I mentioned the cases that I did. In your last example, I can certainly imagine some programs in some jurisdictions that could go that way.

Of course, but that is because of the very long-term predominance of Heterosexual Supremacy that has gone back for literally centuries. It's been there from the start of the United States, it was there in the pre-Revolutionary War American colonies, and it had been there for centuries in English culture before the North American continent was settled, predominantly, by English settlers. Heterosexual Supremacy presumed these things: that being heterosexual is what all people were BORN TO BE, that homosexuality was a shameful, disgusting, perverted practice of a small minority of sinners, that those who do it damn well better keep their sinful, unnatural sex life in a closet -- keep it secret, don't brag about it -- and that such sinners should try to (as Archie Bunker once succinctly put it) "STOP THAT!" Furthermore, even the term "sexual orientation" is a relatively recent construct, in comparison to all those centuries of Heterosexual Supremacy. In the centuries before the term "sexual orientation" was invented, it would probably have been commonplace to refer to lesbians by the word lesbian, but to refer to gay men by words such as "sodomite" and "pederast." And the word "heterosexual" was preceded by -- what? -- "normal?"

Heterosexual supremacy was not the primary motivation though, to use your example. Male supremacy came first and was above all else, not to mention white supremacy being a major factor in society for most of this country's history. However, between the two, it's clear that male supremacy was more powerful in thought and in law for most of this country's history. Black men obtained the right to vote in 1870. It took another 50 years for women to get the right to vote under the Constitution.

All of what you said there is disgusting and awful and a shameful aspect of this country, both past and present. There are many things that were considered acceptable and normal that no longer are. None of that changes the basic principles of the Fourteenth Amendment and the Equal Protection Clause.

No, the essence of sex discrimination is: "We'll allow Lucy-Ethel marriages, but we won't allow Ricky-Fred marriages."

This is where I think the anti-sex discrimination argument goes most wrong. It doesn't matter that certain combinations are allowed. Disallowing some means there is still fundamentally discrimination. I feel like you're only considered men as a group and women as a group without considering the rights of each individual. It sounds like another form of "separate but equal". You are denying the right to marry based on the sex of the spouse. Ethel and Fred are not treated equally with respect to each other if only of them can choose Lucy as their spouse. They are both being treated differently on account of their sex. I think your logic, which I have seen before, fails to get down to the most fundamental aspect of the issue. I do not believe you can stop there since inequality and discrimination still exist under such an argument. Showing equality in one aspect does not stop us from looking at the inequality in other aspects, as is the case with this issue.

That's because I was only quoting from some sentences in the concluding pages of the chapter. I did not quote anything from the beginning pages or the middle pages of the chapter. Early in the chapter, Gerstmann discussed the most simple legal argument that sexual orientation discrimination is sex discrimination, calling it "the formal argument." That first, simplest kind of legal discussion can simply be phrased in such a way as to talk about the effect on four people like Ricky, Fred, Lucy, Ethel in the way that I did before. But in addition to "the formal argument" are "the feminist approach" and "sex stereotyping theories." In the middle of Chapter 3, a section subtitled "Heterosexism and Patriarchy":

The formal argument is not the only argument that the same-sex marriage ban is a form of gender discrimination. There are other, more subtle versions of the argument. One version is what Theodore Schroeder calls the feminist approach. Pioneered by Sylvia A. Law, this approach "begins with the premise that homosexual conduct is despised because it challenges our culture's traditional gender roles, roles with a hierarchical bias against women" Law calls this phenomenon "heterosexism." According to this theory, "sexual orientation discrimination furthers the ultimate goal of sex discrimination: maintenance of the traditional model [of gender roles]"
For radical feminists such as Catherine MacKinnon, these traditional roles, which are furthered by heterosexism, are at the core of the oppression of women. "[W]e have had enough of the glorification of this heterosexuality, this erotization of dominance and submission, while women-centered sexual expression is denied and stigmatized."
One of the best elucidations of this view is by William Eskridge, who describes homophobia as a "weapon of sexism." According to Eskridge, "Homophobia became one way modern urban culture responded to women's political and social equality." Homosexuality is despised because it is a threat to a gender-dichotomized world in which men are active and powerful while women are weak and passive. In the homosexual world, men can be  passive and penetrated while women can be dominant and take on the traditionally male sexual role. By demonizing gays and lesbians, heterosexual men keep women in their place. "Numerous studies by social psychologists have shown support for traditional sex roles correlates strongly with disapproval of homosexuality."
But this demonization of homosexuality does not only oppress gays and lesbians. "This is the argument that in contemporary American society, discrimination against lesbians and gay men reinforces the hierarchy of males over females and thus is wrong because it oppresses women."
This argument has also been applied to the same-sex marriage debate. The requirement that marriage be duel gendered railroads men and women into roles of husbands and wives and into a heterosexual institution that is historically and perhaps inherently oppressive toward women. Cass Sunstein argues: "It is possible to think that the prohibition on same-sex marriages, as part of a social and legal insistence on 'two kinds' [of gender], is as deeply connected with male supremacy as the prohibitions of racial intermarriage is connected with White Supremacy. Perhaps same-sex marriages are banned because of what they do -- because oh how they unsettle -- gender categories. Perhaps same-sex marriages are banned because they complicate traditional gender thinking, showing that the division of human beings into two simple kinds is part of sex-role stereotyping, however true it is that men and women are 'different.' " (Citations omitted, but colorized emphasis added by me.)

This is why, in the concluding pages of the chapter, Gerstmann refers to "discrimination against women."

It sounds to me what you're quoting is that sex discrimination is inherent in discrimination on the basis of sexual orientation. I can't say I disagree with the observations made in that quote, although I obviously think things are far more complicated than that. It's not that dissimilar to hypodescent with respect to race. I think it's fair to say that same-sex male relations have been and are more stigmatized than same-sex female relations, something I think is even more true with respect to male bisexuality compared to female bisexuality. I would certainly agree that the aspects society ascribes to and expects out of masculinity is a major basis for homophobia (and biphobia by extension).

I completely agree. Like I said above, Loving was the last step in the overall trend of striking down de jure segregation of the races. There was no way that the SCOTUS would have dealt with interracial marriage BEFORE it dealt with segregation of schools, golf courses, parks, beaches, courthouses, or even cohabitation. All those other decisions had to come first, because they created a linear path of growth that would eventually lead to and point to the issue of interracial marriage. The same kind of linear path of growth has not happened in terms of how the SCOTUS has treated gay people. The racial cases were unanimous (because everyone on the SCOTUS knows that racial discrimination is the most unacceptable kind of discrimination), but the cases about gay men, lesbians, and bisexuals have not been unanimous (because of ideological divisions). Romer v. Evans lead to Lawrence v. Texas, which lead to U.S. v. Windsor, and finally Obergefell v. Hodges. There is virtually no similarity whatsoever between the two paths of growth, and Justice Anthony Kennedy himself would obviously loathe trying to make any comparison between race and sexual orientation.

I think saying "no similarity whatsoever" is quite extreme. While I don't disagree that racial discrimination is considered the most unacceptable form of discrimination, that was not obvious for most of this country's history. The change in Fourteenth Amendment jurisprudence did not happen overnight. I don't believe you can decouple that change from the beginnings of the Civil Rights Movement. (I would also argue that FDR presided over a massive reshaping of the Court, having appointed 8/9 Justices by 1943.) The beginnings of the "separate but equal" doctrine were also resounding majorities at the Court. Pace v. Alabama was unanimous and Plessy was 7-1. From what I can tell, that line of jurisprudence didn't start to fall until 1948's Sipuel v. Board of Regents of the University of Oklahoma (argued by none other than Thurgood Marshall).

You also started your sexual orientation case line with Romer, but it really started with Bowers. That went the other way, but it was only 5-4 back in 1986. But you also jumped straight from the racial cases to sexual orientation. I would argue that you should also look at the sex discrimination cases. You had the 6-3 ruling in Goesaert v. Cleary (1948) that upheld a blatant sex discrimination law. That wasn't overturned until 1976's Craig v. Boren, 7-2 (though only five for the majority holding). But the true beginnings of the Court's change in its views on sex discrimination with respect to the Equal Protection Clause absolutely coincided with the rise of second-wave feminism. Many of those decisions were fairly close as well as the Court became more conservative with Nixon having had four Justices confirmed.  I don't think the recent cases are the same when you have an organization like the Federalist Society that preselects nominees for one political party. That's one of the biggest differences in recent years versus the days of the Warren Court.

[politicallefty]

Politicallefty, I don’t see any point in trying to continue beating a dead horse in terms of whether or not you and I can find any agreement on the issue we’ve been discussing: are bans on same-sex marriage clearly a form of sex discrimination? I adhere to the philosophy of Originalism, but, as I recall you saying on another thread, you identify yourself as adhering to Textualism. Origanlists and Textualists arrive at the same interpretation of laws on many occasions, but there are certainly several occasions in which they don’t, and this is obviously going to be one of them.

I agree that we'll have to agree to disagree on that issue. As for my philosophy, yes, I do consider myself a textualist first and foremost. The words are what we are given in terms of the Constitution and law. I don't discount originalism entirely though. My judicial philosophy would probably be a bit more holistic overall, but I do consider textualism to be my primary guiding philosophy. I have recently found some of the ideas behind "framework originalism" to be rather intriguing.

This probably won't surprise you, but I don't really hold Bork in the highest of opinions. I won't list the litany of reasons, but I would start with the First Amendment. I can think of few things more offensive to the Constitution and the protections afforded by the First Amendment than believing freedom of speech only applies to political speech or that school-led prayer is permissible. I can't think off-hand of any Supreme Court case that specifically brought up whether the First Amendment covers only political speech, a view that not even most staunch originalists I'm familiar with would agree. On religion, I would say that Engel v. Vitale is one of the most important and vital decisions dealing with the Establishment Clause.

As much as I like Justice Black, I think he was all over the place on voting rights. You mentioned Harper v. Virginia State Board of Elections, a decision where he dissented (one of the few times where I would disagree with him). I have trouble reconciling his dissent in that case with his joining of the majority in Baker v. Carr and Reynolds v. Sims. I would argue that the right to vote and access to the political process is necessary under both the Guarantee Clause and the Equal Protection Clause. The right to vote and be part of the political process is one of the most important safeguards against tyranny.

I take a more expansive view of the Equal Protection Clause than you. While I do agree that discrimination on the basis of race is one of the insidious form of discrimination, I do not believe it is the only protection afforded by the clause. The framers of the Fourteenth Amendment almost certainly had race at the top of their minds when they conceived the amendment. However, they included no such limitation in the text. If they wanted to limit the Equal Protection Clause to only cover race, they would have included it in the text. They did no such thing. That is one of my biggest issues with originalism. It seeks to put in words that severely limit a principle that means so much more. I would argue that at it's most fundamental level, the Equal Protection Clause protects against class-based and caste-based discrimination (which I believe would include race, sex, sexual orientation, and more). I would also argue that it provides for protections for all people with respect to fundamental rights.

With respect to the first cases regarding the Equal Protection Clause, you do mention the correct decision in Strauder v. West Virginia. I'm not sure how you can say the text doesn't guide one to that result. However, just a couple years later, you get the now-defunct Pace v. Alabama. Unlike Strauder, Pace was unanimous and probably far closer to the intentions of the adopters of the Fourteenth Amendment.

When you consider fundamental rights, I actually would prefer to look to the Ninth Amendment. I tend to prefer Justice Goldberg's concurrence in Griswold over the majority opinion. In a case like Obergefell, I would argue that the right to marry is a fundamental unenumerated right under the Ninth Amendment and that the Fourteenth Amendment expands that right to same-sex couples. I wouldn't say that your other cases all have a commonality in terms of the issues presented. I'm not sure how you get an Equal Protection Clause case out of Skinner. On that, I would definitely look to the Eighth Amendment. I already mentioned Baker v. Carr. Bush v. Gore was a mess, I agree. The dissenters had a far better proposal in mind that could have worked. I was also disgusted that the Justices in the majority hid behind a per curiam decision.

I only mentioned the Reed v. Reed decision and second-wave feminism in the context of the Court shifting along with the country. But the Court's shift on racial discrimination also coincided with the Civil Rights movement. One of the earliest decisions of that era that began the monumental change was Sipuel v. Board of Regents of the University of Oklahoma. Brown v. Board was the culmination of what had been building for several years. The separate but equal doctrine had already been eroded. You can also look to Truman's decision to integrate the military. When you consider all of those issues as well as sexual orientation, it's clear the Court does not move on issues such as these without some undercurrent.

When is the “notion” of what the EPC means going to stop changing? When is the SCOTUS going to start following Judge Hand’s advice (and it was, indeed, just advice) to “go no further” than how far the Justices know the framers and ratifiers of the EPC would have gone?

I do not have an answer as to the limitations of the Equal Protection Clause. I believe it is constitutional principle, not a specific standard. I would argue that the outer bounds are current unexplored. However, that can be said about a number of parts of the Constitution.

I also do not believe the Fourteenth Amendment is some unlimited well of rights to further certain political aims. I find such insinuations to be offensive. I do believe the left in general has gone too far in certain aspects. I find affirmative action to be repugnant to the Equal Protection Clause and I would also generally find myself in agreement with the majority in Adarand Constructors, Inc. v. Peña.

As a gay man who believes in Originalism, I completely understand why you say it is a disgusting, awful, and shameful part of American history, but to me it means that our Founding Fathers, in 1787 through 1789, and the proposers and ratifiers of the Fourteenth Amendment, in 1866 through 1868, could not possibly have intended to create a legal guarantee that, one day, far off into the future, gays, lesbians, and bisexuals would eventually get “equal rights.” If “homophobic” refers to people who are morally judgmental towards homosexuals and bisexuals, then our Founding Fathers and the people who adopted the Fourteenth were homophobic too. Even gay men, lesbians, and bisexual people AT THE TIME were probably not salivating at the chops, thinking, “Oh boy! We’ll get equal rights some day!”

For the most part, I don't think their intentions are relevant. They put the words they did into the Constitution and that's what we have. With that said, many in that era surely knew that the words they put into Constitution would have different applications for future generations. However, the principles established by the words are the same as they have always been. That includes the protections of life and liberty and the establishment of a more egalitarian society.

If you and I can agree that, when either of us cites a string of cases that all deal with the same topic, we will cite cases in which the government won and the parties who challenged the government lost, in addition to when the case went the opposite way, then the real origin of the gay rights cases was not Bowers, but about three weeks before Loving v. Virginia in 1967: Boutilier v. Immigration and Naturalization Service.

Touché. I was not aware of that case. It was a statutory interpretation and immigration law has generally been treated differently in terms of deference to Congress. I'd also argue that a decision like that really reinforces my points on the Equal Protection Clause. That decision seemed to be based far too much on the erroneous science of the day that considered homosexuality to be a mental disorder (homosexuality was not removed from the DSM until 1974). I don't think that's that different from those that argued that certain races are superior or inferior to one another.


I tried to go for some sense of brevity here. On a separate note as to your view of originalism, I am curious to know how you view a number of cases in the past. I don't want to make this post any longer than I already have though. I'll ask this another way for now: what are your top 10 decisions from the Warren Court?

[politicallefty]

Politicallefty, I'll pass over the vast majority of what you said, and I'll just address two of the things you said near the end.

For the most part, I don't think their intentions are relevant. They put the words they did into the Constitution and that's what we have.

This is something about which I will never be able to agree with you. Here is a quintessential example of when an Originalist and a Textualist will have to agree to disagree -- and stop arguing with each other.

I hope you read it all, because I read every word you posted. We may not agree on everything, but I do respect your views and your process.

As an alternative way of answering your question about my view of the top Warren Court decisions, I'll list not just ten decisions, but I'll list ten constitutional topics/subject areas and list many of the Warren Court decisions I agree with. In this list, I am not always in agreement with the Court's opinion, and which provision of the Constitution the Court cited, but I think all these conclusions are good decisions.

[SNIP]

That's a fair response. As for your choices, I would agree with every case you mentioned except when you listed the so-called "conservative/restrained" cases. I agree with some, but definitely disagree with others. I am curious to know how you reconcile your originalist thought with decisions such as Mapp (although that was based on an earlier decision, Weeks v United States), Gideon, and Miranda. I'm frightened by modern originalism that seeks to undo those decisions. (Personally, I would argue that Sixth Amendment rights are positive rights, ordering the government to act in a specified manner and with respect to the rights of the accused.)

Shapiro v. Thompson has to be one of the strangest breakdowns I've seen of the Warren Court. Warren and Black in a dissent together against a six Justice majority?

I don’t feel like complementing the Warren Court as strongly as Prof. Currie did, however, because I think the Warren Court made too many mistakes, in addition to the ones the Court got right. I think the Warren Court made even more mistakes than the following mistakes that Currie pointed to.

This probably doesn't surprise you, but I find a lot to like in that quote you shared about the Warren Court. I feel like one of the most important things the Warren Court did was give meaning to the words. If the government can wantonly violate rights with limited remedies for criminal defendants, the words basically become suggested guidelines without meaning or effect.

As I indicated above, I support Bolling and Miranda, so I disagree with Prof. Currie about whether the Court went too far on those two cases. I have no particular opinion about Watkins, Slochower, and Griffin, one way or the other. I agree with Currie about Reitman, Robinson, and Griswold. But the list of wrong Warren Court decisions needs to be longer than the eight cases Currie mentioned. In the first Currie quote I have above, I put an ellipse between the words “to” and “interests.” Here is what Currie had said which I previously omitted: “the political process, to discrete and insular minorities, and to”. The Warren Court decisions about “the political process” dealt with voting rights, and the only “discrete and insular minorities” that I can think of that the Warren Court “protected” are blacks, religious-minority groups, and illegitimate children; while I certainly agree with protecting blacks, and the Free Exercise Clause justifies protecting religious-minority groups, I certainly don’t agree with assuring equal rights for illegitimate children, for reasons I spelled out in my last long post.

I don't have strong feelings about all of those cases and some of these I've been barely aware of. As someone that looks at the text above all else, I have some trouble with Bolling, but I certainly wouldn't overturn it. I really feel like I need to study that decision some more and read more about what people have said over the years. As from what I can tell from Griffin, I can't say I have any issues with Justice Black's opinion. I'm actually surprised that decision came down the way it did considering Justice Frankfurter's jurisprudence.

Unenumerated rights: Griswold v. Connecticut, Reitman v. Mulkey, Hunter v. Erickson, Loving v. Virginia (Section 2 of the opinion)
Voting rights cases: Baker v. Carr, Wesberry v. Sanders, Reynolds v.  Sims, Avery v. Midland County, Kirkpatrick v. Preisler, Gray v. Sanders, Harper v. Virginia Board of Elec., Kramer v. Union Free School District[/i]
Cruel and Unusual Punishment case: Robinson v. California
Establishment of Religion cases: Engel v. Vitale, Abington School District v. Schempp, Epperson v. Arkansas[/i]
Equal rights for illegitimate children and their mothers: Levy v. Louisiana, Glona v. American Guaranty and Liability Co. (these two were companion cases, handed down the same day; they were like opposite sides of the same coin; decided by the same 6 to 3 division of the Justices)
Free speech cases: Tinker v. Des Moines, Street v. New York

Prof. Currie offered strong praise for the Warren Court’s decisions regarding the voting rights cases and the Establishment of Religion cases, and I quite strongly disagree with him about those. I don’t understand why Currie did not criticize Levy and Glona.

Considering your view on those free speech cases, is it fair to assume you did not agree with Texas v. Johnson?

Also, I emphasized some of the decisions I'm curious about. I'm not totally surprised you disagree with the voting rights cases, but those all had Justice Black in the majority (Wesberry was written by Black himself). He wasn't exactly unrestrained with respect to the Equal Protection Clause (although Wesberry itself wasn't based on the EPC).

I'm more surprised by your views on the Establishment Clause cases. That line of cases is probably second only to free speech itself in its importance to me and how serious I take the issue.

I'm also surprised you didn't mention Trop v. Dulles.

[politicallefty]

I eventually decided that I can settle on accepting Bolling as a correct decision but incorrect in terms of how it explained the constitutional inference. Bork, Ely, and Currie rejected Bolling because of your textualist instinct: the equal protection clause is explicitly directed at the states, and nothing in the Constitution says that the federal government has to treat everyone equally. At first, I agreed with Bork and Currie, but I saw an intriguing argument in the pages of National Review (for a few years in the 1990's, I subscribed to it). NR said that the reason the federal government has to treat everyone equally, without any clause explicitly saying so, is because of Section 5 of the Fourteenth, empowering Congress to enforce the provisions in the Fourteenth -- ALL provisions. If Congress -- and the Executive branch, of course -- are empowered to enforce the EPC, then there also has to be an implicit requirement that the federal government has to obey that rule of treating everyone equally. The federal government cannot be above the rule of law that it is empowered to enforce. Just like law enforcement officers cannot be above the laws they enforce, neither can the legislative or executive branches of the federal government be above what they enforce. My intuition is that the proposers and ratifiers of the Fourteenth would agree with that.

Those are all good points and I can't say I disagree. I never said textualism was my sole philosophy. On the other hand, I certainly don't think the Constitution intended for logical absurdities. In terms of the decision as to current jurisprudence, I think it is entrenched among the so-called "super-precedents". In a sense, your thinking is similar to the supposition that a sitting President cannot pardon himself/herself, correct?

I'm actually rather disturbed that Justice Thomas wrote a concurring opinion this past week essentially calling for Bolling to be overturned.

Griffin v. Illinois is a hard one for me to figure out whether to agree with or not. I haven't  read the opinion yet, I've just seen it summarized, and two of the scholars who I respect so much -- Bork and Currie -- both reject that decision as going too far. And I agree with you that it is surprising to see Frankfurter concur in that judgment.

I think Justice Black's opinion speaks for itself. A case like that denies some of the most basic and fundamental aspects of Due Process and by extension, Equal Protection.

Yes, I don't agree with Texas v. Johnson. Politically, I wouldn't agree to voting in favor of a law that bans flag-burning; as long as someone does not burn a flag under my butt, it's no skin of my nose. But burning flags and crucifixes are destructive actions, and the First Amendment doesn't say "Actions speak louder than words." It just says to protect words, because JUST words is a more civilized way of communicating than getting violent and destructive.

Yes, Black wrote the majority opinion in Wesberry, and that opinion is the worst, most unpersuasive one I've seen him write in all the time, so far, that I've been reading his opinions. That was clearly a case of: conclusion first; premises to follow, and it was one of Black's opinions that makes it clear to me why Bork says that Black's early career was so awful: full of too much liberal judicial activism. I've been suspicious, too, about Baker and Reynolds since I was a high school junior, and even after I eventually got around to reading them, I simply didn't see anything that persuaded me those were the correct interpretations of the Constitution. Frankfurter's dissent that "one man, one vote" was never the intended meaning of anything in the Constitution was much more persuasive to me. As much as I admire Hugo Black, he was wrong about "one man, one vote" in every way.

I have been suspicious about Engel and that whole "wall of separation between church and state" since I was a high school junior too, and even after I started reading more about how to interpret the Constitution, I didn't find anything legally persuasive about the school prayer rulings. And I know I sound like a far-right-wing reactionary rube when I say that I see nothing unconstitutional about a law that bans the teaching of Darwin's Theory of Evolution, but I intend to be consistent about my quite narrow interpretation of the Establishment of Religion Clause. I haven't even read one line of the Epperson opinion, I just know how to reason through to the kind of conclusion the Court obviously came to, and since it places primary emphasis on the Establishment Clause, and my interpretation of that clause is pretty narrow, my instinct is to reject it.

Don't know enough about Trop; maybe I'll take the time to read about it later. It's an immigration issue, and like you said, the Court often tended to be deferential to the authority of Congress and the Executive branch on immigration issues, so that conclusion does seem a bit surprising.

I do believe we'll have to agree to disagree as to Texas v. Johnson. I consider myself an absolutist as to the First Amendment. I would strike down libel and obscenity laws in a heartbeat. I will admit that conduct is a bit different, but I do believe it is still protected under the First Amendment. While I strongly disagree with the idea that freedom of speech covers only political speech, I do believe that political speech is the most important right under its protection. But, as I said I agreed to disagree, I digress.

I will get back to you about Wesberry and the other voting rights cases in our private chat.

Engel and its progeny is probably at the top of my list in terms of decisions where I am an absolute hardliner. There is probably no opinion I've ever read in which I more wholeheartedly agree than Justice Black's majority opinion in Engel v. Vitale.

As for Trop, I only asked about that to get an idea of your views on the Eighth Amendment.