Alito and Thomas write long opinion criticizing Obergefell

[Ferguson97]

https://twitter.com/leahlitman/status/1313111838071181314

[World politics is up Schmitt creek]

Alito and Thomas gonna Alito and Thomas.

What would a case to overturn Obergefell even look like? A deep-non-Atlas-red state would have to start by re-banning SSM by statute in order for anybody to have standing, and I don't see the political will for that materializing even in the Bible Belt.

[Ferguson97]

Alito and Thomas gonna Alito and Thomas.

What would a case to overturn Obergefell even look like? A deep-red state would have to start by re-banning SSM by statute in order for anybody to have standing, and I don't see the political will for that materializing even in the Bible Belt.

They could probably rule that individuals have the right to refuse to issue marriage licenses on the basis of religious liberty, which could in effect ban it in certain parts of the country.

[VBM]

These two guys are an embarrassment to the SC. You know you’re a bad Justice when you make Trump’s nominations look good.

[World politics is up Schmitt creek]

These two guys are an embarrassment to the SC. You know you’re a bad Justice when you make Trump’s nominations look good.

I don't think Thomas is an embarrassment to the Court as such, he just has an extreme and somewhat idiosyncratic philosophy; so did, for example, William O. Douglas in the other direction.

Alito, on the other hand, is the platonic ideal of a GOP hatchet man unconvincingly posing as an impartial jurist.

[afleitch]

Sounds like they are itching for a test case.

[VBM]

These two guys are an embarrassment to the SC. You know you’re a bad Justice when you make Trump’s nominations look good.

I don't think Thomas is an embarrassment to the Court as such, he just has an extreme and somewhat idiosyncratic philosophy; so did, for example, William O. Douglas in the other direction.

Alito, on the other hand, is the platonic ideal of a GOP hatchet man unconvincingly posing as an impartial jurist.

I just read their opinion piece and it’s even worse than I thought. They provide no argument for why the 14th Amendment doesn’t apply to same sex marriage. They just whine about how they’re being called homophobes and how it’s not fair for those poor religious nuts who now have to be upset about gay people, that they don’t even know, getting married.

[Ferguson97]

These two guys are an embarrassment to the SC. You know you’re a bad Justice when you make Trump’s nominations look good.

I don't think Thomas is an embarrassment to the Court as such, he just has an extreme and somewhat idiosyncratic philosophy; so did, for example, William O. Douglas in the other direction.

Alito, on the other hand, is the platonic ideal of a GOP hatchet man unconvincingly posing as an impartial jurist.

I just read their opinion piece and it’s even worse than I thought. They provide no argument for why the 14th Amendment doesn’t apply to same sex marriage. They just whine about how they’re being called homophobes and how it’s not fair for those poor religious nuts who now have to be upset about gay people, that they don’t even know, getting married.

Welcome to the modern conservative moment

[VBM]

These two guys are an embarrassment to the SC. You know you’re a bad Justice when you make Trump’s nominations look good.

I don't think Thomas is an embarrassment to the Court as such, he just has an extreme and somewhat idiosyncratic philosophy; so did, for example, William O. Douglas in the other direction.

Alito, on the other hand, is the platonic ideal of a GOP hatchet man unconvincingly posing as an impartial jurist.

I just read their opinion piece and it’s even worse than I thought. They provide no argument for why the 14th Amendment doesn’t apply to same sex marriage. They just whine about how they’re being called homophobes and how it’s not fair for those poor religious nuts who now have to be upset about gay people, that they don’t even know, getting married.

Welcome to the modern conservative moment

I wish that Dems could impeach these two for being a sexual assaulter or a blatant partisan hack

[Bootes Void]

They are apparently defending Kim Davis who was voted out by alot in a fairly rural republican area, not the people you want to defend

[Del Tachi]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

[World politics is up Schmitt creek]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

I don't share the reflexive opposition to any and all conscience exemptions that many other LGBT people have, but it's been established since Reynolds v. United States in the late nineteenth century that the First Amendment protects all religious belief but not all religiously motivated behavior.

[redjohn]

Religious extremists itching to impose their intolerance onto others through the law. It's just a vessel for them to force Americans to abide by their religious code.

[they don't love you like i love you]

FWIW this was in response to the Supreme Court refusing an appeal from Kim Davis after a lower court ruled to allow lawsuits against her to proceed, and even Thomas and Alito didn't rule to hear the case. So very unlikely any such case even makes it to the Supreme Court, even refusing on "religious liberty" grounds to process such marriages which is exactly what Kim Davis did.

[Del Tachi]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

I don't share the reflexive opposition to any and all conscience exemptions that many other LGBT people have, but it's been established since Reynolds v. United States in the late nineteenth century that the First Amendment protects all religious belief but not all religiously motivated behavior.

The problem the Court has is to determine the extent which private individuals, "closely held" corporations and non-profit institutions can refuse to participate in certain activities under the free exercise clause, and how those claims interact with RFRA.  That's an area where the Court has a lot of leeway, and Obergefell pre-empted a more natural progression of state law that would have likely resolved some of these issues absent the intervention of the Court.  I think that's all Alito/Thomas are saying here.

[brucejoel99]

Obergefell won't be overturned, but it's quite clear that there are 'disputes' which still remain (& which at least 2 & possibly 3 justices in a month's time are still willing to hear) with regards to how LGBTQ+ individuals are treated as a protected class when compared to religious beliefs (e.g., Masterpiece Cake).

Nevertheless, for people who claim to believe in a plain reading of the Constitution, it sure seems strange to see them continually trying to tack "except for gay people" onto the 14th Amendment.

[KaiserDave]

Sam Alito gaaaaGHHHHH

He's a Phillies fan too

Unacceptable

[World politics is up Schmitt creek]

Obergefell won't be overturned, but it's quite clear that there are 'disputes' which still remain (& which at least 2 & possibly 3 justices in a month's time are still willing to hear) with regards to how LGBTQ+ individuals are treated as a protected class when compared to religious beliefs (e.g., Masterpiece Cake).

Nevertheless, for people who claim to believe in a plain reading of the Constitution, it sure seems strange to see them continually trying to tack "except for gay people" onto the 14th Amendment.

I think it's a genuine balancing act, because free exercise and equal protection are both constitutionally enumerated rights. Legal theories on both sides that attempt to establish one as somehow "more enumerated" than the other are specious. The only way to cut that knot is to argue that sexual orientation shouldn't be a protected category for equal protection purposes at all, which is a straightforwardly cruel position at this point.

[President Johnson]

Alito and Thomas are worse than Gorsuch and Kavanaugh. Actually a lot worse. Thomas even hasn't integrity going for him as the accusations against him were more serious than against Kavanaugh. Hope they retire in the next term and President Joe Biden choses the replacements.

[OSR stands with Israel]

Alito and Thomas are worse than Gorsuch and Kavanaugh. Actually a lot worse. Thomas even hasn't integrity going for him as the accusations against him were more serious than against Kavanaugh. Hope they retire in the next term and President Joe Biden choses the replacements.

If Joe Biden wins I think , they will be on the court until the next Republican wins the presidency

[Bakersfield Uber Alles]

Alito and Thomas are worse than Gorsuch and Kavanaugh. Actually a lot worse. Thomas even hasn't integrity going for him as the accusations against him were more serious than against Kavanaugh. Hope they retire in the next term and President Joe Biden choses the replacements.

If Joe Biden wins I think , they will be on the court until the next Republican wins the presidency

Yeah, the only way that they’re leaving during a Dem administration is in a pine box. Thomas is getting older, but I think Alito still has another decade in him at least. I don’t see Thomas dying any time soon, but remember how sudden Scalia’s death was.

[KaiserDave]

Alito is easily the worst Supreme Court Justice. As Nathan said he's a GOP hatchet man. Then Kavanaugh, then Thomas, then we get to the actually decent Justices.

[brucejoel99]

Alito and Thomas are worse than Gorsuch and Kavanaugh. Actually a lot worse. Thomas even hasn't integrity going for him as the accusations against him were more serious than against Kavanaugh. Hope they retire in the next term and President Joe Biden choses the replacements.

If Joe Biden wins I think , they will be on the court until the next Republican wins the presidency

Yeah, the only way that they’re leaving during a Dem administration is in a pine box. Thomas is getting older, but I think Alito still has another decade in him at least. I don’t see Thomas dying any time soon, but remember how sudden Scalia’s death was.

Thomas is less than 2 years older than Alito. People just think he's significantly older because he was already on the Court for 15 years before Alito joined.

[MarkD]

Obergefell won't be overturned, but it's quite clear that there are 'disputes' which still remain (& which at least 2 & possibly 3 justices in a month's time are still willing to hear) with regards to how LGBTQ+ individuals are treated as a protected class when compared to religious beliefs (e.g., Masterpiece Cake).

Nevertheless, for people who claim to believe in a plain reading of the Constitution, it sure seems strange to see them continually trying to tack "except for gay people" onto the 14th Amendment.

I think it's a genuine balancing act, because free exercise and equal protection are both constitutionally enumerated rights. Legal theories on both sides that attempt to establish one as somehow "more enumerated" than the other are specious. The only way to cut that knot is to argue that sexual orientation shouldn't be a protected category for equal protection purposes at all, which is a straightforwardly cruel position at this point.

It's a balancing act, all right, but not quite in the way you think.

You seem to think, Nathan, that decisions like Obergefell are based on a premise, inferred from the Equal Protection Clause, that gay people can never be treated any worse than gay people. It's as if you are saying that sexual orientation is, in some way, like race, and that discrimination against gays, lesbians, and bisexuals is just as constitutionally unacceptable as discrimination against racial minorities. But Justice Anthony Kennedy, who has written every one of the pro-gay-rights decisions of the Court, has never said anything like that in any of the opinions he has written. Justice Kennedy has never said that sexual orientation is a "suspect classifiction." The legal premise that Obergefell is based on is that marriage is a "fundamental right." It's true that Kennedy inferred this "fundamental right" from the Equal Protection Clause; he invoked precedents such as Zablocki v. Redhail, and Turner v. Safley for the authority to infer that marriage-is-a-fundamental-right premise from the Equal Protection Clause. But the premise that marriage is a fundamental right is a libertarian premise. Your premise, that gay people can never be treated worse than straight people, is an egalitarian premise. Libertarianism and Egalitarianism don't mean the same thing. They often do get mixed up with one another in Supreme Court opinions, though. The Court has inferred "equal protection of the laws" from the Due Process Clause of the Fifth Amendment, and it has inferred a few "fundamental rights" from the Equal Protection Clause.

To claim that marriage is a "fundamental right" protected by any clause of the Constitution, however, is to base the decision on a premise of an "un-enumerated right," like the right to use contraceptives, the right to have an abortion, and the right to engage in sodomy." So this is a balancing test between an enumerated right -- the free exercise of religion -- and an un-enumerated right -- the right to get married. It is not a balancing test between the premise of the Free Exercise of Religion Clause and the premise of the Equal Protection Clause -- as you see it -- that gay people can never be treated worse than straight people.

[World politics is up Schmitt creek]

The position that, if we're going to have civil marriage, a textualist reading of the equal protection clause mandates that it be gender-neutral does not inherently presuppose the position that entering into a civil marriage is itself an unenumerated constitutional right, Mark, any more than the position that not allowing women to have bank accounts was an equal protection violation presupposed an unenumerated constitutional right to have a bank account.