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

[Donerail]

Is it possible Kavanaugh won’t vote to overturn them? He didn’t join Thomas and Alito in the Kim Davis case.

kavanaugh is not going to vote to overturn either of these cases

[Person Man]

At this point, my guess is that this has 3 votes towards happening.

[Unbeatable Titan Susan Collins]

At this point, my guess is that this has 3 votes towards happening.

Who is the 3rd Justice? (I assume Thomas and Alito are the first two)

[Skill and Chance]

At this point, my guess is that this has 3 votes towards happening.

Who is the 3rd Justice? (I assume Thomas and Alito are the first two)

Kavanaugh, because he dissented in Bostock?

[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.

[I’m not Stu]

Isn't Kavanaugh closer to Thomas than he is to Roberts?

[Del Tachi]

Lawrence is bad law.

[MarkD]

Lawrence is bad law.

Amen. I hate the Lawrence decision and the opinion passionately. There has not been any SCOTUS decision that has made me angrier. There is no precedent that I more badly want to see overturned.

And to think that I used to want a decision like that. I'm 57 y.o. now, and Bowers v. Hardwick was handed down when I was 21. During the period of 1986 to 1990, I wanted Bowers to be overturned, but that was when I was young, naive, and unaware about the original meaning of the Ninth Amendment. Once I learned what that amendment was intended to mean, I changed my mind about whether Bowers should be overturned. By 1991, I realized that it was correctly decided, even if it had a few wrinkles in the accuracy of what it said. Now I want to reinstate it, providing it with an even more accurate interpretation of the Constitution.

I'll get back to you soon - eventually - politicallefty.

[Person Man]

At this point, my guess is that this has 3 votes towards happening.

Who is the 3rd Justice? (I assume Thomas and Alito are the first two)

Kavanaugh, because he dissented in Bostock?

Ok. Maybe 4 then. I don't see ACB not overturning homosexual rights.

[Ferguson97]

Lawrence is bad law.

Amen. I hate the Lawrence decision and the opinion passionately. There has not been any SCOTUS decision that has made me angrier. There is no precedent that I more badly want to see overturned.

Nothing makes you angrier than the Supreme Court decision that says you can't criminalize sex between consenting adults?

[progressive85]

Lawrence is bad law.

It may be contrived poorly on a lawyerly-constitutional level (I haven't read the opinion myself to examine if this is true) but so were the damn laws it overturned.  Selective enforcement of a persecuted minority for private consensual intimacy in their own home?  That sounds like a communist state.

[MarkD]

Lawrence is bad law.

Amen. I hate the Lawrence decision and the opinion passionately. There has not been any SCOTUS decision that has made me angrier. There is no precedent that I more badly want to see overturned.

Nothing makes you angrier than the Supreme Court decision that says you can't criminalize sex between consenting adults?

If you looked at the rest of my quote above, you should have realized why I have such an emotional investment in the topic of sodomy laws and whether the SCOTUS should overturn them, and whether they should have overturned Bowers.

It can be very easy to react to Lawrence the same way that Robert Bork spoke about Griswold in his book The Tempting of America. "The 1965 decision in Griswold v. Connecticut was insignificant in itself but momentous for the future of constitutional law." There is a lot of similarity between laws banning (or regulating) contraceptives and laws banning sodomy -- similarity in terms of why legislatures pass those kinds of laws, similarity in terms of how often people are arrested or prosecuted for violating them, and similarity in terms of what effect they have on the sex lives of people who intend to violate them.

Long before Lawrence was handed down, I read a quote from Benjamin Franklin that goes: "Laws which are too strict are seldom enforced, and laws which are too lenient are seldom obeyed." (I should note at the outset that quoting a statement like that from one Founding Father is not tantamount to having discovered the intended meaning of anything that is in the Constitution.) When I saw that quote, I realized that is the basic problem with both laws against contraceptives and laws against sodomy: those laws are so strict that law enforcement officials (like cops and public prosecutors) don't want to enforce them, and when people see that those laws are not being seriously enforced, then if they want to violate those laws, they can go right ahead and do so virtually all they want, because there is no realistic reason to fear that they might be arrested or prosecuted for doing so (except in some rare circumstances that I'll discuss below). That's why these kinds of laws are so insignificant.

But Bork said just because the case was insignificant does not mean that the Court's decision and opinion were not "momentous for the future of constitutional law." Bork explained that more thoroughly when he discussed the case and the opinion of Skinner v. Oklahoma. Justice Douglas wrote both Skinner and Griswold, and in both opinions, Douglas was displaying his knack for concocting new law like a magician pulling a rabbit out of a hat.

Oklahoma enacted a statute providing for the sterilization of habitual criminals. A "habitual criminal" was defined as a person who had committed two "felonies involving moral turpitude." ... A certain Skinner had been convicted of felonies three times, once for stealing chickens and twice for robbery with firearms.
The problem in analyzing the case, Skinner v. Oklahoma, is that the statute strikes the modern sensibility as savage. There is a natural tendency to want to strike it down. But the Constitution is a legal document, one different in texture from almost all others, but still a legal document and not an expression of a mood or a general injunction to be "civilized." To nullify the Oklahoma legislature's policy on the grounds that it shocks the judge is to embed in the Constitution the judge's notions of public policy. ...
The approach Douglas [used] was not merely improper on the occasion on which it as used; it led to more judicial lawlessness in the future. Judges ... are not usually content to say that a statute is unconstitutional because it is abominable. They try, therefore, to frame doctrine so that the intolerable law may be disposed of on what sound like legal grounds. But when the case is gone and the abomination erased, the doctrine remains. Lawyers and lower court judges will rely upon it, new cases will be decided in reliance upon it, and ... judicial power will have expanded to yet new territory. ...
[Douglas said the Oklahoma law was unconstitutional] because it affected "one of the basic civil rights of man." It was clear, of course, that nothing in the Constitution made the state of being fertile a civil right. ...
If the only effect of Skinner were to prevent a few sterilizations in Oklahoma, these matters would not be worth discussion. We could shrug and forget it as an aberrational decision that was at least morally acceptable if not constitutionally justifiable. But that is not the way law works. Decisions are precedents; doctrines are applied to new cases; and what begins as an attitude of "Let's do it just this one time" grows into a deformation of constitutional government. Skinner, in its attempt to frame doctrine that would stop the operation of a law that the Court regarded as cruel, framed doctrine that gave judges a new power to read their likes and dislikes into the Constitution. (Bork, The Tempting of America, pages 62, 63, and 66-67.)

(I don't actually agree with Bork that there is no constitutional way to justify the conclusion in Skinner. There are two other ways to come to the same conclusion that the Court, as a whole, did in that case without distorting the meaning of the Constitution. Chief Justice Harlan Stone wrote a concurring opinion to Skinner, explicitly disagreeing with Douglas's stated doctrine, but finding that Oklahoma would violate Mr. Skinner's right to procedural due process if it sterilized him. And another way to come to a valid conclusion that the Oklahoma statute was unconstitutional would be to cite the Cruel and Unusual Punishment Clause of the Eighth Amendment. Punishing someone for multiple counts of felony larceny by sterilizing them is a form of punishment that goes much too far; the punishment is too severe in proportion to the crime that was committed. That was a legal argument that Skinner's attorney made to the Supreme Court, as Douglas's opinion explicitly acknowledged, but Douglas passed over that legal argument in favor of a different way of creating a new doctrine that isn't in the Constitution.)

Not only is all of this very important -- the deformation of the Constitution by sly tricks -- regardless of whether the particular issue IS important, such as sterilization, or as unimportant as rarely enforced laws about contraceptives and sodomy, but I also got very, very angry at Justice Kennedy's opinion in Lawrence because it was chock full of flat-out LIES and displays of HYPOCRISY. Those lies and hypocrisy were very similar to what Kennedy had written in Romer v. Evans, a decision that also made me extremely angry, so when Romer served as a precedent that led to Lawrence, what I saw was Kennedy compounding more lies (in Lawrence) on top of lies he had already written (in Romer). However, in order for me to spell out all of the lies in those two opinions, I would have to make this whole post five or more times longer than it already is.

Lawrence is bad law.

It may be contrived poorly on a lawyerly-constitutional level (I haven't read the opinion myself to examine if this is true) but so were the damn laws it overturned.  Selective enforcement of a persecuted minority for private consensual intimacy in their own home?  That sounds like a communist state.

Two wrongs do not make a right. Sh**ty laws made by legislatures should be repealed by the legislature, but if the judicial branch concocts sh**ty excuses for "striking down" the legislature's sh**ty laws (see my arguments above in response to Ferguson97), then that only exacerbates the amount of sh**tiness there is in government, leading to even more contempt for all of the branches of government, at all levels of government, and it leads to even greater contempt for the legal profession. (Hence, we come up with jokes like, "Do you know what a lawyer and a sperm have in common? They both have a one-in-a-million chance of becoming a human being.")
Violations of sodomy laws -- and arrests for those violations -- do not just occur in someone's own home (the latter is extremely rare). When I first started getting involved in the gay community in St. Louis back in the 1980s, I heard many rumors that in the southwest corner of Forest Park, was an area called the "fruit loop." It was a forested region of the corner of the park that few people ever went to -- there aren't any park attractions in the southwest corner -- except that gay men used the forest in that corner to "cruise" each other, and once they'd met there in the park, they didn't go to their homes, they stayed there in the park and had sex in the woods. Besides that, I heard many rumors that certain gay bars had a back room where a perpetual orgy was taking place, so again, if you met someone in the bar, you didn't have to go home to have sex; people would have sex right there in the bar. The arrests of gay men that occurred in St. Louis, in the 1980s, were in the "fruit loop," in Creve Couer Lake Park (in the northwest region of St. Louis County), and in those bars that had a back room. The reason I was learning about those places, and that cops DO arrest gay guys in them, is because I was being taught that those are the places to avoid if you don't want to get arrested.
Be that as it may, I need to point out that the last statement you made is purely emotional, not a legal argument.

[Ferguson97]

While this is a very long and detailed response, you haven't actually answered my question.

There is a lot of similarity between laws banning (or regulating) contraceptives and laws banning sodomy -- similarity in terms of why legislatures pass those kinds of laws, similarity in terms of how often people are arrested or prosecuted for violating them, and similarity in terms of what effect they have on the sex lives of people who intend to violate them.

When I saw that quote, I realized that is the basic problem with both laws against contraceptives and laws against sodomy: those laws are so strict that law enforcement officials (like cops and public prosecutors) don't want to enforce them, and when people see that those laws are not being seriously enforced, then if they want to violate those laws, they can go right ahead and do so virtually all they want, because there is no realistic reason to fear that they might be arrested or prosecuted for doing so (except in some rare circumstances that I'll discuss below). That's why these kinds of laws are so insignificant.

I fundamentally disagree that there is no realistic reason to fear that they may be arrested for this. But it doesn't matter how "reasonable" those fears are or aren't, because that's not how rights work. 

(I don't actually agree with Bork that there is no constitutional way to justify the conclusion in Skinner. There are two other ways to come to the same conclusion that the Court, as a whole, did in that case without distorting the meaning of the Constitution. Chief Justice Harlan Stone wrote a concurring opinion to Skinner, explicitly disagreeing with Douglas's stated doctrine, but finding that Oklahoma would violate Mr. Skinner's right to procedural due process if it sterilized him. And another way to come to a valid conclusion that the Oklahoma statute was unconstitutional would be to cite the Cruel and Unusual Punishment Clause of the Eighth Amendment. Punishing someone for multiple counts of felony larceny by sterilizing them is a form of punishment that goes much too far; the punishment is too severe in proportion to the crime that was committed. That was a legal argument that Skinner's attorney made to the Supreme Court, as Douglas's opinion explicitly acknowledged, but Douglas passed over that legal argument in favor of a different way of creating a new doctrine that isn't in the Constitution.)

I probably would've gone with the Cruel and Unusual Punishment argument if I were a judge, but I still don't see why the reasoning that the majority used was bad. I'd like to know why you think it was a bad decision.

Not only is all of this very important -- the deformation of the Constitution by sly tricks -- regardless of whether the particular issue IS important, such as sterilization, or as unimportant as rarely enforced laws about contraceptives and sodomy, but I also got very, very angry at Justice Kennedy's opinion in Lawrence because it was chock full of flat-out LIES and displays of HYPOCRISY. Those lies and hypocrisy were very similar to what Kennedy had written in Romer v. Evans, a decision that also made me extremely angry, so when Romer served as a precedent that led to Lawrence, what I saw was Kennedy compounding more lies (in Lawrence) on top of lies he had already written (in Romer). However, in order for me to spell out all of the lies in those two opinions, I would have to make this whole post five or more times longer than it already is.

I doubt it will produce anything of substance, but sure. In your long response, you still haven't actually explained why you think Lawrence is a bad legal decision.

[I spent the winter writing songs about getting better]

At this point, my guess is that this has 3 votes towards happening.

Who is the 3rd Justice? (I assume Thomas and Alito are the first two)

Kavanaugh, because he dissented in Bostock?

His Bostock dissent was about as woke as one could be while dissenting, he both praised the advancements the LGBT community had made and implied that he sympathized with the outcome of the decision, he simply stated that he believed that establishing those anti-discrimination protections was the job of Congress, not the courts.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

At this point, my guess is that this has 3 votes towards happening.

Who is the 3rd Justice? (I assume Thomas and Alito are the first two)

Kavanaugh, because he dissented in Bostock?

His Bostock dissent was about as woke as one could be while dissenting, he both praised the advancements the LGBT community had made and implied that he sympathized with the outcome of the decision, he simply stated that he believed that establishing those anti-discrimination protections was the job of Congress, not the courts.

This is a common rhetorical trick with Kavanaugh, though--some of his most conventionally right-wing opinions include a great deal of flattery of and expressions of sympathy for the people or groups he's ruling against.

[I’m not Stu]

Remember this.

https://twitter.com/BrynnTannehill/status/1512487255755018240?cxt=HHwWgMCq6ajJt_...

[Donerail]

lol

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Remember this.

https://twitter.com/BrynnTannehill/status/1512487255755018240?cxt=HHwWgMCq6ajJt_...

Not even a bluecheck? WEAK!

[MarkD]

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.

Many times here in Talk Elections, when I want to emphasize some legal point, I quote from Robert Bork, because his book The Tempting of America, taught me more about constitutional law than anything else I have ever read. I agree with Bork’s philosophy of Originalism; I agree with him that Originalism is the only morally acceptable judicial philosophy to hold; and I agree with him that Originalists must once in a while bow down and respect precedents that were not based on Originalism if the precedents are fait accompli – effectively irreversible for practical reasons. I feel as though I’ve got to repeat, here, some of what Bork has said. Thirty-five years ago, when he testified to the Senate Judiciary Committee (chaired at the time by Joe Biden), he said:

The judge’s authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or their representatives voted for. The judge, to deserve that trust and that authority, must be every bit as governed by law as is the Congress, the President, the state Governors and legislatures, and the American people. No one, including a judge, can be above the law. Only in that way will justice be done and the freedom of Americans assured.
How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. …
If a judge abandons intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate power.
He or she then diminishes liberty instead of enhancing it. … [W]hen a judge goes beyond [his proper function] and reads entirely new values into the Constitution, values the framers and the ratifiers did not put there, he deprives the people of their liberty. That liberty, which the Constitution clearly envisions, is the liberty of the people to set their own social agenda through the processes of democracy. …
My philosophy of judging, Mr. Chairman, as you pointed out, is neither liberal nor conservative. It is simply a philosophy of judging which gives the Constitution a full and fair interpretation but, where the Constitution is silent, leaves the policy struggles to the Congress, the President, the legislatures and executives of the 50 states, and to the American people. (From Tempting, page 300.)

For the next two statements Bork made in his book that I will "quote," I will paraphrase him rather than quote him verbatim. Whatever is your constitutional philosophy, it is your theory of what it is that legitimizes the power of judicial review – the power of judges to strike down democratically-made laws. If you take the position that you like the result of what the SCOTUS has done, even though you know that it was not what the proposers and ratifiers of the Constitution intended, and if you don’t care that it went beyond the original intent, that is tantamount to saying that you prefer a judicial oligarchy with which you agree to a democratic-republic with which you do not. (Page 78 of Tempting.) And Bork emphasized how morally important it is to respect the intentions of those who adopted the Constitution:
There exists among some lawyers and judges a weary cynicism that often finds expression in words attributed to Charles Evans Hughes: “The Constitution is what the judges say it is.” Hughes was hardly the first to have made the point. About two hundred years earlier, in the year 1717, a clergyman named Bishop Hoadley said, “[W]hoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke them.” These statements are sometimes taken to ratify cynicism. They should not be. Nobody who knows anything about Hughes’s career would suppose he meant that power is all. It is essential to bear in mind the difference between the reality of judicial power and the legitimacy or morality of the use of that power.
It IS a truism, but it is not anything MORE than a truism, that, for all practical purposes, at any given moment, the Constitution is what the Justices say it is. Right or wrong, the statute you petitioned your legislature to enact has suddenly become void just because the Justices have said so. But behind that reality lies another fact just as real, and one with normative meaning: there is a historic Constitution that was understood by those who enacted it to have a meaning of its own. That intended meaning has an existence independent of anything judges may say. It is that meaning the judges ought to utter. If law is something more than mere naked power, it is that meaning that the Justices had a moral duty to pronounce. Bishop Hoadley and Chief Justice Hughes, far from reconciling us to cynicism, emphasize the heavy responsibility judges bear. Power alone is not sufficient to produce legitimate authority. (Page 176 of Tempting.)

Not long after I read Bork’s book, I read the Supreme Court’s opinion in Harper v. Virginia Board of Education, because I could see that something which Justice William O. Douglas wrote in that majority opinion made Bork pretty pissed. Upon reading Justice Hugo Black’s dissent, I could see very clearly that he was even more angry than Bork was. Let me state at the outset, before I quote Douglas’s opinion and Black’s dissent, that Black did use a couple of logical fallacies, but I’m sure that was because of how angry he was. Black’s implicit anger has sometimes brought tears to my eyes when I read his dissent.

[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality. … Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.

That statement obviously made Hugo Black livid. (To see that he was, in fact, an Originalist, see what he said in this quote about “the original meaning.”)

The Court's justification for consulting its own notions, rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be "shackled to the political theory of a particular era," and that, to save the country from the original Constitution, the Court must have constant power to renew it and keep it abreast of this Court's more enlightened theories of what is best for our society. It seems to me that this is an attack not only on the great value of our Constitution itself, but also on the concept of a written constitution which is to survive through the years as originally written unless changed through the amendment process which the Framers wisely provided. Moreover, when a "political theory" embodied in our Constitution becomes outdated, it seems to me that a majority of the nine members of this Court are not only without constitutional power, but are far less qualified, to choose a new constitutional political theory than the people of this country proceeding in the manner provided by Article V.

The logical fallacies that I see in that quote are that Douglas was not advocating to “save the country from the original Constitution,” he was advocating to transcend the original meaning in order to improve the country. And Douglas did not believe that the original meaning of the Equal Protection Clause was “outdated,” he believed that the original meaning -- "the political theory of a particular era" -- was inadequate. Whenever I re-read that quote, and I see the two fallacies, I sense how extremely angry Black was when he wrote those words, and the combination of his anger with the profundity of his saying that the Justices do not have the constitutional power, and are not qualified, to change the meaning of the Constitution are statements that have sometimes made me cry.

There is one more federal judge, besides Bork and Black, who has made me see the wisdom and necessity of adhering to Originalism, and that is Judge Learned Hand. In 1933, he wrote an essay entitled How Far Is a Judge Free in Rendering a Decision?, and he recited it over a nationally-broadcast radio program. The essay was later printed in his famous 1952 book, The Spirit of Liberty. In that essay, Hand dissected the Textualist and the Legal Realist schools of thought about how judges should decide cases. He did not use either of those terms; he called Textualism the “Dictionary school,” and he had no label to give to Legal Realism, but I can readily see those are the proper modern descriptions of the two schools of thought that Hand referred to. Hand said neither of those schools of thought are correct (and neither school applies its theory consistently). In the last two paragraphs of the essay, Hand advocated for Originalism – without using that word either.

But the judge must always remember that he should go no further than he is sure the [lawmakers] would have gone, if [they] had been faced with the case before him. If he is in doubt, he must stop, for he cannot tell that the conflicting interests in society for which he speaks would have come to just result, even though he is sure that he knows what the just result should be. He is not to substitute even his juster will for theirs; otherwise it would not be the common will which prevails, and to that extent the people would not govern.
So you will see that a judge is in a contradictory position; he is pulled by two opposite forces. On the one hand he must not enforce whatever he thinks is best; he must leave that to the common will expressed by the [lawmakers]. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed. Nobody does this exactly right; great judges do it better than the rest of us. It is necessary that someone shall do it, if we are to realize the hope that we can collectively rule ourselves. (Learned Hand, The Spirit of Liberty, 1952, pages 109-110.)

I have also contemplated how Bork would clarify what Hand said: Bork would say that when Hand said “go no further,” but “put into concrete form,” the lawmakers' intentions, he meant that judges should do those things when identifying a major premise in whatever law they are interpreting –  common law precedents, statutes, or constitutions. Bork taught me that it is traditional for lawyers to learn how to engage in legal reasoning by using the syllogism. I had to go look up the definition of syllogism the first time I read Bork’s book, and when I did, I learned that a syllogism is ”a logical structure of formal argument that consists of a major premise, a minor premise, and a conclusion that must be true if the premises are true.”

So, what does all this mean in terms of how I interpret the Equal Protection Clause? I would have thought you have seen me say this before, but in case you haven’t, here’s my interpretation: the EPC should be limited only to the topic of racial discrimination. You saw me say, in my April 3rd post, that all Supreme Court Justices have understood that racial discrimination is the most constitutionally unacceptable form of discrimination (and you said you agree with that). What I should have said – in addition, or instead – is that racial discrimination has always been understood as the one kind of discrimination that was foremost on the minds of those who adopted the Fourteenth Amendment. It is clear from the Court’s first-ever interpretations of the EPC that prohibiting racial discrimination was the main purpose, if not the ONLY purpose, of the EPC. The first-ever interpretations of the EPC were in The Slaughterhouse Cases, and the white-only jury cases of 1880, mainly, Strauder v. West Virginia. Put another way, the first major premise that the SCOTUS ever took from the EPC was the premise that racial discrimination by state governments is absolutely prohibited. The text does not guide anyone to that interpretation, but the historical context of the Fourteenth Amendment SHOULD. Hence, that interpretation is an Originalist-style interpretation.

And IMO, that is the only major premise that the SCOTUS should have ever inferred from that Clause. IMO, the SCOTUS has performed sloppy lawyerly craftsmanship almost every time it has expanded the meaning of the EPC to address additional major premises. The second major premise the SCOTUS ever inferred from the EPC was the so-called rational basis test. That concept was that the EPC cannot be taken literally, it is not an absolute rule, but it is a limp admonition that states must not be arbitrary and capricious when they treat people differently from one another. The Court was very sloppy in creating that major premise, and it has not been consistent in applying the legal doctrine that it has articulated. One case in which the Court applied rational basis scrutiny to a law and upheld it was Tigner v. Texas, (1940); Justice Frankfurter wrote a sentence that has become often-repeated in rational basis cases ever since. “The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” The first appropriate response to Frankfurter should have been: of course not, you idiot, because the EPC does not refer to “things,” it refers to people. You should have said “human characteristics” rather than “things.” If you said that, and added the caveat of “except for race,” then the statement would make complete sense.

The third major premise the Court eventually got around to inferring from the EPC is that state governments are not allowed to discriminate against aliens – i.e., noncitizens. That is a very peculiar premise to infer from the Constitution, when you consider the fact that the Constitution itself, as a whole, engages in discrimination against noncitizens, by making citizenship a qualification for holding elected federal office. The Court was eventually inconsistent about applying this premise too.

The fourth major premise the Court concocted was a generalization: that the EPC attacks all forms of xenophobia. “[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Bork protested against that concept, because it is utterly subjective, and it could and eventually did lead to the phenomenon of SC Justices reading their personal likes and dislikes into the Constitution. I completely agree, and on this particular premise, I also agree with Bork that John Hart Ely’s famous book “Democracy and Distrust” contains within it an unintentional self-contradiction. This fourth premise paved the way for the sixth and the eighth premises.

The fifth major premise was that the EPC protects “fundamental rights” that are not enumerated anywhere in the Constitution. That trend started with Skinner v. Oklahoma (containing more sloppy craftsmanship), and led to subsequent decisions such as Baker v. Carr, (and a whole slew of other voting-rights cases, such as Bush v. Gore -- the worst conclusion of all time), Eisenstadt v. Baird, Zablocki v. Redhail, Turner v. Safley, and Obergefell v. Hodges.

The sixth major premise was the concept of discrimination against illegitimate children, starting with the case of Levy v. Louisiana (1968) – which has by far been the worst-written majority opinion of the Court I have ever seen. That ruling led to several more cases handled by the Court throughout the 1970s and into the early 1980s. It surprised the hell out of me when I first learned about the string of cases dealing with this topic, and when I saw the cases, (in particular, when I saw a specific statement by Justice Brennan in his dissenting opinion in Labine v. Vincent (1971)) I saw that the best way to compare sexual orientation to race is not by drawing a line from racial issues to sex/gender issues then to sexual orientation, but to draw the line from racial issues to illegitimacy of childbirth issues and then draw a line from that to sexual orientation issues. I’ve seen Prof. Lawrence Lessig say so too, in a Fordham Law Review article about 24-25 years ago. Lessig said that, even though Levy v. Louisiana was an “extraordinarily sloppy” opinion, it should serve as a template for how the SCOTUS should address cases of discrimination against gays, lesbians, and bisexuals.

The seventh major premise that the Court has been dealing with started in 1971 with Reed v. Reed, which coincided with, as you put it, politicallefty, “second-wave feminism.” Reed was purported to be based on rational basis scrutiny, but I don’t think that really makes any sense, and Justice Brennan tried to merge the Reed precedent into his intermediate scrutiny premise that he concocted in Craig v. Boren. Then the eighth major premise may possibly be sexual orientation discrimination, although Romer was purported to be an example of rational basis scrutiny (and the second-worst written majority opinion I have seen), it eventually became clearer, in U.S. v. Windsor, that the Court was applying some kind of a balancing test, rather than any test that has ever been articulated before in any majority opinion (Justice J. P. Stevens articulated the concept of using a balancing test to ALL kinds of discrimination, uniformly, in his dissent in Cleburne v. Cleburne Living Center). (And as I said two paragraphs above, Obergefell was actually based on “fundamental rights” reasoning: libertarianism instead of egalitarianism.)

(To be continued)

[MarkD]

(Continuing)
But again, as I’ve said, I think that all of these additional major premises have all been mistakes, and I have seen another law scholar who agrees with me about that.

Nevertheless the case of sex discrimination points up the fragility of the Court’s initial decision to extend equal protection beyond the racial classifications that the Court once agreed the clause was all about [referring to Slaughterhouse and Strauder]. No doubt it was a little late by the time the gender cases were decided to limit the clause once again to race, but that does not make it any less regrettable the Court’s original failure to justify turning what might have been a firm guarantee against racial discrimination into a flexible tool for striking down any laws found unreasonable by five unelected judges. (David P. Currie, The Constitution in the Supreme Court: The Second Century (1888-1986), 1990, page 500.)

It’s “regrettable” because the SCOTUS keeps on expanding its own power – incrementally destroying federalism and separation of powers – it keeps on performing unexpected/surprise tricks on the legislators and voters of the state and local governments, the Court’s written opinions have almost always been sloppy and unpersuasive, and it all drives a nail into the heads of those of us who are Originalists. To us, the syllogism was not properly utilized; the major premises were not true, so the conclusions were not true either. (There have even been some conservatives who protest about Bush v. Gore, although not enough have protested.) To us, it makes it all the more HORRIFIC that Justice Douglas said, in Harper, that the Court has “never been confined to historic notions of equality. … Notions of what constitutes equal treatment … DO change.” (In some texts, I have seen the word “do” in italics, but in some others it was not italicized, just in normal print.) 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? When is the Court’s opinions going to stop being as sloppy and unpersuasive as I’ve seen (and how sloppy Professors Currie, Lessig, and Gerstmann have said the Court has been)?

For those of you “lefties” who want the SCOTUS’s power to keep growing and for the EPC to be used to address additional kinds of xenophobia, I’m sure you never want it to end. To those of us on the right, it is appalling, and we want it to end ASAP. We want the United States to be a true democratic-republic, not a judicial oligarchy. And divisions like those between you and I are part and parcel why America, as a whole, has so many intense, divisive fights over the confirmation of Supreme Court Justices.

In the contemporary political context, those who fear conformity have tended to describe themselves as liberal and have tended to applaud the judicial “protection” of human rights. Those who fear diversity have tended to call themselves conservatives and have been appalled by judicial “usurpation” of the majority’s discretion to form the kind of community it finds most conducive to its own happiness. The former tends to approve of the expansive theories of constitutional interpretation, … while the latter tends to prefer the restrained theories of judicial review. These alignments are neither perfect nor inevitable, but the debate has surely been shrill. (John C. Hughes, The Federal Courts, Politics, and the Rule of Law, 1995, page 206.)

To wrap up a couple other points in your April 6th post, I had said, and you replied:

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."

- skip -
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.

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!”

And the "basic principle" of the EPC ought to be just racial equality. The "basic principle" of the rest of the second sentence of the Fourteenth ought to be that states should not violate most of the rights enumerated in the first eight amendments, or the right to interstate travel. Nothing else should be inferred from that sentence of the Fourteenth.

Lastly,

You also started your sexual orientation case line with Romer, but it really started with Bowers. That went the other way, ...

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.

[Dr. MB]

Long post

There are already laws preventing sex in public unaffected by any SCOTUS decision so if you want to put a stop to the behavior you described there are ways to do it without criminalizing the sex itself.

[I’m not Stu]

Won't the Supreme Court only expand its conservative majority in the future; going 7-2, 8-1, then 9-0 forever?

[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?

[Attorney General, Senator-Elect, & Former PPT Dwarven Dragon]

They're here to stay

Jackson/Sotomayor/Kagan obviously love these decisions
Roberts votes for them for Stare Decisis Reasons
Gorsuch is obviously pro-lgbt based on Bostock and the fact he attended an LGBT friendly church in CO.
Kavanaugh only mildly dissented in Bostock and has made a point of being progressive in staff hiring practices.
Barrett could easily be like "The other Trumpists support it so I guess I can too"

The only clear votes to overturn are Thomas and Alito.

[MarkD]

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.

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.

The best Warren Court cases:

Segregation cases: Brown v. Board of Education, Bolling v. Sharpe, Mayor of Baltimore v. Dawson, Holmes v. Atlanta, New Orleans City Park Imp. Ass’n v. Detiege, Cooper v. Evans, Gomillion v. Lightfoot, Johnson v. Virginia, McLaughlin v. Florida, Loving v. Virginia
Double Jeopardy cases: Green v. United States (1957), Benton v. Maryland
Interrogation of suspect cases: Spano v. New York, Escobedo v. Illinois, Miranda v. Arizona
Search warrant cases: Mapp v. Ohio, Katz v. United States, Chimel v. California
Right to counsel case: Gideon v. Wainwright
Freedom of speech/assembly/petition cases: NAACP v. Alabama, Edwards v. South Carolina, Brandenburg v. Ohio
Freedom of the press: New York Times v. Sullivan
Freedom of religion cases: Torasco v. Watkins, Sherbert v. Verner
Right to travel cases: United States v. Guest, Shapiro v. Thompson
Right to serve in Congress: Powell v. McCormack

Even though the Warren Court was well-known for its liberalness and its frequent support for protection of civil rights/liberties, we should not forget about the fact that the Court did not always support claims that "the government" (i.e., federal, state, or local governments) "has violated my rights." Here are several "conservative/restrained" decisions of that Court which I also agree with: Lassiter v. Northampton County Board of Elec., Hoyt v. Florida, The Sunday Closing Law cases (McGown v. Maryland and Braunfield v. Brown), Ferguson v. Skrupa, Adderley v. Florida, Fortson v. Morris, Boutilier v. INS, Terry v. Ohio, United States v. O’Brien

I mostly agree with this quote by former U. of Chicago Law School Professor David P. Currie:

While Earl Warren was Chief Justice, … the Supreme Court remade constitutional law in the mold Justice Stone had cast in 1938, giving broad protection to … interests protected by the Bill of Rights. In so doing the Court made this country a decidedly better place. …
In most cases, in my opinion, the Warren Court reached its revolutionary conclusions within the confines of fair interpretation of the relevant constitutional provisions – often, indeed, fulfilling the promise of provisions that earlier [SCOTUS] decisions had given an excessively cramped application. …
On the whole, … it was an inspiring time; a time of triumph for liberty, democracy, and equality, and for the human spirit; a time to be proud of the Supreme Court, of the Constitution, and of the United States. (David P. Currie, The Constitution in the Supreme Court; The Second Century, 1888-1986, published 1990, pages 454, 457, 459.)

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.

Not surprisingly, however, the activism of the Warren years spawned occasional excesses. In such cases as Bolling v. Sharpe, Reitman v. Mulkey, Watkins v. United States, Slochower v. Board of Regents, Griffin v. Illinois, Miranda v. Arizona, and Robinson v. California, the Court’s zeal may have gotten the better of its judgment. The most egregious example … is the famous 1965 decision in Griswold v. Connecticut. … (Ibid, page 458.)

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.

Here are some of the worst Warren Court decisions, IMO.

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
Cruel and Unusual Punishment case: Robinson v. California
Establishment of Religion cases: Engel v. Vitale, Abington School District v. Schempp, Epperson v. Arkansas
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.