Well I do remember from my days in Con Law classes at law school that we were most interested in reading Scalia’s decisions because they were so entertaining to read. One can argue that we definitely paid more attention to his decisions as a result and that sort of interest may have swayed more than a few folks to consider his arguments. So I’d argue that he may be writing for law students.
Scalia is a very interesting jurist. It can be argued that he was the main person who dragged textualism back into focus as an important jurisprudence mechanism. He does engage in quite a bit of interesting hole poking about the jurisprudence of legislative intent.
To the best of my recollection, there wasn’t a single Scalia majority opinion in my Con Law books. A couple of dissents, yes. Actually, I thought of one: Heller.
I can’t speak for him, but sexual orientation is exactly the kind of “discrete, insular minority” that led the court to adopt elevated levels of scrutiny in certain equal protection cases in the first place. Furthermore, the prohibition on same-sex marriage is clearly a gender classification impacting a fundamental right, which receives intermediate scrutiny.
I could be convinced that the government has a legitimate interest in maintaining marriage as an opposite-sex institution (though in years of debate on the issue I haven’t actually seen this demonstrated.) In any event, it is the challenger’s job to prove otherwise under rational basis review, and SSM bans likely survive that level.
However, there is no way SSM bans can be upheld under strict or even intermediate scrutiny. There is no important government interest, the laws are both over- and under-inclusive,* and there is certainly no “exceedingly persuasive justification” for them.
*Assuming that “maintaining marriage for procreative purposes” is the justification offered, overinclusive because they prohibit even same-sex couples with children from marrying and underinclusive because they do not prohibit infertile couples from marriage (among other issues.)
Every court that has ruled that way since the original *Goodridge *case has done so on the basis of both equal protection and due process, or one of them, and if only one, then equal protection it is. I’m surprised at your surprise.
Bans on SSM could (in theory) be set aside if you permitted heterosexual marriage. OTH, where there was no explicit ban (AFAIK that was the case in Ohio, from where this case originated) what would your arguement be then.
Because then it’s no longer just a prohibitive order, against a particular action, it becomes a mandatory one (incidentally also the relief the Petitioner wanted) compelling a course of action.
Kennedy’s analysis is pretty weak, he himself admits that the cases he cites in favour of the “right to marry” presume heterosexual couples, however the concept should be extended, because…ummm… Freedom?
I have no recollection of Equal Protection Clause jurisprudence turning on the distinction among permission, mandates, and prohibitions. Then again, maybe it has been too long since my constitutional law class. Where are you getting this rubric?
If the ban is a practice rather than a law, the discriminatory result is the same and is equally impermissible. That was the ruling in one state (which one I don’t recall), that single-sex marriage was legal because it had never been made illegal; the state just didn’t give SS couples licenses.
I’m sure I speak for a number of my fellow Americans by saying “Huh?”
So because you think jiggery-pokery sounds like jigaboo then you think that Justice Scalia must be an old-school casual racist?! There are different ways that ignorance can stir up racism. Look up ‘niggardly’ some time…
WTF are you talking about? Did I miss a post where someone claims the term is some kind of racist code word? I know I haven’t said that, nor to I believe it’s true.
Actually, as I mentioned above, Larry Wilmore suggested that the phrase was not quite racist, but perhaps “racist-adjacent.” And before he even said that, just on hearing the words “jiggery-pokery,” the audience made an offended “Ooooh” sound.
The Wall Street Journal blog has an account of it here.
I doubt that Wilmore really believes it’s a racist term, but he did go there for the sake of the humor.
The same. You don’t need an explicit ban. If the state grants licenses to one category of people and not to another, there is an equal protection question raised.
Depending on the level of review involved (for which read whether the classification implicates race, national origin, gender, pre-marital child status, or infringes on a fundamental right), the challengers must then prove the state’s disparate treatment is arbitrary and capricious; or, the state must prove that its classification is justified by an important government interest and is substantially related to that interest; or, the state must prove the classification it is justified by a compelling interest and narrowly tailored to that interest.
I have argued repeatedly that the court should simply have adopted an elevated level of scrutiny for classifications based on orientation, but it wasn’t absolutely necessary for that to occur for the challengers to win here. The problem is that the decision as written leaves other rights of same-sex couples and homosexuals up in the air (and I agree that the opinion that we actually got is awful, result aside.)
Of course he went there for the sake of humor. He’s a comedian. That’s what they do. The Nightly Show with Larry Wilmore is a spin-off of The Daily Show, which is not a “news” program, either.
Wilmore’s writers may not even know what “jiggery-pokery” means, but it certain sounds “funny”. Wilmore’s audience, on the other hand, may have just been passing gas.
Scalia’s opinions sound contemptuous of his colleagues because he is contemptuous of his colleagues. He has described his philosophy as trying to apply the plain meaning of the constitution to the facts of the case at hand and his colleagues as people who apply the term constitutional to whatever outcome they personally desire. Anyone who follows the court understands that he is correct and the some of the justices have broken their oath and deserve contempt.
By writing in such colorful terms he is spotlighting how derelict the other justices are in doing their jobs. This has sparked debate in the legal profession which was his goal all along. Everyone who values constitutional government is in debt to him.
Here is what Elena Kaga said about his influence: "
His views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the terms of legal debate in this country, He is the justice who has had the most important impact over the years on how we think and talk about the law."
Bullshit. You are in debt to him because you value conservative government. It’s incredibly convenient that his “constitutional” approach just so happens to line up with Republican policy goals.
