Wednesday, June 26, 2013
It's interesting how, in late June, most bloggers and most of my Facebook friends become experts in Constitutional Law! In any event, like many MOJ-ers I'm sure, I'm reading and thinking about today's SSM cases. I tend, like Chief Justice Roberts, to be something of a hawk on standing, and so I'm bothered -- at least for now -- by what strikes me as the awkward juxtaposition of the "jurisdiction in Windsor but no standing in Perry" result. But, I assume that Catholic legal theory has little to say about what ought to be the bounds of the Court's jurisdiction so I'll leave all that alone.
Reading Justice Kennedy's opinion -- which strikes me as a mixture of a "federalism" argument and a Romer v. Evans "no amimus" argument -- it strikes me that the language and rhetoric will be very helpful to those who are arguing that the Constitution, political morality, and decency require the equal treatment and legal recognition of same-sex marriages. His claim that the opinion is limited in its application to those same-sex marriages that have already been recognized by state law does not strike me as likely to have much impact. If what Justice Kennedy says is correct, then it seems to me that it has to follow, in the next case and in future legislative debates, that those states -- and those religious communities -- that reject the revisionist approach to marriage are appropriately regarded as backward and bigoted, and not to be respected or accommodated. We'll see.