Tuesday, June 30, 2015
Yesterday, I was in contact with Erika about her posting on the Obergefell decision and what seemed to be Justice Kennedy’s decision not to cite the “mystery of life” passage from Planned Parenthood v. Casey. During Sunday’s chemo session, I had the time and a little energy to read carefully the majority opinion in Obergefell—after all, as the old Soloflex advertisement used to say, “No pain; no gain!” Only Justice Thomas in his dissent cites Casey, but he does not address the “mystery of life” language.
Upon returning home, I studied the citations to Lawrence that appear in Obergefell and discovered something that robs Erika, me, and others of the hope that liberty is no longer defined by the “mystery of life” passage of Casey.
In the Court’s opinion of Obergefell, Justice Kennedy refers a fair number of times to Lawrence v. Texas. No surprise there. In two of his Lawrence citations on page 12 of the Obergefell slip opinion, he refers to 539 U.S. at 574. That is where he, Justice Kennedy, discussed the liberty passage of Casey in Lawrence. I hasten to add that on page 12 of Obergefell, Justice Kennedy is discussing the underlying substantive principle of liberty. So, indirectly he does rely on the problematic language of Casey without having to mention the specific language in Casey that formulates the definition of liberty discussed by Erika. Whether this was Justice Kennedy’s intention or not, I cannot say. But some readers of Obergefell may wish to take the time to examine all the citations to Kennedy’s previous decisions cited in Obergefell and discover that the Casey formulation is indirectly discussed by the two citations to “at 574.” Hence, the flawed definition of liberty discussed by Erika has been given an extension on its life. The sliver of the silver lining is a phantasm. While Casey is not specifically mentioned in Obergefell, Justice Kennedy introduces its liberty formulation in stealthy fashion by citing Lawrence’s discussion of it.