Saturday, June 27, 2015
Here is a short reaction-piece I did for America, and here is one I did for National Review Online. Here's a bit from the America piece, which touches on an issue that I don't think most commentators have been talking about:
Today’s ruling raises many questions, and not only about the “next steps” with respect to marriage-related rules and nondiscrimination laws. For example, the reasoning in Justice Kennedy’s opinion is in significant tension with the opinion—which Justice Kennedy joined—in the Court’s 1997 decision that upheld the right of governments to outlaw physician-assisted suicide. In that case, Washington v. Glucksberg, Chief Justice Rehnquist had insisted that a “liberty interest” had to be deeply rooted in our country’s history and traditions before it could be treated as the kind of “fundamental right” that is protected against state regulation. The asserted right to doctor-assisted suicide did not, the Court concluded, have that kind of pedigree. In Obergefell, however, Justice Kennedy did not follow Rehnquist’s example in allowing history and tradition to constrain judicial power. And, as the pressure in some states to embrace physician-assisted suicide increases—in the name of “dignity” and “compassion”—it is not clear that the Court’s wise refusal in Glucksberg to constitutionalize a right to that practice will stand.
Here, just as a reminder, is how the late Chief Justice Rehnquist ended his opinion for the Court in Glucksberg:
Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.