What would have ever given Roberts that idea?
Justice Kennedy's closing paragraph. pic.twitter.com/V3jZbFPAUg
— Matt Ford (@fordm) June 26, 2015
That’s a lot of gauzy schmaltz for a High Court decision, even by the more relaxed standards of the summing-up paragraphs in a majority opinion. The striking thing about Kennedy’s ruling isn’t that he came down the way he did, which was a mortal lock, but that he didn’t concern himself with trying to narrow the reasoning to meet the core objection of SSM opponents, that there’s no way to get traction on this slippery slope. “That would have been beyond the scope of the decision,” Kennedy fans will say; polygamy wasn’t at issue here so he had no business addressing it. True — he had no business addressing it explicitly. But he could have added language that he knew would be pointed back to later when polygamy inevitably lands before the Court. “Unlike some forms of marital relationships, a marriage of two members of the same sex is a partnership of equals” — something like that, or rhetoric about how other forms of marriage might be exploitative by their very nature. Anything to signal to polygamists that if they try to make their play at the Court anytime soon, they may not like which way Kennedy goes on that.
But he didn’t. And, via the Federalist, Roberts couldn’t help noticing:
Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.
Dignity and self-determination are the cornerstones of Kennedy’s championing of gay rights throughout his many landmark opinions on the subject. You could argue, when the time comes, that polygamist marriages are inherently undignified because they place women in a position of de facto subservience to men, but that’ll be a hard argument to make when you have sister-wives in front of TV cameras swearing up and down that their relationships with their husband are 100 percent equal and that they’ve never felt exploited even for a moment. Imagine the feminist reaction: How dare a man try to tell an adult woman what is and isn’t “dignified” for her to do, especially on a matter as intimate as marriage? That’s the sort of logic that’s already produced the surreal spectacle of some feminists defending Muslim women’s “right” to wear the veil. Why shouldn’t it also protect their “right” to share a husband with two or three other women?
A lefty friend makes a smart point:
The slippery slope to polygamy didn't start with gay marriage, it started with state-approved marriage.
— Sigh Hersh (@Ugarles) June 26, 2015
Once you make marriage a matter of state concern, all the rules of fair and equal treatment for citizens by the state eventually come into play. Which means social cons can fight the polygamy slippery slope in two ways. They can try to draw the line here at gay marriage, a highly risky play even according to the Chief Justice of the United States, or they can go full libertarian and start pushing the idea that the government should get out of marriage altogether. I’ve never quite understood what that would achieve for social cons, since if marriage is entirely a matter of private contract then all contractual marriage relationships, polygamy included, would be enforceable in court. The point, I guess, is that removing the state’s sanction would free social conservatives to say that private “marriage” contracts between gays or polygamists aren’t real “marriage,” just an expropriation of the term. But there’s really nothing stopping them from saying that now either, even with the state sanctioning gay unions. The touchstone of a real marriage, I thought, is what’s recognized in God’s eyes, not what the state recognizes. Most churches, in accordance with Christian teachings, refuse to recognize gay marriages, so who cares what the state thinks? And how would placing gay marriages on an equal legal footing with straight ones via privatization substantially change what we have right now thanks to SCOTUS?
Exit question: Is John Roberts schizophrenic?
Interesting from Chief Justice Robert's dissent: pic.twitter.com/JFXtTOJlaf
— Shane Goldmacher (@ShaneGoldmacher) June 26, 2015
The Roberts dissent can be summed up with this one line of his: "Just who do we think we are?"
— Ryan Lizza (@RyanLizza) June 26, 2015
Suddenly he believes in a modest judiciary and a “government of laws”? Was I hallucinating yesterday when this same guy rewrote part of ObamaCare to spare Congress a tough decision on federal subsidies? Hello?