Stanley Fish is a postmodernist scholar of the highest rank, but his conclusions are not always what his fellow academics expect. A professor both of literature and of law, Fish explains how, in previous rulings about homosexuality, the Supreme Court arrived at the principle that just because something is immoral, that doesn’t mean it should necessarily be illegal. But in the Obergefell ruling that legalized gay marriage, the court went back to a moral standard–the new morality of tolerance, affirmation of all, personal autonomy, etc.–with hardly any reference to law. [Read more…]
Justice Kennedy, in his opinion establishing gay marriage, did affirm the right of religious people to disagree with same sex unions. But the dissenting justices warned that this ruling could cause conflicts with religious liberty. The Constitution protects not just religious beliefs privately held, they observe, but the “free exercise” of religion. That is, what religious people do because of their religion.
The words of these opinions are likely to be parsed closely in the days to come, and the nature of religious liberty in this country is likely to be determined by legal wrangles about what the words “free exercise” mean. [Read more…]
Lost in the tumultuous week of Supreme Court rulings over Obamacare and gay marriage was another odd ruling. To combat gerrymandering, the people of Arizona passed a referendum that would take away the state legislature’s power to draw electoral boundaries and give it instead to a non-partisan commission. That sounds like a good outcome, since gerrymandering–drawing districts to protect the incumbents–is a plague on democracy. The problem is, the Constitution explicitly, in so many words, gives that power to the “legislature.”
But not wanting the Constitution to get in the way of their favored policies, the court ruled in favor of the commission. George Will tells the tale and recounts Chief Justice Robert’s vigorous–if surprising, given his Obamacare ruling–dissent on the necessity of attending to the language of the Constitution. [Read more…]
To find a right to abortion in the Constitution, the Supreme Court justices in Roe v. Wade construed from the text a “right to privacy.” To find a right to gay marriage in the Constitution, Justice Kennedy, with the concurrence of the majority, has construed a “right to dignity.”
Law professor Jonathan Turley, who supports gay marriage, said that the judges could very well have ruled to that effect by invoking the equal protection clause of the 14th Amendment, as lower courts have done. But instead it invokes the section on “due process” and asserts this new right to “dignity.” Prof. Turley, who shows how Justice Kennedy has been building up to this notion in a number of his other rulings, is worried about this new legal doctrine, saying that it opens up all kinds of legal and civil liberty cans of worms. [Read more…]
Rod Dreher takes a bleak look at the Supreme Court decision legalizing gay marriage. It is now clear, he says, that we really do live in a post-Christian culture. Now that homosexuality has been given the status of race, the government and the public really are going to go after those who don’t believe that homosexuality is moral. The institution of marriage as a whole is going to be affected, since, if it can be redefined at will, it will no longer have any boundaries. So Christians will have to live as exiles in their own country. Dreher goes on to advocate “the Benedict option.”
What do you think about this? Is Dreher over-stating the problems? Are things really going to be that bad? [Read more…]
The Supreme Court has legalized gay marriage throughout the nation, going so far as to rule that gay marriage is a constitutional right.
So now it is done. What now? Discuss. [Read more…]