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.
From Stanley Fish, Scalia Gets It Pretty Much Right:
Obergefell is the culmination of a series of opinions that began with the dissents in Bowers v. Hardwick (1986), a case that upheld Georgia’s anti-sodomy law. Seventeen years later in Lawrence v. Texas (2003), the dissenters became the majority and the majority became the dissenters, a reversal confirmed and strengthened in United States v. Windsor (2013) and now again in Obergefell. The sequence marks the passage from a view of law in which the legal status of an act (like homosexual sex) followed from an entrenched moral code to a view in which moral disapproval of a practice is not “a sufficient reason for upholding a law prohibiting it” (Justice Stevens, dissenting in Bowers). The passage was pretty much complete when Justice Kennedy declared in Lawrence that “profound and deep convictions accepted as ethical and moral principles do not answer the question before us”; do not, that is, answer a legal question. Law and morality, while obviously joined at some general level, are in practice two different things.
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