Saturday, 27 June 2015

Obergefell v. Hodges - Gay Marriage and Sound Legal Interpretation

To recognize Justice Kennedy's reasoning as muddy is one thing - it is. To argue that although today's ruling is morally good, Justice Roberts gets the law right, is quite another. Even, as Ilya Somin does, to suggest this nonsense (or rather, to recycle Volokh's nonsense) about this kind of law possibly surviving an intellectually honest application of the rational basis test at this point in time is head-shakingly incompetent. Anyone who needs help with this should sit down, pour a drink, and reread Posner's opinion from last year - one of the best judicial opinions of the 21st century. (How soon we forget.)

This line, which we're going to see repeated over and over again, is nothing but that depressingly common confusion of hiding in the ideological middle with being reasonable and objective - a confusion which has overtaken our press like a plague. Of course, I expect absolutely nothing better even from The Economist these days, but that wasn't always the case.

Now on to the dissenters:

It is nothing short of an absolute scandal, for the legal profession, academia, and American intellectualism, that Antonin Scalia, a man with nothing but a penchant for insults and an incoherent view of linguistic meaning (which he disregards whenever it isn't politically expedient!), is viewed by so many as an intellectual and academic superstar, and has risen to this position in his profession and in society.

But the real disappointment here is Roberts, who has apparently forgotten that a democratic republic is not a tyranny of the majority, and who has failed to engage with the equal protection argument in any serious way, instead going in for the sort of armchair anthropology and sociology which anyone with a decent education and an internet connection can debunk in five minutes. (Not to mention the complete irrelevance of such considerations by the lights of anything that could plausibly be called his theory of law!)

Mini-Scalia is transparently an intellectual midget and not worth engaging. Thomas is an evil person, and if there's a hell, he will burn in it. (I consider that to be a more important point than any equally justifiable one about his laziness, his total inability to construct an argument, etc.)

For anyone who wants to start educating him- or herself - and frankly, this goes for an awful lot of the JDs out there, who were never made to study the theory of linguistic interpretation or who have forgotten what they were taught - you have no excuse not to, here you go:

Purposive Interpretation in Law
Between Authority and Interpretation