Thursday, July 9, 2015

Need for clarification in Obergefell; and, Kennedy's "jurisprudence of loneliness"

     All the term I had been seeing rather more of Anthony Blanche than my liking for him warranted. . . . I held him in considerable awe. ...
           [T]here was a bluster and zest in Anthony which the rest of us had shed somewhere in our more leisured adolescence, on the playing field or in the school-room; his vices flourished less in the pursuit of pleasure than in the wish to shock . . . . He was . . . . fearless like a little boy, charging, head down, small fists whirling, at the school prefects.
     From Brideshead Revisited (bk. 1, ch. 2), by Evelyn Waugh

* * *

A. The Need for a Motion for Clarification in Obergefell

     While Justice Anthony Kennedy's opinion in Obergefell v. Hodges et al. is not quite as shocky as the behavior of Anthony Blanche (the most openly-gay character in Brideshead above), the opinion is still pretty astounding. The present author covered some of this in his Casetext post Obergefell's outrageous omissions, but here are some new things or clarifications.

     First, speaking of "clarification": rather than a near-certainly futile petition for rehearing in Obergefell, what might make more sense is a motion for clarification. While the Court's rules don't mention such a type of motion, they don't forbid it, either.
     It is perverse, actually, that at the highest level, the "supreme" court, there is no explicit option for a clarification motion. The Supreme Court offers guidance to all lower courts (and future members of the Supreme Court), so, understandable, lucid opinions should be more important at that level than at any other level. But the only option explicitly available after a merits decision, it seems, is under Rule 44, "Rehearing": "Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time. [etc.]"
     But what if you don't even understand what the opinion really meant? E.g., if an opinion apparently leaves intact a precedent that seems to contradict the opinion, lawyers might want to know if the precedent is still a. intact, or, b. overturned, before filing a petition for rehearing. Otherwise, the petition may be filed "in blindness", ignorant of what the Court actually meant.
     Thus, if the Court doesn't allow motions for clarification, perhaps it should start to do so, since lower courts, whose opinions are less important (since less "supreme"), do so. In the event that a motion for clarification is rejected by the Court, perhaps it can be re-submitted and re-labeled a "Petition for Rehearing", with language: 1. asking for clarification on the issue(s) of any precedents contradicting the Court's opinion, and 2. indicating that if those precedents haven't been overturned, then 3. rehearing is politely requested based on those precedents which still contradict the opinion.

     And such precedents abound in Obergefell. The Court's opinion is as clear as a mess of Mississippi mud in various respects, and the Nation is hurt by not knowing if, e.g.:

1) Ballard v. United States (same-sex and diverse-sex groups are de jure different) is now overturned;

2) The line of reasoning leading to the Court's denial of certiorari to Potter v. Murray City (polygamist's sacrifices for the community as a police officer don't merit legalizing polygamy) is now overturned;

3) Grutter v. Bollinger (gender diversity is compelling state interest) is now overturned.

     One's Casetext article discusses those three issues some more, but for those who don't want to go there right now, here is a quote from the Oberg. opinion, re marriage: "There is no difference between same- and opposite-sex couples with respect to this principle." Okay, if monogender and diverse-gender couples are now indistinguishable, how can precedents 1 and 3 supra still make sense?
     And as for precedent 2: let's hypothesize a Rhett Hogg who desires to marry his first cousin, Scarlett O'Hogg, telling her, "So what if we're first cousins? Frankly, my dear, I don't give a damn!" Scarlett is entranced by this wooing and marries him. She then becomes a top Marine Corps sniper. Moving with hubby to a State that doesn't recognize her first-cousin marriage, she pulls out a handy copy of the Obergefell opinion and says, "See here! It says that if you've served the Nation as a soldier, that legitimates whatever form of marriage you're in!"
     So, is Scarlett right? (And would she be right if Rhett was actually her brother?) Or, just maybe, is the Court wrong?

     The dissent(s) may need clarification, too. Marty Lederman's "The Remarkable Disappearance of State Justifications in Obergefell" at Balkinization accurately notes (inter alia) that Chief Justice Roberts' dissent says there's a rational basis for upholding the Sixth Circuit's decision (referencing Justice O'Connor saying so in her Lawrence concurrence)--but that dissent doesn't mention what that basis is! Shouldn't we know what it is?

     Some persons felt that the oral argument by the States in Obergefell was very weak. If so, a motion for clarification would help make up for that to an extent.
     More importantly, a motion for clarification would hold the Court responsible for its flabby, incoherent opinion. The Nation has a right to know what Obergefell actually means, and the States' lawyers, as officers of the Court, may have a duty to make sure that right is respected.

B. Kennedy's Mysterious "Jurisprudence of Loneliness" in Obergefell

     Indeed, in its low coherence and high flights of passion, the opinion is better read as poetry than as a serious legal opinion. For example, the words

     The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.
sound suspiciously like they were borrowed from the lyrics of Stairway to Heaven by Led Zeppelin:

"'Cause you know sometimes words have two meanings.
And as we wind on down the road
Our shadows taller than our soul.
And if you listen very hard
The tune will come to you at last. [etc.]"

(Jimmy Page/Robert Plant) (Video, if you must have it:)

     As well, there is
     Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

     But as the Chief Justice's dissent notes, what does loneliness has to do with this? It's not like gay couples were being separated by the Gestapo and sent to labor camps. People were free, after Lawrence v. Texas, to live together and do what they wanted privately. There was just no promise of government subsidy and honor.
     And not only is the "loneliness" idea maudlin and inaccurate, it avoids large issues such as the real loneliness permanently caused to children raised by same-sex couples and deprived of a mother or father for a lifetime. (This blog has discussed such, e.g., at Part II of: Grand Theft Bonauto?; or, John Bursch & the "dignity" problem".)
     Of course, given the timing issues of the case, one is not surprised by the intellectual (and moral?) poverty of the opinion. Obergefell was jammed in at the end of the year, with an immense number of amicus briefs for the Justices (or at least some of their clerks...) to read, and without the benefit of the put-on-hold opinions of the 1st, 5th, 8th, and 11th Circuits. With such atrocious timing, how could a decent opinion be written?

     Moreover, the "loneliness" things sound cribbed from various musical sources. E.g., Air Supply's "Two Less Lonely People in the World". Or the Police's "So Lonely".
     Not to mention "[Love Lift Us] Up Where We Belong" ("Who knows what tomorrow brings/In a world few hearts survive [etc.]"). If this all makes Kennedy the "Joe Cocker" of the Supreme Court, so be it.

     Maybe even "I'm So Ronery" from Team America: World Police, though it's a little racist, so no video here.

C. Miscellany

     --Oberg. opinion: "Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable." If it's so "immutable", how do you explain Chirlaine McCray?
     --At least Oberg. doesn't call people favoring same-sex-marriage bans, the nasty sorts of things that Windsor called them. A small improvement, and small comfort.
     --Scalia bemoans elite lawyers from Harvard or Yale. Does this mean he's given up his habit of hiring only Ivy Leaguey-type clerks?

* * * *

     Another quote from Anthony Blanche, from the 2008 film version of Brideshead, is, per IMDB,
     Sebastian Flyte: Charles is reading history, but he wants to be an artist.
     Anthony Blanche: No!
     Sebastian Flyte: Why ever not?
     Anthony Blanche: Either you are an artist, or you are not.

     That said: the Obergefell opinion has art, and passion, to it. Again, the mystical muck of Stairway to Heaven and the pop rapture of Up Where We Belong, those pieces of art, come to mind. But the opinion does not have much logic to it.
     Oliver Wendell Holmes Jr. famously said that the life of the law hasn't been logic, but experience. But Kennedy-and-friends' opinion disregards thousands of years of human experience--the "history" that Sebastian Flyte says that Charles Ryder is studying, supra--, tossing it down the trash chute in only 28 pages.
     So, without experience, or logic, there is just...passion and art. This is not enough for "equal justice under law". And, God forbid, there may be some unpleasant outcomes of the Obergefell opinion in the coming years, as we all may live to see.

No comments:

Post a Comment