The Supreme Court made the right call on marriage equality — but they did it the wrong way, por Andrew Koppelman:
The Supreme Court’s ruling Friday that the Constitution protects same-sex marriage was great news. The party pooper was the remarkably weak reasoning by which the Court got there. Reading the four dissents poke holes in Justice Anthony Kennedy’s opinion for the Court, I kept thinking, “Yeah, that’s fair,” even though on the bottom line the Court clearly got it right. All of Kennedy’s worst traits — the ponderous self-importance, the leaps of logic, the worship of state power — were on display. For a decision this important, the Court should have been able to do better.
The decision relied on the doctrine of “substantive due process” — the idea that some liberties, not enumerated in the Constitution, are so important that government can’t take them away. “The Constitution promises liberty to all within its reach,” Kennedy’s first sentence declared, “a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Justice Antonin Scalia complains that this sentence resembles “the mystical aphorisms of the fortune cookie.” Questions immediately arise. All laws restrict liberty. How does a court decide which “specific rights” are thereby protected? What are the boundaries of the “lawful realm”? Courts, Kennedy responds, must “exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” He goes on to explain at length why marriage is so important.
Substantive due process, however, invites courts to invent new law out of nothing — to declare as constitutionally protected any conduct that they think is important. Opponents of the decision are already claiming that the Court was just making it up, on the basis of the judges’ personal preferences. This opinion supports that charge. Chief Justice John Roberts observed that Kennedy’s “driving themes are that marriage is desirable and [same-sex couples] desire it.” Scalia argues that the doctrine protects “those freedoms and entitlements that this Court really likes.”