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SCOTUS & SSM: The Fix Is In

The outraged Clarence Thomas, the prophetic Antonin Scalia, and a Court committed to 'result-oriented expedience'
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Clarence Thomas tells the truth: a majority of the US Supreme Court has probably made up its mind already on gay marriage, before they hear the first oral argument. Excerpts from the WaPo report:

The most prominent sign that the Supreme Court is poised to recognize a constitutional right for same-sex couples to marry nationwide came Monday from an unlikely source: conservative Justice Clarence Thomas.

The court is months away from hearing arguments in a landmark caseabout whether states are free to ban such unions. But Thomas said a majority of the justices may have already made up their minds, as reflected by the court’s “indecorous” decision Monday morning allowing same-sex marriages to proceed in Alabama.

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote in a dissent from the court’s order refusing to stay the weddings. “This is not the proper way to discharge our . . . responsibilities.”

He was joined by one other justice, Antonin Scalia, in saying the court should agree to postpone the weddings until the justices hear the same-sex-marriage case in April and rule by the end of their term in June.

The court’s action Monday was another signal that it might be paving the way for public acceptance of a decision that marriage is a fundamental right that states may not withhold from gay couples.

Nobody should be surprised by this, of course. Justice Scalia has been predicting it for over a decade. The bizarre thing is why the liberal wing (which includes Justice Kennedy on this issue) have behaved as they have all along, as if this were a truly “evolving” issue. Scalia got the logic of it all perfectly right in his slashing 2003 Lawrence dissent. Excerpt:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

Justice Scalia, I would say, was the first to discern the foundations of the paradoxical Law of Merited Impossibility, a principle applying to the dishonest game proponents of gay rights often play when trying to soothe objections from those committed to religious liberty: “It will never happen, and when it does, you bigots will deserve it.”

I genuinely wonder whether the court liberals knew all along this is where they wanted to take the country, and intentionally laid the groundwork for what they are about to do. I think they must have. These are not foolish people. Having learned their lesson with Roe, they were politically masterful.

Nothing left to do but pray that Anthony Kennedy will be charitable towards religious liberty when imposing the terms of our defeat. The Law of Merited Impossibility doesn’t give one much hope. Cheer up, though: the mighty Scalia’s dissent is going to be one hell of a read.



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