As I’ve just explained, I’m not a huge fan of Justice Kennedy’s opinion in Obergefell, even though I like the result. However, there is one very good, very important thing in the opinion that I haven’t seen mentioned much, and which is critical to either an equal protection or a due process analysis. It’s this (emphasis mine):
Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment….
Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.
The fact that a majority of the Supreme Court has now recognized homosexuality as an “immutable” characteristic strikes me as a very big deal (the Court has hinted at this before, especially in Lawrence v. Texas and Christian Legal Society v. Martinez, but before last week it had never come right out and said it). In the eyes of the law, at least, homosexuality is no longer a “choice.” It’s just the way people are – like race and other immutable characteristics. Legally, that could be a very big deal down the road. It also seems to me to deal a blow to the folks out there who continue to espouse the view that people choose to be gay. They may still think that, but the Supreme Court of the United States now officially disagrees.
I’m not the first to notice this – Ian Millhiser at ThinkProgress, among others, has noted it too. But I’m surprised it hasn’t gotten more attention.
sometime on how SCOTUS approach a Constitutional issue? What questions do they ask themselves? I know they have different philosophies, but is there anything more specific for examining such an issue?
(I don’t know if this can be done in a post or a JD is necessary).
I assume (but of course can’t be sure) that most of them try to start with asking themselves which provision of the Constitution seems to be at issue, and how it has been applied in somewhat analogous situations in the past. But beyond that, I’m not sure it’s really possible to generalize.
…the very characteristics you mention – race and gender – are now having their immutability questioned by Jenner and Dozeal. It is ironic that the Court has finally made this conclusion at the moment it is being questioned by others.
I get you need to complete your Talking Points delivery, but this is what you have? One slightly daft lady and a Kardashian?
Conservatives have been trying to make gender immutable for centuries (“don’t work that job is you’re a woman! Don’t wear your hair that way if you’re a man!”). It never has been.
There will always be those who seek a rationalization, no matter how flimsy, to perpetuate their particular prejudices.
While perhaps performers in circus side-shows occasionally have a larger impact, most often their antics are aimed primarily at self-promotion. The two individuals you mention strike me as fitting that paradigm rather nicely.
I see no nexus between either individual and the Court, except for the most rabid racists and sexists among us.
Kardashian? Daft? Who exactly is spouting talking points?
My friend Tom Lang has long railed against what he calls Gay Inc. and it’s treatment of transgender individuals and that is what you two sound like.
I will say it again – society is questioning the fixededness of birth gender especially in light of medical advances while SCOTUS chooses now to celebrate it.
It seems ironic.
The language of the opinion refers to gender preference. That is different from either of the examples you raise. I made no mention of “Kardashian”, nor did I use the term “daft”. I encourage you to rethink your phrases “you both” and “you two”.
Repeating your canard does not make it any more correct. There is no irony and no conflict. The Court has ruled that gender preference is immutable, and that recognition of same-sex marriage is now the law of the land.
Deal with it.
You are wrong
I, frankly, don’t care whether you or for or against this decision. When you offer commentary like this, I’ll continue to respond to id.
You characterized me as “reactionary”, based on words I did not write. You posit equivalence between gender change and gender preference that is incorrect. The first of your examples had to do with race, not gender preference — even more irrelevant.
I reject your characterization of my comment as “reactionary”, and I reject the premise you offer as utterly irrelevant to this decision.
Whether we agree or not, I have always seen you as articulate. So I wonder if you truly don’t know that”reactionary” is properly used as extreme conservative, the opposite of radical/liberal. Thus it seems wrong to call me reactionary for welcoming a deeper understanding of gender spectrum than we have in the past. I am similarly surprised that you use “birth gender” which is a oxymoronic phrase. Gender is a social construct, something one cannot have at birth. The word you’re looking for is “sex”. I would suggest going beyond snide attacks on lobbies you don’t like and familiarize yourself with a modern understanding f these issues.
Lots of people, unfortunately, say “reactionary” when “reactive” is what’s meant.
Gender identity is just as immutable as sexual orientation — perhaps more so [Seligman, What You Can Change And What You Can’t]. Gender expression, however, is mutable. That is what recent events have highlighted.