Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Compare how the Court spoke of moral disapproval of “homosexual conduct” in Lawrence and Windsor

June 30th, 2013

Justice Kennedy in Lawrence v. Texas:

  It must be acknowledged, of course, that the Court in Bowerswas making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey,505 U.S. 833, 850 (1992).

Justice Kennedy in United States v. Windsor:

The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality.” Id., at 16 (footnote deleted). The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.

I suppose these “profound and deep convictions” identified by the overwhelming majority of all branches of government in 1996 (the same year Prop 2 was passed in Colorado), which were not “trivial” in 2003 (Lawrence), are now trivial in 2013 (Windsor). The times have changed.


I’ll have more on this later.

Do read Unconstitutional Animus by Professor Pollvogt, which is especially timely after Windsor.

“To Have And Uphold” – Adam Liptak’s eBook on the SSM Cases

June 30th, 2013

Pre-order what will certainly be a brilliant account of Perry and Windsor here.

Why didn’t Justice Kennedy refer the Prop 8 emergency petition to the entire Court?

June 30th, 2013

He acted very quickly. The petition was filed last night, and it was denied today. I doubt we will ever find out why. I mean, yesterday the Chief was in West Virginia at the 4th Circuit Judicial Conference, and Justice Kagan was in Aspen. Certainly the others could have been reached. Lest we not forget how vigilant Circuit Justice Kennedy was during the 2000 presidential election. I wonder if we’ll see a concurral from the denial of reconsideration.

The Onion Bagel

June 30th, 2013

A friend of Facebook, reacting to the story of the Rabbis growing wheat in the dry Arizona desert where it would never be exposed to rain (yes, true story), proposed a Jewish satire site called The Onion Bagel. I offer these headlines:

Matzah agrees, it tastes like crap

Scientists predict “Peak Guilt” is near, mothers worry about rationing

With Obamacare raising costs, fewer going to Medical School, mothers complain

Rabbi seen popping M&Ms during Yom Kippur break

Mother-in-law drops passive aggressiveness, and finally comes out and says it: “I don’t like my son-in-law”

Mezuzah tired of being molested

Everyone agrees: Justice Ginsburg, stop being so darn cute!

Kagan on “Moral Disapproval” and DOMA

June 29th, 2013

Jeff Rosen asked Justice Kagan about her pivotal question from the DOMA oral argument, where she asked Paul Clement whether “moral disapproval” would result in the invalidation of the law. I have cited this question (also here) as the crux of the entire Windsor case. Justice Kagan’s response to Rosen’s question is interesting (here is my rough transcript).

It was kind of an obvious question. The Court has set this down as a principle of the equal protection clause, most recently in a case called Lawrence [JB: Lawrence was a due process case, not an equal protection case] Congress or a state can’t pass class legislation based simply on moral disapproval of a group, or animus, or fear, or disfavor, unless it has some basis in actual harm, unless there is a reason to think the public interest is furthered [JB: this was Jack Balkin’s take on the case].If all you have is moral disapproval  and a sense we just don’t like these people, then that is a violation of the equal protection clause. Justice Kennedy stated that really forcefully in his Lawrence decision [JB: O’Connor’s opinion was under equal protection. Kennedy was under due process.]

What’s interest ing about this is the set of opinions. The principal dissent stays away from that. It does not argue that simple moral disapproval is enough. It argues that there are other interests that are enough, like efficient administration  avoiding choice of law issues, etc. The question was meant to say, look, here we have some evidence of what actually was animating the congress that passed the law, and what evidence do we have that congress was motivated by neutral motivations, like efficient administration of the laws. Justice Kennedy’s opinion in Windsor suggested, in this case, there is every reason to think it was animated.

Rosen posed a question about “responsible procreation” argument in the Prop 8 case. She ducked the question, much like the Justices did in Perry.

We didn’t have to get to that, we found no standing. We never had to confront that question of whether there was a sufficient interest in that case. That will be left for another time. There may or may not be differences between what we just decided, and what we may have to decide in the future.