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Obergefell v. Hodges - NIHIL VEL PERTINAX SUM — LiveJournal
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Date: 2015-06-29 04:34
Subject: Obergefell v. Hodges
Security: Public
I finally got bored enough to bother reading the gay marriage ruling. Here are my thoughts, for any who are interested:

The writing style, for one searching for the actual legal reasoning, is insufferable. Kennedy appears to have forgotten that his job in the case was to rule on the application of the 14th Amendment to same-sex marriage prohibitions, not compose an ode to love and marriage to rival Catullus 5. Seriously. Read the opinion, then read Catullus 5. Kennedy could have saved everyone interested in the case a lot of time by sticking to the law and citing Catullus et al. for his thoughts on the timeless spiritual nirvana-awesomeness and dignity of love.

Still, the legal reasoning is there, sprinkled in with his treatise on love and the human condition, and it's generally solid -- with one glaring exception that I will discuss below. It can be summarized as follows (my paraphrasing):

"In Baker v. Nelson, a one-line summary opinion, we ruled that prohibitions against gay marriage did not present a substantial federal question. We now overrule our previous decision, on the following grounds. Marriage is a fundamental human right, as recognized in our previous decision Loving v. Virginia, invaliding prohibitions on interracial marriage on 14th Amendment grounds, and a series of other decisions invalidating prohibitions on prison inmates' ability to marry and invalidating prohibitions on fathers behind on child-support to marry. The biases of a society can sometimes prevent the Court from seeing where existing laws and practices infringe on the fundamental rights protected by the 14th Amendment, and that has happened here. Building on our earlier cases invalidating unequal application of the law to classes of people wishing to marry, we now hold that the 14th Amendment's guarantee of equal protection under the law protects the right of gay couples to marry using the same process and under the same restrictions and standards as straight couples."

That's really about it. The rest of the 20+-page opinion really doesn't say anything beyond that. The legal issues presented by this case were never that interesting.

Kennedy committed one serious error, however, as I mentioned earlier. This error does not affect the correctness of the Constitutional analysis, in my opinion, but it is still a very serious mistake which I cannot believe made it into the published opinion.

At one point in Kennedy's decision, he discusses how the various petitioners (the gay couples in the case) have been harmed by the prohibition on gay marriage, in a sort of rhetorical "victim parade". One of these couples was April DeBoer and Jayne Rowse, about whom Kennedy had the following to say:

"April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives."

The above is wrong, almost in its entirety. It is true, I assume, that DeBoer and Rowse cannot adopt each other's children under Michigan law. And that is where the truth of Kennedy's paragraph ends.

First, there is no reason DeBoer and Rowse need fear that any of their children would be removed from the non-legal parent if the legal parent of one or more of the children died. Listing desired guardians for one's minor children is a standard component of drafting a will for a parent. It is even the case that, for those without much property, this is often the primary reason for having a will made. DeBoer and Rowse need only have written wills listing each other as the guardians of the children each adopted. If one of them died, that spouse's will would be probated, at which point that spouse's legal children would go to the other parent. Straight couples use this procedure, too, in case both die. It's common enough that there's even a Seinfeld episode incorporating the concept as a plot device.

Second, there is no reason to fear hospitals would not allow the other parent to make health care decisions for the other's children. A document called a "medical power of attorney for a child" allows a parent to name another person as allowed to make health care decisions for the parent's child or children. Another document called a HIPAA authorization allows a doctor or hospital to share private health information with another person. These documents are typically prepared by an estate planning attorney at the same time the will is drafted, and, just like guardian appointments for minor children in a will, these documents are needed by straight couples, too: what if both parents are unavailable when the kid is with the grandparents and gets severely ill, and the grandparents have to deal with the hospital?

Proper estate planning is sufficient to satisfy DeBoer's and Rowse's grievances related to their children's welfare. Any lawyer should have known this, and Kennedy, as a Supreme Court justice, is one of the most esteemed lawyers in the country. Perhaps he did know what he wrote was misleading, but felt that getting into the details would have interrupted his narrative. If so, that is no excuse. Misleading for the intent of persuasion and clean narrative is the mark of silver-tongued politicians, not august legal scholars.
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