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Wednesday, June 07, 2006 

No Love for Tony

Damn you, nice weather and internship, for keeping me away from my blog. Also, Blogger was down for like 5100 hours today because the hamster fell off the wheel in the server or something.

Anyway, I found this editorial from the Wall Street Journal rather interesting and timely. In it, the editors lay some heavy blame on Justice Anthony Kennedy over the current gay marriage battle being waged in both the federal government and the states. Here's what they've got to say...
Justice Kennedy wrote the majority opinion in the 2003 Lawrence case that banned state anti-sodomy laws. So sweeping was his "privacy right" language that it took only a few months for the Massachusetts Supreme Court to use Lawrence to justify its decision to impose a right to gay marriage there. Politicians in New York and San Francisco began issuing gay marriage licenses, never mind state law.
I disagreed with Lawrence for pretty much the same reason that Justice Thomas dissented. I think that a law that bans sodomy is stupid (I think Thomas called it "uncommonly silly" or something along those lines). However, I don't think there is a right to sodomy in the Constitution. Imagine if there was an explicit right to sodomy in there. I think we would all be wondering exactly what was going on in that hot room during the summer of 1787 in Philadelphia.

Okay, now that we have the image of the Founding Fathers sodomizing each other fresh in our minds, let's get back to Constitutional Law. While I didn't agree with Justice Kennedy's decision in Lawrence, I think that it's a little unfair to place so much blame in his lap (especially putting him in the title of the editorial). This vague expansion of the Right of Privacy has been a movement in the Supreme Court and Con Law in general for decades. You can trace it from Griswold through Roe, making a short detour through Casey, and ending up square in Lawrence-ville. Lawrence was the last major decision, and the one that was most on point, so it (and Justice Kennedy) gets the most attention. I guess this is the position that Justice Kennedy will occupy until one of the Court's liberals retires though. He will be the swing vote on these issues, and he will be the new media star for it.

The most important man in Constitution Law... for now

Honestly, the whole gay marriage issue is really boring to me. That's why there hasn't been a post about it on here until this one (and this is hardly an examination of the issue). However, if this is something that gets you going, Professor Bainbridge has an interesting post and discussion going about the Republican Party and views of the Marriage Protection Amendment. I love how he's technically on vacation in Napa Valley, yet still manages to post more than me. I feel like such a failure...

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  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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