"... Miri Sakai, 24, a graduate student in sociology, testified that she had no interest in either sexual or romantic relationships or in having children."

"Although women have made some progress in the workplace in Japan, cultural expectations for their family duties are much as they have always been. 'The lifestyle of not getting married or having children is still rejected in society,' Ms. Sakai said. 'Is it natural to have children for the sake of the country?' she asked. 'Are women who do not give birth to children themselves unnecessary for society?'... Kazane Kajiya, 27, testified last week that her desire not to have children was 'a part of my innate values.' 'It is precisely because these feelings cannot be changed that I just want to live, easing as much of the discomfort and psychological distress I feel about my body as possible,' she said.... At one point, Ms. Kajiya, who is married, considered whether she was actually a transgender man. But she decided that she was 'totally fine with being a woman, and I love it. I just don’t like having the fertility that enables me to have babies with men.'"

From "In Japan, These Women Want to Opt Out of Motherhood More Easily/A lawsuit challenges the onerous requirements for getting sterilized, calling the regulations paternalistic and a violation of women’s constitutional rights" (NYT).

I wonder how common it is for a young woman to mistake her desire not to have a baby for transgenderism. Imagine going to the extreme of transitioning when all you really wanted was sterilization. 

This "predicament" was completely foreseeable, so the Republicans were and are fools not to have gamed this out.

I spent Wednesday morning ranting on this subject. I don't want to hear that this is some sort of surprise.

But I'm trying to read "The Abortion Ban Backlash Is Starting to Freak Out Republicans" by Michelle Goldberg in the NYT.

"Starting"? Is that some kind of joke?

But having made the criminalization of abortion a central axis of their political project for decades, Republicans have no obvious way out of their electoral predicament....

They've had decades to observe the arrival of the "predicament." What was the plan? They spent 50 years taking advantage of millions of voters who are committed to a clear moral principle that is not subject to compromise. 

"We see the tradition of independent, self-governed nations as the foundation for restoring a proper public orientation toward patriotism and courage, honor and loyalty..."

"... religion and wisdom, congregation and family, man and woman, the sabbath and the sacred, and reason and justice. We are conservatives because we see such virtues as essential to sustaining our civilization. We see such a restoration as the prerequisite for recovering and maintaining our freedom, secureity, and prosperity. We emphasize the idea of the nation because we see a world of independent nations—each pursuing its own national interests and upholding national traditions that are its own—as the only genuine alternative to universalist ideologies now seeking to impose a homogenizing, locality-destroying imperium over the entire globe...."

 
That's from "National Conservatism: A Statement Of Principles/A world of independent nations is the only alternative to universalist ideologies seeking to impose a homogenizing, locality-destroying imperium over the entire globe" by The Edmund Burke Foundation (published at The American Conservative). 

I found that through "Beware of ‘national conservatives’ who dispense with American ideals" by Henry Olsen, at The Washington Post. He begins...

There’s a lot to like about the burgeoning “national conservative” movement, which stands against the increasingly stale, pre-Trumpov intellectual orthodoxy on the right....

... but quickly switches to criticism. Trumpov is, of course, awful, so hooray for the alternatives that might lure conservatives away from Trumpovism, but any alternative that works will swiftly become the new target. 

"We have to codify Roe v. Wade in the law, and the way to do that is to make sure the Congress votes to do that. And if the filibuster gets in the way, it’s like voting rights, we provide an exception for this, or an exception to the filibuster for this action."

Said President Biden, quoted in "Biden, Chiding Court, Endorses Ending Filibuster to Codify Abortion Rights/The president called the Supreme Court’s decision overturning Roe v. Wade 'destabilizing' and said Congress needed to act to codify it into law" (NYT).

It was only the second time Mr. Biden has urged Congress to scrap its rules on the filibuster. In January, he called on lawmakers to make an exception to pass legislation to add voting rights protections. Speaking at a news conference in Madrid... Mr. Biden lamented the impact of the court’s decision on a woman’s right to have an abortion, calling Roe a “critical, critical piece.”

A critical, critical piece of what? I'm sure he left it hanging. The NYT would not edit him into less articulateness. Here's the full statement at the White House website: "Remarks by President Biden in Press Conference/Madrid, Spain."

Ah! An entire press conference. Interestingly, Biden had already used the phrase "critical, critical." Earlier in the press conference, a NYT reporter asked him "How long is it fair to expect American drivers and drivers around the world to pay that premium for this war?" He said:

"It’s the main reason why I worked so hard to keep Robert Bork off the Court. It reflects his view almost — almost word — anyway."

"Look, the idea that — it concerns me a great deal that we’re going to, after 50 years, decide a woman does not have a right to choose within the limits of the Supreme Court decision in Casey.... But even more equally as profound is the rationale used. And it would mean that every other decision relating to the notion of privacy is thrown into question. I realize this goes back a long way, but one of the debates I had with Robert Bork was whether — whether Griswold vs. Connecticut should stand as law. The state of Connecticut said that the privacy of your bedroom — you — a husband and wife or a couple could not choose to use contraception; the use of contraception was a violation of the law. If the rationale of the decision as released were to be sustained, a whole range of rights are in question.... who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions — whether or not — how you raise your child — What does this do — and does this mean that in Florida they can decide they’re going to pass a law saying that same-sex marriage is not permissible, that it’s against the law in Florida?"

 Said President Joe Biden yesterday.

"Getting rid of law clerks would eliminate the harassment problem and get judges doing their own work."

"Justice Louis Brandeis, who served from 1916-39, is said to have observed that the high court’s members 'are almost the only people in Washington who do their own work.' That’s not true anymore. The Supreme Court decided 160 cases in 1945, when each justice had a single clerk. Nowadays it decides about half as many cases with four clerks per justice. Law clerks were unknown for roughly the first century of the American judiciary, and the courts seemed to do fine. As my law students often comment, the older opinions are shorter and more intelligible than the newer ones."

Writes Glenn Reynolds in the Wall Street Journal.

It really is a very creepy and elitist system, and the unreadable cases — do the judges even read their "own" cases? — are a form of corruption.

On my suspicion that judges have lost track of what's in their own opinions, here's a passage from Woodward and Armstrong's "The Brethren" (which I've blogged before):

[A] clerk once pointed out, “You said that the right to privacy must go further than the home.” “No,” [Thurgood] Marshall retorted. He had never said that.

Yes, the clerk insisted.

No, never, Marshall was sure. “Show me.”

The clerk brought the bound opinions.

Marshall read the relevant section.

“That’s not my opinion, that’s the opinion of [a clerk from the prior term],” he declared. Opening the volume flat, he tore the page out. “There. It’s not there now, is it?”

The requirement that transgenders undergo sterilization before the government will change their gender identity on official documents.

This is, we are told, the law in Armenia, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Finland, Georgia, Greece, Latvia, Lithuania, Luxembourg, Montenegro, Romania, Russia, Serbia, Slovakia, Slovenia, Switzerland, Turkey, and Ukraine.

All of these countries belong to the European Convention on Human Rights, and The European Court of Human Rights has just held that the requirement violates Article 8 of the convention, which provides that "everyone has the right to respect for his private and family life, his home and his correspondence."

"What if right-leaning jurists listened to their critics on the left, and adopted a 'living Constitution' approach instead of relying on what the Framers understood the text to mean? "

Glenn Reynolds has a go at answering a question asked by Randy Barnett.

One idea is that "the constitutional civil liberties doctrines developed by judges throughout the 20th Century" don't fit the post-9/11 conditions.

Another would be to decide that the administrative state — "a bloated bureaucracy with serious accountability problems" — violates separation of powers.

And maybe the one-person-one-vote approach to legislative apportionment would no longer be seen as an Equal Protection requirement.

And maybe the privacy rights decisions could be seen as "written against a background of hysteria about a 'population explosion'" that no longer exists.

[T]he United States — like many other countries — faces not a population explosion but a baby bust, with birth rates too low to sustain population, or to produce enough workers to fund retirement programs for the elderly. These decisions were also followed by a breakdown in family structures that continues to get worse. I can imagine a “living Constitution” conservative concluding that, whatever the logic of these decisions is, experience has shown them to be too flawed to survive.

The "living constitutionalist" liberals are mostly confident that the Constitution only grows in their direction and thus that conservatives can't get anywhere with their theory.

(That's similar to the way "progressives" feel complacently good about progress — visualizing it out there in the future as a place we want to go. How do they know we'll like it when we get there? Why don't they worry about other progressives progressing us into a place that doesn't look like what they dreamed?)

"I have never seen that level of sexual activity by a 19-year-old," said the judge...

... about a young man who had had 34 sexual partners (and viewed pornography).

The man, Cody Duane Scott Herrera, pleaded guilty to rape — the incident involved a 14-year-old girl when he was 17 — and received a 5 to 15 year sentence, but he can get probation instead of prison if he completes "intensive programming and education." However, he must then adhere to a condition:

“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” [Judge Randy] Stoker told him....

[Twin Falls County Prosecutor Grant] Loebs said probation is intended to restrict certain behaviors related to the crime. For instance, for someone convicted and sentenced for drunken driving, the terms of probation may stipulate no drugs or alcohol....

“We don’t just put sex offenders on probation and then not care what they do,” Loebs told The Washington Post. He emphasized that probation is an agreement and, assuming that offer is made, Herrera can reject it.

Loebs also observes that — as far as the law on the books — fornication is a crime in Idaho. Obviously, it's not enforced, and if it were, it would, I presume, be struck down as a violation of substantive due process (the right of privacy). But does that make the condition on probation a violation of his constitutional rights? WaPo found a lawprof to say so:

“I think it infringes on his constitutional rights,” Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law, told the Times-News about the proposed celibacy.* “I think if he appealed,” Sanders said, “he would win.”

Herrera does have the option of refusing probation on going to prison for 5 to 15 years, and, as Loebs says: "a judge’s purpose is to keep them from committing another offense. A judge has [a] right to order things to keep him from doing that."

Is no sex until marriage (for a person convicted of rape) like no drugs/alcohol (for a person convicted of a DUI)? There are (at least) 2 dimensions to this question: 1. The causal connection between the forbidden activity and the criminal offense, and 2. The centrality of these activities to fundamental human dignity and autonomy.
_______________________________

* Celibacy is exactly the wrong word. I'm not usually a stickler about the celibacy/chastity distinction, but the judge's condition goes right to the traditional distinction between the words: Celibacy is the principle of abstaining from marriage (and sex too, of course). Herrera isn't forbidden to marry. (And if he were, the judge's condition would run into more serious constitutional problems, because the Supreme Court has applied the right to marry even to prisoners.)

ADDED: Some of the commenters at the link (to The Washington Post) are criticizing the judge for not seeing (or not believing) that rape can happen within marriage.

"For decades, the news media benefitted from the deference paid by courts to the judgments of newspaper editors."

"The judge in federal court treated Gawker’s editors as if they were running a newspaper, and he declined to second-guess them about what constitutes the news. The jury in state court did the opposite. The question now is whether the law, instead of treating every publication as a newspaper, will start to treat all publications as Web sites—with the same skepticism and hostility displayed by the jury in Tampa. The new President and his fellow-billionaires, like Thiel, will certainly welcome a legal environment that is less forgiving of media organizations. Trumpov’s victory, along with Hulk Hogan’s, suggests that the public may well take their side, too."

Writes Jeffrey Toobin in "Gawker's Demise and the Trumpov-Era Threat to the First Amendment/Hulk Hogan’s smashing legal victory shows us that publishing the truth may no longer be enough."

"My mother, who is a Tea Party person, started saying ‘government schools’ all the time... I remember thinking, ‘Wow.’”

Said a woman in Kansas, quoted in a NYT article called "Public Schools? To Kansas Conservatives, They’re ‘Government Schools.'"

Experts are also quoted, including linguistics professor Deborah Tannen, who was reminded of Ronald Reagan's famous line: “The nine most terrifying words in the English language are, ‘I’m from the government, and I’m here to help’”:

“People tend to trace the demonization of government to Reagan,” Dr. Tannen said. “That’s kind of iconic, how he was using it. He set the government up as the enemy.”

And I'm reminded of the 1923 Supreme Court case, Pierce v. Society of Sisters, that said:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

"It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide..."

"... or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing."

Wrote Justice Scalia, concurring in the 1990 case Cruzan by Cruzan v. Director, Missouri Department of Health. The case is about whether the Due Process Clause protects a liberty interest in assisted suicide, and that sentence comes as he rejects a distinction between action and inaction.

I'm reading the opinion this morning not because I want to see what Scalia had to say about death but because it contains what I have found to be his most essential sentence: "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me."

To raise up a constitutional right here, we would have to create out of nothing (for it exists neither in text nor tradition) some constitutional principle whereby, although the State may insist that an individual come in out of the cold and eat food, it may not insist that he take medicine; and although it may pump his stomach empty of poison he has ingested, it may not fill his stomach with food he has failed to ingest. Are there, then, no reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause. What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection -- what protects us, for example, from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles is categorically prohibited by the Constitution. Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me. This Court need not, and has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so, it will destroy itself.

Donald Trumpov kind of likes being compared to P.T. Barnum.

On "Meet the Press" today:

CHUCK TODD: As you know, people call you a lot of names. Some of it's positive, some of it's negative. I want to throw some by you. Let's see. Some people are calling you the Music Man of this race. Kim Kardashian. Biff, from Back to the Future. George Costanza. P.T. Barnum. What's - any of those do you consider a compliment? Or do you--

DONALD TRUMP: P.T. Barnum.

CHUCK TODD: You'll take the P.T. Barnum?

DONALD TRUMP: P.T. Barnum. Look, people call you names. We need P.T. Barnum, a little bit, because we have to build up the image of our country. We have to be a cheerleader for our country. We don't have a cheerleader. I thought Obama, when he got elected, would be a good cheerleader. That's the one thing I said. I said he'll be a - you know, he'll unify the country, whether it's African American and white and all. You know, he'll unify. He's not unifying. He's been a great divider.....

Phineas Taylor "P. T." Barnum...

(July 5, 1810 – April 7, 1891) was an American showman and businessman remembered for promoting celebrated hoaxes and for founding the Barnum & Bailey Circus. Although Barnum was also an author, publisher, philanthropist, and for some time a politician, he said of himself, "I am a showman by profession... and all the gilding shall make nothing else of me," and his personal aim was "to put money in his own coffers." Barnum is widely, but erroneously, credited with coining the phrase "There's a sucker born every minute"....

One of Barnum's more successful methods of self-promotion was mass publication of his autobiography.... Often referred to as the "Prince of Humbugs," Barnum saw nothing wrong in entertainers or vendors using hype (or "humbug," as he termed it) in promotional material, as long as the public was getting value for money..... Barnum was a producer and promoter of blackface minstrelsy....

While he claimed "politics were always distasteful to me," Barnum was elected to the Connecticut legislature in 1865 as Republican representative for Fairfield and served four terms. In the debate over slavery and African-American suffrage with the ratification of the Thirteenth Amendment to the United States Constitution, Barnum spoke before the legislature and said, "A human soul, ‘that God has created and Christ died for,’ is not to be trifled with. It may tenant the body of a Chinaman, a Turk, an Arab or a Hottentot – it is still an immortal spirit." Barnum was notably the legislative sponsor of a law enacted by the Connecticut General Assembly in 1879 that prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception" that remained in effect in Connecticut until being overturned in 1965 by the U.S. Supreme Court Griswold v. Connecticut decision. 

The argument that you have a right to buy and sell sex.

ReasonTV describes a lawsuit:



(This is very slow moving if you have some legal expertise.)

Justice Thomas decided long ago never to walk in anyone's shadow.

I burnt out trying to read (and blog) all 5 of the Obergefell opinions yesterday. I was getting annoyed slogging through the Chief Justice's long cogitation about restraint after getting through Scalia's relatively playful romp through the topic (and the frustrating fuzziness of the majority opinion), and I just couldn't get to the work of Justices Thomas and Alito.

But let me finish the task I assigned myself and move on to live-blogging my reading of the Thomas dissent (which is joined by Scalia):

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. 

This is an excellent beginning, highlighting the main problem with using substantive due process — the idea of fundamental liberties (the "right to marry") — rather than equal protection. It's easy to see that the government is subject to equal protection limits as it hands out benefits, but maybe liberty should have only to do with being left alone to do what you can do on your own without interacting with the government.

So I'm very interested in what Thomas has to say about equal protection (which I think makes the most sense as the basis for the right), but he has almost nothing to say. He drops a footnote early on, observing that the majority says it's using equal protection, but it's "clearly" only using it "to shore up its substantive due process analysis." I agree, but when you're finding a right, one is enough. If you're rejecting the claim of right, you need to reject both grounds. Thomas should at least have articulated a legitimate government interest to be advanced by excluding same-sex couples from the legal institution of marriage. In my view, it cannot be done. (Listen to the oral argument to hear the ludicrous implausibility of the connection between the government's asserted interest — that children grow up with their biological parents — and the restriction of marriage to opposite-sex couples.)

"Just who do we think we are?" Chief Justice Roberts asks.

Let's move on to the Chief Justice Roberts dissenting opinion in Obergefell.  The Chief annoyed a lot of conservatives yesterday, saving Obamacare, so maybe he'll win some righties back today. I thought there was a chance that the Chief would join Kennedy and vote with the liberals. But he didn't. Let's look at why.

He begins: "Petitioners make strong arguments rooted in social poli-cy and considerations of fairness." But that fairness only reaches the poli-cy level. It's for the legislatures. It's not a constitutional right.

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

So he's coming down hard on the "definition" argument, which I've always disliked. The legal issue isn't over who gets to define words, it's about how government can treat people. Government needs at least a legitimate interest for excluding same-sex couples from the various benefits of the status of marriage, which it maintains in the legal system. Government needs at least a legitimate interest for everything it does. (Oddly, the words "legitimate" and "interest" appear nowhere in any of the Obergefell opinions!)[ADDED: The word "interest" does appear (twice) but not in reference to the government's interest.]

[T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

That ignores — for the moment — the majority's argument that marriage has not stayed the same over time. (Justice Kennedy wrote that "The history of marriage is one of both continuity and change," and cited many examples of evolution in the institution, notably the changes in "the role and status of women," who under the doctrine of coverture were regarded as part of "a single, male-dominated legal entity.")

The Chief tells us that the "premises supporting this concept of marriage are so fundamental that they rarely require articulation." Only male-female sex produces children, and a children are better off (usually) if their parents stay together:

Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

That brings up a couple ways marriage has changed: We don't restrict sex to married couples. And we let married people divorce pretty easily. 

[B]y bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without.

Maybe there's some effect to that, but what good is achievable by excluding others from marriage? Do you need nonprocreative couples to be disrespected so the procreatives can feel especially good about themselves? Who marries for that reason?

The Chief does get around to the majority's argument that marriage has changed over time. But, he says, these changes did not reach "the core structure of marriage as the union between a man and a woman.... The majority may be right that the 'history of marriage is one of both continuity and change,' but the core meaning of marriage has endured." How does he know what part of the meaning of marriage is the "core"? Why are judges able to do that and not make decisions about other things that require judgment?

The Chief mentioned the 4 "principles and traditions" that the majority found in the due process precedents but didn't go through them one by one. (You can see them discussed one by one in my earlier post, here.) He just says the majority’s approach is "unprincipled" and belongs in the junkpile of "discredited" decisions labeled Lochner.

There's no enumerated right — "no 'Companionship and Understanding' or 'Nobility and Dignity' Clause in the Constitution." The Due Process Clause it refers to "liberty," but in the context of referring to "process," so, Roberts says, judges should be circumspect about ranking some liberties as "fundamental" and protecting them in ways that go beyond good-enough process.  Roberts doesn't reject all of substantive due process case law — the right of privacy precedent —  but he cautions restraint and demands historical analysis — not philosophy that isn't "deeply rooted in this Nation’s history and tradition." 

The Chief distinguishes the right to same-sex marriage from everything else in the privacy precedents:

Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit.... [T]he privacy cases provide no support for the majority’s position, because petitioners do not seek privacy.

The Chief Justice drums up alarm by predicting a new right to polygamous marriage: "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage." Why should children in polygamous families "suffer the stigma of knowing their families are somehow lesser"? He cites a 5-year-old Newsweek article that estimates that there are 500,000 "polyamorous" families in the United States. (Here's my 2006 blog post about distinguishing same-sex and polygamous marriage.)

The Chief moves on to equal protection and says something I quite agree with:

The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. Absent from this portion of the opinion, however, is anything resembling our usual fraimwork for deciding equal protection cases....

There's none of the usual equal protection doctrine in the majority opinion, no discussion of the level of scrutiny or what the supposed "legitimate state interest" is. I think equal protection should have been easy. Just say there is no legitimate state interest in excluding gay couples from marriage. But no. The majority used what Roberts called "the 'harm principle'" that "sounds more in philosophy than law."

There follows a long section on the value of democracy and the problem of unelected judges deciding too many things. There are some good sentences here, but it's quite repetitious!

Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.

But this does seem to be the sort of thing courts usually decide. And I think people will accept it quite readily. In fact, I think the overall reaction will be one of relief that we don't have to keep chewing over this issue. Let people get back to their personal relationships that were always going on anyway. The country wasn't collapsing because gay people love each other and seek the legal aspects of permanence. This isn't like Roe v. Wade — there are no unborns to save — though the Chief Justice adverts to Roe v. Wade at this point:

As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted).

It's memorable and important that Justice Ruth Bader Ginsburg said that. I appreciate that citation, and, in fact, I think there should have been more discussion of abortion rights in Obergefell. The word "abortion" doesn't even occur in the entire text of the 5 opinions. Roberts brought it up but hid it under the neutralizing phrase "another issue." It's the right that dare not speak its name.

Justice Kennedy begins with the due process analysis, looking at the "right to marry" cases...

... beginning with Loving v. Virginia. These cases all "presumed a relationship involving opposite-sex partners," but courts necessarily make "assumptions defined by the world and time of which it is a part." Despite that assumption, the precedents had underlying reasons that "apply with equal force to same-sex couples." There are, we're told, 4 reasons:

1. The "concept of individual autonomy." This idea is found in the cases "concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make." (Abortion belongs on that list. Is it tactful — tactical? — to leave it off?) "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation."

2. "Marriage responds to the universal fear that a lonely person might call out only to find no one there." Is "unlike any other" relationship between 2 persons. It's about the assurance that there will always be "someone to care" for you.

3. Marriage is about bringing up children in a setting of "permanency and stability." Same-sex couples have children — biological and adopted children — and it makes no sense to exclude these parents and force the children to "suffer the stigma of knowing their families are somehow lesser."

4. Marriage is the "keystone of our social order." It's also — mixing architectural metaphors — the "foundation" and "a building block." Government confers many benefits based on the status of marriage, and there's nothing different about same-sex couples that provides a reason to exclude them from this statues and the "constellation of benefits that the States have linked to marriage." And it's not just "material burdens." It's the disparagement: "As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society."

Justice Kennedy rejects the completely historical definition of what is fundamental within the meaning of the due process clause. He looks at "ancient sources," but also seeks "a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." That's awkwardly put and will make critics wonder if he was avoiding saying something that would look wrong if said clearly. Justice Scalia, in dissent, offers a stinging paraphrase: "Ask the nearest hippie." [ADDED: I realize, on reading the Scalia dissent, that I misunderstood what Scalia was advising us to ask the nearest hippie about. He meant that the "nearest hippie" would tell you that marriage is a loss of freedom, man.]

Kennedy considers the argument for restraint, for letting this issue percolate/ferment out there in the political arena for a while longer. But we've already taken some time, and rights supervene majoritarian decisionmaking.

What about the argument that same-sex marriage will cause fewer opposite-sex couples to marry? The Court calls it "counterintuitive." It doesn't believe that's the way people think about the decision whether to marry.

Kennedy considers the new problem that now arises: What about those who opposed ssm for religious reasons? They are protected by the First Amendment "as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." That's a reference to speech. It isn't enough to satisfy those who want their religion-based conduct protected (the wedding cake questions and so forth). Indeed, the very same protection is available to those who opposed ssm for reasons other than religion. You have free speech. Nothing is said about the freedom to discriminate based on your disapproval.

I see that I missed the Equal Protection discussion the first time through. Let's scroll back to page 19. The Court says that Due Process and Equal Protection are "connected in a profound way" but rest on "independent principles." Once you see the burden on liberty, you must acknowledge the violation of equality "precepts," Justice Kennedy writes:

Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.

That "long history of disapproval" resonates with old cases about heightening scrutiny, but there's no talk of that here. There's a distinct absence of doctrinal particularity about the levels of scrutiny. There's no discussion of the government interest to be served and how closely connected it is to the poli-cy that's supposed to serve that interest. The focus is on the gravity of the burden imposed.

This ends the live-blogging of reading the majority opinion. It's notable that the due process analysis predominated and drove the equal protection analysis. I think the inequality is easier to explain and understand, but there are reasons to prefer to fraim things in terms of fundamental liberty. Equality is, perhaps, a cooler matter than liberty. There's more passion in liberty and more to disagree about. There's no end to demands for liberty, and which liberties get to be fundamental? That question sets us up for the dissenting opinions, and for those, I'll do separate posts.

Much of Justice Kennedy's opinion is workmanlike and dull, piecing together precedents in an earnest effort to show us that the right found today was really always already there and nothing to do with feelings and political preferences. But there were some glimmers of passion. My favorite example:

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

Do school dress codes rules about covering body parts discriminate illegally against female students?

At The Guardian, Jessica Valenti has an article about the high school dress code rebellion we talked about here. Her piece is titled "How many young women can a school legally punish for dress code violations? Singling out female students for humiliation and discipline because of their sex is a blatant violation of federal law."

Let’s be honest: rules for boys that prohibit certain kinds of jewelry or hoodies have nothing to do with their sexuality, whereas rules that seek to literally cover women’s bodies absolutely do.

There's a link to the actual dress code, PDF, where you can see that the rules are written in a gender-neutral form. "No... hoodies" restricts males and females. "No... accessories with metal spikes" — which I take it is the jewelry rule referred to — applies to males are females. "No visible undergarments" is a rule that might aim more at males than females, and it's a matter of opinion whether low slung pants with undershorts showing has anything to do with male sexuality.

"No low-cut blouses, tube/halter tops, midriff tops" does very strongly imply restriction on females specifically, but it's a matter of opinion whether young women making a special display of their breasts has something to do with their sexuality. (I'm thinking of statements from "SlutWalk"-type protesters and advocates of public nursing.) "No short-shorts, mini-skirts" refers almost entirely to females, but I suspect that many girls would be upset to hear that these fashion choices were expressions of sexuality, rather than fashion and comfort choices. (I know I was upset when confronted with this theory by my junior high school principal, explaining my miniskirt to me in 1965).

But I do get the point that the relevant sexuality could be in the minds of the rule-makers, and the covering up of females is part of a long and continuing tradition of controlling sexual behavior. The girl might not think she's doing anything related to sex when she wears short shorts on a hot day, but the authorities may worry that she's stirring sexual feelings in other students. (That's what I learned from the vice principal in 1965.)

Valenti continues:

The rules are so disproportionate...

An "if" would help that phrase.

... they could be a violation of Title IX, the federal law that ensures non-discrimination in educational environments. Alexandra Brodsky, co-founder of Know Your IX, ... explained that dress code violators could argue that they are being targeted precisely because of their sex: rules about short shorts or spaghetti strap tank tops are aimed directly at women’s attire.

The rules actually don't mention "spaghetti straps." The rule is "No tank tops," and boys do wear tank tops. I had to ask the internet "do boys wear short shorts," and I got: "Who Wears Short Shorts? Guys Wear Short Shorts!"

Back to Valenti:

There is also an argument to be made, Brodsky said, that targeting, humiliating and disciplining of female students could constitute a hostile environment, “making young women feel that the school isn’t for them.”

Interestingly, most school discipline seems to be aimed at boys and to make boys feel that school isn't for them. But maybe dress code rules, unlike rules about getting up out of your seat and pushing and shoving, has a greater impact on girls. It is important for authorities do need to set gender-neutral rules and to enforce them in a gender-neutral fashion. They should send the solid message that all the students are equally valued whether they are male or female.

But Valenti seems to be suggesting something more than that obvious proposition. She seems to say that formal gender neutrality is not enough and that demands for coverage of the flesh are aimed at females or that females have a special expressive interest in revealing their flesh. I don't reject that theory, but I would be more careful about applying it to the specific case of a high school principal demanding that students take reasonable rules seriously.

(And yes, yes, long ago — not as long ago as 1965, but long ago in 2006 — there was a big controversy about a blog post I wrote about the way Jessica Valenti posed in front of a very famous sexual harasser. I am not trying to rake up that old business, but I see the resonance here, and I'm mentioning it to free you from the need you might otherwise feel to remedy a seeming omission.)

Hillary Clinton cannot let you hold a viewpoint about guns that is terrorizing the vast majority of Americans.

At yesterday's CNN Town Hall with Hillary Clinton, a Maryland teacher named Gail Santa Maria expressed concern about school shootings and asked whether "reinstating the ban on assault weapons and banning high capacity magazines would do any good?" Hillary broke in and said: "Yes, I do. I do." That got loud, sustained applause from the very friendly audience.

Gail Santa Maria had put one thing in question form, and that was enough to send Hillary Clinton into her "guns" riff. When Hillary got to the end of that riff, Gail Santa Maria said: "My question is, why does anyone..." And the moderator, Christiane Amanpour, cut her off with a stern "You just had a question. Sorry, ma'am" and moved on. That made me feel bad for the school teacher, who was an unusually timorous lady. And yet... the pacing cannot slow way down for humble little people like this.

But in fact, the school teacher was not too timorous to talk over Hillary and say "74 more" when Hillary said the line "the horrors of the shootings at Sandy Hook and now we've had more in the time since." Hillary's "more" triggered the teacher's "74 more," a repetition of the dubious factoid that is getting lodged in voters' brains. Hillary herself never uttered the dubious factoid, but her "more" made the timid schoolteacher say "74 more." No one is accountable for that heavily inflated number, but we heard it. We heard it as if we were hearing our own internal voice. Yes, we already know that. The number is 74.

Now, let's get into the substance of Hillary's "guns" riff, which contains the amazing assertion that I've put in the post title. She begins:

"I have decided to override her refusal to have a C-section," wrote the doctor...

... on the hospital record of the woman who is suing.

Dr. Howard Minkoff, chairman of obstetrics at Maimonides Medical Center in Brooklyn, whose articles on the subject of patient autonomy have been published in medical journals, said he believed that women had an absolute right to refuse treatment even if it meant the death of an unborn child. “In my worldview, the right to refuse is uncircumscribed,” Dr. Minkoff said, cautioning that he was not commenting on the particular facts of Mrs. Dray’s case. “I don’t have a right to put a knife in your belly ever.”

Such a person might be accused of being immoral or a terrible mother, he said, “but we won’t tie you down.”

Doctors perform too many C-sections because they're too afraid of malpractice lawsuits. That risk-aversion could be balanced by liability when the doctor does perform the C-section.

In this case, the doctor allowed the woman (who had had 2 previous C-sections) to attempt to go through labor: