Alito has filed a dissenting opinion, joined by Scalia and CT.
Sixth Circuit is reversed.
Each of the four dissenters has written a dissent
Kennedy is of course still reading. No way to know yet whether someone will read a dissent, although I would guess that someone might.
It's a thick one, as the four dissents might suggest.
For what it's worth, the opinion is not in a booklet form, either because it was too thick and/or it was finished too recently.
After the SSM opinions are given out, there is one more box left. (E.g., the SSM opinion took up three boxes.) So there will be something left for Monday.
We have our crack team scanning the opinion. We will have more details soon, followed by complete coverage from Lyle, me in Plain English, and an online symposium.
We are still scanning the opinion to see whether it announces a standard of scrutiny, but it's clear that the Court's opinion relies on the dual rationales of fundamental rights AND equal protection. We'll update more re: the equal protection reasoning as soon as we finish reading.
It is actually eerily quiet here in the Court's cafeteria, but I imagine it's about to get crazy outside.
Also, I know that many of you are entirely focused on SSM, but the fact that the first opinion is from Justice Kennedy means that the next opinion will be from either Kennedy again or Scalia (Utility Air, perhaps?) or the Chief.
Still waiting for Lyle to see whether anyone will read a dissent.
The opinion seems to go out of its way not to state a standard of scrutiny. Instead, it says, "It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . 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. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." That's page 22.
Chief Justice is now reading from his dissent. It is the first time he has ever read a dissent from the bench, according to Lyle (who knows these things).
The opinion notes that religious institutions have a first amendment right to advocate against same sex marriage.
The opinion appears to echo Windsor in its dual rationales: Marriage is a fundamental right in which homosexual couples must share, and it would also be a violation of equal protection to extend that right only to heterosexual couples.
The Chief Justice has the principal dissent, which is 31 pages long. Toward the end of it, he says, "If you are among the many Americans--of whatever sexual orientation--who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not Celebrate the Constitution. It had nothing to do with it."
From the concluding paragraph of the majority opinion: "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. ... [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right."
We will be hosting a symposium on the decision with some really terrific contributors: Gene Schaerr, Paul Smith, David Upham, Mike Dorf, Erwin Chemerinsky, Steve Sanders,Kyle Duncan, Chris Green, Ryan Anderson, and Judith Schaeffer. Check back over the next 24 hours (or so) to read their thoughts on the opinion.
From the majority opinion, addressing the role of history in the constitutional analysis: "The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning."
The majority opinion includes some soaring language; the dissents are extremely strident.
The majority bases its conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) right to person choice in marriage is "inherent in the concept of individual autonomy"; (2) "two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order.
The Chief Justice is reading his dissent from the bench still. I have a brief summary of it below, but the basic gist is that he thinks that the democratic process should have worked this out on its own. The tone of the Chief's dissent is very measured, and repeatedly urges the victors to celebrate, despite his disagreement with the Court being the one to make the decision.
Scalia's dissent has an awesome footnote on page 7 (note 22): he says, "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie." He is not happy with Justice Kennedy.
We have the second opinion. Johnson v US
The opinion is by Scalia.
Kennedy concurs in the judgment, joined by Thomas. Alito dissents.
ACCA residual clause is unconstitutional!
Court holds that imposing an increased sentence under the Armed Career Criminal Act's residual clause violates due process.
This case was originally argued last fall. It arises out of the Armed Career Criminal Act, which imposes a mandatory minimum sentence of fifteen years on a federal firearms offender who has three convictions for a “violent felony.” The question before the Court was whether possession of a sawed-off shotgun constitutes a violent felony. After oral argument, the Court ordered new briefing and re-argument on a second question: whether the part of the ACCA (known as the “residual clause”) which outlines what kinds of crimes should be treated as violent felonies is unconstitutionally vague.