Constitutional debates about the "rainbow" decision

Am I happy that the U.S. Supreme Court recognized the right of Americans to enter same-sex marriages?

I cannot say I am happy, because I am in a heterosexual marriage.

I can say I am satisfied that, now that the U.S. Supreme Court has recognized that same-sex marriage is within the rights guaranteed by the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, the states (most likely) will not be denying same sex couples the panoply of rights given to heterosexual couples the moment they marry.

Now the debate is raging among scholars, was the "rainbow" decision "judicial activism", was it warranted by the U.S. Constitution or did judges overstepped their boundaries in making this decision?

Here is the Equal Protection Clause of the 14th Amendment to the U.S. Constitution:

" No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

When states deny to adult consenting Americans rights accorded to married heterosexual couples, which rights accrue out of the mere fact of marriage (without regard to duration of marraige, and without regard to age of couples and ability or desire to procreate), for no other reason but that, according to certain religions, same-sex cohabitation and marriage is a sin because sexual intercourse in such relationships cannot lead to procreation, that would be establishing religion by the state (in violation of the 1st Amendment of the U.S. Constitution) and denying equal protection of laws to citizens of the states, which is prohibited by the Equal Protection Clause of the 14th Amendment.

That said (and this is just my personal opinion as to the same-sex marriage issue), certain interesting constitutional issues arose in dissents of four U.S. Supreme Court judges in the "rainbow" case.

Here is the split between judges in the "rainbow case":

Here is a table of majority and dissents:

Majority – names/genders of judges	1st Dissent	2nd Dissent	3rd Dissent	4th Dissent
·        Kennedy - M ·        Breyer - M ·        Ginsburg – F ·        Kagan – F ·        Sotomayor – F	Author of dissent: Chief Judge Roberts – M Joined: Scalia – M Thomas - M	Author of dissent: Scalia - M Joined: Thomas - M	Author of Dissent: Thomas - M Joined: Scalia - M	Author of dissent: Alito - M Joined: Scalia - M Thomas - M

You can see from the table that all female judges on the court sided with recognizing same sex marriage as a civil right under the Equal Protection Clause of the 14th Amendment.

All four of the dissenters filed their own separate dissenting opinions, as well as joining in some, but not all opinions of other judges.

Thus, Chief Judge Roberts participated only in his own dissenting opinion.

Judges Thomas and Scalia authored one dissenting opinion each and joined in all dissenting opinions of all other judges.

Judge Alito authored one dissenting opinion and did not join dissenting opinions of other judges.

So, there is a split even in the dissent, at least as demonstrated by separate positions of Judge Roberts (not supported by Judge Alito) and of Judge Alito (not supported by Judge Roberts).

Judge Roberts says in his dissent what seems to be the right thing to say:

No, "this Court is not a legislature", it is true, that is what Article III says.

Yet, same sex couples did not ask the court to legislate, they asked them to force the state to recognize their equal rights under the state law to marry, pass inheritance to their life partner in a committed - yes, sexual - relationship, have access to the loved one as "next of kin" when the partner is ill, make decisions as the "next of kin", and to have all other rights that are conferred upon heterosexual couples at the ringing of the wedding bells.

Moreover, Judge Roberts is seemingly unconcerned about the court's continuously legislating, going beyond its boundaries and establishing restrictions upon civil rights litigation that were never authorized by the U.S. Congress, such as:

• immunities;
• abstentions;
• deterrences doctrines;
• doctrines of "comity and federalism";
• the Rooker-Feldman doctrine, interpreted far beyond its intended statutory boundaries etc.

If the rampant legislating from the bench through "doctrines", "rules", and "tests" that interpret the Civil Rights Act and the U.S. Constitution into non-existence and that so far made civil rights litigation in the United States nearly impossible, are actually lawful activities by the U.S. Supreme Court in Chief Judge Roberts' opinion (and I did not see dissents from him on constitutionality of abstentions, immunities and other judge-created restrictions on civil rights jurisdiction of federal courts), why so ardently claim that in the case of same sex marriage judges legislated from the bench - and it is somehow not what judges of the U.S. Supreme Court, including its Chief Judge Roberts, do every day?

When I am talking about the death of civil rights litigation, I mean not single cases supported by public opinion and multiple amicus curiae briefs, but to all civil rights litigants, especially those who are not attractive, those who are poor, inarticulate, have criminal history or history of criticizing the government.

The law should not be a public opinion poll.  In fact, judicial independence requires judges to disregard public opinion polls and to disregard how many states recognize same sex marriage.  It is the principle of inequality and not statistics of the state allowing same sex marriage that were supposed to control the court's decision, and on that issue I agree with the dissenters.  

Of course, I need time to analyze 103 pages of the small-font single-spaced "rainbow" decision.

I will publish more analysis of the "rainbow" dissents, realistically speaking, after the July 4th weekend.

Stay tuned.