Tag Archives: obergefell

Justice Roberts: sketchy on law AND historical anthropology.

Justice Roberts cited the traditions of four cultures in his dissent on gay marriage. Here’s what he didn’t mention. – The Washington Post.

Yesterday we demonstrated that Justice Roberts’s grasp of the Constitution was sort of tenuous, in that he seemed to think that the right to due process and equal protection had to be put to popular vote.

Today, thanks to the intrepid frustrated anthropology majors at the Washington Post, we can examine Justice Roberts’s grasp of that subject.

Justice Roberts’s dissent in the marriage equality case provided examples of long-standing, widespread history of sanctimonous sanctified man/woman marriages, harrumphing that, with the Obergefell decision,

the 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?

Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, at *24 (U.S. June 26, 2015).

Before we get to anthropology, I’ll visit the last question quickly:  I hope you think you’re Supreme Court justices, because that’s what we’re paying you to be.  In that case, again Con Law 101, you get to “say what the law is.”   Marbury v. Madison, 5 U.S. 137, 177 (1803).

But the WaPo had some fun with Roberts’s reference to the Kalahari, the Chinese, the Carthaginians, and the Aztecs.  Read the whole article, but here are some highlights:

  • Kalahari Bushman apparently had “polygamous households where lesbianism was common.”
  • During the Han dynasty in China, “homosexuality was rife” and almost all of the emperors apparently “had same-sex lovers.”*
  • According to at least one right-wing Italian scholar, Carthage “was a paradise for homosexuals.”
  • In Aztec law and custom, marriage could be “conditional” and “[p]olygamy and concubines were permitted.”**  And then there’s “the whole human sacrifice thing,” not directly related to the gender of people permitted to marry, but a cautionary note on taking legal advice from ancient cultures.
Image: drawing of several people stabbing and removing the hearts from others, with much blood.

Human sacrifice as shown in the Codex Magliabechiano, Folio 70, via https://en.wikipedia.org/wiki/Human_sacrifice_in_Aztec_culture

All of the justices have law clerks, who are all the biggest nerds from each Ivy League law school class each year.  Justice Roberts’s clerks couldn’t find examples that were not deflatable by a couple of minutes of Google research by a WaPo intern?


* Possibly Justice Roberts was comparing the Han Chinese to American government of the the Republican variety, where conservative lawmakers inveigh against marriage equality while keeping gay lovers or picking up guys in airport bathrooms.

** Again, Roberts may have been thinking of the subset of Republican marital values embodied by GOP presidential candidate Donald Trump.

“Lost Opportunity”

Chief justice decries decision that does not ‘celebrate Constitution’ | TheHill.

“Indeed, however heartened proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause,” Chief Justice Roberts said in his dissent.

Wow – just think of all the opportunities we fans of civil rights have lost!

  • Lawrence v. Texas denied gays and lesbians the opportunity to persuade their fellow citizens that it was OK for them to have sex in the privacy of their own homes.  Dang – that would have been both fun and enlightening!
  • Romer v. Evans denied gays and lesbians the opportunity to persuade their fellow citizens to let them have the right to persuade their fellow citizens.
  • Brown v. Board denied African-Americans the opportunity to persuade their fellow citizen that they were fellow citizens.
  • Olmstead v. L.C. denied people with disabilities the opportunity to persuade their fellow citizens that they should be allowed to live in the community.
  • City of Cleburne denied people with disabilities the opportunity to persuade their fellow citizens that the Constitution protected them in the first place.
  • New York Times Co. v. Sullivan denied the press the opportunity to persuade their fellow citizens of their freedom of speech.
  • Estelle v. Gamble denied prisoners the opportunity to persuade their fellow citizens that they were entitled to some small modicum of medical care.

And so on.  You get the idea.

Dear Chief Justice Roberts:*  “RIGHTS” —

Image:  Inigo Montoya from The Princess Bride with the caption


*  Wow. That scans just like “Dread Pirate Roberts.”

[Updated: edited for grammar.  #wordnerd]