Obergefell v Hodges

Obergefell sued Ohio for recognition of his marriage to his now deceased husband. Other plaintiffs sued Michigan, Kentucky and Tennessee for issuance of a marriage license or recognition of their same sex marriages performed in states allowing such unions. The district courts granted judgment to the plaintiffs in these cases and the 6th Circuit reversed. Resolving a circuit split, the Court, 5-4, reverse. The majority held that marriage has been recognized in its precedents as a fundamental right and that right belongs to same sex couples because marriage is inherent in the concept of individual autonomy, supports the two person union uniquely important to the individuals in it, safeguard children in same sex families from stigma, and a keystone to society. The majority held same sex marriage is part of the liberty protected by the due process clause and disparate treatment of same sex couples from opposite sex couples violates equal protection and therefore all states must allow same sex couples to marry and must recognize same sex marriage performed in other states. Roberts, joined by Scalia and Thomas, dissented arguing that marriage has been a union of one man and on woman for millennia, the Constitution is silent about marriage and thus leaves it in the hands of the states and the voters thereof, that the majority approach is the same substantive due process approach of Dred Scott and the Lochner era substituting the views of judges for the correct understanding of the Constitution and lays the foundation for recognition of polygamous marriages, demeans the opponents of same sex marriage and undermines the rule of law. Scalia, joined by Thomas, dissented arguing the majority decision is a judicial putsch which anoints the nine members of the Court, not the people, as ruler of America. Thomas joined by Scalia dissented arguing that liberty originally meant freedom form physical restraint and at most means freedom from government intrusion not entitlement to benefits and the majority approach will undermine both the political process as protector of liberty and religious freedom. He also argued that there is no dignity clause in the Constitution and in any event dignity comes from god no the government. Alito, joined by Scalia and Thomas, dissented arguing that marriage is left to the states and the majority’s approach is proof efforts to keep the Court from abusing its power have failed.

United States v Johnson

Johnson appealed his Armed Career Criminal Act sentence arguing possession of a short barreled shotgun was not a violent felony under the act’s residual clause. The 8th Circuit affirmed his sentence. After reargument on the issue of unconstitutional vagueness, the Court, 8 (six justice majority plus two concurring in judgment)-1, reversed. The majority held that nine years of failure to articulate a governing approach, the lack of guidance as to what risks and what actions are to be evaluated and how they are to be evaluated demonstrate the residual clause is to vague to constitutionally apply. Kennedy concurred in judgment arguing the clause is not unconstitutionally vague, but, possession of short barreled shotgun is not a violent felony under the clause. Thomas concurred in judgment arguing that the acts which make up the possession offense are too remote from the possibility of serious risk of physical injury as the weapon is often closed up in cabinets or a car and thus o risk to anyone. He also argued that vagueness doctrine is uncomfortably similar to substantive due process. Alito dissented arguing that the residual clause is not unconstitutionally vague as the Court rejected that argument twice in the past eight years, the clause provides ad ascertainable standard that is similar to several other statutes and can be reasonably interpreted to require measuring the risk of injury against real world conduct and the clause is not vague in all its applications as some crimes clearly meet the standard. He argued the possession offense here qualifies as a violent felony under the clause as sawed off shotguns are almost always used by criminals and legislatures have treated them as sources of risk of injury and Johnson used his shotgun while dealing drugs to support a white supremacist group.