October 16, 2015

WELL, TO PROGRESSIVES, MALLEABILITY IS A GOOD THING: Paul Taylor on “The Near Infinite Malleability of Obergefell.”

After the Supreme Court’s same-sex marriage decision in Obergefell v. Hodges was handed down, even commentators supportive of the result complained about the decision’s vague legal reasoning. So I did a little thought experiment: How much of the language from the Obergefell decision could be used verbatim to support the recognition of other fundamental rights to government benefits, such as unconditional welfare benefits? Remarkably few changes were necessary.

The NRO teaser then links to Paul’s longer piece, in which he essentially substitutes “marriage” for “welfare benefits” in the Obergefell opinion. The thought experiment shows how easy it would be for a future court, employing the open-ended (il)logic of Obergefell, to discover such new constitutional entitlements. As Paul confesses, it’s “not so tongue-in-cheek.”

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