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Lecture 6

LEGALST 39D Lecture Notes - Lecture 6: Antonin Scalia, Incest

Legal Studies
Course Code
Alan Pomerantz

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Legal Studies 39D
Lecture 6
Kennedy: we (the five attorneys forming the majority of the Court) are smarter now,
couples are now equals
- Individual autonomy
- Essence of marriage is not between a man and a woman, but between two
- He likes marriage, marriage is a good thing
- Gay couples can adopt children, it is good for the children to know their
parents are married
- Job of the states to define the marriage, not federal government and certainly
not the Court
- Kennedy says that the right to marriage is fundamental (history shown by
Loving, Griswold)
- 2 things have changed: marriage is now of equals and we don’t think
homosexuality is deviant behavior anymore, it is immutable
- Need to take a new look on fundamental rights, which we do not get to vote
- He thinks that the Court is legislating
- Issue should be who decides the definition of marriage? And the answer is
that the Court should not be able to do so
- Issue is not personal autonomy or privacy
- It’s public: want state and people’s recognition
- Criticizes Kennedy as a moral philosopher and not a jurist
- Majority opinion is not based on constitutional issue
- Unrepresentative cross section of America
Issue of polygamy/ plural marriage
- How does it sustain a constitutional challenge given that the court has
decided it can define the parameters of Constitution?
- Polygamy is not inherent
- BUT the God of the Mormons says that you should have multiple wives
you are infringing on my truly held religious beliefs
- Incest should not apply because there is a compelling state interest to protect
the family unit
- Scalia: if we make decisions that the general population cannot decide what
is moral society is blown up, issues that are based on morality cannot be
decided anymore
Certain states say that gender does matter in marriage. Other states say that gender
does not matter. Scalia says that this issue rests with the legislature
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