As doctrine, Hardwick has been defanged, but as method—defined by illogic and unreason—Hardwick’s law remains. In Obergefell, this method and its law carry the day.
To say this is to face facts that Obergefell’s readers either already know or should. The opinions in the case, both in majority and in dissent, turn with emotion and twist with passion’s fevers. They trade accusations that, across marriage equality’s bottom line, are modes of thinking that have come unhinged from reason. This is no dispute in which only one side is right. As the Obergefell majority opinion seals the coffin on Hardwick’s distinctively homophobic, hence irrational, sensibilities, it joins with the dissenting opinions in the case to dredge up Hardwick’s dormant irrationality as an approach to decision, giving that approach a renewed lease on constitutional, hence legal, hence social, life. What follows in these pages is one part—the first part—of that account. It begins with a close reading focused on the lead Obergefell dissent written by Chief Justice John Roberts and joined by Justices Antonin Scalia and Clarence Thomas. The second part, to be published as a separate article, will focus its attentions on the Obergefell majority opinion written by Justice Anthony M. Kennedy.The discussion here proceeds as follows. First is background that situates the work in its intellectual context. Next is an engagement with Chief Justice John Roberts’s Obergefell dissent. Through a close reading of this opinion, one part of a larger case is made out: On Obergefell’s dissenting side at least is doctrinal machinery that rests atop, and may even be defined by,the complex and shifting soil of reason’s eclipse.
The full article is available here. It is beautifully written and thought-provoking.