Since 2009, this law blog has tracked marriage equality and its attendant same-sex civil rights movement. This movement swept the nation, culminating in a pair of SCOTUS opinions -Obergefell [2015] and Windsor [2013].

As he has done in several past dissents, Justice Scalia puts forth a vehement opposition to same-sex marriage in Obergefell, and since writing his dissent in that case, has spoken formally, openly, and often. His message: there is no textual or historical basis for the majority's ruling that laws and government policies must be gender neutral.

Justice Scalia believes that the thread of same-sex marriage decisions is the most glaring example to date of the SCOTUS doing "whatever it wants". He seems most troubled by the fact that the marital equality decisions are contrary to the religious beliefs of a significant portion of the citizenry. Such decisions are for the elected legislators -not for an un-elected committee of lawyers wearing robes- according to Scalia.

In his recent public comments on the landmark SCOTUS decision, Scalia has radicalized himself, even among conservative legal scholars. Speaking before law students at Georgetown, he equated, perhaps sarcastically, child molesters to homosexuals. To be precise, Scalia said there is no principled basis on which to distinguish the two "minority" groups. The implication is that, like "homosexuals", child molesters will be the next group to seek protected status under the constitution.

Judge Richard Posner of the Seventh Circuit Court of Appeals in Chicago, one of the most cited jurists of the 20th Century, -and like Justice Scalia, a legal conservative- takes Scalia to task for his comments in a well-read NYT editorial. In the piece, Posner seems most concerned about Scalia's declaration that post-Obergefell, American democracy is dead.

Judge Posner is also troubled by Scalia's assertion that 9 un-elected lawyers, cloaked in robes, should not be the brain-trust behind such important matters as marital equality or any civil rights struggle for that matter. Judge Posner also uses Scalia's own logic against him, pointing out that Scalia does not hesitate to vote for invalidating state laws or legislation that contravene the First Amendment, or some of his pet federalism-related clauses of the U.S. Constitution.

Finally, Judge Posner takes Scalia's public commentary to its logical conclusion: the abandonment of proper judical review. Posner has a good point here; one of the primary roles of the SCOTUS, at least since the 1803 Marbury v Madison decision, is to conduct rigorous judicial review of the myriad pieces of legislation that the many many legislatures and legislators dream-up.

Over time, legislators of every stripe imaginable are elected into the legislatures of our country; some of whom have been bit with a special kind of fever. We here at the Law Blogger sleep better at night knowing that their work-product must withstand judicial review relative to the U.S. Constitution.

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Post #510

The NFL team owners, a tony group, just announced an official lock-out of their players.  For their part, the players have dissolved their union and several super-stars have filed a high profile class action law suit against the owners.

Football is America's most popular sport and has grown into a billion dollar industry over the past decade.  With the lock-out and the law suit, however, looks like the 2011 season is in jeopardy.

The super-star quarterbacks' lawsuit, formally known as Brady vs NFL, was filed in the U.S. District Court in Minneapolis, MN and asserts an antitrust claim against the storied league while seeking an injunction to terminate the lockout.

The quarterbacks are represented in Minneapolis by the Berens Miller law firm.  The league is in the good hands of Attorney Aaron Van Ort, a former law clerk to both SCOTUS Justice Antonin Scalia and well-known 7th Circuit Judge Richard Posner.

Another Justice Scalia connection:  The players' case, initially assigned to U.S. District Judge Richard Kyle who promptly recused himself, was re-assigned to Judge Patrick Schiltz, also a former Scalia law clerk.

For their part, the owners, on average only slightly wealthier than the league's star players, are claiming poverty in the complexity of operating a modern football franchise. 

While millions of NFL fans wait to see whether there will be a season, and drafted rookies wait to see whether they will become newly minted millionaires, the attorneys in the case will be walking away with millions in legal fees.

Now go count your money.

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