Has anyone noticed that, when it comes to any ruling related to marriage or sex, the doctrine of legal precedent goes out the window?
In place has been installed the Doctrine of Selective Precedent, which can be summarized thusly: "If a precedent results in a politically conservative outcome, it is automatically suspect, if not entirely invalid; if, however, the precedent has liberal political consequences, it is to be adhered to religiously ..., er, wait, we can't have that. Let's say, 'strictly'."
In today's ruling by John G. Heyburn striking down Kentucky's Marriage Amendment, the judge acknowledges that in the Baker v. Nelson decision,
... the Supreme Court dismissed "for want of a substantial federal question" a challenge to a Minnesota Supreme Court ruling, which found that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses.Judicial precedent, right? Wrong.
Having what we would now consider a conservative consequence, this precedent cannot be seen as being, um, precedential. It's a precedent, but it's not. It's a precedent that we don't need to pay attention to―as opposed to a liberal precedent that we should all stand up and salute.
Here's Heyburn on Baker, striking his most judicially activist pose:
Such a summary dismissal is usually binding precedent..., unless doctrinal developments indicate that the Court would rule differently now.... Today, it is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge.Boom. Down it goes. These liberals make invalidity seem so easy.
Why does he say this? "Since 1972,"he says, "a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape."
That's it! Seriously: Read the decision. In other words, we can't take it seriously because we haven't taken it seriously―or more to the point, because we don't want to take it seriously. This is the Doctrine of Selective Precedent.