1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”
In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples. So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”
The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples.
2013—On the bench for barely a year, federal district judge Robert James Shelby refuses even to stay pending appeal his ruling that Utah’s marriage laws violate the federal Constitution. Shelby’s effort to sow chaos and thus alter the terrain while the appeal of his ruling is underway succeeds until the Supreme Court, more than two weeks later, finally blocks his ruling pending the completion of the appeals process.
2017—Ninth Circuit judge Kim McLane Wardlaw endures yet another summary reversal by the Supreme Court. Barely a month earlier (in In re United States), Wardlaw had co-authored a ruling that would have required the government to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrivals (DACA) policy. Without a recorded dissent, the Supreme Court vacates that order and instead directs a series of steps for the lower courts to follow to limit the scope of the government’s disclosure.
2018—A divided Second Circuit panel rules (in Alliance for Open Society v. USAID) that foreign affiliates of American organizations have a First Amendment right not to have their receipt of federal funds to fight HIVAIDS abroad conditioned on their having a policy that explicitly opposes prostitution and sex trafficking.
In June 2020, the Supreme Court will reverse the Second Circuit by a 5-3 vote. In his majority opinion, Justice Kavanaugh will explain that the Second Circuit’s ruling “runs headlong into two bedrock principles of American law”: “foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution,” and the foreign affiliates are legally distinct from the American organizations.