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Supreme Court Rules Constitution Guarantees Gay Marriage

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The US Supreme Court has ruled 5-4 that the U.S. Constitution contains a right to same-sex marriage.

Yahoo Politics (“Supreme Court affirms right to gay marriage“):

The Supreme Court has found a constitutional right to same-sex marriage, striking down bans in 14 states and handing a historic victory to the gay rights movement that would have been unthinkable just 10 years ago.

Anthony Kennedy, a conservative justice who has broken with his ideological colleagues to author several decisions expanding rights for LGBT people, again sided with the court’s four liberals to strike down the state bans. The 5-4 majority ruled that preventing same-sex people from marrying violated their constitutional right to equal protection under the law and that the states were unable to put forth a compelling reason to withhold that right from people.

The United States is now just the 21st country in the world to allow same-sex marriage in every jurisdiction.

In oral arguments last April, Kennedy expressed reservations about changing the traditional definition of marriage to include LGBT people and seemed to suggest that the court should allow the American public to continue debating the relatively new concept.

“The word that keeps coming back to me in this case is millennia,” he said then, referencing the amount of time societies had considered marriage to be only between a man and a woman.

But Kennedy was swayed by the fact that hundreds of thousands of married same-sex couples already exist and that they — and their children — are being treated differently by the law when they move to a state that doesn’t recognize their union. The states in the case also had trouble articulating why they had a compelling reason to deny that recognition, saying only that it was in the interest of children to only allow couples of the opposite sex to marry.

The decision came just two years after the Supreme Court ruled that the federal government could no longer refuse to recognize married same-sex couples who lived in the handful of states that had legalized their unions. That decision, also written by Kennedy, caused a cascade of lower court decisions striking down state same-sex marriage bans, and now 36 states allow same-sex marriage. Public opinion on gay marriage has changed at lightning speed as well: 60 percent of Americans support it, compared with just 37 percent 10 years ago.

CNN (“Supreme Court rules states must allow same-sex marriage“):

In a landmark opinion, the Supreme Court ruled Friday that states cannot ban same-sex marriage, handing gay rights advocates their biggest victory yet.

The 5-4 ruling had Justice Anthony Kennedy writing for the majority with the four liberal justices. Each of the four conservative justices wrote their own dissent.

The far-reaching decision settles one of the major civil rights fights of this era — one that has rapidly evolved in the minds of the American pubic and its leaders, including President Barack Obama. He struggled publicly with the issue and ultimately embraced same-sex marriage in the months before his 2012 re-election.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” Kennedy wrote. “In forming a marital union, two people become something greater than they once were.”

In a dissent, Justice Antonin Scalia blasted the Court’s “threat to American democracy.”

“The substance of today’s decree is not of immense personal importance to me,” he wrote. “But what really astounds is the hubris reflected in today’s judicial Putsch.”

The relevant cases were argued earlier this year. Attorney John Bursch, serving as Michigan’s Special Assistant Attorney General, defended four states’ bans on gay marriage before the Court, arguing that the case was not about how to define marriage, but rather about who gets to decide the question.

The case came before the Supreme Court after several lower courts overturned state bans on gay marriage. A federal appeals court had previously ruled in favor of the state bans, with Judge Jeffrey Sutton of the Sixth Circuit U.S. Court of Appeals writing a majority opinion in line with the rationale that the issue should be decided through the political process, not the courts.

[…]

“Gay and lesbian people are equal,” Solicitor General Donald B. Verrilli Jr. told the justices at the oral arguments earlier this year. “It is simply untenable — untenable — to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals.

NYT (“Same-Sex Marriage Is a Right, Supreme Court Rules, 5-4“):

In a long-sought victory for the gay rights movement, the Supreme Court ruled on Friday that the Constitution guarantees a nationwide right to same-sex marriage.

Justice Anthony M. Kennedy wrote the majority opinion in the 5 to 4 decision. He was joined by the court’s four more liberal justices.

The decision, the culmination of decades of litigation and activism, came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of same-sex marriage.

As in earlier civil rights cases, the Supreme Court had moved cautiously and methodically, laying careful judicial groundwork for a transformative decision.

As late as October, the justices ducked the issue, refusing to hear appealsfrom rulings allowing same-sex marriage in five states. That decision delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24, along with the District of Columbia, up from 19.

Largely as a consequence of the Supreme Court’s decision not to act, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.

The court did not agree to resolve the issue for the rest of the nation until January, in cases filed by gay and lesbian couples in Kentucky, Michigan, Ohio and Tennessee. The court heard extended arguments in April, and the justices seemed sharply divided over what the Constitution has to say about same-sex marriage.

Lawyers for the plaintiffs said their clients had a fundamental right to marry and to equal protection, adding that the bans they challenged demeaned their dignity, imposed countless practical difficulties and inflicted particular harm on their children.

The Obama administration, which had gradually come to embrace the cause of same-sex marriage, was unequivocal in urging the justices to rule for the plaintiffs.

“Gay and lesbian people are equal,” Solicitor General Donald B. Verrilli Jr. said. “They deserve equal protection of the laws, and they deserve it now.”

WaPo (“Supreme Court rules gay couples nationwide have a right to marry“):

The Supreme Court on Friday delivered a historic victory for gay rights, ruling 5 to 4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live and that states may no longer reserve the right only for heterosexual couples.

The court’s action marks the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence. Advocates called it the most pressing civil rights issue of modern times, while critics said the courts had sent the country into uncharted territory by changing the traditional definition of marriage.

“The court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them,” Justice Anthony Kennedy wrote in the majority opinion. He was joined in the opinion by the court’s liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

All four of the court’s most conservative members — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented and each wrote separate opinions.

Reading a dissent from the bench for the first time in his tenure, Roberts said, “This is a court, not a legislature.”

The country’s first legally recognized same-sex marriages took place just 11 years ago, the result of a Massachusetts state supreme court decision. Now, more than 70 percent of Americans live in states where same-sex couples are allowed to marry, according to estimates.

The ruling is simultaneously expected, sound public policy, and a bit baffling.

As noted in the quoted text, it follows the logic of several recent SCOTUS rulings and therefore struck me as inevitable. Moreover, whatever one’s views of whether homosexuals ought to have the right to enter into an institution that was until quite recently reserved for “one man and one woman” (for the record: I’m in favor), Kennedy is right: it’s simply unconscionable to treat married gays differently than other married couples under the law. Once some American states allowed people of the same sex to marry, much less once states with a majority of the population did so, it was cruel and in violation of our Constitutional principles to deny them the protections that came with marriage if they happened to be passing through another state in our Republic.

Still, while I applaud the public policy outcome here, I’m somewhat dismayed intellectually by the ruling. The notion that  the Equal Protection Clause, adopted in 1868, was intended to convey a right to same-sex union is just absurd. Yes, times and circumstances change and the Constitution in some ways accommodates that. It’s patently obvious that the 1st Amendment protections of speech, press, and religion extends to the Internet, even though that particular technology was unfathomable in 1789. Similarly, Congress was certainly permitted to create and fund an Air Force, despite the Constitution only mentioning an Army and a Navy and the airplane not having been invented in 1787.  Homosexuality was a known commodity in 1868; had those framing and ratifying the 14th Amendment been told that, in adding it to the Constitution, they would be enshrining same-sex marriage into our foundational document, they would have specifically declined to do so.

This is, in short, a classic case of judicial activism. And one that does not fit the wag’s definition of “a judicial ruling you don’t like.” I very much like the outcome here. It’s the reasoning that I dislike.

Update (Doug Mataconis) Further thoughts on today’s opinion can be found in here.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Franklin says:

    Congratulations to everybody, including my fellow Michiganders (or Michiganians, if you prefer)!

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  2. Argon says:

    Yay!

    I’m not surprised it’s not unanimous but I am surprised Roberts didn’t tag along.

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  3. Liberal Capitalist says:

    What a week !

    This has been an astounding week for civil rights.

    Honestly, I am shocked at the progress.

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  4. ptfe says:

    @Argon: I’m also very surprised at this. Roberts seems to want to be “on the right side of history” in most of these cases — and he has to have been smart enough to feel which way the wind was blowing.

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  5. Hal_10000 says:

    Roberts dissent is very conciliatory. Congratulates gay couples on their win but disagrees on the law. It’s quite good.

    I wonder if the GOP realizes what a huge favor the Court has done for them over the last two days. Thanks to the last two decisions, they don’t have a huge Obamacare mess on their hands. And now the gay marriage issue can go away for good.

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  6. Franklin says:

    @Hal_10000: I was also curious to see his dissent.

    EDIT: Can’t find a link or information about his dissent yet … where’d you find that?

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  7. Argon says:

    To recap: None of the Catholic men of the Court (including an African American) who would’ve experienced legal and social discrimination in their lifetimes were capable of displaying sufficient empathy with others in similar positions today.

    Assholes.

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  8. “And in a rare double whammy ruling, the court also finds polygamy constitutional.”

    “I can’t wait to tell my husband!”

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  9. HarvardLaw92 says:

    Simply amazing. We live in interesting times. Hurray for progress and congratulations to all for whom this ruling removes the final impediment to entering into marriage. May it bring you enduring happiness and joy.

    Feeling great today. Think I’ll take my staff out for lunch to celebrate this wonderful day. :-)

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  10. stonetools says:

    To crib from Joe Biden, this is a great effing week to be a liberal. I might have to pinch myself:-).

    The opinion is a big win for the Obama administration, which is already flying high after the Supreme Court batted down a potentially fatal challenge to the Affordable Care Act on Thursday. The president came out in favor of same-sex marriage in 2012.

    Kudos to Obama and blessings to all gays now who are able to marry (including a close family member in Florida).

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  11. KM says:

    We are all a little bit freer today. Love continues on and religion is the same today as it was yesterday. We can live and let live. It’s a good day, Tater.

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  12. stonetools says:

    @Hal_10000:

    Oh, I’m sure the Republicans are going to continue their opposition to both Obamacare and gay marriage. They’ve already started railing against judicial activism and will be running on the “need to take our country back” from a “runaway Supreme Court” and its liberal allies.
    When conservatives lose, they don’t admit defeat: they double down

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  13. Argon says:

    Hah! Just heard a car driving by with its stereo belting out Sister Sledge’s “We Are Family”!

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  14. michael reynolds says:

    Yay.

    It’s a good day to be an American.

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  15. James Joyner says:

    @Hal_10000: Agreed all around. I happen to think Roberts was right on both of the big decisions of the last two days.

    @Argon: I don’t think this is about empathy but about what the Constitution says and what is the legitimate purview of states and their voters.

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  16. Mikey says:

    @Franklin: The full decision and the four dissents are here:

    http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

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  17. C. Clavin says:

    Wow…America just got a whole lot freer. Good day to be an American. Republicans must hate that.

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  18. Scott says:

    ACA, SSM, fall of confederate mythology. A big pushback on social conservatives. Watch for the blowback. The rage will be intense.

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  19. Ron Beasley says:

    The Constitution needs to be a fluid document. The country and the world were a far different place in the late 1700s both technologically and socially. The Jesuit scientist Pierre Teilhard de Chardin wrote that human beings continued to evolve and that his church had to evolve with them. His works were censored by the Catholic Church until 2009 when he was praised. As humans and human society continue to evolve institutions must evolve with them or die.

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  20. J-Dub says:

    Wow. A good day.

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  21. James Joyner says:

    @Ron Beasley:

    As humans and human society continue to evolve institutions must evolve with them or die.

    Oh, absolutely. I don’t think the Constitution requires that gays be allowed to marry but nor do I think it prohibits it.

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  22. Ron Beasley says:

    @Scott: Yes, lots of exploding heads!

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  23. stonetools says:

    @James Joyner: Justice Kennedy addresses your concerns in his opinion here:

    (3)
    The right of same-sex couples to marry is also derived fromthe Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause;and in Zablocki v. Redhail, 434 U. S. 374, where the Court invalidated a law barring fathers delinquent on child-support payments frommarrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court hasinvoked equal protection principles to invalidate laws imposing sex-based inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450
    U.
    S. 455, 460–461, and confirmed the relation between liberty and equality, see, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 120–121.

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  24. Joe says:

    @James Joyner: Is it possible that Roberts is just calling them as he sees them?

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  25. Mikey says:

    @James Joyner: It requires the equal protection of the laws be guaranteed to every American.

    No doubt those who wrote the 14th Amendment didn’t envision it being applied this way, but they didn’t specifically include or exclude any group. They said “any person.”

    This has always been an equal protection issue and SCOTUS ruled accordingly, correctly, and in compliance with the Constitution.

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  26. michael reynolds says:

    The Tea Party hard right wing of the GOP now lies in complete ruin. They lost on Obamacare, they lost on marriage, none of their preferred candidates is doing very well in the polls. They’ll have to focus their free-floating rage on immigration, which of course will be self-destructive.

    Jeb Bush, on the other hand, just got a gift tied up with a bow. He won’t have to talk about gays. And Obamacare is now one of those increasingly dusty, irrelevant issues. Which should leave him with a better shot at focusing on economic issues where he’ll be much more comfortable.

    Democrats should look out: we won on the issue but we lost a political wedge. If the GOP is smart they’ll drop the Tea Party, rage-o-holic agenda and go back to the economy. If they’re smart Jeb and Rubio just won some running room.

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  27. C. Clavin says:

    Bobby Jindal:

    Marriage between a man and a woman was established by God, and no earthly court can alter that.

    OK…just as soon as there is any proof God exists…we’ll re-visit this decision.

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  28. Argon says:

    @James Joyner:

    @Argon: I don’t think this is about empathy but about what the Constitution says and what is the legitimate purview of states and their voters

    Right… Unlike the Loving v Virginia decision which was unanimously decided in 1967? I appreciate your position but to me, the ‘legitimate purview of the states’ claim just doesn’t pass the smell test. How I see it is that four of the judges refused to recognize that homosexuals should be covered under the 14th amendment. ‘Equal protection’ is not an issue for the states as the precident setting and remarkably parallel ruling of Loving v Virginia demonstrated 48 years ago.

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  29. James Joyner says:

    @stonetools: Kennedy makes an interesting argument there but I’m unpersuaded by it. It’s true my argument here can also be applied to Loving, in that those who passed the 14th Amendment would have been appalled by the notion of interracial marriage. Still, the intent of the 13th, 14th, and 15th Amendments was to make blacks full citizens and Loving is a reasonable ruling in that light.

    I’m just uncomfortable with SCOTUS using language that’s 150 years old to write into the Constitution something that the people who wrote said language would have found unconscionable. That’s especially the case when they do so to overturn the express, recent will of the voters over a matter that voters have traditionally had in their purview. It makes the Supreme Court a sitting Constitutional Convention.

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  30. Scott says:
  31. gVOR08 says:

    @C. Clavin: I think God’s opinion, really Jindal’s guess as to God’s opinion, should be given all the weight required by the Constitution.

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  32. James Joyner says:

    @Argon:

    Unlike the Loving v Virginia decision which was unanimously decided in 1967? I appreciate your position but to me, the ‘legitimate purview of the states’ claim just doesn’t pass the smell test.

    The 14th Amendment rather unambiguously prohibited discrimination on account of race. That was the actual purpose of the amendment. That states were allowed to ignore it for decades doesn’t change that.

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  33. Rick DeMent says:

    I’m not sure the opinion found a new right. Just that states can’t discriminate based on gender for two people who want to be married. And yes the have to people how have the ability to agree to be joined in marriage. So please let’s go go to the “So can I marry my dog?” well.

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  34. Rick DeMent says:

    @James Joyner:

    I’m just uncomfortable with SCOTUS using language that’s 150 years old to write into the Constitution something that the people who wrote said language would have found unconscionable.

    So I assume you feel the same way about the whole body of jurisprudence surrounding the rights of corporations since no one who wrote the 14th amendment would have ever thought to extend it to corporations at the time?

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  35. C. Clavin says:

    I don’t buy this states rights issue. Equality is either guaranteed under the constitution or it’s not. It’s not for the States to determine anyone’s equality. It’s not for the popular majority to determine anyone’s equality.

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  36. Mikey says:

    @James Joyner:

    The 14th Amendment rather unambiguously prohibited discrimination on account of race. That was the actual purpose of the amendment.

    The Equal Protection Clause of the 14th Amendment applies to “any person.” It doesn’t specify or exclude.

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  37. Gromitt Gunn says:

    I am clearly as jubilant as the next gay about this ruling. However, same sex couples in various states really should think hard before getting that certificate.

    Housing discrimination against LGBTs is legal is a majority of states and territories. Employment discrimination against LGBTs is legal is roughly half of states and territories.

    So for people living in those states, that certificate legally binds them to come out to their employers and to people they are trying to contract with over housing, with no recourse should they get fired or having housing denied to them.

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  38. Argon says:

    @James Joyner: Regarding what you’ve said, I don’t think the law and the actual traditions of the Supreme Court quite measure up to the purity of ideals you’d like to see. Though not perfect, I consider it to be, on the whole, far better than the alternative. Even Judaism, starting from a set of unchangeable divine rules has managed to create a rather diverse set of interpretations over the years.

    The Loving v Virginia decision may have been based on an Amendment that had African Americans as the target but it was later applied to women and even my parents, a white/Japanese race mixed couple, whose marriage was not legally recognized in many states at the time. I’m pretty sure the legislature didn’t have Asians in mind when the 14th was established and so in a world of ‘pure legal reasoning’, my parents shouldn’t have been covered in the Loving decision.

    Perhaps one of the most pernicious problems of the state’s rights approach is that by merely crossing a state line, a couple could find their marriage status and parental rights changed.

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  39. James Joyner says:

    @Rick DeMent:

    So I assume you feel the same way about the whole body of jurisprudence surrounding the rights of corporations since no one who wrote the 14th amendment would have ever thought to extend it to corporations at the time?

    Corporate personhood is only slightly younger than corporations. The concept existed in the Common Law for centuries before our Constitution was written and was recognized in the earliest days of the Republic as an uninteresting question. It’s come into controversy lately over how far to extend the concept—do corporations carry with them their founder’s speech and religious liberty rights?

    @Argon:

    Perhaps one of the most pernicious problems of the state’s rights approach is that by merely crossing a state line, a couple could find their marriage status and parental rights changed.

    I think the Full Faith and Credit Clause should cover that.

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  40. dennis says:

    @James Joyner:

    James, you said:

    This is, in short, a classic case of judicial activism. And one that does not fit the wag’s definition of “a judicial ruling you don’t like.” I very much like the outcome here. It’s the reasoning that I dislike.

    and

    I don’t think this is about empathy but about what the Constitution says and what is the legitimate purview of states and their voters.

    Please explain to me how you get around this:

    Amendment V: No personal shall be … deprived of life, liberty, or property, without due process of law; …

    and

    Amendment XIV: … nor shall any State deprive any person of life, liberty, or property, without due process of law; NOR DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS.

    I’m no Constitutional scholar. But, dang; the same people who fuss about a literal reading and interpretation of the Bible refuse to apply the same to these words — IN THE CONSTITUTION. I’m not getting your dissent. There’s no need to appeal to the “will of the people.” You know why? Because you can’t legislate away citizens’ constitutional rights that are clearly laid out in the document.

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  41. Argon says:

    @Mikey: Bingo.

    The only race mentioned was Indian (Native American). In any case, we know today that ‘race’ is more a subjective, artificial construct than a biological reality. Slaves are a specific, legal class but race, not quite so.

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  42. michael reynolds says:

    @Gromitt Gunn:

    All true. My son’s heading over to San Francisco to march later today. (I’d go but my daughter is graduating from middle school.) I told him I expect there’ll be jubilation but also an edge of melancholy. The big war is won. As you say there will be lots of small, clean-up actions as we flush out pockets of resistance, but make no mistake, this is V-Day for gay rights.

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  43. Argon says:

    @James Joyner:

    I think the Full Faith and Credit Clause should cover that

    So would the 14th.

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  44. dennis says:

    @michael reynolds:

    Democrats should look out: we won on the issue but we lost a political wedge. If the GOP is smart they’ll drop the Tea Party, rage-o-holic agenda and go back to the economy. If they’re smart Jeb and Rubio just won some running room.

    Michael, I swear it in front of everybody: If the GOP smartens up and takes advantage of this opportunity, I’ll drive straight to Cali and buy you dinner and drinks at the place of your choosing.

    I’m betting they ain’t that smart. It’s gonna be hard for them to let that rage go.

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  45. Rick DeMent says:

    @James Joyner:

    Corporate personhood is only slightly younger than corporations. The concept existed in the Common Law for centuries before our Constitution was written and was recognized in the earliest days of the Republic as an uninteresting question. It’s come into controversy lately over how far to extend the concept—do corporations carry with them their founder’s speech and religious liberty rights?

    Yes the concept is older but applying the 14th amendment to corporations and making claims of rights based on the the personhood idea was novel in the extreme. In fact before the 14th, corporations were chartered for a limited time and purpose. 20 years later they were chartered perpetuity and the holding company made them conglomerates. Kind of a huge difference there. You could argue that the modern corporation was conjured up whole cloth by Judicial Activism.

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  46. Argon says:

    James, given that Loving v Virginia involved an African American and was decided on 14th Amendment grounds, and that we can agree that the 14th was written with African Americans in mind although it nowhere mentions race, where do you think your reasoning leaves other mixed couples of different races? Do you think it’s up to States to decide those individually? Or would you suggest that we instead have to write additions to the 14th for each specific case that comes along?

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  47. michael reynolds says:

    @dennis:

    Given that they’re only now coming to grips with the Civil War, you’re probably right.

    But Jeb’s already out with a rather soft response. And he’s still likely to be the guy.

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  48. James Joyner says:

    @dennis:

    NOR DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS.

    Until maybe a decade ago, no one would have argued that equal protection of the laws meant “marry another dude if that’s what floats your boat.”

    @Argon: I think that an amendment that explicitly protects blacks and Indians from discrimination can reasonably interpreted to prohibit discrimination on color and national origin. Further, the implementing language of the 14th empowered Congress to legislate on the matter. Indeed: Congress could certainly have enacted a universal gay marriage law under the powers granted under the 14th.

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  49. stonetools says:

    @dennis:

    You don’t have to drive anywhere. Republican Presidential candidate Mike Huckabee:

    Little Rock, Ark. – Former Arkansas governor and 2016 Republican presidential candidate Mike Huckabee made the following statement in response to the Supreme Court’s ruling on Obergefell v. Hodges.

    “The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do-redefine marriage. I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat.

    “This ruling is not about marriage equality, it’s about marriage redefinition. This irrational, unconstitutional rejection of the expressed will of the people in over 30 states will prove to be one of the court’s most disastrous decisions, and they have had many. The only outcome worse than this flawed, failed decision would be for the President and Congress, two co-equal branches of government, to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny

    The Backlash Begins, Part XXXVI.

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  50. Lit3Bolt says:

    @James Joyner:

    It makes the Supreme Court a sitting Constitutional Convention.

    The only other alternative would be an explicit amendment to the Constitution. In today’s political atmosphere, Constitutional amendments are off the table and while I fantasize about new Constitutional conventions to update the document, I don’t want any current Republican OR Democratic politician (or judge) near it. We’d end up in a corporatist dystopian police state straight out of a William Gibson novel.

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  51. Tillman says:

    @James Joyner:

    I’m just uncomfortable with SCOTUS using language that’s 150 years old to write into the Constitution something that the people who wrote said language would have found unconscionable.

    Like the killing power of a blowback-action firearm and the Second Amendment? This happens all the time. If a party in a contract finds a way to screw the other party based on language in it, they do so irreverent to what that language meant when it was written. When authors write books, they have no control over what the reader thinks of any given passage in it, and further they can exercise no control.

    Original intent only matters if the reader of a given document prizes that original intent. Laws are complicated enough in a rapidly-changing society that original intent alone cannot guide judicial decisions. We cannot make excuses for the sensitivities of the dead in every aspect of our lives.

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  52. slimslowslider says:

    Oh Dreher!

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  53. Modulo Myself says:

    Until maybe a decade ago, no one would have argued that equal protection of the laws meant “marry another dude if that’s what floats your boat.

    Had Texas passed a law saying only Christian marriages are recognized, I believe they would have. “You can get married but only in a Christian ceremony–otherwise, your ‘marriage’ is just self-expression and that’s not covered,” would not have been defensible, even in Texas.

    Furthermore, by saying that gays don’t have a right to marry, you are saying that the institutions that perform these ceremonies are not being given equal protection.

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  54. James Joyner says:

    @Tillman:

    Like the killing power of a blowback-action firearm and the Second Amendment?

    I’ve never thought that issue was all that complicated. Military-style small arms are clearly protected within the plain meaning of the Amendment. The controversy is over “well-regulated,” not the nature of the firearm.

    Original intent only matters if the reader of a given document prizes that original intent.

    But, again, if one doesn’t apply some version of original intent to the interpretation, the power given to SCOTUS is simply unlimited. Five old dudes who are untouchable by the voters get to decide what the law is, irrespective of the wishes of the people’s representatives. That ought be scary to everyone.

    Laws are complicated enough in a rapidly-changing society that original intent alone cannot guide judicial decisions. We cannot make excuses for the sensitivities of the dead in every aspect of our lives.

    I’m not making a “the Framers would be rolling over in their graves” argument. I agree that they shouldn’t control what we do now in a completely different context. But to the extent their words are going to be used as a basis for striking down laws, those words ought at least be interpreted with the intent behind them in mind.

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  55. Tillman says:

    @James Joyner:

    I’ve never thought that issue was all that complicated. Military-style small arms are clearly protected within the plain meaning of the Amendment. The controversy is over “well-regulated,” not the nature of the firearm.

    Your case rests on how unconscionable the idea of two gay people getting married would be to the people who drafted the Equal Protections Clause and the 14th Amendment. I’m attempting to point out they would similarly be horrified by the kinds of weapons we produce and allow citizens to own versus when they drafted the words guaranteeing the right to own them.

    But, again, if one doesn’t apply some version of original intent to the interpretation, the power given to SCOTUS is simply unlimited.

    In theory, yes. In practice, our judges are trained in the application of precedent to insure they have a firm grounding in how law is traditionally carried out in our country. Add to this the necessity of presidents to nominate and Congresses to confirm to the bench, the process that must be undertaken before they can accept cases for review…their power is unlimited in a small sphere, and drawn out over long periods of time. All of this keeps them from being [effective] tyrants.

    But to the extent their words are going to be used as a basis for striking down laws, those words ought at least be interpreted with the intent behind them in mind.

    I’m sure the justices here didn’t just throw away the original intent of the words either, historical or otherwise. The Court is a political body like any other, and responds to the times.

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  56. Argon says:

    @James Joyner:

    @Argon: I think that an amendment that explicitly protects blacks and Indians from discrimination can reasonably interpreted to prohibit discrimination on color and national origin.

    I certainly agree. And given current an projected public sentiment I think one can reasonably extend it to homosexuals today.

    Congress could likewise have explicitly enacted a universal race marriage law as well but didn’t. One may say that the government and the courts largely ignored the reasonable interpretation of the 14th by allowing such discrimination to continue for so long, but I think they firmly believed it was a reasonable interpretation at those times. That we can look back now and decide that they were wrong in the past basically reinforces the understanding that in reality, as opposed to some Platonic hypothetical ideal, the country’s understanding of reasonable extension changes.

    Yes, a couple decades ago it may have been unthinkable that ‘two dudes’ might be able to marry. Similarly, 60 years ago, many would’ve thought it unthinkable to marry outside one’s race (and that was probably the prevailing belief for the majority of those who voted for the 14th — One can’t say that anti-miscegregation laws were ever overruled by a Congressional act). The next generation will grow up in a world where the thought that the 14th was unreasonably applied in this case will seem largely ridiculous (Of course, there will always be some legal Platonists in every generation, but they’ll never make much headway).

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  57. Argon says:

    Elsewhere under the topic of “Shadenfreude: Scalia edition”

    Man did that guy blow his top over this. And lacking any introspection, he argle-bargles a complaint about the lack of diversity in the court, but nowhere recognized that only the Catholic males of the court voted against the decision. What he doesn’t seem to realize is that if the court had been truly ‘representative’, the numbers would have fallen about the same way or, balancing for generational differences would’ve been a bit worse for his side.

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  58. Tony W says:

    This is, in short, a classic case of judicial activism.

    No. This is a case of the supreme court of the land exercising their constitutional duty to protect a minority from the tyranny of the majority. We cannot expect the legislative branch to look after minority rights, that is a core function of the constitution.

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  59. Kylopod says:

    @stonetools: Huckabee says, “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat.”

    While it’s nothing new, I admit to still being fascinated at the way people who seek to restrict other people’s freedom continue to frame their beliefs as a matter of “resistance to tyranny.” The rhetorical tactic itself goes back at least to Jim Crow, but conservatives haven’t always talked this way. As late as the 1990s, social conservatives tended to refer to “values” and “tradition” much more than liberty. It just goes to show how liberalism has so penetrated our political culture that even the most illiberal people feel compelled to adopt its language.

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  60. Thomas Hilton says:

    The notion that the Equal Protection Clause, adopted in 1868, was intended to convey a right to same-sex union is just absurd.

    The notion that the Equal Protection Clause was not intended to be flexible enough to adapt to situations not foreseen when it was drafted is just absurd.

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  61. Tony W says:

    @Kylopod: Indeed, but the perpetual victimhood ends up portraying conservatives as whiny complainers who can’t cope with the real world.

    I feel like the trend is akin to the blatant racism we see now that we have a person of color in the presidency, and what we are likely to see with regard to gender equality if Hillary is elected.

    Death throes are not pretty to watch, but they are a necessary part of the process of change as those heavily invested in the status quo move into irrelevance.

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  62. teve tory says:

    @michael reynolds: ” If the GOP is smart they’ll drop the Tea Party, rage-o-holic agenda”

    uh if you subtract the angry old white racists from the GOP what’ll be left?

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  63. teve tory says:

    And yes the have to people how have the ability to agree to be joined in marriage.

    are you drunk?

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  64. grumpy realist says:

    @James Joyner: Uh, James—the Full Faith and Credit clause SHOULD have covered the legality of a Massachusetts SSM in any other state but heck of a lot of states kept trying to pass laws saying nope nope nope we won’t do that.

    Given how a gay married couple from Massachusetts WAS treated in many different states of the Union, it was obvious the “we’ll agree to disagree” schtick wasn’t working.

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  65. Rafer Janders says:

    @James Joyner:

    Until maybe a decade ago, no one would have argued that equal protection of the laws meant “marry another dude if that’s what floats your boat.”

    Entirely false. Way back in the 1990s I was already involved in legal research supporting marriage equality.

    And the defense of marriage act was passed in 1996. If no one was proposing marriage equality until ten years ago, then why was Congress legislating against it 19 years ago?

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  66. Rafer Janders says:

    @James Joyner:

    Until maybe a decade ago, no one would have argued that equal protection of the laws meant “marry another dude if that’s what floats your boat.”

    Way to trivialize the sacred bonds of marriage, James, by characterizing them as merely something that “floats your boat.”

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  67. michael reynolds says:

    @Rafer Janders:
    Dude I’ve been married for 36 years and neither my wife nor I has ever given a damn about the institution. I want all people to be free to be married, but the ‘institution’ per se? Irrelevant to me.

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  68. Mikey says:

    @stonetools: The stupid shit issuing from the right-wing dodos today is epic. The American Family Association calls the SCOTUS majority “Rainbow Jihadists.” Franklin Graham was drooling on about how Christians are going to be persecuted (can’t be a good Christian without an inflated martyr complex). Scott Walker wants a Constitutional amendment, as if there’s even the remotest glimmer of a chance of that happening. Rick Santorum wants money to stop the madness.

    The common thread, of course, is “send money! Send lots of money so my organization/campaign can rescue America from these godless leftist heathen unelected black-robed tyrant destroyers! We can’t do it without YOUR MONEY!!”

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  69. Franklin says:

    I sort of read most of the dissents, but did any of them actually try to refute the 14th Amendment and/or Full Faith arguments? Or were the whole things as they seemed: “we’re only judges, not legislators”?

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  70. Kylopod says:

    @Mikey:

    “Rainbow Jihadists.”

    I love the equation of the gay rights movement with radical Islam. I’ve found it to be the most hilarious example of how utterly clueless these folks are about what it is they’re opposing, or the fact that two things are not alike just because they hate both.

    Dinesh D’Souza ran aground of this contradiction when he wrote a book in 2007 arguing that (a) liberals caused 9/11 by provoking the Islamists with their decadent morality (b) conservative Christians should ally themselves with radical Muslims because of their joint hatred for secular liberalism.

    Most conservatives were outraged by the book not because of the first claim, but because of the second. They seemed a bit miffed that he recognized the ultimate logical implications of their views better than they did.

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  71. David M says:

    I think the GOP opposition to this will not last for years the way it has for Obamacare. Sure, they won’t like it, but it’s just not going to impact them in real life. The end result is some gay couples get married, not the end of the world. Everyone will go along with their lives, and eventually feel silly for thinking it was such a big deal.

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  72. grumpy realist says:

    @dennis: I think that the intelligent section of the Republican Party took a look at what was happening and high-tailed it a long time ago. Now we’re just left (for the most part) with the riff-raff.

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  73. DRE says:

    @James Joyner:

    Oh, absolutely. I don’t think the Constitution requires that gays be allowed to marry but nor do I think it prohibits it

    .

    The way you word this gives the key to the flaw in your argument. It might make sense to say that the constitution does not give a man the right to marry another man, but once you concede the existence of gay people and an appropriate marriage for them, then of course the constitution requires that gays be allowed to marry. It is not our understanding of the constitution that has changed, it is our understanding of the validity of gay relationships that has changed.

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  74. the Q says:

    Anybody remember the Panama Canal votes in 78? How huge an issue that was and how it tilted the Senate to the GOP 2 years later? Not to mention Reagan.

    Two days after the vote, it was an irrelevant issue and has remained that way since. It was never the life or death of the republic that bloviating wingnuts at the time made it to be.

    Same with this issue….its over in 6 months. Now someone said that the TV series Will and Grace should get some credit and this notion was laughed at, yet I know several Christian women, GOPers, who switched their views because of the show believe it or not.

    This rapid change I think has been built on a thousand little episodes which together added up to the biggest change in a social more in my lifetime.

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  75. the Q says:

    Mike Reynolds wrote…… If the GOP is smart…..no worries there MIke!

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  76. dennis says:

    @David M:

    I think the GOP opposition to this will not last for years the way it has for Obamacare. Sure, they won’t like it, but it’s just not going to impact them in real life. The end result is some gay couples get married, not the end of the world. Everyone will go along with their lives, and eventually feel silly for thinking it was such a big deal.

    Oh, David; ever the hopeful, aren’t you?

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  77. James Joyner says:

    @Rafer Janders:

    And the defense of marriage act was passed in 1996. If no one was proposing marriage equality until ten years ago, then why was Congress legislating against it 19 years ago?

    There was a fear that a single judge in Hawaii was about to issue a ruling legalizing gay marriage in that state and that, because of the Full Faith and Credit Clause, would have effectively legalized it in all 50 states. The society wasn’t ready for that, so DOMA was passed to prevent that eventuality. Alas, DOMA was clearly unconstitutional.

    In terms of public policy, SCOTUS is now only slightly ahead of the curve and nudged the public, in my judgment, in the right direction. But this would have been a catastrophe in 1992. That’s my concern about legislating from the bench.

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  78. argon says:

    I’d written:

    Perhaps one of the most pernicious problems of the state’s rights approach is that by merely crossing a state line, a couple could find their marriage status and parental rights changed.

    James responded:

    I think the Full Faith and Credit Clause should cover that.

    I thought about the Full Faith and Credit Clause (FF&CC) overnight. Taking this proposed solution at face value, James, then it’s effectively ‘game over’ for gay marriage opponents. ‘Reluctant states’ don’t just want to prevent same sex couples from obtaining marriage licenses in those states. They have enacted laws specifically to not recognize the marriages performed in other states.

    Assuming that we apply the FF&CC to same sex marriages, then, well, what happens in Vegas doesn’t stay in Vegas. We’ll find same sex couples getting hitched other states and then claiming acceptance of those licenses in the states like Texas and Alabama — Which is exactly what happens in states where slight differences like the age of consent or familial relatedness matter.

    Thus by invoking the FF&CC, you would basically force the de facto recognition of gay marriage on those states.

    If we really believe that, then for a same sex couple from Dallas married in Massachusetts, Texas should have to recognize their marriage as deserving the same legal status as all other hetero-marriages in the state. That’s “game over” for opponents — Same sex marriage will be legally recognized (if not performed) in all states.

    Gilding the lily: If same sex marriages must be accepted in all states, pace the FF&CC, then it’s a pretty small jump to invoke the 14th. To justify excluding one entire class of people from obtaining marriage licenses in their home states, these states would have to come up with a rock-solid set of reasons why. I don’t think it would hold up in the end.

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  79. argon says:

    @James Joyner: In terms of public policy, SCOTUS is now only slightly ahead of the curve and nudged the public, in my judgment, in the right direction. But this would have been a catastrophe in 1992. That’s my concern about legislating from the bench.

    A solid majority of the US public favor acceptance of gay marriage. It’s abut 60/40 and still rising strongly. A 5/4 decision in the Supreme Court is 55%/45%. I agree that 1992 would’ve been a bad time to push same sex marriage across the states.

    That said, given the growing pressure and momentum for same sex marriage and the fact that the number of such married couples have blossomed, I think it’s about the right time (+/- a year). Much later would have resulted in an untenable situation and left too many cases in limbo for too long. Given the inevitable, you may as well face it head on. There’s a lot of noise now but in not too long, society will rate it a ‘meh’, like we’ve done in Massachusetts for over a decade.

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  80. Jenos Idanian #13 says:

    So, the Supreme Court has said that marriage does not fall under the 10th Amendment, but the 14th? This has some very intriguing implications.

    1) Congress now must set the standards for marriage for the nation, or the states simply become a “lowest common denominator” situation for laws governing marriage.

    A) The age of consent for marriage for all states will be lowered to the lowest in any state — 16 (multiple states), or no limit with parental consent (several states).

    B) The degree of consanguinity for marriage will also devolve to the “lowest common denominator.”

    C) The first state that legalizes polygamy will do so for the entire United States.

    2) States can no longer certify officiants. Since the states no longer govern marriage, they can no longer vest power in officiants to perform marriages.

    3) Marriage licenses now must be issued by the federal government, via their designated representatives.

    Will divorce laws also be swept up as a national/federal concern? This raises complications, as there is no “lowest common denominator” in divorce laws — they tend to be a bit more involved than mere inclusion. No-fault states vs. non no-fault states. Support requirements. Child custody standards. But logically speaking, if a state can’t say whether or not a marriage can start, it can’t decide how it ends.

    I think the simplest solution would be for states to simply get out of the marriage business, period. Recognize “domestic partnerships” for those who want the legal status it entails, let religions reclaim “marriage” as their exclusive bailiwick.

    Hillary’s spokesperson refused to answer when asked about whether churches could face a threat to their tax-exempt status if they refuse to perform gay marriages. Anyone want to take the over-under on when that will happen?

    This guy on Twitter succintly summed up the “evolving” attitude behind a lot of the fiercest pro-gay-marriage people:

    1 “All we want is to be out of the shadows.”
    2 “All we want is acceptance”
    3 “All we want is equality”
    4 “Your view belongs in the shadows.”

    Didn’t take very long to go through those four stages, either…

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  81. dennis says:

    @Jenos Idanian #13:

    Jenos, you idiot. There are no intriguing impications. WTF part of “nor shall any State deprive any person of life, liberty, or property, without due process of law; NOR DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS.” do you not understand?

    You can’t — CANNOT — deny a class of people legal rights and privileges that EVERY-GAT-DAYUM-BODY-ELSE is enjoying. It’s unconstitutional. It’s not necessary for the States to “get out of the marriage business;” all they have to do is follow that 14th Amendment clause.

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  82. Jenos Idanian #13 says:

    @dennis: You’re arguing a moot point. It’s over. I’m trying to figure out what happens next.

    The examples I cited also fall into the category of “deny(ing) a class of people legal rights and privileges that EVERY-GAT-DAYUM-BODY-ELSE is enjoying.” And unless you can cite a compelling reason why the same principles should not be applied in cases of minors or consanguineous couples, that very well might be next.

    Or not. They don’t have the lobbying power behind them. But they have the precedent set here.

    Why are you insisting on arguing about what is clearly a moot matter? The matter is settled. Now we need to figure out what happens next.

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  83. Grewgills says:

    @Jenos Idanian #13:
    Do you really believe that tripe or are you just trying to get a rise out of people?

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  84. dennis says:

    @Jenos Idanian #13:

    Why are you insisting on arguing about what is clearly a moot matter? The matter is settled. Now we need to figure out what happens next.

    Because you said:

    Congress now must set the standards for marriage for the nation, or the states simply become a “lowest common denominator” situation for laws governing marriage.

    and

    The age of consent for marriage for all states will be lowered to the lowest in any state — 16 (multiple states), or no limit with parental consent (several states).

    and

    States can no longer certify officiants. Since the states no longer govern marriage, they can no longer vest power in officiants to perform marriages.

    and

    States can no longer certify officiants. Since the states no longer govern marriage, they can no longer vest power in officiants to perform marriages.

    None of which is based on any one piece, or even several pieces, of evidence. That is simply speculation on your part. If you’d keep it simple, you’d know what comes after: Consenting adults who have been denied their legal right to marry the person of their choosing will marry. All this about minors, blood-related couples (distant cousins already marry), beasts, and any other pairings you come up with, is smoke and mirrors.

    Although, I will concede that the ban on polygamy is probably next. My philosophy is, any fool who dares to venture into that misery gets what’s coming, and good luck with it.

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  85. An Interested Party says:

    1 “All we want is to be out of the shadows.”
    2 “All we want is acceptance”
    3 “All we want is equality”
    4 “Your view belongs in the shadows.”

    Hmmm…seems very similar to the evolution of civil rights for black people (among other minorities)…perhaps you think that a racist view doesn’t belong in the shadows…

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  86. Jenos Idanian #13 says:

    @Grewgills: A man could marry a man in some places, but not in others.

    I can legally have sex with a willing 16-year-old in some places, not in others.

    I can legally marry a willing 16-year-old in some places, not in others.

    I can legally exchange money for sex (or sex for money) in some places, not in others.

    I can legally grow pot in some places, not in others.

    I can legally possess and carry a handgun in public without the permission of the government in some places, not in others.

    The reasoning for this kind of discrimination used to be the Tenth Amendment:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    For two centuries (give or take), marriage was one of those areas where the federal government wasn’t considered to have any business in; that was regulated by the several states. That was successfully challenged by Loving v. Virginia, and now has been dealt an even heavier blow with this decision.

    (Obligatory disclaimer that idiots will mock and claim is a lie)

    This is in no way a disagreement with the aims of the successful parties in either case. This is a disagreement with the methods used to achieve that goal. As I said above, the federal government it taking authority away from the states and taking it upon itself. And this case sets a precedent for exactly what I described: for any plaintiff who wants to challenge any state’s marriage restrictions by citing laxer standards in any other state, the precedent is there. And it has the highest imprimatur, a ruling by the Supreme Court.

    Using this handy chart, here’s a hypothetical. Suppose a 50-year-old man and a 16-year-old girl in Arizona, where the age of consent is 18. (Her parents object.) They go to court and argue that they are being denied equal protection under the law, as they would have the right to marry if they lived in several other states, such as Alabama or Alaska. (I’m picking the first states listed alphabetically.) Under this precedent, the court would strike down the existing age limit.

    Or let’s talk consanguineous marriage. A pair of first cousins in Texas wish to wed. In that state, but it’s not only forbidden, but a criminal offense. They go to court and petition to have the law struck down, because first cousins in other states (say, California or Florida) can marry. Again, the precedent set here says that Texas’ law should be struck down.

    (I briefly toyed with the idea of suggesting the cousins also be a same-sex couple, but that would introduce an element — the impossibility of them producing a child genetically derived from both — that would complicate the matter further, as such risks are part of the rationale for the restrictions. Maybe I should have made my first example a same-sex couple, just for the hell of it.)

    And then there’s the issue of age of consent for sex, not marriage. (It’s a related concept, if you’ll pardon the expression.) It’s 16 in 31 states, 17 in 8, and 18 in 12. (I’m counting DC as a state for this example.) Should the age of consent laws for marriage are successfully challenged, can a challenge to age of consent for sex be far behind?

    To repeat: with the Supreme Court saying that the federal government has supremacy on the matter of marriage, we have two situations. Either Congress sets a single set of standards governing who can marry and who can not, or the “lowest common denominator” of any single state will become the de facto standard for every state.

    If that is incorrect, I’d appreciate an explanation why it is so. ‘Cuz that’s how I see how the ruling goes, and how I see it could (and very likely will) be used.

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  87. Grewgills says:

    @Jenos Idanian #13:
    The decision primarily rested on equal protection (14th amendment). You’re argument assumes it was based entirely on full faith and credit (Article IV, Section 1 of the constitution).

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  88. Kylopod says:

    @dennis:

    I will concede that the ban on polygamy is probably next.

    I really don’t see how that follows. I’m not getting into the legal arguments, and I myself have long had mixed feelings about whether polygamy should be allowed. What is clear is that the social forces underlying SSM are fundamentally different from those underlying polygamy. From reading news stories over the last couple of decades, it seems that the only major group in this country vying for polygamy are Mormons. (The LDS Church officially bans the practice, but it has been going on in secret for ages and there are splitoff groups known as “Mormon fundamentalists” who support the practice.) When you consider that Mormons were at the forefront in opposing the SSM movement, the concept that it is a “next step” seems fatuous.

    In any case, there is no polygamy “orientation” the way there is an orientation for same-sex attraction. Sure, lots of people would like to have multiple sexual partners, and many do, but it is not in any way comparable to being only attracted to members of the same sex.

    While the comparisons between SSM and polygamy aren’t quite as outrageous as those equating it with incest and bestiality, it comes from the same flawed thinking where there’s this notion of something called Traditional Marriage next to a line of dominoes featuring every sexual taboo imaginable; chip away at the first and the rest all come tumbling down.

    What’s ironic is that there is scarcely any form of marriage more traditional than polygamy. It was widely practiced by major Biblical figures including Abraham, Isaac, and Jacob–maybe even Moses, depending on how you read one verse. It was never clearly banned anywhere in the Bible. It always makes me wonder whether Huck and all the rest who go on about “Biblical marriage” have ever actually read the book they claim to be championing.

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  89. Jenos Idanian #13 says:

    @Grewgills: No, it’s not. Were I using the “full faith and credit” argument, I’d have said that couples who wanted to marry but lived in a state where it was banned could travel to a state where it was legal, marry, then come back. That is recognizing that different states have different laws, and have the right to do so, but must respect the marriages performed legally in those other states.

    Were “full faith and credit” the winning argument, then it wouldn’t be necessary for same-sex marriage to be legal in every state — just a few. Because couples could go to those states, marry, then return home and expect their state to recognize the marriage. (See quickie weddings in Las Vegas and Atlantic City, for example.)

    What I am noting is that the mere existence of differing standards means that, by applying the 14th Amendment to marriage, all standards are new reduced to “lowest common denominator.”

    I addressed that situation, but let me make it more explicit. In both the underage couple and the cousins cases, they could travel to a state where the marriage was legal, get married, and then return home and expect their home state to recognize that marriage, under the “Full Faith And Credit” clause. Instead, the Supreme Court said that the Full Faith And Credit clause wasn’t sufficient; a standard in one state was the standard in all states.

    I want to know what’s coming next. At every stage so far, the fiercest advocates of gay marriage have said “all we’re asking for is X.” And each time X is achieved, there’s an instant new X.

    As I quoted above, the first demand was for a simple right to exist openly. That’s all, just not to have to hide. I thought it was a bit of a pathetically limited goal, but it was more than reasonable.

    Then it was a push for “acceptance.” Again, an entirely reasonable request, but there was that niggling sense of “doesn’t that contradict what you were saying before?”

    This fight was for “equality.” Again, a goal I can cheerfully support, and have. But once again, it puts the lie to the earlier arguments.

    The next fight (and it’s already been building for years) is to silence their critics. To make any kind of opposition to gay rights a hate crime and taboo and the Mark of Cain. As that person on twitter pointed out, in very short order the people who started out saying “we don’t want to have to hide in the shadows” are now saying “we want to push those who oppose us into the shadows.”

    I’m all in favor of overthrowing oppressors. But I prefer to get rid of oppression. Making the oppressed the oppressors, and giving them the former oppressors to oppress, isn’t much of an improvement to me.

    I’m a big believer in the philosophy that “living well is the best revenge.” I don’t think the supporters of gay marriage are covering themselves in glory by using pretty much the same tactics that they suffered under. There is a certain rough karma at play, but I don’t think it’s good for anyone in the long term.

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  90. DrDaveT says:

    @Jenos Idanian #13: OK, I will be the first to agree that you raise an interesting point. I would phrase it slightly differently — at what point does having different laws from state to state necessarily imply unequal protection?

    To date, the Court has reserved application of the 14th to only the most fundamental of rights. Thus the importance in this recent case of the centrality of marriage in our society. And yet the Court is certainly not going to invoke the 14th to (say) strike down a law that requires a 3 day wait between getting a marriage license and getting married. Not having to wait is not a fundamental right.

    So where is the line? I expect we’ll continue to find out case by case.

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  91. Jenos Idanian #13 says:

    @DrDaveT: There’s an old saying that a single concrete example trumps a thousand theories.

    I can make all kinds of reasonable arguments for the 10th Amendment, for States’ Rights, even for the rights of states to secede. But because of the Confederacy doing things that I believe, intellectually, they had the right to do for a bunch of horrific reasons (the right to own other people), there’s an indelible dark mark on those principles.

    And it really annoys me. The Confederacy was always a minority (in numbers of states, population, and actual adherents within that populace), but they ruined it for everyone.

    The Volkswagen and the Autobahn survived their Nazi origins. The Swastika, on the other hand, wasn’t created by the Nazis (unlike the aforementioned examples), but was appropriated from other cultures — and it’s eternally besmirched by that theft.

    Such are the vagaries of fate.

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  92. dennis says:

    @Kylopod:

    I disagree with nothing you stated, K-pod. I’ve never been a promoter of the “slippery slope” theory of s**t going South real fast. I see marriage as a legal contract between persons that is enforceable in courts of law, as is any other legal and binding contract. And I think the evolution of the States’ laws have made it so. And I don’t see where any absentee deity has shown to have the slightest interest in it. Just my two-cent opinion.

    On that same hand, as one who commented on a Rod Dreher essay on the Obergefell decision at TAC said (oh, the comments …), [what secular arguments could one make] against multiple persons marrying each other? Not to say there are none; I simply haven’t put any thought into it.

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  93. Kylopod says:

    @dennis: My problem is in the whole notion of seeing it as a matter of what logical arguments you can come up with. This isn’t a debate class, it’s a society we’re talking about. As I mentioned, I am not freaked out by polygamy and it would never cause me to rethink my position on SSM. I’m just dubious we’re suddenly going to see some “polygamy rights” movement spring up in the wake of this decision. Such a movement already exists, of course (the Mormon fundamentalists I mentioned), but it isn’t a “next step” after SSM, and few liberals are going to be eager to become its advocates. If you read the link I posted, the polygamy practiced by Mormon fundamentalists involves arranged marriages, not knowing one’s spouse until minutes before matrimony, marriages between teenage girls and older men, and absolute obedience of a wife to her husband. This group isn’t calling for polyandry, or one woman married to multiple men. Or several women and several men, for that matter. But those arrangements would absolutely have to be included for liberals to get on board, yet it would turn away the Mormon advocates. That’s the problem with conceiving the issue as an abstraction or a debate point, as opposed to a real movement people would realistically be drawn to.

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  94. Grewgills says:

    @Jenos Idanian #13:

    What I am noting is that the mere existence of differing standards means that, by applying the 14th Amendment to marriage, all standards are new reduced to “lowest common denominator.”

    That wasn’t the primary reasoning. The primary reasoning was that, even if SSM wasn’t allowed in a single state, banning SSM was denying equal protection to homosexuals in regards to a fundamental right. I think you are mistaking the way the case came to the court for the reasoning behind the majority decision.

    I’m all in favor of overthrowing oppressors. But I prefer to get rid of oppression. Making the oppressed the oppressors, and giving them the former oppressors to oppress, isn’t much of an improvement to me.

    Who is now being oppressed because of this decision and how are they now being oppressed?

    I’m a big believer in the philosophy that “living well is the best revenge.” I don’t think the supporters of gay marriage are covering themselves in glory by using pretty much the same tactics that they suffered under. There is a certain rough karma at play, but I don’t think it’s good for anyone in the long term.

    What tactics? Please be specific. Also, how exactly is this different than Loving v Virginia? Do you think that was decided wrongly? Should we have waited for every state to revoke their anti miscegenation laws or is it sometimes right for the courts to step in and invoke equal protection? Keep in mind if you are being consistent you are also against Loving and that there very well could be states even now in the deep South where interracial marriage was illegal. Which evil do you think is greater, the SCOTUS stepping in or continued oppression?

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  95. dennis says:

    @Kylopod:

    That’s the problem with conceiving the issue as an abstraction or a debate point, as opposed to a real movement people would realistically be drawn to.

    And that, actually, is the crux of the matter. Okay, point K-pod.

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  96. Jenos Idanian #13 says:

    @Grewgills: It’s all academic now, but I argued that same-sex marriage was making its way through the states quite nicely. Further, in the states where it was passed by some kind of plebiscite (legislation or referendum), it was considerably less contentious than where it was passed by judicial action.

    In other words, the slow-but-steady approach was winning, and winning in such a way that it was far more popularly accepted. Further, it was being done so in the long-established method, meaning that the chances of unexpected consequences were astonishingly slim. As Winston Churchill once said, “You can always count on Americans to do the right thing – after they’ve tried everything else.”

    With the courts stepping in and imposing their solution (the end of which I approve), we now face the possibility of the opponents doubling down on their resistance, arguing that they were denied their fair chance to make their arguments and their right to participate in the process — and they have a certain credibility in making those claims.

    It’s taken over 200 years, but we’ve suddenly discovered a right that had been overlooked despite enormous amounts of scholarly study and analysis. This is analogous to the medical researcher in 2012 who discovered a previously-unknown muscle in the human leg.

    What will be the consequences of the Court’s decision here? We don’t know. I’ve tossed out some of the first possibilities that came to mind, but I’m certainly no expert — just someone who’s always been fascinated by the Constitution and language, and has strong small-l libertarian leanings and a bit of a perverse manner of thinking. When I see something as unprecedented as this, there’s a part of my mind that immediately looks for ways to exploit it and twist it into unexpected ways. I have no intention of ever acting upon them, as in many cases they end up promoting a goal that I personally oppose, but I still think of it. (I rationalize it as “if I can think of it, so can someone who does believe in it, so I better be ready should someone try it.”)

    On the polygamy angle, a few years ago I read a rationale as to why it should not be allowed, an argument that rested purely on pragmatism and legal issues and in no ways were derived from religion or morality or any kind of “ick factor.” I don’t toss it around until the topic comes up, but I keep it filed away in the back of my mind.

    I also keep one for opposing bestiality, for that matter. I’ve noticed that a lot of the more emotional opponents of gay marriage tend to bring up polygamy and bigamy as possible “next steps,” and it’s handy to be able to smack down those arguments on a moment’s notice.

    So the matter is settled. I have to ask — what’s next? And I don’t think I like the answers.

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  97. Grewgills says:

    @Jenos Idanian #13:

    Further, in the states where it was passed by some kind of plebiscite (legislation or referendum), it was considerably less contentious than where it was passed by judicial action.

    So, when we wait for the population to come around to granting minorities rights they are less upset about granting minorities rights?
    Again, the proper analogue is Loving. Do you think we should have waited the time it would have taken for all of the states to allow mixed race marriages? It is entirely possible that they would still be illegal in parts of the deep South and mountain West if we had waited on legislation. It certainly wouldn’t have happened in large swaths of the country until at least the 80s if not 90s had SCOTUS not ruled as it did in Loving. Do you really think that would have been the better way to go?

    we now face the possibility of the opponents doubling down on their resistance, arguing that they were denied their fair chance to make their arguments and their right to participate in the process

    The people that you say might ‘double down’ are the very people that forced passage of the laws and state constitution amendments that are being struck down. How exactly do you see them ‘doubling down’? What would they do that is worse than what they have already been doing?
    And once again since you haven’t answered really any of the questions I posed to you:
    1) Who is now being oppressed because of this decision and how are they now being oppressed?
    2) What tactics are supporters of SSM using that are analogous to the tactics used against them? Please be specific.

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