Supreme Court Takes Up Same-sex Marriage

 

Today, the Supreme Court granted a writ of certiorari to hear a case on the constitutionality of state bans on gay marriage. I thought, and continue to think, that the Supreme Court erred in Windsor two years ago in striking down the Defense of Marriage Act. The decision did not directly overrule the many states that had barred gay marriage, but the reasoning made it clear what a majority of the Justices think: discrimination against gays violates the Constitution.

Nevertheless, I thought it would be best for the Justices to allow the issue of a constitutional right of gays to marry to proceed through the states and the lower courts over time. As someone who supports gay marriage, I believe that the political process is the most appropriate means under our Constitution for the American people to reach a decision on gay rights.

Still, I am not surprised that the Justices agreed to take up a case directly on the issue. There is a “circuit split” on the issue — while several lower federal courts have struck down state bans on gay marriage, one court has upheld them. Perhaps the most important function of the Supreme Court is to ensure uniformity in federal law throughout the nation. Once a sharp conflict arose between the lower federal courts over gay marriage, the Supreme Court had to step in.

I don’t think I am going out very far on a limb to predict that the Justices — by a 5-4 vote — will decide that state bans on gay marriage violate the Fourteenth Amendment to the Constitution.

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  1. user_348375 Inactive
    user_348375
    @TrinityWaters

    Same logic applies to Roe v. Wade.  John, why do the Feds feel so compelled to rule us in the aggregate?  And I use the word “feel” advisedly.

    • #1
  2. user_157053 Member
    user_157053
    @DavidKnights

    This is a recipe for disaster.  The people have overwhelmingly spoken. If this isn’t done thru the political process it may well create the fracture like that Roe v. Wade created.

    • #2
  3. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    We’ve decided to define down “marriage.” I agree with your prediction John, and I predict it won’t stop with same-sex couples.

    What this is going to do to freedom of association, religion, and conscience? Oof. It’s going to be ugly. In its effect on the very public institution of marriage, it’s way worse than Roe.

    • #3
  4. x Inactive
    x
    @CatoRand

    I think you’re right on all counts John.

    To Tom and David:  While I agree that the political process is a better place for resolution of this issue, I am deeply skeptical about this causing the kind of rift that Roe has.  Whether you like same sex marriage or not, it is victimless in a way that abortion simply is not.  My prediction is that that fact will separate the two issues and that 20 years from now the population still exercised about same sex marriage will be about as big as the population still exercised over the loss of sodomy laws today.  It’s hard to believe that those were a big deal only 13 years ago.  Aside from a small group of rather fervent moralists, most people no longer see the harm done by eliminating those antiquated laws.

    • #4
  5. user_86050 Inactive
    user_86050
    @KCMulville

    The problem with this process is that it works like the instant replay in football. The first call overwhelmingly prejudices the second. The second ruling will only overturn the first if there is “incontrovertible” evidence. Merely having a better argument, or even beating the logic of the other side, simply won’t be enough.

    The fact that the issue was only decided last year means that there isn’t a lot of negative historical experience. These books are cooked, it seems.

    • #5
  6. user_517406 Inactive
    user_517406
    @MerinaSmith

    It is hard to imagine a stupider and more divisive way for courts, from the Supremes on down, to have proceeded on this.  They think they will end the debate, but they won’t, no matter what they do.  They have made that impossible.  What is for certain, however, is that they have created chaos as far as the eye can see.  The chaos over abortion will be nothing compared to this.

    • #6
  7. x Inactive
    x
    @CatoRand

    Merina Smith:It is hard to imagine a stupider and more divisive way for courts, from the Supremes on down, to have proceeded on this. They think they will end the debate, but they won’t, no matter what they do. They have made that impossible. What is for certain, however, is that they have created chaos as far as the eye can see. The chaos over abortion will be nothing compared to this.

    Merina, does it ever occur to you to equivocate, just a bit, when making such extreme predictions about what I know you know is a not entirely certain future?

    • #7
  8. Ricochet Member
    Ricochet
    @EustaceCScrubb

    I’m sure many think this will decide SSM once and for all. But it will be just the beginning of lawsuits by and against, bakers, florists and especially churches.

    • #8
  9. Midget Faded Rattlesnake Contributor
    Midget Faded Rattlesnake
    @Midge

    shutterstock_176634134I don’t know what it says about me that I can’t stop staring at this photo.

    Whoever picked it, nice job!

    • #9
  10. EThompson Inactive
    EThompson
    @EThompson

    @ MFR: Fashion Alert: The wedding dress on the left is spectacular.

    • #10
  11. user_2505 Contributor
    user_2505
    @GaryMcVey

    I doubt I’ve ever disagreed with an MFR opinion; especially when she is speaking ex cathedra. Call it the Rattlesnake Infallibility Doctrine. And I find myself in agreement with EThompson’s FiCon Fashion Alert as well.

    I’m on record here saying that SSM will be a yawner in ten years, nothing like abortion. Could I be wrong? Always. But this time I doubt it.

    • #11
  12. Fake John Galt Coolidge
    Fake John Galt
    @FakeJohnJaneGalt

    Gary McVey:I doubt I’ve ever disagreed with an MFR opinion; especially when she is speaking ex cathedra. Call it the Rattlesnake Infallibility Doctrine. And I find myself in agreement with EThompson’s FiCon Fashion Alert as well.

    I’m on record here saying that SSM will be a yawner in ten years, nothing like abortion. Could I be wrong? Always. But this time I doubt it.

    Probably closer to 20 years.  It will take about that long for them to use it to break the churches.  Once the churches collapse resistance will fade.

    • #12
  13. AIG Inactive
    AIG
    @AIG

    David Knights: The people have overwhelmingly spoken

    While I don’t take any position on the SSM issue, the argument that “the people have spoken” isn’t a good one. The US isn’t a democracy. There’s plenty of things the “people” can decide through the political process…but that doesn’t mean that when laws “the people want” are passed,  they shouldn’t be struck down if they violate the Constitution.

    That’s the job of the courts.

    • #13
  14. x Inactive
    x
    @CatoRand

    Fake John Galt:

    Gary McVey:I doubt I’ve ever disagreed with an MFR opinion; especially when she is speaking ex cathedra. Call it the Rattlesnake Infallibility Doctrine. And I find myself in agreement with EThompson’s FiCon Fashion Alert as well.

    I’m on record here saying that SSM will be a yawner in ten years, nothing like abortion. Could I be wrong? Always. But this time I doubt it.

    Probably closer to 20 years. It will take about that long for them to use it to break the churches. Once the churches collapse resistance will fade.

    Uh huh.

    • #14
  15. user_3444 Coolidge
    user_3444
    @JosephStanko

    Cato Rand: Whether you like same sex marriage or not, it is victimless in a way that abortion simply is not.  My prediction is that that fact will separate the two issues and that 20 years from now the population still exercised about same sex marriage will be about as big as the population still exercised over the loss of sodomy laws today.

    Abortion is a far more important issues, the moral issue of our time in my view.  So I certainly hope it remains more prominent 20 years from now.

    I think the big question is: what will the activists decide to do next after (presumably) winning at the Supreme Court?  If they are content to celebrate victory and call it a day the issue could well fade away into irrelevance.  If on the other hand they decide to press on and try to force churches to perform same-sex weddings, or punish those that refuse to do so, we’re in for a much longer fight.

    • #15
  16. x Inactive
    x
    @CatoRand

    Joseph Stanko:

    Cato Rand: Whether you like same sex marriage or not, it is victimless in a way that abortion simply is not. My prediction is that that fact will separate the two issues and that 20 years from now the population still exercised about same sex marriage will be about as big as the population still exercised over the loss of sodomy laws today.

    Abortion is a far more important issues, the moral issue of our time in my view. So I certainly hope it remains more prominent 20 years from now.

    I think the big question is: what will the activists decide to do next after (presumably) winning at the Supreme Court? If they are content to celebrate victory and call it a day the issue could well fade away into irrelevance. If on the other hand they decide to press on and try to force churches to perform same-sex weddings, or punish those that refuse to do so, we’re in for a much longer fight.

    I agree with you Joseph, but I don’t think there’s much of a constituency for forcing churches into performing rites they object to, nor do I see any prospect that there will be any time soon.  I admit to having been confident (wrongly) about the secular service providers being safe from such coercion, but I still think churches are a step too far to even attempt.  Among other things, they have the benefit of an actual, express, constitutional provision to protect their autonomy.  But I also think that the activist industry — when it goes looking for something else to do as it surely will — is going to find “now let’s force it on the churches” a pretty niche product and a tough sell.

    • #16
  17. kmtanner Inactive
    kmtanner
    @kmtanner

    I dont really care about these things anymore. Majority supports this in every western country, its democratic. And its very minor issue, and so many heterosexuals dont take marriage seriously, nothing changes to the bad direction.

    • #17
  18. user_3444 Coolidge
    user_3444
    @JosephStanko

    Cato Rand: But I also think that the activist industry — when it goes looking for something else to do as it surely will — is going to find “now let’s force it on the churches” a pretty niche product and a tough sell.

    True for now, but we’re talking 20 years into the future here.  In 1994 I would have said SSM was a niche product and a tough sell.  If current trends continue, with younger generations both more accepting of SSM and less likely to practice or affiliate with religion, perhaps it’s a growth market.

    Besides, why should that stop the activist industry from trying?  As you say they’re going to look for something to do next, and a long, uphill battle is just the thing to keep them all employed and raising funds for the next 20 years.

    • #18
  19. user_1938 Member
    user_1938
    @AaronMiller

    Forcing cross monuments and prayer from public grounds is also a niche interest. Yet how many monuments have been removed and prayers banned in recent years? Many.

    Modern politics is driven primarily by powerful, aggressive niche groups. Churches will be targeted… as they are always targeted by big governments hungry for moral authority.

    • #19
  20. x Inactive
    x
    @CatoRand

    Joseph Stanko:

    Cato Rand: But I also think that the activist industry — when it goes looking for something else to do as it surely will — is going to find “now let’s force it on the churches” a pretty niche product and a tough sell.

    True for now, but we’re talking 20 years into the future here. In 1994 I would have said SSM was a niche product and a tough sell. If current trends continue, with younger generations both more accepting of SSM and less likely to practice or affiliate with religion, perhaps it’s a growth market.

    Besides, why should that stop the activist industry from trying? As you say they’re going to look for something to do next, and a long, uphill battle is just the thing to keep them all employed and raising funds for the next 20 years.

    I don’t doubt that the professional activists (and I mean the people who’s actually livelihood comes from this activism) will try to press too far.  They’re like everyone else — trying to stay relevant and employed.  I just don’t think there going to energize a movement to march with them on the overreach.

    I know it’s not fashionable to say here on Ricochet, but the fact is that most of “the movement” for same sex marriage is composed of gay couples who just want to be allowed to be normal, fit in, settle down, and live the kind of lives the people around us are allowed to live, together with the friends and families of those couples.

    Yes, there’s a left wing activist group running HRC, GLAAD, Lambda, the ACLU, and a lot of local corollaries that’s done a lot of the legal and political work, sPR, organizing, fund raising, and just generally acting as the point of the spear on marriage.  But recall, this is the bunch that had to be convinced to take up marriage as an issue at all 20-25 years ago, when the only people talking about SSM were an even smaller group on the gay right.  The initial reaction on the left was “how bourgeois” , “how heteronormative” and “how patriarchal.”  The organized gay left got on board when it became undeniable that this was the thing the great, quiet majority of gay people cared about.  “There they go.  I must run after them, for I am their leader.”  These “leaders” are nothing without their followers.  So what they decide to do next doesn’t matter unless it coincides with mass support.  Gay marriage made these people, not the other way around.  Without an issue with wide and deep resonance, they’re just a looney and impotent fringe.

    • #20
  21. x Inactive
    x
    @CatoRand

    Aaron Miller:Forcing cross monuments and prayer from public grounds is also a niche interest. Yet how many monuments have been removed and prayers banned in recent years? Many.

    Modern politics is driven primarily by powerful, aggressive niche groups. Churches will be targeted… as they are always targeted by big governments hungry for moral authority.

    The fact that Joseph is talking about Churches, and you’re talking about public lands means that the two of you are talking about things that, for purposes of this analysis, could not be more diametrically different.

    • #21
  22. TeamAmerica Member
    TeamAmerica
    @TeamAmerica

    @AIG- ”

    While I don’t take any position on the SSM issue, the argument that “the people have spoken” isn’t a good one. The US isn’t a democracy. There’s plenty of things the “people” can decide through the political process…but that doesn’t mean that when laws “the people want” are passed,  they shouldn’t be struck down if they violate the Constitution.

    That’s the job of the courts.”

    Really? The same Supreme Court that in the eighties said sodomy laws are constitutional, that now says SSM is a constitutional right? Whatever your view on this issue is, the courts are less interpreting the Constitution than reading their views and ideology into it.

    To be fair,   even uber-liberal Justice Ginsburg has expressed reluctance for the court to rule on this issue, because she has noted the lasting divisions that Roe vs. Wade caused.

    • #22
  23. AIG Inactive
    AIG
    @AIG

    TeamAmerica: Really, the same Supreme Court that in the eighties said sodomy laws are constitutional, that now says SSM is a constitutional right?

    That’s the nature of common law.

    TeamAmerica: Whatever your view on this issue is, the courts are less interpreting the Constitution than reading their views and ideology into it.

    Then that’s an argument for getting rid of the supreme court, or putting the constitutionality of anything in front of a court.

    But that’s been happening ever since there has been a Supreme Court, or a United States. And what’s the alternative? Have people vote on it? Ok. So when people vote to violate your Constitutional rights, then what happens?

    • #23
  24. user_2505 Contributor
    user_2505
    @GaryMcVey

    AIG

    And what’s the alternative? Have people vote on it? Ok. So when people vote to violate your Constitutional rights, then what happens?

    This acronym is asking hard questions…

    • #24
  25. lesserson Member
    lesserson
    @LesserSonofBarsham

    AIG:

    But that’s been happening ever since there has been a Supreme Court, or a United States. And what’s the alternative? Have people vote on it?

    To be fair, while I agree with you in sentiment, the fact that we can usually predict the outcomes of these high profile cases based solely on whether a given justice is perceived as conservative or liberal seems to mean that people are voting on it. It’s just that it’s 9 people instead of 320 million. It’s the nature of a Republic, but sometimes it does seem less about the law and more about the ideology of the person who gets to wear the black robes.

    Ok. So when people vote to violate your Constitutional rights, then what happens?

    On a side note I think we’ll find out when we have 5 solid liberal justices.

    • #25
  26. Ricochet Member
    Ricochet
    @DenmarkVeseyJr

    Those of you who think this is a “niche” issue that will disappear in 20 years are delusional. The precedent being set here–that of creating a protected class of persons whose only defining characteristic is desire–will require the legal system to challenge and overturn any proscribed sexual relationship between consenting adults, and probably overturn “arbitrary” age of consent laws as well. If a society cannot pass any law based on moral disapproval, then there is no common good. If there is no common good, there is no violation of the common good, which is the basis of libertarianism. Thank you, Anthony Kennedy.

    • #26
  27. x Inactive
    x
    @CatoRand

    AIG:

    TeamAmerica: Really, the same Supreme Court that in the eighties said sodomy laws are constitutional, that now says SSM is a constitutional right?

    That’s the nature of common law.

    Except that this isn’t common law we’re talking about, it’s constitutional law.  Constitutional law is federal law and derives from the text of the Constitution, not from the common law “discovery” process .  Common law is nearly exclusively state law (there is a small body of federal common law, but this is not it).

    • #27
  28. x Inactive
    x
    @CatoRand

    Preston Brooks:Those of you who think this is a “niche” issue that will disappear in 20 years are delusional. The precedent being set here–that of creating a protected class of persons whose only defining characteristic is desire–will require the legal system to challenge and overturn any proscribed sexual relationship between consenting adults, and probably overturn “arbitrary” age of consent laws as well. If a society cannot pass any law based on moral disapproval, then there is no common good. If there is no common good, there is no violation of the common good, which is the basis of libertarianism. Thank you, Anthony Kennedy.

    I am not beholden to slippery slope arguments, but I too expect to be grateful to Anthony Kennedy for this step toward equality before the law.

    You are aware, by the way, aren’t you, that defining homosexuals as a separate class of persons for legal purposes is nothing new.  Justice Kennedy didn’t invent that.  We’ve always been a legally separate class.   What’s changed is that we’re no longer a legally separate class that is denied federal employment or imprisoned arbitrarily (or worse) based on membership, and are now a legally separate class seeking the freedom to take on the rights and responsibilities of marriage on the same terms as citizens who are not part of our class.

    • #28
  29. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    John Yoo:

    Nevertheless, I thought it would be best for the Justices to allow the issue of a constitutional right of gays to marry to proceed through the states and the lower courts over time. As someone who supports gay marriage, I believe that the political process is the most appropriate means under our Constitution for the American people to reach a decision on gay rights.

    Yes- and I would like the opportunity to vote on the rights of people of Asian extraction.

    And Al Sharpton would like the opportunity to vote on the rights of people of European extraction.

    And Latinos would like the opportunity to vote on the rights of people of African extraction.

    This is an odd view of how America works.

    We are not an Athenian Democracy.  We are a Constitutional Republic.   Two wolves and a sheep voting on what to have for lunch shows how democracy will fail the sheep.  In a Constitutional Republic, certain votes the wolves don’t get to take.

    The whole debate is over a state’s power to issue a license.  Start with the construct that we are born free, so anyone can marry.  At some point, very recently in human history,  the state decided they could require a license be purchased from themselves.  Do they have the power to discriminate against certain people in the granting of that license?

    That’s the only question that need be answered.

    A state is granted the power to discriminate, but not through an Athenian vote.  It’s power has to eminate from the Constitution.

    This question belongs to the Courts, like it or not.

    • #29
  30. TerMend Inactive
    TerMend
    @TeresaMendoza

    Tommy De Seno:

    John Yoo:

    Nevertheless, I thought it would be best for the Justices to allow the issue of a constitutional right of gays to marry to proceed through the states and the lower courts over time. As someone who supports gay marriage, I believe that the political process is the most appropriate means under our Constitution for the American people to reach a decision on gay rights.

    Yes- and I would like the opportunity to vote on the rights of people of Asian extraction.

    And Al Sharpton would like the opportunity to vote on the rights of people of European extraction.

    And Latinos would like the opportunity to vote on the rights of people of African extraction.

    This is an odd view of how America works.

    We are not an Athenian Democracy. We are a Constitutional Republic. Two wolves and a sheep voting on what to have for lunch shows how democracy will fail the sheep. In a Constitutional Republic, certain votes the wolves don’t get to take.

    The whole debate is over a state’s power to issue a license. Start with the construct that we are born free, so anyone can marry. At some point, very recently in human history, the state decided they could require a license be purchased from themselves. Do they have the power to discriminate against certain people in the granting of that license?

    That’s the only question that need be answered.

    A state is granted the power to discriminate, but not through an Athenian vote. It’s power has to eminate from the Constitution.

    This question belongs to the Courts, like it or not.

    And of what racial or ethnic extraction are persons who engage in homosexual conduct?

    • #30

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