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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.
Redefining marriage is NOT victimless. It affects everyone who does business with the public, or who has employees, or who hires contractors, or who does business with the government. The impact is enormous.
I first studied Constitutional Law (in law school) about 40 years ago. Back then it was thought that the 14th Amendment created some structure of essential rights of a person in the U.S. and one or more protected classes of people who were entitled to protection from “invidious discrimination.”
Unfortunately the concept of “substantive due process” was used as the rationale for this structure. The “Privileges and Immunities” clause had been erased from the 14th Amendment by the Supreme Court’s refusal to enforce it. The result is the creation of five Philosopher Kings on the U.S. Supreme Court (a majority that is unconstrained in efforts to create a perfect society). That is why I have thought of Justice Kennedy for quite some time as “King Kennedy.”
The 10th Amendment to the Constitution states, “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.”
That part of the Bill of Rights was the foundation of our federalist system and was designed to protect the people from an all powerful central government. By endorsing the judicial overturning of the various state constitutional amendments (usually passed by a vote of the people) so as to create a new protected class under the 14th Amendment, Professor Yoo endorses one more instance of an erasure of the 10th Amendment by the Philosopher Kings.
If he wants a constitutional amendment to create a new protected class of people (those who desire same sex marriage — usually because of sexual preferences) let him lobby for that.For the sake of brevity I will not discuss the quite rational basis for the preferred legal status accorded by the states for the first 200 years of our constitutional government to marriage as it has been defined for all of recorded history (about 3000 years).
I disagree with his conclusion as to the likely outcome of the four cases now before the court because I think Justice Kennedy has a remnant of respect for federalism in his judicial philosophy and will not vote with the four Leftists on the Court.
Although I probably agree with Professor Yoo on many things, I can no longer consider him a constitutional conservative because (in my opinion) a decent respect for the 10th Amendment is essential to constitutional conservatism.
The term “gay marriage” is inaccurate and wrong, and any reference to “bans on gay marriage” are also inaccurate and wrong. Marriage laws have not referred to, or inquired of, the participants’ sexual orientation or sexual attraction. Marriage has always required one female and one male because of the centrality to marriage of the potential for offspring. But, people with homosexual attractions are not barred from marriage, just that to be a “marriage” it has to involve one female person and one male person.
Look I get that as a constitutional question this is highly suspect, but not really for the reasons you articulate. You do understand, don’t you, that the 14th amendment was enacted after the 10th, after a bloody civil war that was in very meaningful part about the relative power of the federal government and the states, and that it very expressly and intentionally alters that balance of power vis-a-vis the balance that prevailed prior to the civil war?
I guess if you count “I’m offended that someone else might be happy in a way that I disapprove of” as harm, then you have a point.
We should entertain, for about 5 seconds, the possibility that Anthony Kennedy will take his arguments in Windsor seriously. I would take very steep odds that the court upholds the laws 5-4. That, however, is neither here nor there.
The court is going to enact a coup against the law in this country. Everyone knows it. Everyone expects it. The court knows that everyone knows it and expects it. And the reactions range from grim resignation to dancing in the streets.
We are reaching, if we have not already reached, the point where there is no law, there is no politics, there is only power. Our predecessors in this position invited a foreign prince to invade England. But we’re just going to take it. And people wonder why I’m not really excited about voting in this country.
The people that it most affects is children, because it changes the understanding that being raised by the two people who engendered them is best. The definitions of marriage, parenthood and family are closely intertwined. The assumption that children should be raised by their biological parents becomes “bigoted” under the new regime, which opens the door to a wild west of surrogacy and three party reproduction. Children will not be consulted and their desire to know their parents no longer matters. Unfortunately this is not just about adults.
So despite others’ rosy outlook, I remain skeptical and negative of the mid-term consequences. Within 20 years this will be considered a fact of life, and after 20 years there will be negative effects that might have been predicted but were silenced because we were mostly concerned with immediate-term satisfaction and happiness.
I remain unconvinced that pressure against those providing wedding services will end. Rather, if they do it is because no one who disagrees with same sex marriage will dare get into the business. The momentum is strong in left-wing states like on the west coast. States with a large population of more traditional moral bent will be far less likely to prosecute so aggressively.
This will mean that such things will go to court. As the various states are in a hodge-podge of acceptance or rejection of such measures, the federal courts will be asked to weigh in. The Supreme Court may be reluctant, but the Federal Appeals and Circuit courts have proven they are far from shy from giving opinions. The Supreme Court will eventually have to jump in. Given my bleak outlook in such things, I suspect they will rule that prosecuting people who refuse to provide services for same sex weddings is “Constitutional” which is a word that now means “The Supreme Court approves of this”.
And given the state of universities churning out students who think it’s okay to silence unpopular opinions, it will eventually be illegal to state negative opinions about same sex marriage. Again, I’m thinking medium-term here … 20-50 years.
Side note: An interesting tactic of the activists now is to attack church’s tax exempt status. I’ve seen this pop up more and more. Once this succeeds, I believe the activists will suffer a bit of a case of, “be careful what you wish for”.
The federal and state governments pretty much by religious organizations’ silence with tax exempt status. Take that away, and there’s nothing to hold them back from saying what they really feel.
This won’t end well.
It reminds me of a T-shirt I saw once: “I support gay marriage if both chicks are hot.”
Yea for that hoary SCOTUS figment–the incorporation doctrine.
Responding to Comment #34: I will assume that you are not trying to be insulting, but just insufficient in your education. The 10th Amendment was not repealed by the 14th and the two amendments must be read so as to avoid conflict as much as possible. If you review the debate on the 14th, it is pro individual rights and not anti-state. It is also very much tied to the protection of the emancipated slaves and their descendants.
The 10th Amendment and the Enumerated Powers Provision gave us a federal government and it’s become a national government mostly because of the New Deal and the Warren Court. Compare Coolidge with FDR to see the effect of the Court’s cave-in to the New Deal. WWII and the Cold War only expanded upon a trend started in about 1936.
Face it; we’re all speculating about the future, trying to project present trend lines in a way that often doesn’t stand the test of time. (Atomic energy will make electricity free! 21st century women will use robots to make hubby delicious meals!) The only solid things we have to go on are hard-earned observations of human behavior and common sense. Few or none of us will gather at this cyber-street corner in 2038 to rag each other for getting it wrong. So here’s my predictions:
1. Gays will continue to be about 3% of the population, no more, no less. Our SoCon colleagues will concede, I think, that encouragement to be GLBT (did I get that right?) is far greater in 2015 than it was in 1955, but it hasn’t raised the percentage of gays. My inference: gays aren’t recruited, groomed, or seduced into a so-called “lifestyle”. That shuts down one whole line of anti-SSM argument.
2. Churches will never be forced to perform SSM. Period. I’m not talking about the $5-a-throw wedding “chapels” in Vegas; I mean actual churches. That shuts down another line of attack. Some on the Left won’t like this; some on the Left are aggravated that churches even exist, but they can’t win.
3. SSM will turn out to be a non-issue. I say in 5-10 years. There’ll be no damage to family life or to children.
4. Nobody is going to come after those who didn’t back SSM. The worst you’ll have to suffer is the occasional Lifetime Women’s Movie Network weepie, “Forbidden to Love!” or “Cassie and Deborah: Devoted Till Death”.
I agree with John about what the Supreme Court is likely to do, and I think that the main effect will be to further reduce public respect for the court.
Who can have any respect for those who ignore the obvious.
Civil marriage exists for one reason and one reason only — to encourage procreation and the proper rearing of children. For obvious reasons — even in ancient Greece, where, in many communities, pederasty was normative — no political community in the past every made civil provision for same-sex marriage.
The decision by our elite to shove this down our throats is tied up with their turning their backs on procreation and the proper rearing of children. It is no accident that the move to embrace same-sex marriage coincides with a dramatic rise in the bastardy rate.
We live in a generation in which marriage is being abolished.
I’m not at all insufficient in my education. I went to law school too. What part of “nor shall any state deprive . . . .” doesn’t sound to you like a limitation on state power?
I well aware of the structural constitution and the concept of limited and enumerated powers. I believe in and support that structure and understand that under the original constitution, a fairly plenary police power was reserved by the states. Nonetheless, by the language I quoted above, the 14th amendment put some limits on that police power. I don’t know if that makes it “anti-state” or not. I don’t know what it would mean to be “anti-state.” But it undeniably took a few sticks out of the bundle of powers previously reserved by the states.
And by the way, I can acknowledge that reality without in any way supporting the New Deal, Wickard v. Filburn et seq., or the metastasizing commerce clause.
And by the way, the incorporation doctrine has nothing to do with this. The equal protection clause is in the 14th amendment and it applies to the states by its express terms. It is not a bill of rights provision purportedly incorporated into the due process clause of the 14th amendment and thereby applied to the states.
@CatoRand- You seem to airily dismiss the ‘slippery-slope’ concerns about redefining marriage, but is that realistic? A federal judge in Utah has recently, AFAIK, overthrown bans on polygamy based on a ‘right to marry.’ Also, a feminist on Slate has defended polygamy as a question of ‘choices for women,’ and a panel of social scientists in Germany recently advocated legalizing incestuous relationships.
@Paul A. Rahe-
“Civil marriage exists for one reason and one reason only — to encourage procreation and the proper rearing of children. For obvious reasons — even in ancient Greece, where, in many communities, pederasty was normative — no political community in the past every made civil provision for same-sex marriage.
The decision by our elite to shove this down our throats is tied up with their turning their backs on procreation and the proper rearing of children. It is no accident that the move to embrace same-sex marriage coincides with a dramatic rise in the bastardy rate.
We live in a generation in which marriage is being abolished.”
Isn’t their attitude, and that of young people who are pro-SSM, due to the contemporary idea that marriage is a way to publicly make a commitment based on feelings, and not for the purpose of procreation. So, to some extent, the court is merely giving its stamp of approval to the fashionable attitude of many toward marriage.
I don’t deny that one social change can set a precedent that makes more possible another. The slippery slope arguments though, tend to imply straight lines, inevitability, and often imminence, and are often wrong. Real world experience teaches that the consequences we predict might or might not occur, and might or might not do so in the way we predict them, and that often the unintended and unanticipated consequences are more pronounced than the intended or anticipated ones. So I’m just asking for a little humility in making slippery slope arguments. How about we acknowledge that we’re talking about our fears of what might happen, not our certainties about things that are imminently going to happen?
@CatoRand- Meh, maybe, but the unintended consequences do seem to be occurring fairly rapidly, as I noted.
I don’t think one lower court judge and some talking head from Slate really qualify as “consequences occurring.” By that standard, we’re also being mind probed by aliens right now. As an old friend of mine said when he learned that 3% of African American voters in Louisiana voted for David Duke for governor some years ago — 3% of people will believe anything.
I tend to be overly bleak, perhaps, but I tend to find proponents to be excessively rosy.
I’m not certain on this. Or rather, they may never be forced to do so, but the current Progressive momentum will want to marginalize and penalize them for not towing the line.
I have many doubts about this. Family structure, the status of a child (natural, adopted, of divorce), and many things can affect and damage family life and children. To equivocally state that there will be no damage whatsoever is unrealistic at best.
But, um … they already are.
The equal protection clause of the 14th Amendment has been applied to easily overturn state action only when there is a suspect classification (e.g. race, color and national origin). Otherwise an attack under the clause could be defeated if the State had a “rational basis” for the “discriminatory” treatment of the plaintiffs. The courts that have been overturning constitutional amendments have been asserting that there is no rational basis for legislatures and the electorate from adopting constitutional amendments to protect the definition of marriage that has existed for about 3,000 years.
To say that legislation/constitutional amendments to defend such a societal institution from judicial repeal are irrational when there are legislative findings that traditional marriage is the best method for the procreation, nurturing and education of children is (to me) absurd on its face.
The Supreme Court’s rationale in Windsor was (as I recall) that the majority concluded the California electorate was motivated by an animus against homosexuals. (We have mind readers on the Court.) It picked up on an earlier decision by the court to throw out a Colorado statute that prohibited preferential government treatment of people based on their sexual preferences (if I recall it correctly).
The point I’m making is that this is a revolutionary use of the equal protection clause of the 14th Amendment and throws out what has been taught in law schools for the past few decades.
As I understand it, Anthony Kennedy’s chief argument was that some states banned gay marriage, where other states allowed it. When a state gave gays the right to marry, Kennedy argued, that state identified gays as a protected class. But then the DOMA on the federal level sought to “injure” that protected class by denying them the right to marry. So who wins, between the states and the feds? Well, because the state always had the primary authority over marriages, the states get to call this one. That’s why DOMA can’t stand, because it might interfere with the state’s authority to regulate marriage.
Which should mean that the issue belongs to the states. But …
In crafting his argument, Kennedy added in something extra. He wasn’t just saying that it’s up to the states. What he said, instead, was that when the feds contradicted the states, they were injuring a basic fundamental right. He went on to add that this could only have been done out of hateful animus. Oh.
And then at the end of the opinion Kennedy said, of course, it’s still up to the states. Right. As if the Supreme Court, after declaring it a hateful violation of a basic right, was going to turn around and say, “but even so, it’s up to the state.” Who’s kidding who?
The original Windsor decision was like Lawrence before it. Anthony Kennedy embedded the weapon in the birthday cake and then claimed that he would be shocked … shocked … if the inmate used it to break out of prison.
It was, like Lawrence, a thoroughly dishonest and disingenuous legal argument. It should be demolished. But because it has enough support from the other justices who are perfectly comfortable in colluding in such dishonesty, I have little hope.
I did not deny that the 14th Amendment limited the ability of a state “to deprive any person of life, liberty, or property without due process of law.” My post was not focused on the deprivation of powers reserved to the states as it was on the enlargement of the powers of the federal government to the point where it it is a national government with police powers that usurp what was reserved by the 10th Amendment and in a fashion unimagined by the Founders or the people who wrote and passed the 14th Amendment.
A national (instead of a federal) government is by its very nature anti-state because it’s a zero-sum game. Power taken by Washington is less power retained by the States. Practically all police powers once belonged to the States and the 10th Amendment was supposed to preserve that balance of power. In the past 20 years it’s been invoked by the Court once or twice. Before that in the previous 50 years, hardly ever. “It’s dead, Jim.” (Unlike NRO we are allowed Star Trek references here.)
“Acknowledging the reality” of what the Supreme Court has done and is doing sounds to me too much like acquiescence to our “black robed masters” to borrow a phrase from Mark Levin.
As I implied in an earlier comment, to use the equal protection clause of the 14th Amendment to rewrite the definition of marriage is an abuse of power by the judiciary. Even worse, it is unsupported by any case law prior to 2003 when the Court overruled Bowers v. Hardwick (1986) which upheld Georgia’s anti-sodomy statute.
If Justice Kennedy comes down with the Leftists on the Court, it will be at least partly because he is succumbing to a change since 1986 in what is considered politically correct. One does not want to be unpopular when attending fashionable dinners in Georgetown.
Thank you. Now we are at least talking about the right constitutional provision. And as I said in my first response to you, I recognize that the application of the equal protection clause this way is suspect. There is an argument that counters yours, but it is one about which reasonable minds can differ, and one about which I’m not entirely convinced myself — despite my strong interest in the legal status of SSM.
Excellent take down of Justice Kennedy. His creation of a “protected class” was a neat piece of boot strapping. “Dishonest and disingenuous” are appropriate epithets for his arguments. It’s sad when we no longer discuss the constitutional principles involved but rather the mental gymnastics of one judge.
Regrettably, the Windsor opinion is indeed that schizophrenic. In part it reads like a federalism decision, in part it reads like an equal protection decision. Suffice it to say that in Justice Kennedy’s mind, it appears that both analyses pointed in the same direction in Windsor. Whatever else we can say about the current cases, I think we can safely say that the facts don’t line up that way this time, so Justice Kennedy is going to have to choose between his Windsor rationales.
The fact that the equal protection language is strong enough in Windsor, and the fact that Justice Kennedy has been a pretty consistent voice for gay rights (he wrote Lawrence and Romer (the Colorado case Lensman was trying to think of) as well) has led a lot of people, myself included, to conclude that he’s likely to go full equal protection this time and make gay marriage a nationwide reality.
If a “protected class” or a class justifying more exacting scrutiny is, as it was when I was in law school, defined by a history of discrimination and mistreatment, I’m not sure homosexuals aren’t right up there among the most deserving. I think you can quibble with the whole protected class/varying degrees of scrutiny analytical mode if you want, and I would, but homosexuals certainly share with certain racial and religious minorities a history of persecution and mistreatment.
Typical Liberal Fascist mush-minded demagoguery. The people did decide when we affirmed the Constitution. You are employing a sort of strawman argument, since the Progressive jurist does not judge according to the Constitution, but according to an evolving, living “Constitution” composed of the prejudices and preferences of his deracinated elitist class.