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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.
There are two issues here. One is legal. Hadley Arkes has a concise sketch, written in 2003, of the likely ramifications of the Supreme Court decision on sodomy in Lawrence v. Texas. This is not an example of a “slippery slope.” The logic of law and rights compels consistency. “On what ground of principle would the law refuse to be open to…” polygamy, incest, …almost anything?
The second issue is “What is marriage?” Hadley Arkes’ review of What is Marriage? by Robert George, Ryan Anderson, and Sherif Girgis is a good place to start:
In the same way that the parts of the body are integrated to a functioning body, the writers argue that this natural, conjugal act—this joining of the bodies in coitus—marks the distinct integration of a man and woman, as a “one flesh union.” This is the way in which two people form a reproductive unit, in the defining purpose or meaning of sexuality, the act of begetting. It is the meaning of “sex” in the strictest sense—the precise meaning that Bill Clinton had in mind when he swore, in the truest line he ever spoke—that he “did not have sexual relations with that woman.”
People speak too casually of marriage as pre-existing the law, in a natural state. But marriage has always been bound up with the commitment, the binding quality, that is distinctly supplied by the law. And that may explain the wisdom contained in Aristotle’s line that “the polis is prior in the order of nature to the family.” People may have sex when governments break down; but the naming and permanence of “families” is bound up with the laws. As the late Allan Bloom put it, “The law that gives names to families and tries to insure their integrity is a kind of unnatural force and endures only as long as does the regime of which it is a part.”
Sorry, links fixed.
@Leo- Your links don’t work and I don’t get your point. Please clarify.
Cf. S. Freud, A General Introduction to Psychoanalysis, Twentieth Lecture:
Cf. Molly Hemingway’s observation that “there’s precisely one bodily system for which each of us only has half of the system. It’s the one that involves sex between one man and one woman.” Consequently most people have sex only a few times in their lives. Usually they disable the reproductive system with contraception and engage only in pleasurable concurrent genital excitation.
Fallacy of the appeal (and circular in this case) to authority. Venerable and spot on as Aristotle is on so much, his historical anthropology is as flawed as Hobbe’s primal scenario of mankind as singleton males making their solitary way about the forest. Such a life—dare I say life style—would indeed be solitary, poor, nasty, brutish, and short for an inherently social creature like man. In fact, it precisely describes the behavior of another major primate, the orangutan.
Cato
I am sorry to disagree with you. Gays may have been a culturally separate class, but they have never been legally distinct, for the simple reason that they have no tangible characteristics such as skin color or gender. Their only uniform characteristic is desire, which until now, no society in the history of the world has considered adequate for legal identity.
“Constitutional law” operates pretty much in the same way as common law.
The difference is precisely in that in constitutional law, the normative view of the judge on what the constitution says, can overrule precedence.
That’s the nature of the Supreme Court, and has been since it’s inception.
You can’t say you like it, when you do, and you don’t like it, when you don’t.
John Yoo “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.”
If one state votes for SSM and nine states vote against it but are saddled with it by judges, I have an impression that judges are the problem. But then I am not a lawyer and I don’t believe lawyers and judges are the answer to every question, but then I could be wrong.
Perhaps this can be litigated since the democracy issue has been overridden by judges.
I guess it’s a good thing I didn’t say that then huh?
Well, that wasn’t much of a response now was it.
And this demonstrates the bigger problem here: people simply refuse to recognize that both sides can in fact be right when it comes to interpreting the Constitution or law. The other side doesn’t need to be “evil Fascists”. They only need be so…so you can convince yourself not to argue with them.
Well, you’re going to lose in that case. As we have been losing.
The second issue, of course, is this focus on “marriage” as a religious practice, a 3 thousand or 3 million year old practice, as “proved by studies” to show to be the best way of doing xyz etc etc.
None of those things matter one tiny bit, regardless if they are true or not.
This would be the equivalent of a court saying that a publicly owned corporation is superior in every way to the generation of profits, compared to a partnership, and hence only publicly owned corporations will be recognized under the law.
What is better or worst is quite irrelevant to the question of what sort of contractual relationships exist between any two or more persons.
“you” meaning “you”, not “you”.
Then why weren’t we permitted federal employment? What is the meaning of the indecency laws under which we were imprisoned for congregating together. Look, you can either dispute my facts or acknowledge that we were treated as legally distinct. But you can’t admit we were under specific legal prohibitions expressly applicable to us based on our “desire” and then deny that we were treated as legally distinct. That’s incoherent.
You can think what you like, but no lawyer would confuse a constitutional decision with a common law one. The sources of authority are entirely different.
Which is quite irrelevant to my point. I said they “operate” in similar fashion, with the distinction being the limiting factor of the Constitution. But if every Constitutional amendment requires interpretation as to its meaning or application to a case, then in practice it is hardly any different. The normative opinion of the judges still matters…
…and has always mattered. Did we just discover this “flaw” in the Supreme Court once it started ruling in opposition to the way “conservatives” interpret the Constitution?
If so, then in essence you aren’t doing anything different from those “liberal judges”. In essence, it’s all an argument over interpretations.
As for SSM, the decision is a foregone conclusion not because there are “liberal judges”, but because there are hardly any legal arguments to be made. Just moral ones. And this was a conscious decision by many “conservatives” to focus on the “moral” arguments. Well those arguments are always going to lose in court.
This change in the law had the unintended consequence of making this old joke obsolete.
When asked how good a legendary local attorney was, the answer was, “He’s so good, he can get a case of sodomy reduced to following too closely.”
From an article I wrote on NRO
http://www.nationalreview.com/article/393892/justice-kennedy-and-dignity-howard-slugh
“No one can say for certain where the ongoing public discussion over marriage will end up, although the trends do seem to favor proponents of same-sex marriage. The one thing we know for sure is that if the Supreme Court cuts off the discussion by imposing same-sex marriage nationwide, it would rob same-sex couples of the opportunity to persuade their friends and neighbors to willingly redefine marriage. In doing so, the court would prevent those couples from ever achieving the status Justice Kennedy highlighted in Windsor.
In another context, Justice Kennedy noted that ‘a democracy has the capacity — and the duty — to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues.; Justice Kennedy can be remembered as the decisive vote for creating same-sex marriage or as the man who gave same-sex couples the opportunity to argue for the dignity of their relationships. It is unlikely that he can be remembered as both.”
I expect that the Supreme Court will someday rule that a dog’s head is actually a tail, and a dog’s tail is a head. According to the 14th Amendment.
Or Sherman’s march to misdemeanor trespass.
Actually, in many courts today lawyers don’t even have to be very good to get those results.
Except that repeal of the sodomy laws did not require others (florists, bakers, photographers, event hosts, employers providing employee benefits, etc.) who find the behavior objectionable to join the participants in celebrating the actions. Changing the definition of marriage forces people to celebrate actions (again, actions, not people) to which they strongly object.
I think “celebrate” is probably not the best possible word here. The florists, bakers etc are being coerced into participating in the specific activities which they find unconscionable. They are being forced to play an active role in facilitating the occurrence of those events despite their religious objections.
Made civil provision for? How statist!
People were coupling as spouses for centuries before a ceremony was first required by a political community in Lord Hardwicke’s law in 1753. Before that, it was entirely personal and involved no government licensure, period. The closest the government came to any involvement was to count the people who told the government they were married so it could be counted in a census.
There was no political provision made for marriage before 1753. The foolishness of those who claimed SSM was going against centuries of tradition was what has always been obvious to me.
And there were same sex spouses in history (argue their lesser numbers all you like but they were there). Nero was married to a man. There was an entire province in China where there was same sex marriage.
2014: Utah judge throws out state law criminalizing multiple partner cohabitation
2015: SCOTUS requires States to issue marriage licenses to same-sex couples
2020: Oregon become the first state to issue a marriage license to a polygamous triad
2022: Vermont lowers the age of consent to 13
2025: Illinois issues a marriage license to two siblings.
2026: SCOTUS requires States to issue marriage licenses to polygamists
2032: SCOTUS requires States to issue marriage licenses between any one adult and any person (including oneself) or persons (regardless of age, sex, relation, or mental capacity), corporation, animal, or inanimate object.
1) Act.
2) Disease.
3) Identity.
4) Civil Right.
Howard Slugh
From an article I wrote on NRO
http://www.nationalreview.com/article/393892/justice-kennedy-and-dignity-howard-slugh
It is impossible to improve on Hadley Arkes article as a reply to yours. It seems your article proves the opposite of your conclusion. Justice Kennedy has already made up him mind.
My understanding is that there is a lot of uncertainty about the nature of these “marriages.” There are some who have studied the history of them who have concluded that they were not at all about partnership, but about binding a less powerful man into a subservient role with a more powerful man.
I think you’ve missed the assault on religion which I predict will come close on the heels of the SCOTUS decision. Currently, clergy (including Catholic priests) act as agents of the state in officiating marriage ceremonies. If gay activists can coerce bakers, photographers, and florists to participate in same-sex marriages, I can guarandingdamntee you their “rights” will pertain to state agents as well.
Either clergy will have to forgo this previous gentlemanly handshake between religion and state, or they’ll be performing same-sex weddings. The activists will not let it stand.
Since the Catholic Church (and many denominations) cannot participate, it may be a matter of minor inconvenience for everyone to assure same-sex couples their “rights” by having to visit both the court house and the church in the future. But the real damage is done in a further rending of the Judeo-Christian West’s cultural fabric.
I don’t suppose I mind if traditionalist churches are put out of the wedding business.
What I anticipate with trepidation is the assault on Christian education. Public schools will be required to teach a progressive tolerance agenda that is in opposition to Biblical morality. Church schools will be required to teach this same curriculum. State tests will feature this information, so that homeschoolers will be forced to learn it for regurgitation on state exams. The State will develop an apparatus to enforce education that teaches that our religion is false because it features a morality that is not approved by the state.
I don’t see how it forces you to “celebrate” anything. The case of the florists and bakers is a case of providing a service.
That ship has sailed long ago with laws prohibiting people from not providing service on the basis of race, religion etc.
Of course, in an ideal world, you shouldn’t be forced to provide service in your own business to anyone you don’t want to. But it’s too late for that.
And that’s also an important point.
This isn’t about religious marriage. This is about state-sponsored marriage. Different things.
The “damage” was done the moment the state got into the business of sanctioning marriage. A few hundred years too late.
Of course, we’ve made it even more beneficial and important for the state to push for control of marriage because of all the tax laws and tax benefits we give to married couples, in a naive attempt to “incentivize” marriage.
You can thank “social conservatives” for that bit.
But no, I don’t foresee this “attack” on religion or religious institutions. We still have the same Constitution and the same laws which allow for religious practice as you see fit.
And this is why it’s a foregone conclusion: no one on the “right” wants to even bother to make a legal case here. Everyone on the “right” seems interested in appealing to emotions and morality, while clearly (even they know this) blowing things out of proportion.
Those arguments aren’t going to win in any court.
No, it doesn’t. It is entirely possible to imagine a world in which gay people can marry and florists can choose not to participate. And if you’re concerned about the liberty of the florists, you’d get more goodwill and your motives would be less suspect if you weren’t focused on interfering with the liberty of the gay people.
2018: Justice Ginsburg passes away and President Santorum appoints Hadley Arkes to SCOTUS.
2020: SCOTUS reverses SSM ruling. 19 states pass bans on SSM.
2024: 8 states pass sodomy laws.
2026: Lawrence overruled — sodomy statutes now constitutional again.
2030: 5 states initiate roundup of sodomites. Special prisons to house “perverts” under construction.
2035: Coalition of Muslims and Christianists succeed in making sodomy punishable by death in three southern states.
Almost fainted there for a second.
It isn’t that they are gay or that they want to live together that will hurt their acceptance. Rather, it will be the slippery slope ills they will be blamed for and the unleashing of their inner bully. When people think of gay marriage even now, the first thing that comes to mind is the bullying against caterers, wedding venues, ministers, military personnel, etc. who didn’t want to participate. The bullying will escalate as will the scorn against gays – no one likes a bully.
But if states must be forced to accept these marriage licenses from other states, then let’s make them accept concealed carry permits, too. Like they say, never let a crisis go to waste.