Calling Richard Epstein and John Yoo, or, if the Supreme Court Legalizes Gay Marriage, How Should We Respond?

 

shutterstock_103670531Constitutional scholar Robert P. George, writing in First Things:

Dred Scott v. Sandford was the infamous case in which the Supreme Court of the United States, usurping the constitutional authority of the people acting through their elected representatives in Congress, purported to deny the power of the United States to prohibit slavery in the federal territories. It is very much worth recalling that Dred Scott was not just a case about slavery. It was a case about the scope and limits of judicial power. It was a case in which judges, lacking any warrant in the text, structure, logic, or historical understanding of the Constitution, attempted to impose their own favored resolution of a morally charged debate about public policy on the entire nation.

The Supreme Court did it again in 1905 in the case of Lochner v. New York (invalidating a worker protection statute enacted by the state legislature), and then several more times in the Warren Court era, culminating in Roe v. Wade—the Dred Scott decision of our own time. Now we face the prospect of yet another Dred Scott-type decision—this time on the question of marriage. I say that, not because same-sex relationships are the moral equivalent of slavery—they are not—but because five justices seem to be signaling that they will once again legislate from the bench by imposing, without constitutional warrant, their own beliefs about the nature and proper definition of marriage on the entire country.

If that happens, the Republican Party, the Republican Congress, and a future Republican President should regard and treat the decision just as the Republican Party, the Republican Congress, and the Republican President—Abraham Lincoln—regarded and treated the Dred Scott decision. They should, in other words, treat it as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives.

An unconstitutional and illegitimate ruling.

That sounds about right to me. Richard Epstein? John Yoo? How does it sound to you?

There are 92 comments.

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  1. Johnny Dubya Inactive
    Johnny Dubya
    @JohnnyDubya

    [T]he Republican Party, the Republican Congress, and a future Republican President should regard and treat the decision just as the Republican Party, the Republican Congress, and the Republican President—Abraham Lincoln—regarded and treated the Dred Scott decision. They should, in other words, treat it as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives.

    I couldn’t disagree more.

    It was inevitable that slavery would end.  Yes, it took a civil war to hasten its demise, but it was inevitable.

    Similarly, “gay marriage” is inevitable.  Anyone who believes otherwise is kidding himself.  To oppose it is to ensure that, once SSM is the law of the land, the Republican party will be bashed forever and always for having maintained a “reactionary” stance toward it.

    There are some things that may be worth opposing even though they are inevitable.  This – the marriage of consenting adults in loving, domestic relationships, many of which include the raising of children – ain’t one of them.

    Heck, the party of Jim Crow still bashes the party of Lincoln with charges of racism!  What do you think will happen if we oppose SSM?  Like it or not, it is the Civil Rights movement of our day.  If the Republican party chooses to be on the wrong side of history, the damage may never be undone.

    My fifteen-year-old daughter is fiercely conservative in most of the ways that (in my mind) count.  She also already has openly-gay friends.  The Republican party may very well lose her and others of her generation if it continues on the anti-SSM path.

    • #1
  2. user_517406 Inactive
    user_517406
    @MerinaSmith

    Professors Epstein and Yoo both favor redefining marriage, so they are perhaps not the best people to ask.

    JD, it is simply silly to call this a civil rights issue.  It has nothing to do with equality.  Equality simply means treating like things alike.  The question always is, what is the significance of the differences?  Couples that can produce children are not like those who can’t. They are in some ways, but in other crucial ways they aren’t.  What you say is the reason there has not been a conversation about the crucial issues.  This is not inevitable because it is a really stupid idea.  The definition of marriage is what keeps in place a lot of crucial understandings–that the world is made up of men and women, TWO genders, that when one of each gender gets together, sometimes they produce children, and when they do this they create a family that they are responsible to raise.  Redefine it and suddenly everyone is claiming their own gender and couples of the same gender that cannot reproduce together are claiming that third party reproduction is hunky dory, kids don’t really need or want to know their mother and father.  Marriage become about the needs and wants of adults and kids are the losers.  No, this is just the beginning of the battle.  Our feckless courts have ensured that it will be long and ugly, but those who deny nature don’t tend to fare well in this world.  She has a way of slapping down human hubris eventually.

    • #2
  3. EJHill Podcaster
    EJHill
    @EJHill

    I think it depends on how they do it. Ruling it a “right” will duplicate the disastrous results of Roe. Ruling it a matter of the Full Faith and Credit Clause may do the trick.

    Here the court rules that marriage is the purview of the individual states but they must handle all out-of-state marriages equally. Let us say Mr. & Mrs. Peter Robinson move to Texas. Currently, Texas says that as long as you have a valid marriage license from any of the other 49 states you’re married. If Texas wishes to not have homosexual marriage, then all new residents of Texas would be given a grace period, say 60-days, to take out a Texas license and renew their vows to the satisfaction of Texas law.

    • #3
  4. user_554634 Moderator
    user_554634
    @MikeRapkoch

    I’m not Yoo or Epstein, but it does occur to me that one way for the states to respond is to quit issuing marriage licences completely. What is the court going to do then? The argument for equal rights then evaporates because the states would be treating everyone the same.

    There are a host of problems with this, the most serious being that this opens the door to nationalizing marriage. That would be a very bad thing. Still, the states could get around the decision this way. They would also be thumbing their noses at the Court, and sending the signal that Court law making is unacceptable.

    I’m not in favor of the government getting out of marriage. I still believe we need some acknowledgment of marriage as ontologically prior to government. But the states should not be licensing marriage as that suggests the state is the source of marriage. Finding ways to tell the court to go stuff itself could not only save marriage’ it would limit the Courts power to enforce it’s idiocy in other areas as well.

    • #4
  5. user_517406 Inactive
    user_517406
    @MerinaSmith

    Mike, in that case, are all children then illegitimate?  What happens with family and custody issues?  I can see marriage being something done by churches, but they aren’t going to be handling the legalities wrt these other issues.

    • #5
  6. Fredösphere Member
    Fredösphere
    @Fredosphere

    Johnny Dubya:Similarly, “gay marriage” is inevitable. Anyone who believes otherwise is kidding himself.

    Among the countries on the leading edge to adopt gay marriage are the Netherlands, Sweden, and Norway. Johnny, can you describe a scenario that is even remotely plausible where any of those countries still have gay marriage 25 years from now?

    • #6
  7. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    I really hope the court rules against the change. There’s just no need for this, either politically or constitutionally.

    • #7
  8. user_554634 Moderator
    user_554634
    @MikeRapkoch

    Merina Smith:Mike, in that case, are all children then illegitimate? What happens with family and custody issues? I can see marriage being something done by churches, but they aren’t going to be handling the legalities wrt these other issues.

    That’s a good point. It’s another example of how impractical my basic solution is. I’m hoping others can think of other ways for the states to tell the Court to knock it off.The states are simply going to have to resist or completely lose what sovereignty they have left. In many ways the Constitution is moribund at best. It’s really been dying since its adoption. As I see it, the best way to revive it is for the states to forcefully assert themselves. The Florida Supreme Court has ruled that the state cannot issue marriage licenses to gay couples. That’s not going to fly in the long run. But it at least let’s the Courts know that their rulings are not the final word.

    • #8
  9. EJHill Podcaster
    EJHill
    @EJHill

    Fredösphere:  Among the countries on the leading edge to adopt gay marriage are the Netherlands, Sweden, and Norway. Johnny, can you describe a scenario that is even remotely plausible where any of those countries still have gay marriage 25 years from now?

    You mean after the Islamic Revolution?

    • #9
  10. Umbra Fractus Inactive
    Umbra Fractus
    @UmbraFractus

    Whether you agree with the policy or not, the fundamental question is whether it’s constitutionally imperative for the SCOTUS to impose it on people who have rejected it over and over. Merina is right that “equal protection” implies like circumstances, and what the pro-SSM doesn’t seem to get is that it’s not obvious that we are dealing with like circumstances; there are reasons other than animus to think a distinction should be made. Perhaps there is a good argument to be made that the distinctions are meaningless, but I’m not hearing it from the redefinitionists; all we get when we try to treat the issue like the debate it should be is accusations of “hate.”

    • #10
  11. user_836033 Member
    user_836033
    @WBob

    The court will not be able to mandate nationwide SSM while at the same time enunciating a “limiting principle” which would prevent its decision from also requiring recognition of polygamy, three way gay marriage, polyamory, gay marriage between siblings etc.  It is impossible to enunciate such a principle. The lack of such a principle necessarily means that it will eventually become impossible to even define what marriage is.   At that point, marriage ceases to exists as an institution. So Peter’s point can be taken even further.  Does the court not only have the power to usurp the people’s ability to define their institutions, but also the power to destroy them  by fiat?

    • #11
  12. user_409996 Inactive
    user_409996
    @EdwardSmith

    A State Judge in Alabama (I think that is the state) has stated that he will no longer sign off on ANY Marriage Certificates, so that in refusing to sign off on Certificates for the SSM crowd, he cannot be accused of discriminating.

    Churches should follow his example, formally surrendering the right to give legality to ANY Marriage, and any and all Tax and Other Legal privileges they currently enjoy so that no penalty can be exacted against them by the SSM crowd.

    Christians started out with their Marriages having no legal standing.  They should return to this status, voluntarily.  DON’T get the license. Renounce the license you have, and use the mountain of currently available forms to claim the legal rights covered by the word Marriage.

    The State has declared Christians to be enemies and outlaws.  Be enemies and outlaws.  Pay your taxes, but don’t buy the meat from the weekly sacrifice to the emperor.

    • #12
  13. Ricochet Moderator
    Ricochet
    @OldBathos

    SCOTUS will have four votes for gay marriage because liberals believe the Constitution is whatever the elitist zeitgeist wants at the moment.

    Four justices will find the states have the right to define the law of marriage as they choose and there is no overriding constitutionally-defined duty to overrule referendums or existing statutes.

    Justice Kennedy will get to write the opinion and will come up with a pro-zeitgeist, pro-gay marriage ruling with a very small fig leaf for states rights and will congratulate himself for his balanced approach.

    • #13
  14. x Inactive
    x
    @CatoRand

    Edward Smith:A State Judge in Alabama (I think that is the state) has stated that he will no longer sign off on ANY Marriage Certificates, so that in refusing to sign off on Certificates for the SSM crowd, he cannot be accused of discriminating.

    Churches should follow his example, formally surrendering the right to give legality to ANY Marriage, and any and all Tax and Other Legal privileges they currently enjoy so that no penalty can be exacted against them by the SSM crowd.

    Christians started out with their Marriages having no legal standing. They should return to this status, voluntarily. DON’T get the license. Renounce the license you have, and use the mountain of currently available forms to claim the legal rights covered by the word Marriage.

    The State has declared Christians to be enemies and outlaws. Be enemies and outlaws. Pay your taxes, but don’t buy the meat from the weekly sacrifice to the emperor.

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    • #14
  15. x Inactive
    x
    @CatoRand

    Old Bathos:SCOTUS will have four votes for gay marriage because liberals believe the Constitution is whatever the elitist zeitgeist wants at the moment.

    Four justices will find the states have the right to define the law of marriage as they choose and there is no overriding constitutionally-defined duty to overrule referendums or existing statutes.

    Justice Kennedy will get to write the opinion and will come up with a pro-zeitgeist, pro-gay marriage ruling with a very small fig leaf for states rights and will congratulate himself for his balanced approach.

    You could pretty much take that prediction to Vegas.

    • #15
  16. x Inactive
    x
    @CatoRand

    Peter, what gives?  Did you decide you wanted to finally get people to comment on one of your posts?

    • #16
  17. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Cato Rand:

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    The question remains “why is this so?” Surely hatred cannot be the only plausible answer, but that is the one the courts have maintained of late.

    • #17
  18. x Inactive
    x
    @CatoRand

    The King Prawn:

    Cato Rand:

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    The question remains “why is this so?” Surely hatred cannot be the only plausible answer, but that is the one the courts have maintained of late.

    No, this is much simpler and less nefarious.  The simple fact is that marriage is both a very distinct legal status, and very rich and complex contractual relationship that has been prepackaged by the state in terms of the bundle of respective rights involved.  But you get them all with one fell swoop when you get married.  Among the rights that can be duplicated contractually, they are so many and varied, and their applications in various circumstances are so complex, that duplicating the contractual relationship is very difficult.  And then of course there are certain rights that are simply only available as a consequence of the legal status.  An unmarried couple could hire the best lawyers on earth and would be unable to duplicate them.  Among these latter are the rights associated with the “married” tax status.  It is not an accident that Windsor was a tax case.

    • #18
  19. Matede Inactive
    Matede
    @MateDe

    Cato Rand:

    No, this is much simpler and less nefarious. The simple fact is that marriage is both a very distinct legal status, and very rich and complex contractual relationship that has been prepackaged by the state in terms of the bundle of respective rights involved. But you get them all with one fell swoop when you get married. Among the rights that can be duplicated contractually, they are so many and varied, and their applications in various circumstances are so complex, that duplicating the contractual relationship is very difficult. And then of course there are certain rights that are simply only available as a consequence of the legal status. An unmarried couple could hire the best lawyers on earth and would be unable to duplicate them. Among these latter are the rights associated with the “married” tax status. It is not an accident that Windsor was a tax case.

    What about common law? I know in many states if a couple is co-habitating for a long enough period they are considered married and can get some of the benefits without the paperwork. My sister was able to get her then boyfriend, now husband, onto her medical insurance even though they weren’t married but were living together for a year in Colorado.

    • #19
  20. user_409996 Inactive
    user_409996
    @EdwardSmith

    Cato Rand:

    Edward Smith:A State Judge in Alabama (I think that is the state) has stated that he will no longer sign off on ANY Marriage Certificates, so that in refusing to sign off on Certificates for the SSM crowd, he cannot be accused of discriminating.

    Churches should follow his example, formally surrendering the right to give legality to ANY Marriage, and any and all Tax and Other Legal privileges they currently enjoy so that no penalty can be exacted against them by the SSM crowd.

    Christians started out with their Marriages having no legal standing. They should return to this status, voluntarily. DON’T get the license. Renounce the license you have, and use the mountain of currently available forms to claim the legal rights covered by the word Marriage.

    The State has declared Christians to be enemies and outlaws. Be enemies and outlaws. Pay your taxes, but don’t buy the meat from the weekly sacrifice to the emperor.

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    Costly and Burdensome I did know about.  I did say “mountains of paperwork”.  As to risky, while Christians are rendering unto the State, they can also vote.  And they can vote to gain and secure those rights in a piecemeal fashion that other people might appreciate.

    One advantage to this piecemeal fashion is that divorce is a question of going through that  “mountain of paperwork” again, the way changing your will, or the beneficiary of your insurance or pension, or who is the executor of that will is.

    Christians, understanding that what they are undertaking still falls under the commandment

    Some Pharisees came and tested [Jesus] by asking, “Is it lawful for a man to divorce his wife?”

     “What did Moses command you?” he replied.

    They said, “Moses permitted a man to write a certificate of divorce and send her away.”

     “It was because your hearts were hard that Moses wrote you this law,” Jesus replied.  “But at the beginning of creation God ‘made them male and female.’ ‘For this reason a man will leave his father and mother and be united to his wife,and the two will become one flesh.’  So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.”

    will hopefully take care to ensure that their Holy Union is Spiritual as well as Corporeal and not need to revisit that “mountain of paperwork”.

    Non-Believers, not wishing the difficulty of Divorce, may well be thankful that Christians gave them the out clause in pursuit of the in clause that allows them to leave the field of Marriage (as a legal arrangement) to the barbarians who have swept over the field.

    • #20
  21. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Cato Rand:

    The King Prawn:

    Cato Rand:

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    The question remains “why is this so?” Surely hatred cannot be the only plausible answer, but that is the one the courts have maintained of late.

    No, this is much simpler and less nefarious. The simple fact is that marriage is both a very distinct legal status, and very rich and complex contractual relationship that has been prepackaged by the state in terms of the bundle of respective rights involved. But you get them all with one fell swoop when you get married. Among the rights that can be duplicated contractually, they are so many and varied, and their applications in various circumstances are so complex, that duplicating the contractual relationship is very difficult. And then of course there are certain rights that are simply only available as a consequence of the legal status. An unmarried couple could hire the best lawyers on earth and would be unable to duplicate them. Among these latter are the rights associated with the “married” tax status. It is not an accident that Windsor was a tax case.

    Why, as in why was traditional marriage granted the package deal alone among all other human relationships? We’ve stopped trying to answer that question in the battle over marriage. We’ve torn down a fence without considering why it was put up in the first place. Does society (and government) hate my friend and her cousin who have shared material responsibilities including owning a home together for many years, or do we consider their relationship different in kind than we would if they were not cousins and were married?

    • #21
  22. The Forgotten Man Inactive
    The Forgotten Man
    @TheForgottenMan

    Merina Smith:Mike, in that case, are all children then illegitimate? What happens with family and custody issues? I can see marriage being something done by churches, but they aren’t going to be handling the legalities wrt these other issues.

    Today in the state and County I live in over half the family and custody issues of the children come under the jurisdiction of the Juvenile Court because the child was born out of wedlock. The Family Court has jurisdiction over divorce and  these issues for  children born with in the bonds of matrimony as defined by state licence.    Both Courts handled these issues pretty much identically.  There would be no illegitimate children or legitimate children.

    • #22
  23. x Inactive
    x
    @CatoRand

    Matede:

    Cato Rand:

    No, this is much simpler and less nefarious. The simple fact is that marriage is both a very distinct legal status, and very rich and complex contractual relationship that has been prepackaged by the state in terms of the bundle of respective rights involved. But you get them all with one fell swoop when you get married. Among the rights that can be duplicated contractually, they are so many and varied, and their applications in various circumstances are so complex, that duplicating the contractual relationship is very difficult. And then of course there are certain rights that are simply only available as a consequence of the legal status. An unmarried couple could hire the best lawyers on earth and would be unable to duplicate them. Among these latter are the rights associated with the “married” tax status. It is not an accident that Windsor was a tax case.

    What about common law? I know in many states if a couple is co-habitating for a long enough period they are considered married and can get some of the benefits without the paperwork. My sister was able to get her then boyfriend, now husband, onto her medical insurance even though they weren’t married but were living together for a year in Colorado.

    Two different issues.

    1) Some, but not all, states allow common law marriages.  The ones that do have their own particular requirements.  Generally just living together long enough isn’t sufficient though.  And it doesn’t help same sex couples.  If you’re not eligible for a license, you’re not eligible for a common law marriage either.

    2) The health insurance, I’m going to guess, was an employer plan, no?  Assuming it was, employers are permitted to set their own rules about who you can cover, and most large employers now permit unmarried domestic partners.  That started out as a way to cover gay couples who couldn’t marry.  As SSM has become more common, some employers are pulling in the reins on it.

    • #23
  24. Mendel Inactive
    Mendel
    @Mendel

    Before this conversation falls into the usual gay marriage bottomless pit, I would like to address the other question in Peter’s post:

    When should the states/people/other branches of government actively defy a Supreme Court ruling based on the opinion that the Supreme Court overstepped its bounds?

    As Dr. George points out, good arguments can be made that the Supreme Court has overstepped its powers on numerous occasions during the last century. On the other hand, providing deference to the Supreme Court also provides a necessary stability to our system. As Profs. Epstein and Yoo often point out, most Supreme Court jurisprudence is based on the Marbury vs. Madison decision, in which the Supreme Court arguably overstepped its bounds. Yet to defy that decision based on a lack of textual support would be to throw our entire system into chaos.

    So if we do decide that it’s time for the states to defy a Supreme Court decision, is this really the hill to die on? Even if you are a fierce opponent of SSM, wouldn’t Roe v. Wade be a much more useful decision for states to ignore?

    • #24
  25. x Inactive
    x
    @CatoRand

    Edward Smith:

    Cato Rand:

    Edward Smith:A State Judge in Alabama (I think that is the state) has stated that he will no longer sign off on ANY Marriage Certificates, so that in refusing to sign off on Certificates for the SSM crowd, he cannot be accused of discriminating.

    Churches should follow his example, formally surrendering the right to give legality to ANY Marriage, and any and all Tax and Other Legal privileges they currently enjoy so that no penalty can be exacted against them by the SSM crowd.

    Christians started out with their Marriages having no legal standing. They should return to this status, voluntarily. DON’T get the license. Renounce the license you have, and use the mountain of currently available forms to claim the legal rights covered by the word Marriage.

    The State has declared Christians to be enemies and outlaws. Be enemies and outlaws. Pay your taxes, but don’t buy the meat from the weekly sacrifice to the emperor.

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    Costly and Burdensome I did know about. I did say “mountains of paperwork”. As to risky, while Christians are rendering unto the State, they can also vote. And they can vote to gain and secure those rights in a piecemeal fashion that other people might appreciate.

    One advantage to this piecemeal fashion is that divorce is a question of going through that “mountain of paperwork” again, the way changing your will, or the beneficiary of your insurance or pension, or who is the executor of that will is.

    Christians, understanding that what they are undertaking still falls under the commandment

    will hopefully take care to ensure that their Holy Union is Spiritual as well as Corporeal and not need to revisit that “mountain of paperwork”.

    Non-Believers, not wishing the difficulty of Divorce, may well be thankful that Christians gave them the out clause in pursuit of the in clause that allows them to leave the field of Marriage (as a legal arrangement) to the barbarians who have swept over the field.

    Huh?

    • #25
  26. x Inactive
    x
    @CatoRand

    The King Prawn:

    Cato Rand:

    The King Prawn:

    Cato Rand:

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    The question remains “why is this so?” Surely hatred cannot be the only plausible answer, but that is the one the courts have maintained of late.

    No, this is much simpler and less nefarious. The simple fact is that marriage is both a very distinct legal status, and very rich and complex contractual relationship that has been prepackaged by the state in terms of the bundle of respective rights involved. But you get them all with one fell swoop when you get married. Among the rights that can be duplicated contractually, they are so many and varied, and their applications in various circumstances are so complex, that duplicating the contractual relationship is very difficult. And then of course there are certain rights that are simply only available as a consequence of the legal status. An unmarried couple could hire the best lawyers on earth and would be unable to duplicate them. Among these latter are the rights associated with the “married” tax status. It is not an accident that Windsor was a tax case.

    Why, as in why was traditional marriage granted the package deal alone among all other human relationships? We’ve stopped trying to answer that question in the battle over marriage. We’ve torn down a fence without considering why it was put up in the first place. Does society (and government) hate my friend and her cousin who have shared material responsibilities including owning a home together for many years, or do we consider their relationship different in kind than we would if they were not cousins and were married?

    I don’t mean to ignore this question but I don’t have the energy to have this argument for the 600th time on this site right now.  I’m sure Gary or Mike H or somebody else on the pro-SSM side will come along soon enough and you can replay this kabuki with one of them.  Maybe tomorrow.

    • #26
  27. user_409996 Inactive
    user_409996
    @EdwardSmith

    The King Prawn:

    Cato Rand:

    The King Prawn:

    Cato Rand:

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    The question remains “why is this so?” Surely hatred cannot be the only plausible answer, but that is the one the courts have maintained of late.

    No, this is much simpler and less nefarious. The simple fact is that marriage is both a very distinct legal status, and very rich and complex contractual relationship that has been prepackaged by the state in terms of the bundle of respective rights involved. But you get them all with one fell swoop when you get married. Among the rights that can be duplicated contractually, they are so many and varied, and their applications in various circumstances are so complex, that duplicating the contractual relationship is very difficult. And then of course there are certain rights that are simply only available as a consequence of the legal status. An unmarried couple could hire the best lawyers on earth and would be unable to duplicate them. Among these latter are the rights associated with the “married” tax status. It is not an accident that Windsor was a tax case.

    Why, as in why was traditional marriage granted the package deal alone among all other human relationships? We’ve stopped trying to answer that question in the battle over marriage. We’ve torn down a fence without considering why it was put up in the first place. Does society (and government) hate my friend and her cousin who have shared material responsibilities including owning a home together for many years, or do we consider their relationship different in kind than we would if they were not cousins and were married?

    KP,

    Too many people on both sides of the fence forgot why the fence was there.  It wasn’t there to punish like your friend and her cousin, or even those heterosexual couples who lived in Common Law Marriages.  It wasn’t there to protect the people who could and did get married.

    It was there to set Marriage as a relationship apart from other relationships, one that was meant to last as close to forever as possible, one that was the foundation of the rest of the community.

    Why, KP?

    Because people wanted, as with so many other wonderful and sustaining aspects of Western Culture, to make into a mere Human Institution what was a Gift from God.

    We’re no better than Jerusalem under the rule of their last king, Zedekiah.  Well, considerably better.  We have Jesus, ready to go up on the cross every day and take our Sins with him.

    • #27
  28. x Inactive
    x
    @CatoRand

    Mendel:Before this conversation falls into the usual gay marriage bottomless pit, I would like to address the other question in Peter’s post:

    When should the states/people/other branches of government actively defy a Supreme Court ruling based on the opinion that the Supreme Court overstepped its bounds?

    As Dr. George points out, good arguments can be made that the Supreme Court has overstepped its powers on numerous occasions during the last century. On the other hand, providing deference to the Supreme Court also provides a necessary stability to our system. As Profs. Epstein and Yoo often point out, most Supreme Court jurisprudence is based on the Marbury vs. Madison decision, in which the Supreme Court arguably overstepped its bounds. Yet to defy that decision based on a lack of textual support would be to throw our entire system into chaos.

    So if we do decide that it’s time for the states to defy a Supreme Court decision, is this really the hill to die on? Even if you are a fierce opponent of SSM, wouldn’t Roe v. Wade be a much more useful decision for states to ignore?

    I was just kind of shocked that Peter was anti-Lochner.  RINO!

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  29. user_1938 Member
    user_1938
    @AaronMiller

    EJHill:I think it depends on how they do it. Ruling it a “right” will duplicate the disastrous results of Roe. Ruling it a matter of the Full Faith and Credit Clause may do the trick.

    [….] If Texas wishes to not have homosexual marriage, then all new residents of Texas would be given a grace period, say 60-days, to take out a Texas license and renew their vows to the satisfaction of Texas law.

    While I’m curious about the feasibility of your hypothetical scenario, I doubt this will work either. What the Yay Gay crowd wants is cultural equality, not legal equality. The law is being used to bludgeon traditionalists into submission.

    If a legal arrangement was made to provide all marital benefits to gay couples from other states while simultaneously insisting that those couples are not “married” by Texas standards, that might satisfy some, but it wouldn’t even slow the political activists.

    The Full Faith and Credit Clause presumes basic cultural agreements between the states. It presumes that another state’s contracts and legal definitions are at least tolerable enough to be honored during interstate interactions and recognized upon relocation. States have often disagreed on how and when to recognize marriages, but the basics have been consistent enough that it is agreed we are talking about the same essential thing. There is no such agreement regarding the equivalence of gay and heterosexual relationships. Whether it is called “gay marriage” or a “civil union”, the intention is the same.

    Any effort by or through government to force agreement that homosexual marriage is possible will be intolerable. If my own state requires me to acknowledge such an arrangement as marriage, I will not.

    But I sympathize with the Yay Gay crowd because it was heterosexuals who undermined the common understanding of marriage. This is a predictable consequence of affluence in the West. Wealth granted us the freedom to focus on affection in courtship. We have since mistaken affection as the core purpose of marriage, as its essential nature. We have mistaken a privilege for a (human) right. Gays are merely applying the errors of the broader culture in a logical manner.

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  30. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Cato Rand:

    The King Prawn:

    Cato Rand:

    The King Prawn:

    Cato Rand:

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    The question remains “why is this so?” Surely hatred cannot be the only plausible answer, but that is the one the courts have maintained of late.

    No, this is much simpler and less nefarious. The simple fact is that marriage is both a very distinct legal status, and very rich and complex contractual relationship that has been prepackaged by the state in terms of the bundle of respective rights involved. But you get them all with one fell swoop when you get married. Among the rights that can be duplicated contractually, they are so many and varied, and their applications in various circumstances are so complex, that duplicating the contractual relationship is very difficult. And then of course there are certain rights that are simply only available as a consequence of the legal status. An unmarried couple could hire the best lawyers on earth and would be unable to duplicate them. Among these latter are the rights associated with the “married” tax status. It is not an accident that Windsor was a tax case.

    Why, as in why was traditional marriage granted the package deal alone among all other human relationships? We’ve stopped trying to answer that question in the battle over marriage. We’ve torn down a fence without considering why it was put up in the first place. Does society (and government) hate my friend and her cousin who have shared material responsibilities including owning a home together for many years, or do we consider their relationship different in kind than we would if they were not cousins and were married?

    I don’t mean to ignore this question but I don’t have the energy to have this argument for the 600th time on this site right now. I’m sure Gary or Mike H or somebody else on the pro-SSM side will come along soon enough and you can replay this kabuki with one of them. Maybe tomorrow.

    It’s an honest question. I don’t find calling it kabuki all that helpful. If we are to defy the court as Peter/George suggests then we better have the very highest of reasons.

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