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Calling Richard Epstein and John Yoo, or, if the Supreme Court Legalizes Gay Marriage, How Should We Respond?
Constitutional 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?
Published in Law, Marriage
I know, I know, I speak as Theoretically as any Libertarian.
Yes she was working at a hospital at the time and he was a student, so yes a private employer.
Another question as I’m not a lawyer and not really familiar with the differences. In Connecticut we have civil unions for gay couples and it seems to work well, albiet from my stand point, but I haven’t really dug deep into it. What is the difference legally between a Civil Union and a marriage if there is one?
I know it was an honest question. I even agree that it’s an important one. I’m just bowing out of it for the moment, having kind of had my fill of it for a while.
Roger that, and I understand completely. I’ve celebrated the death of some of my own posts when then became draining.
Well, I made my cookies for the Church Retreat (tomorrow through Sunday), and I have to change for a concert tonight at a Synagogue on the Upper West Side.
Cato, go back over to your post on how horrible Illinois is to make you feel better.
Did you make those from scratch? They look delicious. You should post the recipe.
I just wish we got to vote on it in our respective states because 9 dudes in robes don’t make laws, particularly in the social space, that have a great deal of respect – see Roe.
I like to call my views on making the definition of marriage arbitrary: what about the other three men? First on marriage being arbitrary – marriage of 1 man and 1 woman is grounded in nature reinforced with the fact that birth rates of men and women are largely 50-50 as China and India are finding out. Ooops. Sure you can get married for all kinds of different reasons but nature defines one that is special and, in my view, best for society. Second, when you open up marriage to what’s not grounded in nature you make the definition of marriage arbitrary. Once the definition of marriage becomes arbitrary the rules of who and how many can marry each other go away. One of the more likely forms of marriage is polygamy. After all, it’s permitted by the Koran and some churches here. And, who are we to say? And, discrimination. And, freedom of association. And, on and on.
So when polygamy becomes permitted and a man takes four wives, what do the other three men do?
Government is much like marriage in that it becomes so entangled with one’s way of being that uprooting it is unavoidably painful and risky. It’s ironic then that citizens who don’t believe in the possibility of marital divorce (sacramentally speaking) are perhaps more likely to favor the possibility of severing the bonds of government.
Well, in part that’s a question of Connecticut state law, which I’m not specifically familiar with, although the odds are that with respect to state law defined rights, the different is essentially nil. Most states that have passed civil union statutes have essentially said “a couple in a civil union shall have all the rights of a married couple to the fullest extent we can provide them.”
Where the big difference comes in is that a lot of rights are creatures of federal, not state, law. The federal government will not treat a state created civil union as a marriage for federal purposes, so a couple in a civil union will have none of the federal rights of a married couple. There’s about 1000 different ones, but some of the most important and commonly discussed are things like spousal social security benefits and all federal tax rights that flow from being married.
The DOMA case, for example, involved a woman named Edie Windsor who was hit with an estate tax bill of over $300,000 when her wife (as defined by New York law — where they lived) died. If the IRS had recognized their marriage, there would have been no estate tax because married couples are entitled to something called the “unlimited marital exemption” from estate taxes upon the death of a spouse.
Now Windsor did actually involve a marriage under state law. It was just that the federal government refused to recognize it. But if they’d been in a Connecticut civil union, they would have had the same problem. Interestingly, even after Windsor, the federal government still doesn’t recognize civil unions. Windsor has been implemented by basically requiring all federal agencies to treat state law same sex marriages like any other marriage, but if your state only recognizes civil unions, you’re out of luck for federal purposes.
There are a host of other issues too, ranging from immigration status, retirement benefit rights, retirement plan treatment issues, COBRA rights (to go back to employer health insurance), and on and on. Does that help?
I’m not sure throwing things into chaos would be a bad thing.
Yea, I’m thinkin’ the cookies are cheering me up too. :)
Always from Scratch. There is no other way for me at this point.
http://allrecipes.com/recipe/chewy-peanut-butter-chocolate-chip-cookies/
http://allrecipes.com/recipe/oatmeal-raisin-cookies-i/
You will also see a recipe for the Oatmeal Raisin Cookies on the inside of every lid of Quaker Old Fashioned Oatmeal.
Cookies are for Freedom Fighters!
In my opinion, the “nuclear option” for any type of public relationship should always be on the table (with the possible exception of….actual nuclear war).
For instance, the Senate should always leave itself open to abolishing the filibuster, we should always be open to attacking Iran (or any other rogue state) over its nuclear program, and we should also reserve the right to disobey Supreme Court rulings.
But the corollary to leaving the nuclear option on the table is using it as absolutely sparingly as possible, and truly only in the worst-case scenarios. For me, a ruling on same-sex marriage would not meet that standard – and in any case, it would be far less relevant than Roe v. Wade.
LOL. I don’t think Peter is necessarily anti-Lochner. He was just quoting Robert P. George, who is obviously anti-Lochner.
This?
Fredö, was that your point? If so, then I’m not sure what the Islamization of Europe (another inevitability, in my mind) has to do with the question of whether the Republican party should damage its future prospects, perhaps irreparably, by opposing SSM.
They look like a very happy throuple.
This post made me curious, so I did a quick review of the status of state SSM laws. Here’s what I found:
34 states ban SSM as a matter of state law. In 19 of these states, the SSM ban has been invalidated by a federal court decision. In 3 more of these states, the SSM ban has been invalidated in part of the state by a federal court decision.
The 34 states banning SSM as a matter of state law include all 24 of the red states, plus 7 purple states (CO, FL, MO, NV, OH, VA and WV), plus 3 blue states (CA,PA, OR).
11 states have approved SSM by legislation, of which 10 are blue states and 1 is purple (NH).
1 state has approved SSM by referendum (blue state ME).
4 states have approved SSM by judicial decision under the state constitution, of which 2 are blue states (MA, NJ) and 2 are purple (IA, NM).
Fredosphere, can you imagine any reason they won’t? Tell us. Johnny Dubya is right.
EDIT: For some bizarre reason this got posted about two and a half hours after I sent it. Thanks for the Islam explanation, and it might apply to Holland, but I don’t very much it’s going to apply to Sweden and Norway.
Thanks for the information.
There is also the consideration of legal rights for unmarried partners. As I recall, Texas changed some laws in the past decade to facilitate hospital visitations, inheritance rights, and such among unmarried people. These laws have merit beyond the application to romantic couples. Friends and siblings, for example, should also be free to make such arrangements with as few headaches as possible.
I suspect Fredo is thinking what Johnny said — in 25 years they’re going to be tossing gays off buildings in Amsterdam, never mind letting them marry.
They do look happy. So do these. And an honest gay marriage advocate has to admit that limiting a marriage to two is far more arbitrary than requiring at least one man and one woman. Really there’s no limit to the preposterous mockery of marriage that can be imagined. But one thing at a time.
On the point of PR’s post, what precisely does Mr. George propose? His suggestion that Republicans treat a pro-SSM USSC ruling as an “anti-constitutional and illegitimate ruling” is short on specifics. Does he mean:
I’m sure there are many other examples that I haven’t imagined.
Those were the same guys JoJo. And this honest gay marriage advocate doesn’t have to admit anything. I don’t know what yardstick you use to measure relative arbitrariness, but I’ve never seen such an instrument. I happen to think two, in our social, cultural and legal context, is going to be very hard to break out of, whereas I think opening up marriage to same sex couples has been quite simple, and quite painless for all except what Mencken called the “puritans” — those haunted by the fear that someone, somewhere, may be happy.
Merina, I’m actually very sympathetic to elements of the anti-SSM argument. I appreciate that people want to preserve the “sanctity of marriage” as it has been defined for countless generations. As far as your argument above goes, though, there are some real flaws with it. To take just a couple of examples: (1) People have been “claiming their own gender” – and even the pronouns they wish to be addressed by – for some time. That has nothing to do with SSM. (2) You don’t like “third party reproduction” where “kids don’t…know their mother and father”? This sounds like you oppose adoption of any kind.
But you and most of the commenters are missing the point. The original post was not asking whether or not SSM is bad. It was asking whether Republicans should take a “man the barricades” approach against SSM.
Can you honestly say that SSM opposition is a political winner? When the floodgates have already been opened? When one of the most popular TV sitcoms features an endearing, married gay couple with an adorable daughter?
I just think the anti-SSM argument is irrelevant at this point. You say SSM “is not inevitable because it is a really stupid idea”. I’m not so sure it is a stupid idea, but even if I thought it were, I would never assume that it was anything other than inevitable.
Thought experiment: Resolved: SSM is inevitable. Making that assumption, do you think Republicans should oppose it?
I fixed my link. It’s to a lesbian throuple in Massachusetts. They’re having a baby. (It’s a miracle!) One woman was married twice before she married the second one in the throuple, and then they both married the third one in their own minds though legally only the first two are married, of course. The third one who is not legally married to either is the one having their baby.
But the important thing is they are happy.
Thought experiment: Resolved: SSM is inevitable. Making that assumption, do you think Republicans should oppose it?
Yes.
Of course I lost my last job for metaphorically sticking my head into a woodchipper just like that, but there are some things you can’t go along with for expedience. If it ain’t right, it ain’t right.
I have a new way to explain adoption.
Family structure inequalities among children have risen dramatically since 1960 and continue to rise. Divorce, cohabitation, single parenting, assisted reproductive technology, etc., all contribute to the rise in family structure inequalities among children.
SSM creates another family structure inequality among children, and it expands on a pre-existing one. It creates a new inequality in the sense that it removes the limiting principle of “two”. See, for example, California’s recent three parent bill what was inspired by a lesbian marriage/custody dispute.
SSM expands on a pre-existing inequality by further legitimizing a lack of sex diversity among a child’s parents (Murphy Brown, meet Elton John).
This is a brand new framework for defending natural marriage, and so it’s probably the first time you’ve heard it explained this way.
Now we can address the inequality that you raised, namely, adoption. Why is adoption OK with natural marriage supporters? Because it was not caused by the custodial adults.Any family structure inequality not caused by the custodial adults I refer to as an “indirect inequality.” In these sorts of inequalities, custodial adults are responding to a situation outside of their control. The impetus of the inequality is not located with the custodial adults, it is located elsewhere.
The types of inequalities that are caused by SSM, I refer to as “direct inequalities”–they are caused by the custodial adults. The impetus of the inequality is located with the custodial adults, not elsewhere. Here is a chart I created to show the difference.
Examples of Direct and Indirect Family Structure Inequalities Among Children
Direct Inequalities (caused by custodial adults)
Indirect Inequalities (custodial adults are responding to a situation outside of their control)
Unilateral divorce/divorce without marital fault
Adoption
“Blended families”
Foster care
Step-parents, step-siblings, half-siblings
Death of one or both natural parents
“Intended” parents/deliberate birth certificate falsifications
Divorce with marital fault (custody goes to innocent spouse)
Child lives in more than one dwelling
Pregnancy after rape/mother keeps child
More or less than two legal parents
Donor conceived individual
Lack of parenting sex-diversity (single parenting/Murphy Brown; same-sex parenting/Elton John)
Unmarried parents
Paternity fraud
I agree that resisting the gay movement is politically unpopular. And that is unlikely to change given Republican fecklessness, the dominance of liberal entertainment, the general drift of our culture, and the inability of so many traditionalists to consider modern marital norms (marriage for affection) apart from their own place and time in human history.
But this is a “hill to die on”, I think, because what is at stake is freedom of thought. The fight isn’t really over legal benefits or opportunities. It’s an Orwellian game of usurping words and traditions as old as mankind to suit new politically correct definitions. It’s about calling “marriage” something that isn’t marriage to form a society uprooted from history, nature, and anything that gets in the way of the Utopian visions of the Left.
It’s not that we think two gay men should not be married. It’s that we think two gay men cannot be married, regardless of legal pretenses to the contrary. Activists aren’t asking us to include gays in a cultural option. They are asking us to deny reality… to publicly proclaim state-sanctioned beliefs and to deny our own.