Answering Peter Robinson on SCOTUS and Gay Marriage

 

Peter posed a question earlier today: If the Supreme Court legalizes gay marriage, how should we respond? I defer to Richard Epstein’s views on the comparison between Dred Scott, Lochner, and gay marriage. I think that Robert P. George rightly warns of the dangers of the use of the due process clause by judges to advance their personal policy preferences. There are surely similarities between the Court’s use of substantive due process in all three periods. I think that a decision imposing gay marriage on the nation incorrectly reads our constitutional structure, just as Dred Scott mistakenly interpreted the Constitution’s original understanding of federal and state control over slavery and freedom.

But there is an important difference here, one that shouldn’t affect their legal decision but will control the political response. A majority of Americans support gay marriage now, as opposed to 2008. There will be no groundswell of opposition to the Court on gay marriage in the way there was against Dred Scott.

The most there will be, I predict, will be opposition of the kind that arose in response to Roe v. Wade — gay marriage could become an important issue in debates about values and judicial appointments. But there won’t be widespread resistance and successful presidential candidates who promise to under-enforce the decision because the majority of Americans will agree with the outcome, even if they disagree with the way our society reached it.

Published in Law, Marriage
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  1. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Tom Meyer, Ed.:

    Jojo:Some people think the less distinction between genders, the better.

    Anyone on Ricochet?

    I was thinking of radical feminists and gender-weird liberals like the one I heard on the radio the other day bemoaning our evil binary gender system.  I would think full blown libertarianism carries some of that- certainly less legal distinction- but I haven’t  seen it brought up on Ricochet.

    • #31
  2. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Jojo:

    I would think full blown libertarianism carries some of that- certainly less legal distinction- but I haven’t seen it brought up on Ricochet.

    If so, I haven’t encountered it.

    I like there being two sexes and I like them being different. Makes life interesting.

    • #32
  3. Ricochet Contributor
    Ricochet
    @TitusTechera

    Tom Meyer, Ed.:

    Jojo:

    I would think full blown libertarianism carries some of that- certainly less legal distinction- but I haven’t seen it brought up on Ricochet.

    If so, I haven’t encountered it.

    I like there being two sexes and I like them being different. Makes life interesting.

    Well, consider the principle of libertarianism–individual autonomy. The individual is a sexless human, no? Freedom as libertarians understand it makes no sense if you think of women & children…

    • #33
  4. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Titus Techera:

    Tom Meyer, Ed.:

    Jojo:

    I would think full blown libertarianism carries some of that- certainly less legal distinction- but I haven’t seen it brought up on Ricochet.

    If so, I haven’t encountered it.

    I like there being two sexes and I like them being different. Makes life interesting.

    Well, consider the principle of libertarianism–individual autonomy. The individual is a sexless human, no? Freedom as libertarians understand it makes no sense if you think of women & children…

    Right.  My point was that (probably) unintentionally, SSM advocates are erasing the legal distinction between men and women in marriage.  No husband/wife, father/mother. It’s a natural result of extending an intrinsically gendered institution to couples whose genders don’t fit.  If freedom requires that same sex couples can marry, it requires that gender is irrelevant to marriage.

    • #34
  5. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Jojo:

    My point was that (probably) unintentionally, SSM advocates are erasing the legal distinction between men and women in marriage. No husband/wife, father/mother. It’s a natural result of extending an intrinsically gendered institution to couples whose genders don’t fit. If freedom requires that same sex couples can marry, it requires that gender is irrelevant to marriage.

    It simply isn’t the case that SSM is having that effect, unless you argue that the gender-neutral verbiage on your marriage license is the only way to (legally) determine a married person’s sex. Courts are still able use it — sometimes appropriately, sometimes inappropriately — in legal proceedings.

    • #35
  6. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Titus Techera:

    Well, consider the principle of libertarianism–individual autonomy. The individual is a sexless human, no? Freedom as libertarians understand it makes no sense if you think of women & children…

    I suggest you meet more libertarians.

    • #36
  7. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Tom Meyer, Ed.:

    Jojo:

    My point was that (probably) unintentionally, SSM advocates are erasing the legal distinction between men and women in marriage. No husband/wife, father/mother. It’s a natural result of extending an intrinsically gendered institution to couples whose genders don’t fit. If freedom requires that same sex couples can marry, it requires that gender is irrelevant to marriage.

    It simply isn’t the case that SSM is having that effect, unless you argue that the gender-neutral verbiage on your marriage license is the only way to (legally) determine a married person’s sex. Courts are still able use it — sometimes appropriately, sometimes inappropriately — in legal proceedings.

    It simply can’t be the case that SSM doesn’t have that effect.  A married person still has a sex, certainly.  But how could it be relevant to their legal marriage?

    • #37
  8. Ricochet Contributor
    Ricochet
    @TitusTechera

    Tom Meyer, Ed.:

    Titus Techera:

    Well, consider the principle of libertarianism–individual autonomy. The individual is a sexless human, no? Freedom as libertarians understand it makes no sense if you think of women & children…

    I suggest you meet more libertarians.

    That’s rich. It’s like liberals who do not want the gov’t to take over more & more of the private lives of the real citizens.

    Which libertarians get to define libertarianism? Does principle change because people disavow it? If you tell me something about conservatism, can I deny it by simply saying that I know conservatives who disagree?

    • #38
  9. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Tom Meyer, Ed.:

    Titus Techera:

    Well, consider the principle of libertarianism–individual autonomy. The individual is a sexless human, no? Freedom as libertarians understand it makes no sense if you think of women & children…

    I suggest you meet more libertarians.

    I would think that libertarians frown on laws that treat men and women differently- don’t they?  If not you could say so unsnarkily.

    • #39
  10. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Jojo:

    It simply can’t be the case that SSM doesn’t have that effect. A married person still has a sex, certainly. But how could it be relevant to their legal marriage?

    We’re not communicating well on this (happy to concede my own guilt in the matter). Could you be more specific about what’s lost in terms of whether it says Spouse 1/Spouse 2 on one’s marriage license as opposed to Husband/Wife?

    Of all the things that inform my (very-gendered) marriage, this doesn’t even rank.

    • #40
  11. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Jojo:

    Tom Meyer, Ed.:

    Titus Techera:

    Well, consider the principle of libertarianism–individual autonomy. The individual is a sexless human, no? Freedom as libertarians understand it makes no sense if you think of women & children…

    I suggest you meet more libertarians.

    I would think that libertarians frown on laws that treat men and women differently- don’t they? If not you could say so unsnarkily.

    Okay, snark free: what sort of laws did you have in mind?

    FWIW, I think there should only be a handful of topics where a citizen’s sex should matter before the law — e.g., family court, rape laws, etc. — and I have no problem whatsoever with courts doing so in those cases. Seems dumb not to.

    • #41
  12. Ricochet Contributor
    Ricochet
    @TitusTechera

    Jojo:

    Tom Meyer, Ed.:

    Titus Techera:

    Well, consider the principle of libertarianism–individual autonomy. The individual is a sexless human, no? Freedom as libertarians understand it makes no sense if you think of women & children…

    I suggest you meet more libertarians.

    I would think that libertarians frown on laws that treat men and women differently- don’t they? If not you could say so unsnarkily.

    The man has a right as a free individual to snark, though.

    • #42
  13. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Tom, you and your wife have genders that matter to you but they are necessarily completely irrelevant to your legal marriage, in a SSM state.  The state has decided that it does  not matter if the couple is one man and one woman, two men, or two women.  So although the participants are not genderless, the institution is genderless.  You each have many other qualities- weights, hair color, age, etc., which are irrelevant to the legal marriage.  (As long as the age is legal.)  Now gender is just like those.

    • #43
  14. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Titus Techera:

    Which libertarians get to define libertarianism? Does principle change because people disavow it?

    No, but it might suggest that you’ve misidentified the principle, or mistaken something correlated with it as being intrinsic to it. We all do this all the time (self-included).

    Could you provide an example of what you had in mind in #33?

    • #44
  15. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Jojo:Tom, you and your wife have genders that matter to you but they are necessarily completely irrelevant to your legal marriage, in a SSM state. The state has decided that it does not matter if the couple is one man and one woman, two men, or two women. So although the participants are not genderless, the institution is genderless. You each have many other qualities- weights, hair color, age, etc., which are irrelevant to the legal marriage. (As long as the age is legal.) Now gender is just like those.

    But other than this means that gay folks can marry as well, what legal effect does this have on my marriage?

    The only thing I can think of where the state would have an interest in considering our sexes within the context of our marriage is if we were — God forbid — to divorce, specifically after having kids. I see no reason why our sexes not being identified on our marriage certificate would in any way confuse the matter.

    • #45
  16. Ricochet Contributor
    Ricochet
    @TitusTechera

    Tom Meyer, Ed.:No, but it might suggest that you’ve misidentified the principle, or mistaken something correlated with it as being intrinsic to it. We all do this all the time (self-included).

    Well, that’s dreadfully vague. I might like it better than snark, but I am not as yet clear on how you see your disagreement. Isn’t liberal thinking thinking about individuals in the abstract? Is not the reality from which it abstracts the indelicate business to do with women & children? Surely, individual autonomy means nothing if women get pregnant & must deal with the consequences, while the men, no doubt, get to go around prattling about individual autonomy, ain’t it grand? We used to have words for that…

    Could you provide an example of what you had in mind in #33?

    So I went back to see what that was, what I said in #33–I’ll save you all the trouble, it’s not much–it’s what I said above. Men & women are not equal abstract individuals because of sex & children, among other things. Individual autonomy either means unsexing women, to use a famous phrase, or it is not serious.

    If you want a second thing to annoy you, think about children: You owe them a debt & they owe you a debt which was never the result of rational choice, free consent or individual autonomy. Love & marriage & children are precisely the opposite of individual autonomy.

    • #46
  17. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Titus Techera:

    Tom Meyer, Ed.:No, but it might suggest that you’ve misidentified the principle, or mistaken something correlated with it as being intrinsic to it. We all do this all the time (self-included).

    Well, that’s dreadfully vague. I might like it better than snark, but I am not as yet clear on how you see your disagreement. Isn’t liberal thinking thinking about individuals in the abstract? Is not the reality from which it abstracts the indelicate business to do with women & children? Surely, individual autonomy means nothing if women get pregnant & must deal with the consequences, while the men, no doubt, get to go around prattling about individual autonomy, ain’t it grand? We used to have words for that…

    Titus, you said that libertarianism is predicated on “The individual is a sexless human, no?” I do not believe this is correct and I am asking you for illustration.

    Titus Techera:

    If you want a second thing to annoy you, think about children: You owe them a debt & they owe you a debt which was never the result of rational choice, free consent or individual autonomy. Love & marriage & children are precisely the opposite of individual autonomy.

    I agree that libertarian analysis has very little to say about familial relations. Likewise, it has very little to say about music theory, just as Catholicism is largely silent with regard to matters of home decor. These issues are, simply, outside of the respective scopes of these philosophies.

    If you think of Libertarianism as a political philosophy that describes a preferred relationship between adult citizens and the state, you’ll find it makes a great deal of sense (which is not to say that it is correct).

    • #47
  18. Ricochet Contributor
    Ricochet
    @TitusTechera

    Tom Meyer, Ed.: Titus, you said that libertarianism is predicated on “The individual is a sexless human, no?” I do not believe this is correct and I am asking you for illustration.

    I think we are agreed that libertarianism does not talk about men or women or children, but about individuals. Now, in reality, there is no such thing: There are mothers & fathers, sons & daughters, brothers & sisters. Sex & childbirth define humanity & create bonds & limits which any account of libertarian individuality must destroy. Libertarians, when they talk about individuals, talk about freedom, that is, freedom of choice. But the fundamental things like family, faith, & country are not up for choice. nor can they ever be. All of this depends on what might seem, from the perspective of an analysis of human action in libertarianism, like a silly thing–sex. If you want the human being to be free from duties he has not freely contracted, free to choose his allegiances & relations, you have to abolish sex & procreation. This is pretty obvious reasoning…

    I agree that libertarian analysis has very little to say about familiar relations. Likewise, it has very little to say about music theory, just as Catholicism is largely silent with regard to matters of home decor. These issues are, simply, outside of the respective scopes of these philosophies.

    If you think of Libertarianism as a political philosophy that describes a preferred relationship between adult citizens and the state, you’ll find it makes a great deal of sense (which is not to say that it is correct).

    You are not talking seriously here. You are talking like children. What has Catholicism to do with wallpaper? But libertarianism, as all political philosophy, has to give a full account of human nature, or else it is lies. Perhaps your preferred lie is not ‘sexless human’, which is something only crass people would say, but ‘adult citizen’, no doubt, only when you or your favorite libertarian decide what is meant by citizen. But in reality, that citizen will have kids–& why are they his property? How does the adult citizen become an adult citizen?

    A libertarianism incompetent about that is like you saying: We’ll all be immortal & infinitely prosperous, so, quick, let’s arrange affairs, & when one asks, how do we get to infinitely prosperous immorality?, you say: Well, that’s not what we’re talking about, what are you, some kind of wallpaper-obsessed Catholic!

    • #48
  19. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “But libertarianism, as all political philosophy, has to give a full account of human nature, or else it is lies.”

    I think you are confused about what political philosophy actually is. Political philosophy is about the relation of people to the state. your objection to the political philosophy of libertarianism seems to be nothing more than it is actually a political philosophy and not a moral philosophy. Libertarianism, like all political philosophy, is not concerned with how people should act in order to live a fulfilling life. It doesn’t address eudaimonia.

    • #49
  20. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “But the fundamental things like family, faith, & country are not up for choice. nor can they ever be.”

    This is just nonsense. If you don’t have a choice about how you structure your family, what faith (if any) you believe, and how the polity in which you live should be structured what on earth do you think you should have choices in? Do you think that the most fundamental aspects of human life should be completely removed from the realm of human freedom?

    • #50
  21. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula:Titus: “But libertarianism, as all political philosophy, has to give a full account of human nature, or else it is lies.”

    I think you are confused about what political philosophy actually is. Political philosophy is about the relation of people to the state. your objection to the political philosophy of libertarianism seems to be nothing more than it is actually a political philosophy and not a moral philosophy. Libertarianism, like all political philosophy, is not concerned with how people should act in order to live a fulfilling life. It doesn’t address eudaimonia.

    This would be funny if it weren’t so silly. I am not sure which of us is silliest, but let’s try & find out–eudaimonia is the word Aristotle uses for the purpose of all human action. Aristotle also calls the political art or science the highest human art. Aristotle wrote a book of political science, the first one, as it were–he was certainly concerned with human nature in full & said ethics is a preparation for politics. I am not sure how or when political philosophy was, let’s say, castrated. Read Hobbes–political philosopher, no? Full of human nature, lets say. Are you American? Then may I recommend Locke. You could call him a Hobbesian–full of human nature. Did not Madison call gov’t the deepest reflection on human nature? When was all this lost? Do libertarians not know Locke & Smith even?

    • #51
  22. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “You are not talking seriously here. You are talking like children. What has Catholicism to do with wallpaper?”

    I think you fundamentally missed Tom’s point.

    • #52
  23. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “eudaimonia is the word Aristotle uses for the purpose of all human action.”

    That’s not correct. Eudaimonia does not refer to all human action. It refers to the concept of human flourishing. I understand you think that we are silly, but I think you’re ignorant. Perhaps if you were more familiar with the subject, you wouldn’t think our arguments are as silly as you currently do.

    • #53
  24. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “Read Hobbes–political philosopher, no? Full of human nature, lets say. Are you American? Then may I recommend Locke. You could call him a Hobbesian–full of human nature.”

    I have read both Locke and Hobbes. I would not call Locke Hobbesian. If you would, I would suggest you have not been reading either author very carefully.

    • #54
  25. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula: I would not call Locke Hobbesian. If you would, I would suggest you have not been reading either author very carefully.

    You may disagree with my understanding. But you cannot deny that Locke is the parent of liberalism & his understanding of political philosophy admits of none of the strange barriers invented now to justify the glaring gaps in the account of libertarianism given here.

    • #55
  26. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula:Titus: “eudaimonia is the word Aristotle uses for the purpose of all human action.”

    That’s not correct. Eudaimonia does not refer to all human action. It refers to the concept of human flourishing. I understand you think that we are silly, but I think you’re ignorant. Perhaps if you were more familiar with the subject, you wouldn’t think our arguments are as silly as you currently do.

    Egad. Let’s call it happiness. Aristotle starts his ethics assuming that all human actions aims at some good & that there reasonably must be an end to all the ends. That greatest end is happiness. All human action aims at some good & there is an ultimate good. That is what I meant. You may think I skipped a step or that there is a difference between ‘the purpose of all human action’ & the greatest purpose or what have you, but do not cast aspersions on my character when everyone who cares can open the first page of the book & raise an eyebrow at your moralizing.

    • #56
  27. user_653084 Inactive
    user_653084
    @SalvatorePadula

    I’ve been moralizing?

    • #57
  28. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula:Titus: “But the fundamental things like family, faith, & country are not up for choice. nor can they ever be.”
    This is just nonsense. If you don’t have a choice about how you structure your family, what faith (if any) you believe, and how the polity in which you live should be structured what on earth do you think you should have choices in? Do you think that the most fundamental aspects of human life should be completely removed from the realm of human freedom?

    For you to structure your family, first you have to be born. You are born into a family–apparently you do not think it is yours & apparently you think one structures families, which might explain how you misunderstand what you quote accurately!–& that is not your choice. In fact, the family does not choose you either. It just happens that way.

    When you quote me saying, ‘family is not up for choice’ & you answer about ‘choice about how you structure family’, I begin to suspect that you are misreading on purpose–that you are lying about what I say. So also about polity: I did not say you do not get to choose rulers or institutions or anything like that–‘structure’–I said the country itself is not up for choice. You are simply born into it. You are raised into the way of life of the people there without your choice, before you have anything like choice. That entire experience makes you a being capable of choice.

    I have said nothing about structuring families or polities. I said country & family you do not choose. I was born into a family & a country not of my choice. So was everyone I know. I assume, so were you. How is that hard to see? You might disagree that that is a very important fact. You might argue that the freedom to structure family or polity is more important than the fact I adduced. About all these things you may be right: But you are wrong about what I have said. You are not yet ready to call me ignorant-

    • #58
  29. user_331141 Inactive
    user_331141
    @JamieLockett

    Titus Techera:

     But libertarianism, as all political philosophy, has to give a full account of human nature, or else it is lies.

    Ummmm, no it doesn’t. This is the most absurd charactarization of Political Philosophy I have ever heard.

    • #59
  30. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula:I’ve been moralizing?

    See mine at #58: You call me ignorant in the act of ignoring what I actually say & responding to something I did not say, right after you quote me! If that is not moralism, I do not know what is. You may think I do not know what moralism is, & you may be right, but I do know that you quote accurately & then misinterpret in the funniest way...

    • #60
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