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.

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  1. Nick Stuart Inactive
    Nick Stuart
    @NickStuart

    Stipulating ad arguendo that same sex marriage will be forced down on us by judicial ukase like abortion, and that “the majority of Americans will agree with the outcome, even if they disagree with the way our society reached it.”

    What happens to the businessperson who refuses on conscientious grounds to furnish services to a SSM event (e.g. the bakers, caterers, photographers who’ve been in the news, some of whom have been heavily penalized by the state for their stance)?

    Unlike abortion, where you can’t (yet anyway) be forced to perform one if you disapprove, evidently you can be forced to perform services for a SSM event regardless of your convictions.

    Will ministers be subject to government-imposed sanction for reading black letter text from the Bible (e.g. Romans Chapter 1) from the pulpit as they may be in some other countries?

    Hopefully Prof. Yoo will give us the benefit of his considered speculation on where this is headed for people of faith.

    • #1
  2. Instugator Thatcher
    Instugator
    @Instugator

    What Nick Stuart said – THAT is the policy question of the century; Will this country undo more than 2 millenia of the freedom of conscience – culminating in the 1st Amendment to US constitution.

    • #2
  3. user_836033 Member
    user_836033
    @WBob

    There won’t be successful presidential candidates who are against gay marriage? You mentioned that the Republican opposition will be of the kind that characterizes Roe v. Wade. But you cannot get the Republican nomination if you’re not against Roe v Wade. Are you saying there will be no more Republican presidents? I think you are confusing a majority for a consensus. The court rulings that enshrined civil rights were quickly ratified by Congress because there was more or less a consensus throughout the country on that issue. That was never the case with abortion, and it will not be with gay marriage either.

    And by the way for many years the majority of Americans were moderately pro-choice. In the last year or two that changed. The majority is now pro-life.

    • #3
  4. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    I have a suggestion:

    If the court rules against traditional marriage, seek to pass a constitutional amendment clarifying that marriage is between a man and woman. That the pro-SSM side did not seek that remedy speaks very badly of it, but that’s water under the bridge at this point.

    What the heck ever happened to constitutional amendments, anyway?

    • #4
  5. x Inactive
    x
    @CatoRand

    Bob W:There won’t be successful presidential candidates who are against gay marriage?You mentioned that the Republican opposition will be of the kind that characterizes Roe v. Wade. But you cannot get the Republican nomination if you’re not against Roe v Wade. Are you saying there will be no more Republican presidents? I think you are confusing a majority for a consensus.The court rulings that enshrined civil rights were quickly ratified by Congress because there was more or less a consensus throughout the country on that issue.That was never the case with abortion, and it will not be with gay marriage either.

    And by the way for many years the majority of Americans were moderately pro-choice.In the last year or two that changed.The majority is now pro-life.

    Wow, you don’t remember the 60s and 70s very well, do you?

    • #5
  6. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Bob: “The majority is now pro-life.”

    From what I’ve read it depends upon how you frame the question. It is true that most Americans favor substantially greater restrictions on abortion than does the Democratic Party, but I’m unaware of any conclusive evidence that a majority of Americans are pro-life in the sense that they oppose all abortions not necessary to preserve the life of the mother.

    • #6
  7. x Inactive
    x
    @CatoRand

    Tom Meyer, Ed.:I have a suggestion:

    If the court rules against traditional marriage, seek to pass a constitutional amendment clarifying that marriage is between a man and woman. That the pro-SSM side did not seek that remedy speaks very badly of it, but that’s water under the bridge at this point.

    What the heck ever happened to constitutional amendments, anyway?

    I don’t think that’s right Tom.  Marriage is almost entirely a state issue and there’s nothing in the Constitution to amend to permit SSM.  You can certainly make an argument that it isn’t constitutionally mandated, but there isn’t really a serious argument (or any argument that I’ve ever heard) that it’s constitutionally barred.  What would the pro-SSM side’s amendment say?  And why wouldn’t they just seek it in state legislatures instead?

    • #7
  8. Matede Inactive
    Matede
    @MateDe

    Sal, there is a lot of deception and ignorance on the subject of abortion. Many people who hold pro choice positions have not really thought their position through and the media never report some of the consequences of abortion ie: the Gosnell case which the media deliberately ignored due to the questions it would have raised about abortion and there are others.
    I think the courts taking such a massive moral issue away from the voters has been a huge negative in this country, in many countries where abortioin is legal it was voted on by the people so it isn’t such a hot button issue, many folks don’t like it but understand that it is the will of the people. why would the courts want to create another social dividing line in this country?
    Best for them to kick it back to the states.

    • #8
  9. iDad Inactive
    iDad
    @iDad

    This is an honest inquiry.

    I keep reading that “the majority of Americans support same sex marriage.”  But if I recall correctly, there are only eleven states that have adopted SSM by vote.  In every other case where SSM “is the law,” it’s been as a result of a court decision, often overturning a statute or state constitutional amendment defining marriage as involving a man and a woman.

    What is the basis for the claim that a majority of Americans favor same sex marriage?  Is there evidence to the contrary?

    • #9
  10. x Inactive
    x
    @CatoRand

    iDad:This is an honest inquiry.

    I keep reading that “the majority of Americans support same sex marriage.” But if I recall correctly, there are only eleven states that have adopted SSM by vote. In every other case where SSM “is the law,” it’s been as a result of a court decision, often overturning a statute or state constitutional amendment defining marriage as involving a man and a woman.

    What is the basis for the claim that a majority of Americans favor same sex marriage? Is there evidence to the contrary?

    The basis is polling, the majority is fairly slim, but it’s been there for a couple of years or so.  I’m not sure when the last vote against SSM was, but it’s much longer ago than that.  Taken all together, the available evidence seems to suggest that public opinion has changed rapidly towards approval over the last ten years or so and that there is now a slim national majority in favor.  Of course that does not mean that there aren’t states or regions with majorities still opposed.

    • #10
  11. MJBubba Inactive
    MJBubba
    @MJBubba

    Tom Meyer, Ed.:I have a suggestion:

    If the court rules against traditional marriage, seek to pass a constitutional amendment clarifying that marriage is between a man and woman. That the pro-SSM side did not seek that remedy speaks very badly of it, but that’s water under the bridge at this point.

    What the heck ever happened to constitutional amendments, anyway?

    Establishment Republicans went into overdrive to halt a brewing effort to press for a marriage amendment in the early 1990s.   The passage of DOMA was billed as the only thing we would need in order to protect marriage in the states that did not want same-sex “marriage.”   All subsequent talk of a marriage amendment was shouted down by pointing to DOMA.

    Us Social Conservatives who remember those days do not trust the Establishment Squish types.   We don’t trust you Libertarians either; you obviously were not paying attention when that went down.

    • #11
  12. Ricochet Inactive
    Ricochet
    @RobertMcReynolds

    Cato Rand:

    iDad:This is an honest inquiry.

    I keep reading that “the majority of Americans support same sex marriage.” But if I recall correctly, there are only eleven states that have adopted SSM by vote. In every other case where SSM “is the law,” it’s been as a result of a court decision, often overturning a statute or state constitutional amendment defining marriage as involving a man and a woman.

    What is the basis for the claim that a majority of Americans favor same sex marriage? Is there evidence to the contrary?

    The basis is polling, the majority is fairly slim, but it’s been there for a couple of years or so. I’m not sure when the last vote against SSM was, but it’s much longer ago than that. Taken all together, the available evidence seems to suggest that public opinion has changed rapidly towards approval over the last ten years or so and that there is now a slim national majority in favor. Of course that does not mean that there aren’t states or regions with majorities still opposed.

    So if polling is the only measuring stick to be used, and actual elections in states are to be ignored (California and Oregon are pretty good examples), how are we to quantify the results of these polls as being equal to the whole?  Polling is merely a way to get a read on an issue/question at a specific time.  My recollection is that the polling has slightly been in favor of homosexual marriage since 2011 yet during this same time every time it has been up for a vote, with few exceptions, it has failed.

    I guess my question is that if the attitudes of people have changed on this subject, why can’t those states that voted against SSM reverse these votes through the ballot box instead of requiring the tyranny of the courts to do it?

    Edit:  Luckily I did not post this before looking:  polling history from Gallup.

    • #12
  13. x Inactive
    x
    @CatoRand

    Robert McReynolds:

    Cato Rand:

    I guess my question is that if the attitudes of people have changed on this subject, why can’t those states that voted against SSM reverse these votes through the ballot box instead of requiring the tyranny of the courts to do it?

    They can, of course, and it would be better if they did.

    • #13
  14. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Cato Rand:

    I don’t think that’s right Tom. Marriage is almost entirely a state issue and there’s nothing in the Constitution to amend to permit SSM. You can certainly make an argument that it isn’t constitutionally mandated, but there isn’t really a serious argument (or any argument that I’ve ever heard) that it’s constitutionally barred. What would the pro-SSM side’s amendment say?

    Voting was overwhelming a state issue prior to the 19th amendment (and still is). My preference would have been for state-constitutional amendments followed by — perhaps — a federal one in the mold of suffrage.

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

    MJBubba:

    Us Social Conservatives who remember those days do not trust the Establishment Squish types. We don’t trust you Libertarians either; you obviously were not paying attention when that went down.

    Wait… pushing for a constitutional amendment that requires supermajorities of the states to ratify is less preferable than judicial imposition?

    I am I missing something?

    • #15
  16. user_86050 Inactive
    user_86050
    @KCMulville

    Reading Robert Bork’s The Tempting of America years ago forever left me opposed to any notion of using the due process clause as the vehicle for advancing political agendas. The decision in the gay marriage case uses that same vehicle when it claims that any opposition to SSM must be based on an irrational animus. Using the power of the Court to decide how the country treats moral issues is what infuriates me about the legal system.

    Critics may claim that you can’t legislate morality, but who cares when you can simply adjudicate it instead?

    • #16
  17. x Inactive
    x
    @CatoRand

    KC Mulville:Reading Robert Bork’s The Tempting of America years ago forever left me opposed to any notion of using the due process clause as the vehicle for advancing political agendas. The decision in the gay marriage case uses that same vehicle when it claims that any opposition to SSM must be based on an irrational animus. Using the power of the Court to decide how the country treats moral issues is what infuriates me about the legal system.

    Critics may claim that you can’t legislate morality, but who cares when you can simply adjudicate it instead?

    I believe the current arguments are based on equal protection, not due process.  I doubt you like it any better, but it does make more sense.

    • #17
  18. user_86050 Inactive
    user_86050
    @KCMulville

    Cato Rand:

    I believe the current arguments are based on equal protection, not due process. I doubt you like it any better, but it does make more sense.

    Bork’s argument was that the due process and equal protection clauses, used together, form a legal hammer that can drive any nail.

    Once you use the idea that although the Constitution doesn’t specify certain rights but it guarantees them anyway, and … of course … that it’s up to the Court to decide what those mysterious rights really are, then you’ve handed the Court a blank check. And in these cases, the Court has used them that way.

    The idea that gays have an “equal” right to marriage follows only after the notion that you have a right to marriage in the first place … in the sense that you have a right to define what marriage is, privately. You do not. The Court is claiming that it has the right to say what marriage is. It does not.

    The fulcrum of the issue is whether marriage is, or is not, a public institution. It isn’t a private contract, and so individuals don’t have the right to say what it is, or individually set the terms of it. And there is simply no question that historically, that public institution has always been opposite sex. Justice Kennedy may not like the fact that it’s always been that way, but whatever your rights are concerning marriage, it has always been rights regarding an institution that has been opposite sex. That is what you have rights to. The only way to claim otherwise is to assert that opposite sex was never part of the substance of the institution, a claim that is laughable.

    • #18
  19. x Inactive
    x
    @CatoRand

    KC Mulville:

    Cato Rand:

    I believe the current arguments are based on equal protection, not due process. I doubt you like it any better, but it does make more sense.

    Bork’s argument was that the due process and equal protection clauses, used together, form a legal hammer that can drive any nail.

    Once you use the idea that although the Constitution doesn’t specify certain rights but it guarantees them anyway, and … of course … that it’s up to the Court to decide what those mysterious rights really are, then you’ve handed the Court a blank check. And in these cases, the Court has used them that way.

    The idea that gays have an “equal” right to marriage follows only after the notion that you have a right to marriage in the first place … in the sense that you have a right to define what marriage is, privately. You do not. The Court is claiming that it has the right to say what marriage is. It does not.

    The fulcrum of the issue is whether marriage is, or is not, a public institution. It isn’t a private contract, and so individuals don’t have the right to say what it is, or individually set the terms of it. And there is simply no question that historically, that public institution has always been opposite sex. Justice Kennedy may not like the fact that it’s always been that way, but whatever your rights are concerning marriage, it has always been rights regarding an institution that has been opposite sex. That is what you have rights to. The only way to claim otherwise is to assert that opposite sex was never part of the substance of the institution, a claim that is laughable.

    I’ve read the book (20 years or more ago) and given it’s role in shaping conservative legal thinking, trust me, I’m familiar with it.  And I acknowledged that you weren’t going to like my answer.  Nonetheless, as a matter of Constitutional hygiene, I’m pleased that in some cases we’ve at least started talking about right questions.  Asking this question as an equal protection question at least frames it in a way that it makes sense to discuss — whatever your preferred answer.  Asking it as a due process question is just a bizarre non-sequitur.

    • #19
  20. Ricochet Contributor
    Ricochet
    @TitusTechera

    Robert McReynolds:So if polling is the only measuring stick to be used, and actual elections in states are to be ignored (California and Oregon are pretty good examples), how are we to quantify the results of these polls as being equal to the whole? Polling is merely a way to get a read on an issue/question at a specific time. My recollection is that the polling has slightly been in favor of homosexual marriage since 2011 yet during this same time every time it has been up for a vote, with few exceptions, it has failed.

    I have two suggestions about your difficulty here: I think you may underestimate how important majority opinion, however arrived at, is to American politics, because Americans believe they’re democrats.

    I guess my question is that if the attitudes of people have changed on this subject, why can’t those states that voted against SSM reverse these votes through the ballot box instead of requiring the tyranny of the courts to do it?

    To go on, because of how democracy equalizes opinion–everyone has an opinion in the polls & at the polls–conflicts tend to be legislated, not to say constitutionalized. Politics is replaced by administration of rights.

    Of course, this is not a counsel of despair. Fight the fight, there is a good chance people who get that community & marriage should be restored rather than defined out of existence will win. But the fight has got to be a fight against democratic individualism–let’s say, the order of business should Tocqueville first, the partisan fight second.

    Conservatives tried to do the political work & get Roe repealed by SCOTUS, but they soon learned that something had changed since they started trying: More individualism–I guess, it’s called libertarianism–had come & Mr. Individual Autonomy himself betrayed the cause. If it’s any comfort, Justice Kennedy seems to be the only man in American politics called Kennedy to ruin his nation on principle-

    • #20
  21. Larry3435 Member
    Larry3435
    @Larry3435

    Watching this debate over the last ten years has been both enlightening and depressing.  It is an object lesson in how conservatives lose political arguments by talking to each other only, and giving no thought to how their arguments affect the unconvinced.  Starting from a point of almost 100% of opposition to SSM, conservatives have lost the argument in record time.

    On those rare occasions when the left chooses to argue that the rights of individuals should trump government control and social engineering, the left is remarkably good at it.  If only our side could do it as effectively.  If only the left would apply that principle somewhere other than in the bedroom.  If only…

    • #21
  22. Ricochet Contributor
    Ricochet
    @TitusTechera

    Larry3435: this debate…is an object lesson in how conservatives lose political arguments by talking to each other only, and giving no thought to how their arguments affect the unconvinced. Starting from a point of almost 100% of opposition to SSM, conservatives have lost the argument in record time.

    I disagree. Same-sex marriage is popular because people are turning, as they say, libertarian. Of course, conservatives have done very badly. But it is very difficult to argue. The best conservative policy & execution might have made no difference. Democracy is progressing into God knows what.

    I am for every fight likely of success & many unlikely, including this one. But I have no doubt that most people really will think, homosexual marriage, sure, why not? Who am I to decide the meaning of marriage, opinions differ, live & let marry, & it neither picks my pocket nor breaks my leg…

    • #22
  23. Ricochet Inactive
    Ricochet
    @SoDakBoy

    Yes, there is a small majority that thinks SSM should be legal, but I believe this is because so many people just want the issue to go away.  They personally disagree with it, but not enough to want to continue the disruptive fight against it.

    Unfortunately this issue is not going to go away.  Every time a woman’s membership to a health club is cancelled because she doesn’t want a “woman with a penis” in the woman’s locker room, the scab will be picked off.  Every Christian who loses a job or business because they refuse to endorse homosexuality (not just tolerate, but endorse), the scab will be picked off.  Here in MN, the high school sports league recently mandated that boys and girls can play sports and use the locker facilities according to their feelings, not their anatomy.  A friend of mine runs a photography business but will not shoot weddings for obvious reasons.  The list of unintended consequences will go on and on and on.  For years and years and years.

    If I am right that the majority of people don’t really agree with SSM, but are willing to capitulate just so the issue goes away, then this “majority” are going to be very disappointed in the outcome.  There will be constant reminders that their “realpolitik” in the culture wars did not go as planned.

    • #23
  24. x Inactive
    x
    @CatoRand

    SoDakBoy:Yes, there is a small majority that thinks SSM should be legal, but I believe this is because so many people just want the issue to go away. They personally disagree with it, but not enough to want to continue the disruptive fight against it.

    Unfortunately this issue is not going to go away. Every time a woman’s membership to a health club is cancelled because she doesn’t want a “woman with a penis” in the woman’s locker room, the scab will be picked off. Every Christian who loses a job or business because they refuse to endorse homosexuality (not just tolerate, but endorse), the scab will be picked off. Here in MN, the high school sports league recently mandated that boys and girls can play sports

    If I am right that the majority of people don’t really agree with SSM, but are willing to capitulate just so the issue goes away, then this “majority” are going to be very disappointed in the outcome. There will be constant reminders that their “realpolitik” in the culture wars did not go as planned.

    Probably the biggest problem with your analysis is that even the people who are legitimately aggrieved — the occasional florist or photographer, maybe the woman with the health club issue (although I’m not sure where she got the right to set the club’s rules or how oppressive it is to expect her to go elsewhere if she doesn’t like them) — are vanishingly rare.  SSM is now legal in most of the country and you can count the number of stories of tangible injury on your fingers.  These stories are only common knowledge because we have an outrage industry dedicated to finding them and publicizing them, not because they are happening all the time, everywhere, to everybody.  Even acknowledging the occasional overreach and the harm it does, the fact is that SSM has great public benefits for millions, its harms are very rare, and even those rare harms that are real are avoidable by less restrictive means than banning SSM.

    For those reasons, I predict that your prediction will look silly ten years from now.

    • #24
  25. user_130720 Member
    user_130720
    @

    Tom Meyer, Ed.:What the heck ever happened to constitutional amendments, anyway?

    When SCOTUS ‘discovered’ that by a mere 5 votes they could create “emend-ments” by decision there was no longer any need for Article V. It’s kinda like the Boehner Republicans discovery that a blue dress had effectively erased Article II Section 4.

    These discoveries become effective when met by the public not with bangs or even whimpers but with absolute indifference.

    • #25
  26. Ricochet Inactive
    Ricochet
    @SoDakBoy

    Cato Rand:

    For those reasons, I predict that your prediction will look silly ten years from now.

    Yes, just like gay marriage looked silly until yesterday.  That is to say, it didn’t look silly to the very small minority of people that it affected, but it did to everyone else.

    “Outrage industry”?  Can you seriously use this term as a disparagement against those on the anti-SSM side of the equation?  Can you not see that the pro-SSM forces have largely won by strategically highlighting sob stories from your own tribe?

    • #26
  27. Jojo Inactive
    Jojo
    @TheDowagerJojo

    There will be cultural changes most casual supporters don’t forsee, and about which even vigorous supporters are in denial.  Marriage and parenthood will necessarily become- are already becoming- legally genderless. It was bitterly humorous how upset the Ricochet SSM supporters were when Jennifer took the name “Parent A.”  What the effect of that is, hard to say.  Some people think the less distinction between genders, the better.  I can’t say I’m in favor of going the Saudi Arabia route, but I don’t think the sexes are interchangeable. I liked being “mother” not “Parent A” on my children’s birth certificate.

    • #27
  28. x Inactive
    x
    @CatoRand

    SoDakBoy:

    Cato Rand:

    For those reasons, I predict that your prediction will look silly ten years from now.

    Yes, just like gay marriage looked silly until yesterday. That is to say, it didn’t look silly to the very small minority of people that it affected, but it did to everyone else.

    “Outrage industry”? Can you seriously use this term as a disparagement against those on the anti-SSM side of the equation? Can you not see that the pro-SSM forces have largely won by strategically highlighting sob stories from your own tribe?

    The “outrage industry” as I used the term isn’t limited to anti-SSM forces.  It’s become an indispensable part of our public discourse on just about everything.  But the anti-SSM forces certainly have their hand in that pie, and their habit of trotting out the same stories over and over about the photographer in New Mexico and the baker in Oregon is an excellent example of the genre.

    And by the way, no, I can’t think of a comparable pro-SSM exemplar.  The denial of the right to marry actually effects millions of people, not a handful, and I can’t think of anybody who’s been cherry picked as especially aggrieved and held up as a public example in anything like the way your photographer and your baker have been.

    • #28
  29. x Inactive
    x
    @CatoRand

    Jojo:There will be cultural changes most casual supporters don’t forsee, and about which even vigorous supporters are in denial. Marriage and parenthood will necessarily become- are already becoming- legally genderless. It was bitterly humorous how upset the Ricochet SSM supporters were when Jennifer took the name “Parent A.” What the effect of that is, hard to say. Some people think the less distinction between genders, the better. I can’t say I’m in favor of going the Saudi Arabia route, but I don’t think the sexes are interchangeable. I liked being “mother” not “Parent A” on my children’s birth certificate.

    I know I couldn’t sleep for weeks.  But I’ve been getting therapy, and I’m learning to live with it.

    • #29
  30. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

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

    Anyone on Ricochet?

    • #30
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