Contributor Post Created with Sketch. SCOTUS Mandates Same Sex Marriage Nationally (UPDATED)

 

shutterstock_141934102From the the syllabus in Obergefell v. Hodges:

The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484–486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

More:

Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation.

A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567.

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.

Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.

From Kennedy’s decision (joined by Ginsburg, Breyer, Sotomayor, and Kagan; starts on p. 6):

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex…

From their beginning to their most recent page, the annals of human history reveal the transcendent im- portance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secu- lar realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

From Chief Justice Roberts’ dissent (joined by Scalia and Thomas; starts on p. 40):

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

From Justice Scalia’s separate dissent (joined by Thomas; starts on p. 69):

I join THE CHIEF JUSTICE’s opinion in full. I write sepa- rately to call attention to this Court’s threat to American democracy.

The substance of today’s decree is not of immense per- sonal importance to me. The law can recognize as mar- riage whatever sexual attachments and living arrange- ments it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected commit- tee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

From Justice Thomas’s dissent (joined by Scalia; starts on p. 78):

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not enti- tlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

From Justice Alito’s dissent (joined by Scalia and Thomas; starts on p. 96):

Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.1 The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State…

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “‘deeply rooted in this Nation’s history and tradi- tion.’ ” Washington v. Glucksberg, 521 U. S. 701, 720–721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights.

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  1. Z in MT Member

    I urge both sides at Ricochet to maintain civility on this issue this weekend. Let the editors have a weekend to suit up for the major refereeing ahead.

    • #1
    • June 26, 2015, at 7:17 AM PDT
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  2. Leigh Member

    Well, we knew it was coming.

    • #2
    • June 26, 2015, at 7:20 AM PDT
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  3. Jamie Lockett Inactive

    Whatever you think of SSM, and everyone here knows where I stand, this was a terrible decision and the slippery slope it opens will cause a lot of trouble in the coming decades.

    The judicial route to SSM adoption was always a mistake.

    • #3
    • June 26, 2015, at 7:25 AM PDT
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  4. Shawn Buell, Jeopardy Champ! Contributor

    This is no surprise at all.

    Fortunately, this simply clears the decks politically.

    • #4
    • June 26, 2015, at 7:26 AM PDT
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  5. Shawn Buell, Jeopardy Champ! Contributor

    Jamie Lockett:Whatever you think of SSM, and everyone here knows where I stand, this was a terrible decision and the slippery slope it opens will cause a lot of trouble in the coming decades.

    The judicial route to SSM adoption was always a mistake.

    I agree that I would have preferred a legislative adoption, but the trouble is that this would have been a festering wound on the nation for years as that process ground to its inevitable conclusion.

    • #5
    • June 26, 2015, at 7:28 AM PDT
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  6. Jamie Lockett Inactive

    I disagree, it’s not like Roe v Wade cleared the decks politically or gun rights aren’t a festering divide in our politics.

    • #6
    • June 26, 2015, at 7:30 AM PDT
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  7. Casey Inactive

    Majestyk:This is no surprise at all.

    Fortunately, this simply clears the decks politically.

    Nope. It just put everything on the table. Everything is an issue now.

    Except for a few little things like immigration and an enormous debt and whatnot.

    • #7
    • June 26, 2015, at 7:30 AM PDT
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  8. Tom Meyer, Common Citizen Contributor

    Jamie Lockett:Whatever you think of SSM, and everyone here knows where I stand, this was a terrible decision and the slippery slope it opens will cause a lot of trouble in the coming decades.

    The judicial route to SSM adoption was always a mistake.

    A thousand times yes.

    • #8
    • June 26, 2015, at 7:32 AM PDT
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  9. Lensman Thatcher
    Lensman Joined in the first year of Ricochet Ricochet Charter Member

    We no longer have judges on the Supreme Court. We have Philosopher Kings. Justice Kennedy should be called “King Anthony” and C.J. Roberts should be “High King John.” Of course, the presidency has been “fundamentally transformed” and so we have Emperor Barack issuing imperial decrees and amnesties — not to mention deals made with foreign potentates without submission to the Senate for ratification.

    What are our chances of restoring constitutional government? Beats me.

    The “re-definition” (to put it kindly) of an institution that has served humanity well for over 3,000 years has been accomplished by King Anthony joining with the utopian leftists on the court.

    What part has representative government played in this? NONE.

    My conclusion is that the continued effectiveness and legitimacy of representative constitutional government is called into question by what we have seen from the Philosopher Kings in the past two days. The consequences of this arrogance will probably not be played out in any period shorter than five years.

    Ten years from now this country will not be recognizable for anyone who grew up in the post-WWII era. What will people do when they don’t think that their votes matter? What are the consequences of dividing the American people into factions (a/k/a interest groups)?

    The alternative will be a series of elections where anti-Washington sentiments drive voters to the polls to “throw the bums out.” Whether they are replaced by other “bums” will be the big question.

    • #9
    • June 26, 2015, at 7:34 AM PDT
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  10. Profile Photo Member

    Majestyk:

    Jamie Lockett:Whatever you think of SSM, and everyone here knows where I stand, this was a terrible decision and the slippery slope it opens will cause a lot of trouble in the coming decades.

    The judicial route to SSM adoption was always a mistake.

    I agree that I would have preferred a legislative adoption, but the trouble is that this would have been a festering wound on the nation for years as that process ground to its inevitable conclusion.

    Just out of curiosity, do you prefer a legislative adoption of, say, 50-state concealed carry? Even knowing full well that New York and Massachusetts will accept such a thing over their dead bodies?

    • #10
    • June 26, 2015, at 7:35 AM PDT
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  11. Shawn Buell, Jeopardy Champ! Contributor

    Jamie Lockett:I disagree, it’s not like Roe v Wade cleared the decks politically or gun rights aren’t a festering divide in our politics.

    The difference between issues like Roe or gun rights and this issue is that the Court ruled into the teeth of cultural headwinds. I don’t see this going that way, and in 5 years this won’t be an issue anymore. We may be on to some other ancillary controversy (polygamy, for instance) but this one will be over.

    Casey:

    Nope. It just put everything on the table. Everything is an issue now.

    Except for a few little things like immigration and an enormous debt and whatnot.

    I’m not sure how these are related to the topic at hand.

    • #11
    • June 26, 2015, at 7:36 AM PDT
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  12. Tom Meyer, Common Citizen Contributor

    BTW, if anyone needs it, Fred started a Friday Group Hug thread on the member feed.

    • #12
    • June 26, 2015, at 7:37 AM PDT
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  13. EJHill Podcaster
    EJHill Joined in the first year of Ricochet Ricochet Charter Member

    Rooting these kinds of “rights” in the 14th Amendment is awful judicial reasoning. Had they based a decision on the Full Faith and Credit clause they would have achieved a great deal and in the long run gotten the whole loaf.

    Nero may now marry his sister and the Caligula’s horse may rule the Senate.

    • #13
    • June 26, 2015, at 7:40 AM PDT
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  14. Herbert defender of the Realm,… Inactive

    Jamie Lockett:Whatever you think of SSM, and everyone here knows where I stand, this was a terrible decision and the slippery slope it opens will cause a lot of trouble in the coming decades….

    Whatever trouble is caused, the justices were faced with a decision of whether the 14th amendment should apply to gay citizens.

    • #14
    • June 26, 2015, at 7:40 AM PDT
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  15. Shawn Buell, Jeopardy Champ! Contributor

    Brad2971:

    Just out of curiosity, do you prefer a legislative adoption of, say, 50-state concealed carry? Even knowing full well that New York and Massachusetts will accept such a thing over their dead bodies?

    As a matter of subsidiarity I think that those states have the right to place some restrictions upon the place and manner in which arms are borne, but I do think that blanket bans upon gun ownership are flatly Unconsititutional as I think was decided in Heller.

    I do think the 14th Amendment can be fairly construed to read that marriage should be recognized across state boundaries – for good or ill.

    • #15
    • June 26, 2015, at 7:40 AM PDT
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  16. Says You Inactive

    Roosevelt’s threat to pack the court always struck me as near treasonous. With a GOP victory in 2016, not so much anymore.

    • #16
    • June 26, 2015, at 7:42 AM PDT
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  17. A-Squared Coolidge

    Majestyk:This is no surprise at all.

    Agreed. The health care decision was much easier to decide the other way. If SCOTUS is willing to ignore statutory language to further the left’s agenda, there was never any doubt they would discover a hitherto undiscovered constitutional right to force your views on the faithful since the language of the First Amendment no longer presents an obstacle to appeasing the left.

    I would hope the pro-SSM crowd will stand up for the right of the faithful in the aftermath of their complete victory, but I doubt it. As someone said in another thread, you give the left an inch and they will take a mile.

    I am not optimistic for the future of the first amendment rights in this country. But let’s be honest, they’ve been under attack for a few decades now.

    EDIT

    • #17
    • June 26, 2015, at 7:45 AM PDT
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  18. Profile Photo Member

    Frankly, this should have been a 9-0 decision, and would’ve been if it were decided at the same time Loving v Virginia was decided. Those 4 dissents, more than the actual decision itself (a fairly straightforward one, I might add), are, put together, their own festering wound.

    This sort of change needs unified consensus, a consensus that was very close to happening if it weren’t for Judge Sutton and the 6th Circuit making a hash of things.

    Furthermore, as much as conservatives get entertained over Scalia’s “scathing dissents,” this decision and its dissents have probably set back the cause of conservative jurisprudence for more than a generation.

    • #18
    • June 26, 2015, at 7:47 AM PDT
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  19. Tommy De Seno Contributor

    I’m trying to read the decision but all this sugary lovey-dovey stuff in the beginning keeps making me stop.

    My head hurts.

    To quote Tina Turner, “What’s love got to do with it?”

    • #19
    • June 26, 2015, at 7:48 AM PDT
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  20. Fricosis Guy Listener

    Anyone read the dissents?

    Scalia called it a putsch. Alito called the opinion’s logic something that “will be exploited by those who are determined to stamp out every vestige of dissent.” And Thomas simply must be read, not quoted.

    • #20
    • June 26, 2015, at 7:51 AM PDT
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  21. FloppyDisk90 Member

    This is Exhibit A that the “law” has become sufficiently complex that from a practical standpoint it is whatever the lawyers say it is.

    • #21
    • June 26, 2015, at 7:52 AM PDT
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  22. Profile Photo Member

    Fricosis Guy:Anyone read the dissents?

    Scalia called it a putsch. Alito called the opinion’s logic something that “will be exploited by those who are determined to stamp out every vestige of dissent.” And Thomas simply must be read, not quoted.

    So SCOTUS justices play to the conservative base. Who knew?

    • #22
    • June 26, 2015, at 7:54 AM PDT
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  23. Nick Stuart Inactive

    EJHill: Nero may now marry his sister and the Caligula’s horse may rule the Senate.

    Heck, Nero can marry Caligula’s horse and Caligula can marry the Senate. Why not? Who are we to limit love?

    • #23
    • June 26, 2015, at 7:56 AM PDT
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  24. Fricosis Guy Listener

    Preview of first SCOTUS visit to the next administration.

    • #24
    • June 26, 2015, at 7:58 AM PDT
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  25. A-Squared Coolidge

    FloppyDisk90:This is Exhibit A that the “law” has become sufficiently complex that from a practical standpoint it is whatever the lawyers say it is.

    Agreed. We replaced “Rule of Law” with “Rule by Lawyers” a few decades ago.

    Yesterday’s ruling simply cemented the view that what the law says doesn’t matter, what matters is, what the judges want.

    What was Stalin’s quote, ” The people who cast the votes decide nothing. The people who count the votes decide everything.” The SCOTUS version now says “The people who write the laws decide nothing. The people who interpret the laws decide everything.”

    • #25
    • June 26, 2015, at 7:58 AM PDT
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  26. DrewInWisconsin, Ham-Fisted Bu… Coolidge

    Lensman:What part has representative government played in this? NONE.

    Very true. As we know, every time the vote was put to the citizens, the citizens voted against it. Even in California. Activist judges regularly overturned the will of the people.

    Religious liberty must be protected now, more than ever.

    Of course, I don’t trust anyone in Washington to help protect us anymore.

    • #26
    • June 26, 2015, at 7:59 AM PDT
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  27. Aaron Miller Member
    Aaron Miller Joined in the first year of Ricochet Ricochet Charter Member

    To my SSM-supporting friends:

    If traditionalists are persecuted and naysayers censored as we predicted, I will not resent you for your mistaken judgments. But I hope that you will be ready to defend us if such injustices arise.

    The consequences of this will stretch far beyond legal disputes. Employers, service providers, universities, and many other forces will do what they can to establish the new norms.

    • #27
    • June 26, 2015, at 8:00 AM PDT
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  28. Titus Techera Contributor

    Says You:Roosevelt’s threat to pack the court always struck me as near treasonous. With a GOP victory in 2016, not so much anymore.

    The Congress really does have the Constitutional power to set the number of justices. I’d say seven is a better number than nine–it has changed in time–but nine will do. But FDR could ask the Congress to do it & the Congress might have done it had he not been so uncharacteristically inept.
    Of course, some dislike the very notion that a president could ask that of the Congress with assurance of success: Repeal party government & you’ll be fine. Unfortunately, parties are extra-constitutional, so it’s not going to be easy-

    • #28
    • June 26, 2015, at 8:03 AM PDT
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  29. Austin Murrey Inactive

    Does anyone else find Roberts’ statement that the Supreme Court is not a legislature ironic in the face of King v. Burwell or is it just me?

    As for those not thinking this ruling is a big deal, I agree that the fact of gay marriage will likely not be a major issue in and of itself, the reasoning behind this ruling, the disparate impact ruling and King v. Burwell are a major problem, and people will curse Obergefell v. Hodges the same way they curse Kelo or Dred Scott.

    The fact that Obergefell is seemingly germanic and German is by far the best language for swearing is the only upside.

    • #29
    • June 26, 2015, at 8:07 AM PDT
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  30. Merina Smith Inactive

    Majestyk:

    Jamie Lockett:I disagree, it’s not like Roe v Wade cleared the decks politically or gun rights aren’t a festering divide in our politics.

    The difference between issues like Roe or gun rights and this issue is that the Court ruled into the teeth of cultural headwinds. I don’t see this going that way, and in 5 years this won’t be an issue anymore. We may be on to some other ancillary controversy (polygamy, for instance) but this one will be over.

    Casey:

    Nope. It just put everything on the table. Everything is an issue now.

    Except for a few little things like immigration and an enormous debt and whatnot.

    I’m not sure how these are related to the topic at hand.

    In your dreams this won’t be an issue in 5 years. It will be even more of an issue. This will never go away. It will tear the country apart and destroy every freedom.

    • #30
    • June 26, 2015, at 8:09 AM PDT
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