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. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    How many cakes am I going to be ordered to bake now?

    • #31
  2. user_836033 Member
    user_836033
    @WBob

    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.

    Majestyk, it may be over but that’s only if you have a short time horizon.  In the long sweep of human history, viewed in millennia and tens of millennia, SSM will be looked back upon as a foot note, if it’s remembered at all.  It will recalled as a brief experiment during a time characterized by a unusually large degree of luxury and relative peace which enabled people to live in a fantasy world divorced from the exigencies of human nature and empirical reality.

    • #32
  3. FloppyDisk90 Member
    FloppyDisk90
    @FloppyDisk90

    Aaron Miller: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.

    Definitely.  And let this be a lesson to you that that which you cede to the state can be destroyed by the state.

    • #33
  4. Asquared Inactive
    Asquared
    @ASquared

    Tommy De Seno: How many cakes am I going to be ordered to bake now?

    It’s worse than that.  You will be forced to bake a cake, and then forced to accept its return and “eat” the loss when the bride (is that word even allowed now) learns you are a Christian and refuses to eat the cake s/he forced you to bake against your will in the first place.

    • #34
  5. Casey Inactive
    Casey
    @Casey

    Majestyk:

    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.

    Issues that are legitimately a function a government are being squeezed out by fly-by-night hot potatoes.

    • #35
  6. user_998621 Member
    user_998621
    @Liz

    Austin Murrey: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.

    “Just who do we think we are?”

    First thought: “A bit rich, coming from you, CJ Roberts.”

    • #36
  7. user_989419 Inactive
    user_989419
    @ProbableCause

    I think the takeaway from this and King v. Burwell, is that there is no such thing as a “state.”

    • #37
  8. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Circles are squares.  Right angles be damned.

    • #38
  9. Asquared Inactive
    Asquared
    @ASquared

    Tommy De Seno: Circles are squares.  Right angles be damned.

    Hey, what did I ever do to you to warrant that kind of abuse?

    • #39
  10. Casey Inactive
    Casey
    @Casey

    Bob W:

    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.

    SSM will be looked back upon as a foot note

    But the powers turned over to government will remain.

    • #40
  11. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Asquared:

    Tommy De Seno: Circles are squares. Right angles be damned.

    Hey, what did I ever do to you to warrant that kind of abuse?

    HaHa!

    All your 90 degrees are no longer recognized.  If Anthony Kennedy says you’re a circle, you’re a circle!

    • #41
  12. user_473455 Inactive
    user_473455
    @BenjaminGlaser

    In the coming days and weeks I personally look forward to the think pieces from folks at places like National Review who will go back into the archives and pull out some old articles pushing the John Birchers out of conservatism and just re-titling and changing some names and words to send the pro-traditional marriage folks out of the “movement”, labeling us as the equivalents of racists and bigots.

    The younger set at National Review have already begun this on Twitter (go read Katherine Timpf’s feed for an example) and soon it will follow in the editorials of the magazine.

    But make sure to vote GOP in 2016.

    • #42
  13. tom Member
    tom
    @TomGarrett

    The great failure of contemporary media is to conflate ideological argument with judicial argument.

    Your run-of-the-mill journalist isn’t bright enough to explain the distinction in a meaningful way, and most of the ones intelligent enough to do so are not s0 disposed because doing so would undermine the advancement of their chosen political outcomes.

    We have reached a point where this sort of thinking has permeated the judiciary.  Many of the district-court decisions that led us, ultimately, to today are written as if feelings are literally the basis of the dispositive inquiry into what the law should be.

    People speak of polygamy as the next frontier, and, of course, it is.  But I look beyond that inevitability.

    A “right to education” has been rejected—narrowly—but that was more than a generation ago.  Will we revisit that topic?  And how long before health care is also marketed as a constitutional right?  Or the government failing to prevent a certain level of income inequality is seen as an EPC violation?

    I’m not partial to the slippery slope, but activists have drawn up a winning blueprint that turned a novel legal theory limited to a few law journals into a victorious argument at the SCotUS level in less than two decades.

    It also convinced opponents that those of us saying, “Want SSM?  OK.  Pass a law.” were definitionally bigots.  Bigots!

    I worry where this weapon will next be deployed.

    • #43
  14. user_44643 Inactive
    user_44643
    @MikeLaRoche

    There is but one solution: secede.

    • #44
  15. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Tom Garrett:The great failure of contemporary media is to conflate ideological argument with judicial argument.

    I’ve been trying to formulate this elegant and sublime thought for decades.

    Where the hell have you been, man?

    This is a huge problem in the USA.

    • #45
  16. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Mike LaRoche:There is but one solution: secede.

    They killed the last guys that tried and banned their flag 150 years later.

    • #46
  17. Ricochet Inactive
    Ricochet
    @MattUpton

    DrewInWisconsin: Religious liberty must be protected now, more than ever.

    In hindsight, conservative state legislatures should have quickly shifted from SSM bans to religious protection provisions once judges started overturning state amendments. Winds on this issue shifted quickly, but I think few realized just how quickly.

    At this point I’m just waiting for the serious effort to strip religious non-profit status for any church that refuses to host gay weddings, Christian schools that teach anything construed as sexual orientation discrimination, etc. I don’t know if these particular institutions are open to serious lawsuits, but I know how much the federal government loves to apply pressure through federal funds and the tax code. (See medicaid expension, transgendered bathrooms in elementary schools).

    EDIT: Note that RFRA legislation did come in several states, but already at the point when there when the SSM fervor made it impossible to get a fair view. Add in governors who can’t be bothered to articulate a defense of provision that simply allows citizens to defend themselves on religious grounds, and the legislation just added fuel to the fire.

    • #47
  18. user_44643 Inactive
    user_44643
    @MikeLaRoche

    Tommy De Seno:

    Mike LaRoche:There is but one solution: secede.

    They killed the last guys that tried and banned their flag 150 years later.

    Better to die on my feet than live on my knees.

    • #48
  19. Asquared Inactive
    Asquared
    @ASquared

    Mike LaRoche:

    Tommy De Seno:

    Mike LaRoche:There is but one solution: secede.

    They killed the last guys that tried and banned their flag 150 years later.

    Better to die on my feet than live on my knees.

    There is a non-CoC compliant joke here somewhere.

    • #49
  20. Bartholomew Xerxes Ogilvie, Jr. Coolidge
    Bartholomew Xerxes Ogilvie, Jr.
    @BartholomewXerxesOgilvieJr

    Austin Murrey: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?

    When I read that line, my reaction was “Did he really just say that? Seriously?”

    “Ironic” is not the word I would choose. “Hypocritical” is closer to the mark.

    • #50
  21. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Mike LaRoche:

    Tommy De Seno:

    Mike LaRoche:There is but one solution: secede.

    They killed the last guys that tried and banned their flag 150 years later.

    Better to die on my feet than live on my knees.

    You can’t die we need every last man… the government just ordered us to bake thousands of cakes.

    • #51
  22. Casey Inactive
    Casey
    @Casey

    Asquared:

    Mike LaRoche:

    Tommy De Seno:

    Mike LaRoche:There is but one solution: secede.

    They killed the last guys that tried and banned their flag 150 years later.

    Better to die on my feet than live on my knees.

    There is a non-CoC compliant joke here somewhere.

    It’s killing me!

    • #52
  23. Ricochet Moderator
    Ricochet
    @OmegaPaladin

    Brad2971: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.

    I have a simple question for you: Why?  Why must this be a unanimous decision?

    Do you actually think that 9-0 would convince people to abandon deeply held beliefs and hop on board the social justice bandwagon?  Or does it offend you that someone has the impertinence to disagree with you?

    And how would a unanimous decision advance conservative jurisprudence, other than making it identical to liberal jurisprudence?

    • #53
  24. Fricosis Guy Listener
    Fricosis Guy
    @FricosisGuy

    Matt Upton:

    DrewInWisconsin: Religious liberty must be protected now, more than ever.

    I don’t know if these particular institutions are open to serious lawsuits, but I know how much the federal government loves to apply pressure through federal funds and the tax code. (See medicaid expension, transgendered bathrooms in elementary schools).

    One cannot serve two masters.

    Want to suckle on the government teat? Then expect to do it on Uncle Sugar’s terms.

    • #54
  25. Pseudodionysius Inactive
    Pseudodionysius
    @Pseudodionysius

    Z in MT: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.

    • #55
  26. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    And because we kept them out of the church now we have to see all their weddings outside.

    That kind of backfired.

    Oh wait… the church is next, isn’t it?

    • #56
  27. Ricochet Member
    Ricochet
    @

    Mike LaRoche:

    Tommy De Seno:

    Mike LaRoche:There is but one solution: secede.

    They killed the last guys that tried and banned their flag 150 years later.

    Better to die on my feet than live on my knees.

    Again, enjoy your onerous oil tariff.

    • #57
  28. Ricochet Inactive
    Ricochet
    @SoDakBoy

    Tom Garrett: The great failure of contemporary media is to conflate ideological argument with judicial argument.

    Exactly!  One person decided this for the entire country.  Again!

    I’m going to order my Rosetta Stone course to learn Australian now.

    • #58
  29. user_836033 Member
    user_836033
    @WBob

    This case raises a question I’ve never really understood the answer to.

    I can understand how the courts have power to override legislatures in cases that involve unconstitutional civil and criminal laws.  This power is necessarily a result of the simple fact that defendants have a right to trial and due process.  If prosecuted under a law a court considers constitutionally invalid, the court throws it out, effectively “overturning” the law by acquitting  the defendant.  An unprosecutable law is effectively void, because a defendant could never be convicted, because convictions only occur in courts.

    But what about other kinds of cases, like this one?  The court says states must grant SSM licenses.  But what if they refuse?  That’s a totally different scenario than refusing to convict under an unconstitutional law.  Because in this case, the court is actually ordering another branch of government to do something it doesn’t want to do, as opposed to exercising the authority it has within its own courtroom. When one branch of government orders another to do something, and it won’t, what happens then?  How is that different than a court ordering Congress to pass certain laws?

    • #59
  30. Fricosis Guy Listener
    Fricosis Guy
    @FricosisGuy

    Pseudodionysius:

    Z in MT: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.

    Here’s a clip of an unnamed editor’s prep:

    • #60
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