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SCOTUS Mandates Same Sex Marriage Nationally (UPDATED)
From 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):
Published in LawUntil 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.
Not yet.
Of course.
I was never recruited by anyone into homosexuality. My wife can attest.
If a child decides they are gay a teacher should what? Shame them? Ostracize them? Send them to a mental institution? Pray the gay away? That did so well in the past what with all the homosexual suicides it induced.
This isn’t “recruitment” its basic human decency.
Jamie, while I tend to agree with you about many issues surrounding ART and third-party reproduction, Merina is a lady. Ladies don’t rant, they glow.
Someone should tell my wife that…
*looks around nervously*
A good record, then. Let’s make it even better! :-)
I think the idea that sexual orientation is purely genetic predisposition to be something of a fairy tale. This doesn’t affect my support for SSM, as that was always a particularly unimpressive argument from nature.
While I don’t agree with Merina that significant numbers of people would be recruited into homosexuality, I have known enough real people in my lifetime to have witnessed those who suffered confusion about their sexuality. Of course they will be affected by the nature of the praise/criticism they receive from the world around them as they figure these things out.
Say what you will about his consistency or lack thereof, but Roberts hit this one center mass.
Yeah, when we ladies really start glowing, you should be nervous!
Give us our space to shine, man. We’re radioactive!
If I may clarify your disagreement, Merina is not suggesting that kids will be made gay by positive reinforcement, but rather that some kids will think they are gay (though they are not).
It has become the height of cool to be gay. And, in some settings, kids are being strongly encouraged to question their sexuality — rather than to simply discover it independently — at even pre-pubescent ages. Teenagers are taught that it’s good to “experiment” sexually, as if everyone should try gay sex once. And the slightest abnormality is leapt upon as a reason to declare and celebrate.
Merina is worried about confusion, not conversion. (Am I right, Merina?)
It is probably also useful in some circumstances for a person to pretend to be gay in the same way it has proven useful for Elizabeth Warren to pretend to be indian and for that NAACP nut to pretend to be black. Affirmative Action to the rescue!
That’s not who I’m talking about Jamie. All kinds of kids seek the high five whether they are gay or not, especially in the teen age years when there is a lot of confusion about sex. Ditto the whole trans thing. At age 8 I asked for a football for Christmas. I outgrew it, but now I’d probably get shuttled into gender reassignment surgery and lots of hormones, and I’d get a lot of high fives for my “bravery”. This is about the big picture.
I think sexuality is pretty fluid for some, but has its roots in genetic predisposition. No one will become gay who wasn’t, in some way, naturally predisposed to that position.
You see a Huxlian dystopia that just doesn’t freaking exist.
As a Chronic comments reader, cause like Kevin Williamson I’m an idiot. Even when Ricochet gets insulting it is NOTHING like the ranting trolls on other websites, oh and you don’t get the comments of people trying to sell a work from home pyramid scheme.
Merina, it’s very simple. Absolutely, positively, NO ONE is going to interfere with your personal “deeply held” Mormon beliefs on marriage and family. Just please do not expect to utilize those beliefs when it comes to passing/enforcing/interpreting LAW.
Oh yes, the SSM debates of Ricochet. I remember them well.
Of course Merina isn’t a “homophobe”, certainly not in the derogatory sense of the word meant today.
Jamie, in case it would help to me Merina (and you’re certainly free to tell me I’m wrong Merina, I don’t mean to speak for you!) is that kind of social conservative who’s been told for decades to calm down; that whatever they warned could happen would never happen, that private citizens wouldn’t be sought out for public shaming, that businesses wouldn’t be attacked and shuttered for not participating in private ceremonies and religious organizations would be exempt from violating their conscience.
What Merina sees is the beginning of a nationalized assault against her beliefs by activists. And there are several highly publicized cases that demonstrate that is not a crazy, fearful, ignorant position.
Well, I’d say you have a better track record than the people who said they didn’t want marriage, just hospital visitation rights. Or, the ability to force religious business owners to violate their conscience.
Let’s see. What other assurances have we been given?
Won’t affect churches. Won’t affect private schools. Jamie seems to think it won’t even affect the culture inside a government-run school.
Exactly.
Especially teenagers.
Sexuality is a heart-mind thing. Easily stimulated.
That’s one of those ancient wisdoms that science has yet to confirm.
Responding from an Android phone almost impossible, but I’m with Mike LaRoche and Merina Smith on this.
The cavalier attitude expressed by some SSM advocates in this thread shows they are unserious about the deleterious effects this ruling will have on 1st Amendment freedoms.
The bloodlust shown by some SSM votaries (non Ricochetti to be sure) in pursuing bakers, photographers etc. show a determination to ruthlessly suppress dissent by any means necessary. They render todays expressions by some SSM advocates of “its over now, let’s move on and all get along” meaningless.
Here in my town, she got to use the other bathroom.
^ This.
If I hadn’t been invested in waiting for marriage, I have good reason to believe I would have been one of the gals choosing the “lesbian until graduation” thing. Just sayin’ ;-)
Which leads to another thought… Encouraging chastity, no matter which way your hormones think they’re shooting at the time, gives youths time to sort themselves out, even in a culture where SSA is accepted or even cool.
Very well put, Aaron, although from what I have read, women are quite malleable in this regard, so I think the word conversion is quite possible. I think men and boys are less so, but I do think there is a segment of the population that could go either way. As a parent, I want my kids to marry someone of the opposite sex and have grandchildren that I can spoil, so if my child has a choice, that’s what I want for him or her. I don’t want the schools aggressively pushing my child toward a homosexual identity. I’d really like the schools to teach the basics of reproduction about sex and leave it at that. If my children were young now, there is no way I’d send them to public schools. My oldest and youngest are 15 years apart in age, and there was a big difference in how they were taught in this regard. Things were much better for the older kids. No one was persecuted, but no one was pushed either.
Very much agree with encouraging chastity Midge. We might get that by default because the new requirements for affirmation at every step or RAPE kind of has the same effect.
That’s the point. The LAW is the tool they use to interfere with our personal lives. They also use public shaming and corporate culture and other methods, but the law is one more thing in their toolkit.
Frank, appreciate your perspective and support, but I didn’t say significant numbers would be recruited. But I think some will be. As a parent, if that is my child, that’s huge for me, and probably makes the difference in whether or not I have grandchildren, which is something all parents want. And most of us want our grandkids to have a mother and a father. But I also think the confusion foisted on teens is a terrible thing. They are confused enough as it is.
Yeah, and here’s the prude in me wondering why they think they need to try any sex yet.
You know, I managed to convince nearly all my bohemian friends that my “slight abnormality” (celibacy) was also part of the vast tapestry of sexual expression. I tell ya, it’s much better to have chastity respected as “just another kink” than not respected at all!
Yes, Brad, SDB is exactly correct. You are being very naive if you think otherwise.
If you do not believe that people can be socialized into a gay lifestyle than you simply do not understand same sex attraction. SSA is a very complex phenomena with biological, emotional and environmental components. Being gay is not like a light switch where you are either gay or you’re not. It is quite possible for people with mild to moderate SSA, especially young people, to be socialized into a gay lifestyle.
My proof? Bi-sexuals, as well as the studies Kinsey did in the 50s.
If you don’t think there is an active movement promoting the gay lifestyle, which has a presence in the public schools, then you simply aren’t paying attention to the issue.
Don’t bother–people who think to offer such childish assurances…
Yup.
There are some Christian bakers and photographers who would disagree with you on this point.
I’m curious if you support their freedom of association to not participate in behavior their faith considers sinful, or if you agree with the courts that they must be made to comply or be driven from the public sphere.