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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.
OK, I’ll ask this diplomatically: Please elaborate on how the Obergfell decision on SSM is affecting your PERSONAL life. Please list real, tangible harms you have faced and are facing in the face (!) of this decision.
Today I’m going to give hefty donations to Alliance Defending Freedom and National Organization for Marriage.
Update: Just made the donations and on a recurring basis. We have just begun to fight.
Fines for not participating in a Same Sex wedding seem a real tangible harm, Brad. Or have you not noticed these cases?
If not, perhaps you should not be so confidently making arguments with absolutes that are easily proven wrong.
Have you ever, even once in your life, heard of public accommodation law? It’s really simple: If you own a business which is open to the public, you must accommodate ALL members of the public.
If Muslims have to follow the law when it comes to their public taxi licenses, so does that cake baker.
Complexity has nothing to do with it. Power does. These rulings aren’t wrong because the law is complex. These rulings are wrong because Judges have become demigods saying “I declare it, and you shall obey”.
Well, San Francisco Archbishop Cordileone Has been threatened with legal action for upholding Catholic teaching. Here’s a comment from the head of the SF Board of Commissioners head Mark Farrell:
“We have nondiscrimination laws here in San Francisco that have been established for years, including protecting the LGBT community,” Farrell said. “And by mandating that teachers conduct their public and private lives in a manner contrary to our laws in San Francisco, it becomes a civic and legal issue.”
Thanks Austin. The national assault has already begun. I don’t think it takes a lot of imagination to think what a few years from now will look like. I don’t think Merina is being crazy and I have a lot of empathy for her viewpoint. I do think, Merina, your message will be heard more with a slightly less extreme language, i.e. “shuttled into sexual reassignment surgery.” I would have been 100% with you if you would have said something like, “shuttled into sexual identity counseling against your parents will.” I’m with you, though. Thanks everyone for the thoughtful conversation.
Is SoDak boy facing that personal harm?
That, I’m afraid, is the best option for traditionalists now. Continue to argue our case with the general public. But we need to withdraw from liberalized institutions in favor of our own.
As discussed in a conversation a week or two ago, monasticism is like breathing in before breathing out. We need clarity, strength, and inspiration before we can challenge the militant purveyors of multiculturalism and capitalism without a cause.
There’s no avoiding the need for civil recognition of marriages, at least in the present legal circumstances. Even traditionalist desire communion with their secular neighbors. But we can reinforce at home the difference between the civil and the sacramental.
Ah well–thinking of my past tomboy self and the current climate, and with a certain type of parents…. I know a couple in my neighborhood that have done something long these lines with a five year old. Not sure if there has been surgery yet, but some very odd things have been going on.
So there is only harm if it is personal to you?
Of course he has. We all have.
And you should have caught on by now that many of us see such laws as interfering with the constitutional right to free association. It’s really simple!
So you can play Captain Obvious. But only at the risk of boring, repetitive, and tense ;-)
I have indeed heard of public accommodation laws. Definitely more than once. And it just maybe possible that I have already taken such laws into consideration when forming my opinions. How charitable of you to assume I would not have.
You’ll of course have noticed that the bakers who refused to provided services for a gay wedding do not refuse gay customers for any other purpose. They are more than happy to bake gays a birthday cake, and they are more than happy to allow gays to purchase a stock, pre-made cake. Their refusal comes when asked to participate by way of writing text they do not believe on said cake, or delivering the cake to the reception.
Furthermore, public accommodation laws are only necessary when there are few to no alternatives to receive the services in question. Are you suggesting there are a shortage of bakers who will bake cakes for a gay wedding? If so, might I suggest you open a phone book.
But there are muslims taxi drivers who don’t drive people with alcohol, dogs or women. Which is fine, if a muslim taxi driver doesn’t want to drive me as a lone female, then I’ll get another driver and he’ll get my money. But many of these cases are people refusing to participate in the event, there is a difference between not serving an individual and no participating in an event.
It would be like a pro-life baker being forced to bake the anniversary cake for a Planned Parenthood gala.
Or a pro-choice baker being forced to bake a cake for a pro-life event.
In those days there was no king in Israel. Everyone did what was right in his own eyes.
Judges 21:25 (ESV)
Our elites know what is better than our king. Pretty soon, as in Canada, it will even be illegal to quote this book.
Yes, Jamie. After all the time you’ve spent calling SSM opponents hateful, irrational, phobic, etc. we TOTALLY believe you’re going to have our backs when the excrement hits the fan.
Why the quotes? And the caps?
Or someone being forced to bake a cake for Confederate Flag Day.
ROFLMAO.
Yeah. Right.
“Don’t worry, even though we disagree with your opinion, we’ll fight to the death to… wait, my boss is asking me why I have bigots on my friends list and… what? My job? No boss, you don’t understand. I don’t even really know these people! Honest! Why, I would never have been talking to these bigots had I known what they were and… hey, why are you bigots still here? Shoo!”
Merina and Jamie,
I’m going to treat this as a dinner party as the editors have likened Ricochet to. The back and forth seems to have paused for the moment, and I am going to encourage each of you to choose to stop responding to the other in this thread.
Because I think you’ve crossed lines….no
Because I agree with one and not the other…no
Because I think that each of you are arguing closely held viewpoints passionately, and disagree with certain assumptions underlying your opinions. Those core disagreements aren’t going to be solved, as they are important to each of you…you’re not going to change each other’s minds now…today.
So, I suppose you could both unite against me as a common enemy ; )
Do these laws provide for the possibility that some services don’t have to be provided or are they written in such a way as to mandate that all services are subject to the public accommodation or is this yet another example of the lawyers getting the final say?
The decision is couple hours old, so I’m not sure anyone can list tangible harms yet. I doubt anyone has gotten married under this ruling either.
Still, why is it so hard to see where the logic of this goes. Pay attention to the culture. Every step along the way, we have been assured that the SSM lobby (or any of their other iterations before SSM was dreamed up) only wanted this one little step.
Is it your contention that no one assured us that changing marriage would affect anybody other than the couple or are you claiming that this is truly the final step? No other logical consequences of this to come?
But he started it!!!!! ;-)
Actually, YES. And since you mentioned you were giving to Alliance Defending Freedom, you surely realize that they are at the forefront of Baronelle Stutzman’s case against WA State over her ability to refuse floral arrangements to SSM couples.
Considering what she is about to lose due to Alliance Defending Freedom’s stubborn insistence that Baronelle not take WA State’s settlement offer, shall you and I ask her family members their true thoughts regarding that organization?
Enjoy constantly getting Leftism shoved down your throat and a government dedicated to wiping the work of the founding fathers right between your cheeks.
They are written as to say that you cannot refuse services based on things like a persons race, gender, religion, or sexual orientation. You can refuse services for all manner of other reasons though. A liberal sign maker may refuse to make a Walker/Rubio 2016 sign. Similarly, a baker ought to be able to refuse writing text on a cake that violates their religious beliefs.
You SUCK!
No I didn’t, you invaded Poland.