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Mr. Justice Scalia Dissents
Mr. Justice Scalia, dissenting:
Published in General, Law, MarriageIf, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “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,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
Do you mean to ask, “Are you arguing that we erred to [not] remove those bans?”
Actually I agree with you.
Tommy: agreed. Freedom of conscience and no obligation to participate in someone else’s choices. There will be parades, though, and victory laps. Frankly, that’s the only part that ever gets my back up, the assumption that I’m a surrogate parent for people to rebel against. If it’s really about love making a family, why does there always seem to be so much spite involved?
Where both sides and every legal opinion (pro and con) have, IMHO, fallen short is in failing to discern, a la Chesterton’s fence, the over-arching original purpose of the social institution of marriage. It was not merely to facilitate the raising of children by both parents — an argument that, as we saw, is vulnerable to the rebuttal that therefore, infertile couples should not be allowed to marry — but to encourage all sexual relations to take place within the institution such that out-of-wedlock births would be prevented in the first place. Thus, infertile or elderly couples would still be encouraged to marry so as to provide examples of proper sexual conduct.
The last fifty-plus years have provided at least three related challenges to this original understanding: social (the sexual revolution), technological (the pill), and legal (no fault divorce). Once this occurred, the original purpose of marriage was replaced by little more than a bundle of legal rights, leaving it susceptible to the arguments that prevailed today.
If any state wants to push back on this (absent legal defiance, that is), maybe they should explore passing laws eliminating no-fault divorce or reinstating adultery as a crime, perhaps as part of an “enhanced” marriage regime.
Tommy, just to elaborate further on the incoherence of your position and the court’s. It boils down to the the purpose and reason for an institution of marriage. That is, why should there be a covenant which includes a promise to and approval by a third party concerning peoples’ sexual relationships?
Now there can be all sorts of answers to that question. And in fact there are many answers. What is wrong about the federal equal protection resolution is that it attempts to say that there is no reasonable way to disagree about the answer to the question and therefore the federal government cannot allow states any such disagreement.
The problem this court has just created is that it has taken upon it’s shoulders the right to declare what the answer is while ignoring all the myriad other answers which don’t include two non-related people which will inevitably declare their rights in due course.
You have no compelling animating principle in your definition of marriage nor a limiting one, Tommy, so you have no way to decide why third parties should be involved with the relationships of others nor what constitutes equality between various arrangements. So it’s little wonder no one ever found the solutions you “told” everyone to adopt vey sensible.
Yes. Good catch.
I was thinking of miscegenation, where we did remove the ban.
Well, he should.
Do you seriously believe that? Un uh. They’ve just become a permanent, government-endorsed event. Get ready for a federal or state LGBTBBQ holidays.
Polygamy was banned, and racially-mixed marriages used to be banned.
This ruling, if law meant anything, should mean a shoe-in for polygamy again, as well as wiping laws preventing incestuous marriages off the books. But as we’ve seen with Roberts writings, the text, and thus the actual law, really doesn’t mean anything. Political sentiment of the governing and legal class does, and they’re liberal. So in short, what liberalism wants, liberalism usually gets in the court. BUT… I think that in order not to scare the public any further, the courts would probably either punt on polygamy and incest, or more likely just be complete hypocrites and deny them the same victories. All to gain political time. But the whole “same love” thing will inevitably lead to incest marriages being legalized. The only thing that might prevent polygamy now is an even stronger politically correct force… feminism…. making the argument that polygamy is bad for womyn. Plus, it would be seen as a stab at Mormons, even though they haven’t done it for a century. The Same Love crowd in the courts would love that.
BThompson you seem to me to be arguing for exactly what I’m saying.
Perhaps we aren’t understanding one another.
Under my system, marriage will be exactly what the Catholic Church says it is – for me. The Jew, the Protestant, the atheist and homosexual will have marriage be exactly what it is for them.
I will, forever, look down my nose at the rest of you for not doing it the Catholic way. You can all shake your finger at me and say I’m doing it all wrong. And that argument will never end. In a plural society, it should never end.
But you’ve hired a binding mediator. One I never wanted. That mediator, the government, has now declared that the Jew, the Protestant, atheist and homosexual have a marriage that is equal to me.
It has an imprimatur now. A seal of approval. One thought to be a higher authority than me, has declared all marriages equal to mine.
What bothers me most is I warned Social Conservatives about this. I’ve said repeatedly putting marriage formation in the hands of government had marriage in great peril.
But the Social Conservatives enjoyed the government power when it ruled for them! I warned that if you give government power to pick something you like, you risk a later government using that same power to pick something you don’t like. And today, the government just did that.
I could have been free to exercise my religion free from government control. I could have said the Catholic way is best – and the homosexual could have said his way is best.
Now I’m forced to live in a society where I no longer get to maintain my religious understanding in the secular parts of society. It is done – the government has declared us equals, when I know I’m better.
Do I blame gays? Yes. And I blame the Social Cons, for allowing the government to assume control of a relationship that was designed to be between my wife, my God and me.
A pox on both your houses.
Tommy, you are not an army of one, and a lot of us agree. You presented a reasonable and principled position; which, on this subject, is guaranteed to get you flamed (or as close to flaming as Ricochet allows).
There are a lot of bad arguments on both sides of the SSM issue – many of them drenched with the odor of outcome-driven, ex post facto rationalizations. What the bad arguments of both sides have in common is acceptance of the role of government as the arbiter of things that the government has neither the wisdom nor the moral sanction to decide. But as long as the government decides the issue “their way,” most people are happy with that.
Those who insist that the Civil War was just about slavery should contemplate the Supreme Court’s decisions of the last few days.
Tommy, if you believe in Catholic marriage the notion of civil marriage that has prevailed until today cannot seem like an affront to equality.
Civil marriage doesn’t have to be consistent with Catholic marriage, but it can be. To say that it must not be consistent with Catholic marriage, as the court did today, is absurd.
The court held today that all that defines a marriage is love. That is the most ridiculous and untenable foundation for a legal regime of marriage imaginable. You sell yourself short, Tommy, to say that you cannot rationally envisage a reason for and form of civil marriage that sensibly defines itself by something more narrow and less ephemeral than “love.”
I agree with Tommy – social conservatives should have said render unto Caesar that which is Caesar’s and render unto God that which is God’s.
Check out this image on the Southern Poverty Law Center’s page today:
Oh, the irony. I’ve downloaded it for future use.
First of all, Catholic marriage isn’t between you, your wife and God, only. It is between you, your wife, and the Church. The connection of your relationship to God is through the Church. That is what marriage is, without the Church’s blessing, you do not have God’s blessing.
Secondly, you and I are not separate from the government. I didn’t, nor did my forebears, cede control of marriage. We define and form government, so enshrining the form of marriage in government doesn’t cede a thing. Only if we fail to guide and shape government do we give anything away.
If we cannot restrain government in a matter as fundamental as this, we cannot do it in any meaningful way whatsoever, so we may as well give up.
No it can’t be. Not even close. My wife gave to me the sacrament of marriage, officiated by a priest, in front of the Lord.
While the rest of the country got married by some hack politician who landed a pension padding judgeship, I could at least have the debate to say that I’m right and they are wrong. My evangelism could carry some weight.
But now they have an authority to rely upon to say I’m dead wrong. It is the same authority who governs me, who is above me in the politics of our nation. So my evangelism has been severely weakened. I can be dismissed so easily now as unlawful, a bigot, a wrongheaded religious nut.
Because they have a court order.
Thanks SoCons – your inability to see the government support for your marriage was a perilous thing, has now weakened the status of my religion.
Good job.
Good grief.
Your wife didn’t give you the sacrament. The Church gave you the sacrament. You and your wife agreed to submit to the sacrament which was defined by the Church and God.
Why would your evangelism carry any weight with someone who doesn’t believe in the church?
They always had that authority. It’s in the first amendment and always has been.
But that’s the thing, it’s not above you. The ruling today is not mandated by the constitution. The court today decided the constitution meant something it doesn’t, just as I’m sure you’d agree it has many times in the past. So if you are saying that we have no recourse against overreaching courts, so we shouldn’t put things we cherish in the purview of the government (who is us, or is supposed to be us) then you are simply saying we are doomed.
You could always be dismissed by anyone who didn’t share the concept of Catholic marriage. You are the one granting moral, legal, and rational authority to the court’s ruling today. You can easily disavow the faulty logic of the court as you no doubt do on other issues.
Good grief, indeed. Marriage worked well as a civil institution for centuries. The only thing that changed is that society gave in to silly, selfish romantic ideas that are harmful to society. SoCons didn’t ruin anything. People over the last three generations who abandoned a coherent notion of human nature and a morality that aligns with our nature did.
You think that you can’t argue for traditional forms of marriage anymore because of a governmental decree. You say you believe that the traditional form of marriage is valuable, but you don’t want to fight to evangelize for it or defend it, because five lawyers disagree with the form of marriage you say you believe in. And you’re not alone. That is where marriage was ruined, Tommy. It wasn’t ruined by traditionalists who fought for and continue to fight for what had worked for centuries.
I take it you aren’t Catholic. That’s not how it works.
The participants give the sacrament to one another in the Catholic ceremony.
I am Catholic and I know exactly how it works.
You and your wife don’t give the sacrament. The Church gives the sacrament. You submit to the sacrament. You agree with the Church’s conditions for what a marriage is at a wedding. That’s what your “I do” is. You are not saying “I do” to the questions of your partner. You are saying “I do” to the questions of the Church. You say I accept the terms of the sacrament the Church stipulates and the Church, through the priest, then declares you married or not. A sacrament is sacrament because of the grace bestowed through an outward sign. The outward sign is provided by the church and the grace which seals the sacrament flows through the church.
I guess I’m starting to see where your confusion stems from.
You’d better go consult your catechism my friend. I state with certainty I gave the sacrament to my wife and she gave it to me. The priest only officiated.
Posed the question b/c I really had no idea & wanted to know. Thanks to everyone who provided some enlightenment.
The rule reads thusly:
1623 According to Latin tradition, the spouses as ministers of Christ’s grace mutually confer upon each other the sacrament of Matrimony by expressing their consent before the Church.
I’m Catholic too, but I’m ashamed to say that I had to Google it…
http://www.vatican.va/archive/ccc_css/archive/catechism/p2s2c3a7.htm
PART TWO
THE CELEBRATION OF THE CHRISTIAN MYSTERY
SECTION TWO
THE SEVEN SACRAMENTS OF THE CHURCH
CHAPTER THREE
THE SACRAMENTS AT THE SERVICE OF COMMUNION
ARTICLE 7
THE SACRAMENT OF MATRIMONY
1601 “The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament.”84
Tommy is correct. The ministers of the sacrament of matrimony are the contracting parties themselves, that is, the groom and bride. They marry themselves.
Tommy, you are flat wrong. There could be no marriage, no sacrament, without the church. If you could simply give the sacrament to your wife, there would be no need for a priest, nor a need for you to celebrate the sacrament in a consecrated setting. Furthermore, if the sacrament were defined only by what you promise to your wife, there wouldn’t be a need for you to also make promises to the Church. At a catholic wedding you agree to submit to the form of marriage that the church requires and your wife does the same. Your assent is given to the Churxh, not just to your wife.
Feel free to provide whatever official support you believe you enjoy. I assure you it will be something less than what you claim.
Question, Tommy, if the sacrament is defined by what you and your wife give to each other, can you take the the sacrament back from your wife, even if the priest who married you approved of taking the sacrament back?
In other words, if the sacrament belongs to you and your wife, can you or your wife or both of you together end or annul the sacrament?