I was mightily tempted to troll hard and post this under “The Terrorists Won” or “Politics is Stupid.” 5-4 decision.
[OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, ET AL.]
(2) 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. . .
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. . .
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. . . . 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. . . 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. The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.
. . .
The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a
dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SCALIA,
J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J.,
filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a
dissenting opinion, in which SCALIA and THOMAS, JJ., joined.
It’s really hard for me to square the Chief Justice Roberts who wrote the primary dissent on this with the Chief Justice Roberts who wrote the ACA opinion released yesterday. It’s like two completely different guys.
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
So we’re already positioning ourselves for a sequel. And a spinoff series, since the justifications used in the decision are thoroughly applicable to plural marriage.
I really didn’t see this particular decision going any other way, but the manner in which it was decided matters a great deal for some of these other issues. It would have been better if they had decided things more narrowly.
It is interesting that he should worry more about the will of the lawmakers yesterday, and more about the letter of the law today.
More interesting for me will the rexamination of spousal support laws and customs. The military pays you more if you get married, it assumes it’s for the purpose of procreation and you are supporting a wife. That’s already outdated even before same sex marriage. What is the reasoning for it yesterday, and how does that reasoning change now?
Start paying taxes, tell the feds to fuck off. If you care about the issue that much, then pay the price of your convictions. It’s not that big of a deal, you can still be a non-profit, and now you might actually be able to pay some volunteers here and there.
Same shit I felt with the national speed limit and title IX. If you don’t take federal funds you can ignore title IX. So if you really hate the wimmins, then you can hate them without fed money. You want to drive 95 in 1988, decline the federal road money.
Scalia is an interesting dissent from the little I’ve seen. Takes the stance of “marriage” isn’t defined in the constitution, why the hell are we ruling on this? And picking on the language of the majority decision.
He must be on his meds this week, some of the shit he came up with yesterday is priceless.
He’s particularly eloquent on the arrogance of the decision:
The five Justices who compose
today’s majority are entirely comfortable concluding that
every State violated the Constitution for all of the 135
years between the Fourteenth Amendment’s ratification
and Massachusetts’ permitting of same-sex marriages in
2003. They have discovered in the Fourteenth Amendment
a “fundamental right” overlooked by every person
alive at the time of ratification, and almost everyone else
in the time since. They see what lesser legal minds—
minds like Thomas Cooley, John Marshall Harlan, Oliver
Wendell Holmes, Jr., Learned Hand, Louis Brandeis,
William Howard Taft, Benjamin Cardozo, Hugo Black,
Felix Frankfurter, Robert Jackson, and Henry Friendly—
could not. They are certain that the People ratified the
Fourteenth Amendment to bestow on them the power to
remove questions from the democratic process when that
is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is
contrary to reason; they know that an institution as old as
government itself, and accepted by every nation in history
until 15 years ago, cannot possibly be supported by
anything other than ignorance or bigotry. And they are
willing to say that any citizen who does not agree with
that, who adheres to what was, until 15 years ago, the
unanimous judgment of all generations and all societies,
stands against the Constitution.
It’s not straw man to examine the possible ramifications of a legal decision; that’s, um, kind of what we pay them for. There’s a great deal more historical and cultural precedent for plural marriage than for gay marriage; the fact that it’s only a small minority of people who wish for it is not exactly a defensible legal principle. Try reading the majority opinion and looking for a legal argument that would not apply equally well to that scenario.
Some of the gun people have already pointed out that this line of argument paves the way for nationwide concealed carry license reciprocity. If you don’t draw your legal lines very carefully, people are able to find all sorts of interesting shapes in them.
(I’m in favor of nationwide reciprocity, but I’d rather elect a legislature to enact it than depend on the whims of five lawyers.)
Purely retention. You could make an argument that the hardships of being a military spouse with regard to moving every few years, etc., justify the additional pay for families, but the real answer is that people would see “getting married” and “getting out of uniform” as a linked item, and that would be ugly for the health of the senior enlisted corps.
I benefit by it, but it’s grotesquely unfair. Single soldiers are significantly underpaid for no good reason.
But opening marriage to be between two consenting adults does not lead to plural marriage; plural marriage existed long before. And the wise-ass question asked by a bunch of neo-cons, “what if somebody wants to marry their dog”, is even worse. Like I pointed out in the other thread, and Jon Stewart pointed out, nobody asked, when women were allowed the vote, “what if dogs want to vote”.
It won’t lead to plural marriage, but it does prompt the question: under what legal principle may it now be prohibited?
That’s an entirely separate question from whether we want to prohibit it or not (and I would), but the legislature may no longer actually have that option. I think that’s what Roberts was driving at when he talked about federal courts as “blunt instruments.”
I’m more concerned about yesterday’s decision than today’s as far as the rule of law goes.
The court has decided it can rewrite laws. Flat out. Twice now it’s done it with the ACA, both times against what was publicized as the intent before it was signed, but to align it with “what they really meant.”
How many other laws could be rewritten to mean what they really meant? To me this is like reading the a hate speech prohibition into the 1st amendment. They wrote what they meant, but now we really wish it meant this because it’s so awkward the other way.
Edited because I went way off my original topic and I really do hate it when I ramble.
I believes this opens the door for plural marriage, I’m also not sure what the objection to that is. I’m thirdly sure that this means the end of spousal benefits because of that. Our current system can’t handle 5 wives.
My Twitter feed is really odd. Most of my conservative peeps are accepting, except the ones trolling or looking for the worst reactions to retweet. My liberal ones are unintelligible. Mostly rainbow hearts even the couple I know that think gay people are icky.
One of the biggest objections, currently, is that it is seen as encouraging an abusive situation. Early polygamy (in the US) was marked by the bride(s) not having any choice in the matter. Child brides were common, since the law exempted marriages with one or more underage partner, if the parents gave permission. What happened was that parents gave their permission, and the bride wasn’t consulted.
Then we have the cults, where one or a few people dominate the rest. It’s easy for the leader(s) to then force their followers to “agree” to let the leader(s) marry just about anyone they wanted, legal age or not.
I find it hilarious that people automatically assume that plural marriage == polygamy. From what I have seen, polyandry is more common, or at least plural relationships where there are more men than women. And that is not because of homosexuality, bisexuality is more common, or at least “heteroflexible”.
If plural marriage even becomes an actual discussion, the pseudo-feminists will be foaming at the mouths. Because they will be assuming the same thing, and assuming that most women are not capable of resisting “teh ebbil mens”.
Ahh the super secret, women are the masters of the universe equal to men in all respects and surpassing them in many… except we need special rules to be given a chance because men are so good at being evil.
I assume polygamy because I’m a dude, and I’m exerting my dude privilege to look at things from a dude’s viewpoint.
But all this shit A) happens already, and B) is already illegal.
It’s like saying I can’t have a gun because someone shot someo… oh, wait.
Thankfully, the age of consent ranges from 16 to 18 depending on the lines on the map, so there are more limits than there were then here. But the age for marriage can go down to 12 in one state, cough, Massachusetts we’re looking at you.
I’m not sure if any historical poly has been “clean” certainly nothing like RAH was fond of writing.
We’re getting there. I know a few poly households, and have read of a lot more. But they have no official sanction. Some non-mainstream churches and ministers will perform a ceremony for the multiple spouses, however.
But it is not recognized by the government, and they get no official benefits from it. If it becomes recognized, that will violate the religious liberties of legislators, who have a right, under the Umpty-umpteenth Amendment, to live in a country where everybody goes to the same church (section A) and does what each individual legislator tells them to do (section B), while each individual legislator is exempted from their own orders and restrictions (sections C & D).
And back to the original subject…
Anyone want to start a betting pool, for the first lawsuit filed against Kennedy, Sotomayor, Kagan and Ginsburg? And a rider of whether Roberts, Alito, Scalia, and Breyer are also named?
Texas is most likely already debating their “if you issue a license or officiate in a gay marriage, you’re fired”. Alabama can’t be far behind (I’m having fun thinking of how Moore must be reacting right now).
Interesting point I saw yesterday: Michigan clerks were ready yesterday to start issuing licenses as soon as a decision was made.