March 18, 2013

As expected, I got some pushback for saying "I hope the Supreme Court blesses us with" a right to same-sex marriage.

That was a provocative way to say that it will be a blessing if the upcoming Supreme Court cases resolve this issue that is dogging and distorting the political discourse in our country.

Even to say "it will be a blessing" would have been provocative, since it seems to give God credit for whatever good happens. But that usage of "blessing" has constitutional text to support it:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 
Liberty is a set of blessings, our Founders told us. The human task is to secure the blessings. If the Supreme Court says it has found a liberty — let's say a right to same-sex marriage — we may say that it is securing a liberty that is already there. When someone says "bless you," that doesn't mean that the blessing emanates from the speaker. It's short for "God bless you." It's asking God to deliver a blessing. In the Constitution, what we see is that the Framers believed that God had blessed us with liberty.

So to say "I hope the Supreme Court blesses us" is to identify the Court as the source of the blessing, to put the Court in the place of God, and to prompt and tease those who think the Court improperly makes up rights. That was deliberate and devilish temptation. Thanks for succumbing!

Below the fold are the comments that inspired this post:

1. Gahrie:
This is a perfect example of our country's problems right here. You, a Constitutional law professor, our hoping that the Supreme Court will create a "right" that you favor.

The Supreme Court doesn't "bless us" with rights, or create rights. It protects the ones given to us by our creator and enumerated by the people in the Constitution.
2. MayBee:
Yes, the "blessing us" idea is troubling from a constitutional law professor. Perhaps it is some of her famous humor.
3. alwaysfiredup:
"I hope the Supreme Court blesses us with the requisite constitutional right"

Oh dear lord...

Surely, SURELY, as a law prof you could phrase this to be less off-putting.
4. Chuck:
Prof. Althouse;

Huh?

You "hope the Supreme Court blesses us with the requisite constitutional right..."?

Say what? Since when was the Supreme Court in the business of 'blessing us with constitutional rights'? I thought they were in the business of constitutional interpretation, and working on judicial review of legislation. Not "blessings."

I hope that the Supreme Court "blesses me" with a new Cadillac and a Rolex watch.

Since you are a highly intelligent person, and an expert in constitutional interpretation, I am curious what you think is a plausible basis for the Court to extend such a blessing. Given that whatever the Court decides to bestow as a "blessing," it is taking away from individual states. If the test for reviewing DOMA and California's Prop 8 is not "rational basis," what is the proper test? And if the test is rational basis, how does DOMA or Prop 8 offend?
5. Hagar:
The Supreme Court cannot "bless us" with a non-existent Constitutional right.

It is the word "marriage" that causes the problem for people.

It is not that hard for the Federal Gov't and the States to get out of the "marriage" business. Just declare that for the future "marriage" is a religious ceremony outside their purview, but existing "marriages" will be accepted as Civil Unions for taxes and other secular purposes.
6. ed:
@ Gahrie "The Supreme Court doesn't "bless us" with rights, or create rights. It protects the ones given to us by our creator and enumerated by the people in the Constitution."

You're forgetting the penumbra of the umbrella of the awning of the cockleshell of the reflected shadow on a latrine wall of unenumerated rights as recognized only when someone on the Supreme Court has a wet fart.

Because evidently I do not have the right to not have a federal drone hovering over my yard or a DEA SWAT team breaking down my door, shooting my dogs and handcuffing me on the say-so of a drug abusing informant looking to buy his freedom but two gay men have the right to bugger each other in privacy.

But then again if you look at the various opinions set forth by the multitude of SCOTUS decisions you can find just about any kind of idiotic retarded nonsense because it appears to be more of justifying what the justices want rather than what the Constitution actually has written.
7. Unknown:
I thought Althouse's original post was a tounge on cheek [sic] reference to how we just moved on after the Supreme Court blessed us with Roe v Wade. Her follow comment leaves me scratching my head.
I think the "follow comment" of mine that he's referring to is: "The GOP will be better off if the Supreme Court trumps this political issue. Democrats will may [sic] rejoice publicly, but privately they should curse." I used the word "curse" in deliberate counterpoint to "bless." And this actually should make sense in connection with Roe v. Wade. Politically, the decision undercut the liberals who would have fought for the right and gave huge energy to those who opposed it.

But I don't think a right to same-sex marriage will play out politically the same way. The pro-life movement is propelled by the belief that what's going on in the zone of privacy is the murder of helpless, innocent human beings. Pro-lifers can never move on. There is no corresponding moral compulsion to continue to agonize over what's happening inside someone else's marriage. Even if you think it's terrible and sinful, you can move on. That's the political blessing I foresee.

226 comments:

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AllenS said...

What benefits do you receive if you're married without children? Seriously, I don't know. Are there occasions when both husband and wife file separately for tax purposes? Anyone have answers for this?

n.n said...

Nonapod:

Exactly. It is necessary to distinguish between the individual and their behavior. Unfortunately, that is not the premise of the discussion we are having. The arguments in favor of normalizing homosexual behavior are based on emotional appeals. They do not distinguish between the individual and their voluntary behavior. They do not distinguish between tolerance and normalization of a dysfunctional behavior.

Kirk Parker said...

Palladian,

If "the State" were, somehow, an entity that was completely distinct from "us", then it would be possible (though not a good idea) for "the state" to not care about whether our society and culture continue to exist into the future.

But since the state really is just collective "us", when you get down to it (despite all the corruption and elitism etc), that's really not doable.

garage mahal said...

You'll see it time after time, the name calling of bigot, hater, knuckledragger, or someone out of touch.

You're one of the biggest bomb throwers on this site. It's amazing how the tough and rugged bootstrappers are always the first to cry like fucking babies when someone punches back. Why is that?

Gahrie said...

I am in a committed monagamous long term relationship on World of Warcraft. I dream that one day my virtual relationship will too be sanctioned by the government.....

AllenS said...

Good one. bootstapper: relying entirely on one's efforts and resources -- self-generating or self-sustaining -- to help (oneself) without the aid of others -- pull oneself up by one's (own) bootstraps

Hey, that's me!

Dante said...

So you believe that post-menopausal, sterile, elderly, and handicapped heterosexuals shouldn't be allowed to marry? And that heterosexuals who, for whatever reason, don't reproduce should not be allowed benefits from marriages?

Here is what I'm saying. The primary reason for marriage, and the thing the state is most interested in, is procreation. Reproducing the state.

The state achieves this by allowing heterosexual couples certain tax advantages (and penalties that encourage single earner households). That's the states's interest.

All I'm saying, is within the confines of where we are with this massive government stealing everyone's money, screwing up community, making it hard to make a family with a single income earner, it makes sense for the state to subsidize heterosexual marriage, that nearly invariably leads to procreation.

I know, that makes Big Bird an asshole.

I hate your PCism. It's designed to stifle thought, and to cow people to accepting modern day intellectual cultural suicide.

Have a nice day.

AllenS said...

are always the first to cry like fucking babies when someone punches back

Care to give some examples.

garage mahal said...

This thread.

Sam L. said...

Riiiiiiiiiiight. Just like Roe v. Wade settled the abortion question, once and for all time.

chickelit said...

"Cry Like A Baby" (1968)

Palladian said...

I hate your PCism. It's designed to stifle thought, and to cow people to accepting modern day intellectual cultural suicide.

That's it! When you've thunk yourself into a corner, call your opponent a stifling PC cow!

The idea that I'm "politically correct", or that advocating strongly for freedom for gay people and social conservatives will somehow lead to "intellectual cultural suicide" (whatever that may be) is laughable. You're out of gas, if you had any to begin with.

Pianoman said...

I'm still waiting for a SSM proponent to explain to me why my rights aren't being violated:

I can't marry my first cousin in Nevada.

If States don't have the right to prevent two people of the same sex from marrying, then how can they have the right to prevent first cousins from marrying?

Some states (Texas, for example) have even criminalized it.

Why isn't this a violation of my civil rights?

Pianoman said...

I mean, so far the only answer I've gotten is, "That's different, because Shut Up."

wyo sis said...

Ta Da
Up pop the exceptions!

Pianoman said...

@Maybee: If it is a right for two people of the same gender to marry, I don't know how we keep that right from others.

Exactly. Equality for First Cousins!

Dante said...

That's it! When you've thunk yourself into a corner, call your opponent a stifling PC cow!

I'm not in any corner.

Once again, it's in the state's interest to subsidize heterosexual unions for the procreation reasons I gave you.

Let's start here. Do you disagree?

Mr. Majestyk said...

Dante nails it. The State's interest is in nurturing the relationships that tend to lead to the creation of children.

Laws limiting marriage to opposite-sex couples are clearly constitutional. The test of whether such a classification is unconstitutional as a violation of equal protection is whether the classification is irrational. According to the courts, that is an exceedlingly low bar. Basically, the courts ask if there is any conceivable justification for the challenged classification.

Here, there clearly is a rational justification for confining marriage to opposite-sex couples.
Only opposite-sex couples can produce children. Not only can they produce chidren, they very frequently do produce children. And it is in the State's intertest to encourage men and women to stay together and raise their children together.

Granted, there are some opposite-sex couples who can't or simply don't produce children. But to be constitutional, a classification need not be perfect. The classification can be overinclusive (for example, allowing infertile or elderly couples to marry) without be irrational for constitutional purposes.

Indeed, can you imagine the State trying to implement a marraige law that only covers couple capable of, and likely to, produce children? First, before allowing a man and a woman to marry, the State would have to ensure that they are capable of having children. How would it do that? A fertility test? Then,it would have to inquire into their level of interest in having children. No idea how it could do that beyond simply asking. Then, presumably, the State would have to continually monitor a couple's ability to have, and interest in having, children. And if it finds the couple lacking in either regard, it would have to go to the trouble of "unmarrying" them. Not only would this approach be highly intrusive, but it would be an administrative nightmare.

In short, the Equal Protection Clause does not require States to engage into a burdensome and instrusive investigation into people's personal lives in order to limit marriage to opposite-sex couples.

Dante said...

call your opponent a stifling PC cow

I didn't call you a cow. I used it as a verb. Look it up. It fits quite nicely.

Dante said...

The test of whether such a classification is unconstitutional as a violation of equal protection is whether the classification is irrational.

Equal protection is a joke. Consider Affirmative Action, which violates equal protection.

And, how well has all that Affirmative Action worked out? Last I checked, Asians, Jews, and the Irish are kicking everyone's ass. At least here in the US.

At least Jews and the Irish have a long history of being discriminated against, as in the entire population (not as in all us European Serfs and Peasants). Why didn't they need Affirmative Action?

And why do we continue with this Bullshit when it isn't working? It's OK to violate the constitution because you have good intentions, yet return no value?

Sorry, I'm getting tired of all this leftist nonsense. Including this asinine Gay Marriage idea.

And while we are at it, Roe V. Wade too. Unlike many, I don't see it as murder (to a point), but there ain't no right to an abortion in the constitution.

It took this whole thread on Gay Marriage for me to once again realize why I hate, literally hate, all this stupid hand wringing, weak, weaselly PCism. The only thing it seems to be doing is to destroy the mainstream social mores.

Achilles said...

Another. Stupid. SSM. Discussion. Zzzzz. Idiots on the left calling everyone else bigots. Idiots on the right complaining about societal decay.

This should not be dividing us. We are witnessing savings account levies in countries with lower debt loads and deficits than us. Our economic growth is stagnant. We are heading for fiscal ruin.

I understand the motives of Garage, Alex et al. They want to divide this country and distract the people from what is going on. The left does not want this country or the little people in it to prosper. They want statism and economic stagnation because it is "fair."

But what do you conservatives want? Do you want to have bitter divisive arguments about marriage and abortion and your need to force religious morals on society with a secular tool like the government? Do you want to continue to alienate a younger generation that is not interested in foisting moral norms on everyone else through government fiat? Is it so important to you that you are willing to lose this country just so you can hold onto a bit of control over other people's lives?

The elites in government are robbing this country of its future as we speak. Garage, Alex and the other useful idiots cheer on the Europeanization of our country even as we watch that entire economy in Europe die by the same policies they push here. Participating in this discussion and holding onto this need to push your moral view on others you are just serving them.

If you want to save marriage work in your church and work in your community to strengthen relationships and families. This will do some actual good. Give up the need to impose these values via secular government. If you haven't noticed the government is not the best way to strengthen anything.

Achilles said...

And why are the conservatives here stuck on this notion that the government is the best way to support the traditional nuclear family? We got it. We need children and we need to support procreation. Do you not realize that government support of procreation leads to the destruction of the nuclear family? We need to get the government OUT of the family unit. Every government policy we have pertaining to families undermines married parents. The government has been displacing fathers since welfare laws were passed. Stop being tools.

And as long as you posit the government has authority to define and subsidize family relationships then you must be ready to accept it when you are in the minority. Democracy is merely the tyranny of the majority which is why the founders despised democracy and we were founded as a republic. At least realize this is a state issue at most.

Rusty said...

Achilles said...
And why are the conservatives here stuck on this notion that the government is the best way to support the traditional nuclear family?

I, for one , don't.
I don't think the federal government should recognize any pairing.

Dante said...

Achilles,

It's kind of like this. The government has massive taxation of the middle class, and of those who consume much of what they earn. Nearly everyone. What was it, the cost of a loaf of bread was 40% or 60% taxes according to Herman Cain?

The tax code is riddled with regressive taxes. Despite enormous productivity gains over the last 60 years, it takes dual income earners to raise families now. That's why married people deserve to get some of their money back. Not to mention reduced work time because of raising families, etc.

Mr. Majestyk said...

Achilles,

I agree with much of what you say. Our economic situation is the most important issue today. But that doesn't mean no one should talk about anything else. I also agree that conservatives should not impose their values on the rest of society. But defining marriage in the way it has traditionally been defined does not impose anything on anyone. No one is saying that anyone has to get married. People can live with whoever they choose, have sex with whoever they want, and raise a family without any government recognition whatsoever.

I also agree that certain government attempts to support the poor have, as you say, "undermine[d] married parents." But recognition of opposite-sex marriage is not one of those misguided attempts Recognition of traditional marriage does not undermine traditional marriage. Governments have recognized opposite-sex marriage for a LONG time, and it is only relatively recently in the last 50 years or so, with welfare etc., that traditional marriage has been undermined.

I think even from a libertarian perspective, it makes sense for the reasons I mentioned above for government to recognize (but not subsidize) marriage, but only opposite-sex marriage. Even without any form of subsidy, marriage can encourage couples to stay together, which is good for their children, which, in turn, is good for society as a whole.

AllenS said...

Achilles said...
Another. Stupid. SSM. Discussion. Zzzzz. Idiots on the left calling everyone else bigots. Idiots on the right complaining about societal decay.

I guess you're wondering why were talking about this, right? Well, here's how it works, Althouse puts up a thread, and this one happens to be about SSM. Thus, the ensuing comments.

My guess is that you'd like to talk about the deficit/debt, right? Once again, if Althouse wants a thread about that subject, she'll put up a post. If you've been paying attention to this blog, you'll see that she's more interested in SSM than any other subject. Obviously, the subject creates a huge division between her and a couple others against almost everyone else.

The debt/deficit is the most important topic to me, but not to the one to owns this blog.

AllenS
right-wing idiot

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