March 30, 2013

"Having watched the arguments in the same-sex marriage cases, it is hard for me to imagine how they would have been different..."

"... if small, unobtrusive cameras had been there to record what was going on. With or without cameras, Justice Antonin Scalia was his spirited self, demanding that lawyer Theodore Olson tell him 'when did it become unconstitutional to exclude homosexuals from marriage?' Olson's sharp reply would not have been different with cameras on hand. 'When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?' Olson said. Judges and lawyers with experience before cameras in other courtrooms universally say that, especially at the appellate level, the questioning, listening and responding demand all their faculties. They soon forget cameras are there."

Writes Tony Mauro.

Now, we don't get video, but we do get this. I've clipped the same section Mauro refers to:

So then, what more would we have with video, and is it important? I remember opining on this subject back in 2005. I thought of it in terms not only of public access but as a check on the Court:
The Justices have life tenure, and they know how to use it. We just saw 11 years pass without a retirement. Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court. It has become the norm for Justices to hold their seats as they pass into old age and severe illness. With the support of four gloriously able and energetic law clerks and the silence of the other Justices, no slip in a Justice's ability ever shows in his writing. But the Justices do need to take their seats on the bench for oral argument, and it is here that the public has the chance to judge them.

This judgment may be unfair. Some Justices, as noted, are better looking than others. Some will subject themselves to hair and makeup specialists, and others won't tolerate it. And getting older damages even the prettiest face. Some Justices love the verbal jousting with the lawyers in the courtroom, while others think that all they need is the written argument and opt out of the live show. With cameras, Justice Scalia would win new fans, and "The Daily Show" would wring laughs from Justice Thomas's silent face. The read is inaccurate.

But the cameras would expose the Justices who cling to their seats despite declining ability. It is true that the journalists in the courtroom might tell us if a Justice no longer manages to sit upright and look alert. But the regular gaze of the television cameras would create a permanent but subtle pressure on the Justices to think realistically about whether they still belong on the Court. Self-interest would motivate them to step down gracefully and not cling too long to the position of power the Constitution entitles them to. I think this new pressure would serve the public interest. It would institute a valuable check on the life tenure provision, which has, in modern times, poured too much power into the individuals who occupy the Court.

And I want to watch the arguments on television too.

104 comments:

Freeman Hunt said...

Wow, the Court's audio is spectacular.

Also, I see that that exchange was much more intelligent and interesting than the edited transcript people have posted elsewhere.

Ann Althouse said...

"Wow, the Court's audio is spectacular."

I know, and the Oyez presentation is just terrific, enabling me to select that clip and embed it.

But do you think having the video would be an improvement? Or is the audio what really matters?

Aridog said...

But do you think having the video would be an improvement?
No. Video production would be a distraction...for everyone. Just hearing the literate arguments forces you, the observer, to listen. LISTEN. Not "watch" like one might a circus.

I'd never heard or seen the audio material you've utilized before...so thank you very much.

Ann Althouse said...

"I'd never heard or seen the audio material you've utilized before...so thank you very much."

Go to Oyez.com and find many many old cases. You can do a word search within the transcript and it will take you to that part of the argument.

Aridog said...

Go to Oyez.com ...

Thank you once again.

Ann Althouse said...

Here, for example, is a key segment of the argument in Roe v. Wade (questioning whether the fetus is a person).

tiger said...
This comment has been removed by the author.
tiger said...

Great tape and very very interesting to listen to.

I think Olson is wrong on his views of polygamy still being illegal if gay 'marriage' is a reality.

Equal protection would still apply because as Olson says but denies it applies polygamists are denied because of their class - the same as gays.

Hagar said...

Liberals foever cry, "But we did not mean for that to happen!" when the predictable results of their reforms come home to roost.

ricpic said...

A Justice may be in the process of expressing an idea or a position that either he himself has reservations about or an idea that he is literally discovering as he expresses it. In both cases the Justice's presentation might be quite halting, even lame at times. Human nature being what it is, who wants to look bad? A camera would IMO have a discouraging effect on a Justice who might otherwise be willing to expose himself, as it were, to his peers but not to become the object of derision out of chambers.

fivewheels said...

A couple of years ago I started downloaded mp3s from Oyez to listen to on my walks to work. I was surprised by how brief the oral arguments are for these earth-shaking cases ... you'd think they'd be hours and hours.

But I do think of video as a check not on the court, but of the media, which displays very nasty bias against certain justices. A video record that people might watch could be an antidote to unfair characterizations.

virgil xenophon said...

Aridog & ricpic have the better of the pro/con camera argument--by far.

virgil xenophon said...

@fivewheels/

But would not those on the left in the media (i.e., virtually everyone) make use of selective editing to make conservative justices look bad and/or to advance their cause in the court of public opinion. It's not like this has never happened before--as in daily..

Writ Small said...

But the cameras would expose the Justices who cling to their seats despite declining ability.

The audiotape does that well enough. The camera introduces unnecessary biases based on attractiveness and age.

Why is it OK to judge an argument based on the looks of a speaker, but it is "stupid" to judge a leader based on his degree of self reference?

Rabel said...

"But do you think having the video would be an improvement?"

Only if they used Helmet Cams.

edutcher said...

Cameras in the Court?

Two words:

Judge Ito.

Hagar said...

Liberals foever cry, "But we did not mean for that to happen!" when the predictable results of their reforms come home to roost.

Ever notice we haven't heard any of the trolls telling us lately how swell ObamaTax is going to be and how it's going to swing public opinion to Choom's side?

John said...

I first learned about Oyez.org here on Althouse 5-6 years ago. Maybe more.

I've listened to 30-40 cases since then, including this weeks two SSM cases.

I am amazed at a couple of things.

1) With few exceptions the arguments are very accessible to a non-lawyer like me. Most of the language is clear and easy to understand. Sometimes the arguments are a bit convoluted but even then they are in clear English.

2) Each side gets 60 minutes and that is scrupulously adhered to. I have heard attorneys stop literally in mid-sentence when the red light goes on.

3) I always get a kick out of the way arguments begin: "Mr Chief Justice and may it please the court {insert long legal argument here]"

2 minutes into the prepared legal argument a justice asks a question and then it seems mostly extemporaneous from then on. I am amazed at how well many of thes3e lawyers can think on their feet.

I think everyone should listen to at least a couple of arguments just to get a feel for how they work.

I've never found any, even one just picked at random, to be boring or dull.

John Henry

AprilApple said...

Video ends up wrecked and contorted beyond recognition on the John Stewart show? Big shock.

John said...

Speaking of openings, a question for the perfessor:

Why do they always start "... and may it please the court."

Is this something only in SC arguments or is it done in any other courts? Any history on the custom behind it?

What happens if the attorney omits it and begins "Hi there..." or something a bit more formal but not the exact wording? Does a big hook come out and snatch them?

As for cameras, I agree that they are not needed. It is not like there is a lot of action taking place. Audio alone is fine and I can listen to it while driving around.

I think that knowing they were on camera would change the dynamic.

The only advantage I can see would be that I seldom know which justice it talking. Cameras might help there.

John Henry

Chuck said...

The thing that made me think about video recording of the Court this week were the stories about line-sitters waiting for tickets that would later sell for $6000 and up.

I thought of the people who, as they sometimes do in televised Congressional committee hearings, bring their Code Pink banners, and matching t-shirts, and who use the occasion for free video airtime for their protests as they interrupt the arguments. And get hauled out by marshalls.

That's one good reason to never televise the hearings.

And yeah, Oyez.com is amazing.

fivewheels said...

My impression was that the poor lawyers usually get pantsed by the Justices, who interrupt them a lot and kind of abuse them intellectually. Not cruelly, but for some reason the advocates seem to be at a disadvantage. I felt like Scalia (predictably) and Breyer were particularly adept with the "Why didn't you think of this" moment, based on listening to mostly just the big, famous cases.

The main advantage of video over audio is that I believe more people would choose to access it. Ideally in raw, unedited, unmanipulable form.

fivewheels said...

You could video-record them and not let people in, to solve the protester problem. You have to let people in now only because of objections that would pretty much disappear if they were recorded/televised, right? I assume the objection to a closed courtrooom is that it shouldn't be in secret.

Alex said...
This comment has been removed by the author.
Alex said...

Well the 14th amendment does not enumerate that only gender, race & religion are protected categories. It says any citizen is entitled to equal protection, which means gay marriage has to be allowed along with polygamy.

n.n said...

Alex:

Along with every other union. The equal protection clause applies to individuals, not their behavior. If we expand the definition, then marriage can no longer be reserved for unions based on sexual relationships. It must be open to all unions, irrespective of forms and kinds, of numbers and combinations.

bagoh20 said...

One problem I have is that I want to leave my company to the employees when I die, but the estate taxes would probably destroy the company. If this polygamy thing comes to pass, could I just marry them all and leave it tax free?

Alex said...

nn - what about elderly people who get "married" without any sexual relationship? The point that some conservatives are trying to make that

marriage = a union between a man & woman for creating and nurturing children is patently FALSE based on reality. It's more of their FANTASY about how things SHOULD be.

n.n said...

Professor Althouse:

Our national charter, The Declaration of Independence, establishes that our unalienable Right to Life is endowed by our Creator from creation. The Fourteenth Amendment grants equal protection to all American citizens (i.e. "We the People" subject to the jurisdiction of The Constitution).

There is no reasonable argument to claim that "creation" is correlated to birth. Certainly not within its original context. There is also no reasonable argument to claim that "creation" is related to viability.

So, how did they manage to evade the original definition and justify selective discrimination based on a human life's stage of development?

How does this clear violation of the most basic human right, the Right to Life, continue to escape the scrutiny of human and civil rights organizations?

Are people so incapable of self-moderation that this behavior became a de facto standard to accommodate their uncontrolled urges, or was it instituted to influence a preferred outcome?

Shouting Thomas said...

The U.S. is defeated in Afghanistan and being driven out is disgrace.

And, our elites are wallowing in infantile decadence.

I see a bad moon on the rise.

n.n said...

Alex:

The distinction can be understood in the difference between normalization and tolerance. There are only a few behaviors which deserve to be considered normal or enjoy normalization.

While biological imperatives have a self-enforcing mechanism, human standards, including: principles, laws, and cultural norms, cannot guarantee an outcome; but, they can promote a desired outcome.

Your example does not violate the norm, because it still emphasizes the preferred behavior: a union of a man and a woman. This is the behavior a society, and humanity, must promote in order to advance evolutionary fitness.

Notice that other behaviors, whether homosexual or promiscuous heterosexual, can be tolerated; but they have no redeeming value to either society or humanity. They serve as individual and personal gratification. There is no credible reason to normalize them; but, unlike lethal behaviors, including elective abortions, they can be tolerated until they reach some critical mass in a society.

That said, if we dispense with biological imperatives, and traditional standards born to promote them, why should equal protection continue to be afforded based on sexual behavior?

The equal rights and benefits arguments cannot credibly discriminate between unions of diverse kinds and forms, numbers and combinations.

Alex said...

nn - regardless your side lost. Rush admitted it this week. You lost.

Shouting Thomas said...

Alex, the U.S. lost.

n.n said...

Shouting Thomas:

It's a dissociation of risk which underlies the civilization paradox.

Under most circumstances, only a very small minority would be capable of enjoying instant or immediate gratification without consequences. However, with the progress of civilization, there is also a progressive dysfunction. This proceeds until there is a convergence, and a civilization collapses from internal corruption or foreign invasion.

It's worth noting that evolutionary fitness is not a property of a species, but of individuals life forms. Perhaps our elites have determined that our individual debt exceeds our value. Perhaps they have determined that it is time for reset in order to marginalize or eviscerate their competing interests.

n.n said...

Alex:

Why should I care what Rush thinks. The issue is equal protection. The issue is individual dignity. The issue has neither been presented nor discussed. The homosexual activists, and their heterosexual patrons, have betrayed their cause. Whether that knowledge is sufficient to compensate for corruption caused by redistributive change remains to be seen. Only time will tell what integrity men and women possess.

bagoh20 said...

"what about elderly people who get "married" without any sexual relationship?"

No line will create an institution of marriage that will be uniform and equal, and as long as there is marriage there will be people to whom it is denied. The only issue is where the line is drawn. One man/one woman, was the keystone supporting it all, and nothing will hold it up with out that. It will now be on an inevitable course toward becoming solely a contract situation. This is what I want, but I would have preferred we not go through the coming messy path there.

The fasted growing marriage status is the unmarried. They will not long put up with gradually becoming the only people without special government marriage privileges. Who you choose to play house with will become irrelevant, and playing house at all unnecessary. It's all good.

n.n said...
This comment has been removed by the author.
n.n said...

bagoh20:

If there is a consensus to dispense with biological imperatives, perhaps all unions should forthwith be corporate. All unions, without regard for sexual or platonic relationships, irrespective of kinds and forms, without discrimination of numbers and combinations, should be afforded equal protection, equal rights and benefits, and be afforded equal standing under the law.

Let's reject the progressive, incremental nonsense. Let people reveal their motives, pursue their dreams in public, and suffer or enjoy the heavy hand of democratic leverage.

rcocean said...

Scalia slices and dices Olsen. He made him sound like tap dancing idiot.

And no to video. It will just allow the Liberal TV exces to boobify SCOTUS judges they don't like.

Alex said...

nn - whether you like it or not, gay marriage is a done deal in most of the country by the end of 2015. The deep south will hold out for another 5-10 years.

rcocean said...

Olsen is married to a liberal democrat and represented the Israeli spy pollard for $$$ - his support of Gay marriage shouldn't be a surprise.

Shouting Thomas said...

Alex, yes, our elites have become bizarrely decadent.

They do not understand or accept that they are in a global religious war.

You can declare all you want that there is no difference between men and women, and that homosexuality is the same as heterosexuality.

Reality will triumph. The West is collapsing in decadence and fantasy.

Yes, the descent will continue. I give you that.

Shouting Thomas said...

Detroit ruined by black rule.

Being repopulated by Muslims.

And, we're talking gay marriage.

Inga said...

Don't forget, North Korea is threatening to attack.

Inga said...

And it's all being sent as a punishment from God, because of..... The Gays.

Shouting Thomas said...

It is difficult to understand the spiteful rebelliousness that motivates you, Inga.

But, men have been struggling to understand that since Eve fell to temptation.

bagoh20 said...

n.n.: "...suffer or enjoy the heavy hand of democratic leverage."

There will always be those on both sides of that, but the left isn't smart enough to see how it hurts them, they never look past the current butt hurt of the day. The path the left always follows is win, win, win, collapse. I'm neither gay nor married, so I will inherit the earth.

rcocean said...

"And, we're talking gay marriage."

Right, because we need to discuss *the* most important issues 24/7 and never discuss sports, food, music, entertainment, movies, TV, scandals, etc. etc.

When the liberals start pushing polygamy - you'll be saying "We shouldn't discuss this - what about the economy!!!" I guarantee it.

bagoh20 said...

"And it's all being sent as a punishment from God, because of..... The Gays."

Nope, I think this is your fault. Don't try to pass the buck.

Alex said...

Still it's interesting that the sheer amount of national obsession over gay marriage the last several years has equated it with the Civil Rights movement of the early 1960s. Remember that private entrepreneurs were no longer legally allowed to discriminate on the basis of race. So pastors will no longer be legally allowed to discriminate on the basis of sexual orientation.

It's gonna get VERY ugly before it gets better.

rcocean said...

There's a certain kind of Republican that always annoys me. Whenever the liberals push some social issue, they cry "We shouldn't be wasting time on that, we need to talk about Defense, or the economy or taxes".

Then after the conservative surrender, the liberal push their social issue, which brings RINO cries of "we shouldn't be wasting time on this" which leads to another conservative surrender.

And so it goes.

rcocean said...

Its like Gay marriage, somehow we've gone from tolerating gays, to accepting gays, to celebrating gays, and now gay marriage. What's next? Affirmative action for gays?

I don't see how if banning gay marriage is "unconstitutional" how banning polygamy is "constitutional".

Why don't the Republicans just save everyone time and endorse Polygamy right now.

Shouting Thomas said...

You don't have to tell me how bad it's going to get, Alex.

The Canadian Supreme Court just ruled that the state has the right to silence, punish and imprison Christian ministers for preaching the traditional Christian view of homosexuality.

It isn't going to get better after it gets worse.

Alex said...

rcoean - the GOP didn't surrender, society moved to the center on gay rights. GOP refusal to adjust to political reality is suicidal. Fortunately Rob Portman can see which way the winds are blowing.

Alex said...

ST - it will be interesting. I can forsee hate-speech laws being adopted very soon in left-wing towns like Berkeley and spreading out.

rcocean said...

Alex - a majority of the country is against gay marriage and many more don't give a damn.

Political suicide? Lol. Republicans will pick up no votes by surrendering on this issue.

Alex said...

rcoean - long term the GOP will gain votes from moderates who can't stand to vote for the current Evangelical GOP.

Inga said...

No Alex, I think it's best if conservatives stay true to their principles. They most certainly should keep doing what they're doing. Reince Priebus is a fear monger, what a dope. The future will take are of itself.....don't worry, be happy.

Freeman Hunt said...

Hm. I don't know. I would like to watch them, but I think televsion ruins things. I think people would miss the sharp arguments and be too enthralled by the visuals. That's what happens with everything else. Also, I don't think the justices should have to be worried about looking attractive for television. Media people would be harping on their looks and mannerisms constantly. (And it would be pretty one-sided.) Better to hold out against celebrity culture in the court.

rcocean said...

There are a lot more evangelical voters than moderate voters (who will swing to Republicans based on Gay rights). Not only that but most "moderate" voters (social liberals and economic conservatives) live in very blue states. They're too small a voting bloc and in the wrong states for the GOP to benefit. The Religious right is what keeps the GOP in the game, once they leave you might as well crown Hillary! queen of the USA.

Freeman Hunt said...

I wonder what they use to get audio like that. It's truly stunning. I could listen to it all day.

Inga said...

Yes rcocean is so right.

Alex said...

Inga - funny that you would hope the GOP continues down it's current path and leave the Democrats with 1-party rule forever and ever. Why would you want that?

Shouting Thomas said...

Interestingly, I'm watching "Zero Dark Thirty."

Propaganda piece for the Western point of view that no different exists between men and women.

We're all in on that.

Bender said...

Still waiting for Ted Olsen to give a definite answer, although he did hint that so-called "same-sex marriage" did not become unconstitutional in our "evolutionary" Constitution until only a few years ago.

But as for his wormy retorts, the answer is that it was unconstitutional in 1789 to prohibit interracial marriages since marriage is not a creation of government, but pre-exists government, which therefore lacked the power from the onset to restrict it, just as it is beyond the power of government to redefine it today. Likewise, assigning children to segregated schools was unconstitutional from the very beginning, and going to deseregated schools was constitutionally protected as of 1868 when the 14th Amendment was ratified.

The fact that governments and courts persisted in an unconstitutional construction and application of the Constitution did not make those things valid. The Constitution is not the damned Supreme Court Reporter; the Constitution is not the caselaw of the Court. The Constitution is the Constitution. But that obvious fact totally escapes those brilliant experts out there.

Inga said...

No, no Alex, not at all, don't you know the majority of the country is against gay marriage? You weren't listening, tsk, tsk. They need to keep moving to the right, demand purity, kick out the RINOs. That a winning strategy.

Shouting Thomas said...

The notion that the GOP is ruled by an evangelical base is stupid beyond description

The GOP is betraying that constituency with open borders and amnesty.

No, the GOP is not ruled by evangelicals.

The answer to Inga's motivation... well, she's already stated that. She's furious with God because men are not women and gays are not heteros.

Inga said...

ST, furious with God? Nope. We get along just fine.

God created all of us, therefore he didn't make a mistake when he created gays too.

He who is without sin, cast the first stone, right?

Alex said...

Inga... you're a fascist if you have such an open desire for one-party rule.

bagoh20 said...

" leave the Democrats with 1-party rule forever and ever. Why would you want that?

That's always part of the ideology. Leftist are all about the totalitarian instinct. They want only one point of view in the media, education, politics, and culture. Show me one time where they had the power restrict opposite viewpoints and didn't use it. It's one of the reasons they crave power so much more than the right.

Shouting Thomas said...

One of the most stupid things about you, Inga, is that you keep trying that "You hate gays" strategy.

How have you continued to cling to that stupidity?

Who said that God made a mistake? He placed us upon this earth to fight out the eternal battle between good and evil.

You are a very devious woman.

I'm in favor of the restoration of the patriarchy. You might try to understand that. I oppose everything you want. I hope you are defeated.

Bender said...

Here's a bit of trivia for you --

So when did the hyper-Democrat state of Maryland adopt the 14th Amendment?

Inga said...

Alex, there won't be one party rule forever. When conservatives have seen what they've been doing, and continue losing elections, they'll eventually change or have a revolution.

Bender said...

Maryland did not adopt the 14th Amendment until 1959.

Inga said...

Nope, I'm very honest. I told you folks here before the election what would happen, but did you listen? Nope.

I'll tell you again, if conservatives stubbornly cling to their biases, based on intolerance, 2016 will top 2012, with Democratic wins. 2014 will too.

Baron Zemo said...

Tomorrow is the anniversary of the day Jesus was resurrected. He died for our sins. Rose on the third day to redeem us and to offer us a path to eternal salvation.

Some of you are so smug and self-righteous you feel that even the most depraved and destructive acts are just fine and dandy.

We are all of us sinners. A little humility might serve you well.

But that is beyond your grasp.

Shouting Thomas said...

The issue is not elections and has long ceased being about elections, Inga.

It's about men deciding to defeat women like you.

It's a global war. The rape hysteria the U.S. press is trying to whip up against India is the opening shot by the West to try to undermine traditional society in India. I hope that Indian men are smarter than Western men and don't get taken in by the "discrimination" and "hate" propaganda you are so good at disseminating.

These issues aren't going to be decided in U.S. elections. They're going to be decided on the global battlefield.

Inga said...

Practice what you preach Zemo.

Shouting Thomas said...

Inga, you should cease with the sermonizing.

We're in a religious war.

I want to see your religion defeated.

No compromise.

bagoh20 said...

God made lots of mistakes: Cancer, AIDS, Alzheimers, Carl Marx. I don't think gays are one of them, but the fact that gays exist does not automatically make them entitled to everything they want regardless of the cost to others. What kind of logic is that? Oh yea, God created the retarded, so that answers my question.

Shouting Thomas said...

It's my religion versus yours Inga.

Let's see which one wins.

Inga said...

ST, the war between the sexes? Why? How utterly silly. Whatever for?

You forgot to mention the blacks and the gays, oh what about the Asians, you know who they voted for in higher number than Hispanics, dontcha? I doubt they'll join forces with your type, ST.

Shouting Thomas said...

You continue to be stupid, Inga.

You're trapped inside this "discrimination" and "hate" mania.

I'll start thinking about how this stupidity can be used against you.

The weakness is obvious. The question is how to attack it.

Inga said...

And Bagoh joins ST's army!

This is getting humorous. Oh well, Happy Easter.

bagoh20 said...

"you know who they voted for in higher number than Hispanics, dontcha?"

George Bush, Ronald Reagan, etc.

Baron Zemo said...

It is becoming clear that we will all have to take a stand.

There has been a religious procession carrying the cross and a statue of the blessed mother for ninety years in my neighborhood. Now the gays and the ultra liberals who have moved in are trying to stop the procession because they don't want a religious display and it stops them for ten minutes when they want to cross the street.

Things have gotten bad and they are going to get worse.

Much worse.

Baron Zemo said...

Tolerance is not enough. Now they must have total control and dominance.

Religious displays and religious faith will be forced out of the public square.

Hate crime legislation is right around the corner.

It is very bad and it will get worse.

Much worse.

Inga said...
This comment has been removed by the author.
bagoh20 said...
This comment has been removed by the author.
Inga said...

God doesn't make mistakes, he puts things in place that we who can, learn a life lesson. Ah well, I don't want to give away any secrets, so carry on.

He didn't give us life and an existence on earth to squander it.

AlanKH said...
This comment has been removed by the author.
AlanKH said...

Ted Olson is a barking moonbat. Exhibit A through Z: the miscegenation card. Take it away, Mark Steyn:

"At the Supreme Court this week, Ted Olson, the former solicitor general, was one of many to invoke comparisons with Loving v. Virginia, the 1967 case that struck down laws prohibiting interracial marriage. But such laws were never more than a localized American perversion of marriage. In almost all other common-law jurisdictions, from the British West Indies to Australia, there was no such prohibition. Indeed, under the Raj, it’s estimated that one in three British men in the Indian subcontinent took a local wife. “Miscegenation” is a 19th-century American neologism. When the Supreme Court struck down laws on interracial marriage, it was not embarking on a wild unprecedented experiment but merely restoring the United States to the community of civilized nations within its own legal tradition."

http://www.nationalreview.com/articles/344287/death-family-mark-steyn

I disagree on one point: prohibitions against marrying outside the tribe are not unique to the US. But as racially mixed as the entire freakin' human race is (barring some isolated Third World tribes and a handful of European royal lineages), they are the exception and not the rule. Anti-protectionism in conjugality as well as trade made "the community of civilized nations" possible.

The miscegenation card doesn't even pass basic biology. The idea is to keep the outsiders out of "our" gene pool - a moot point where gay sex is concerned.

Mr. Majestyk said...

A State may allow infertile opposite-sex couples to marry while also barring same-sex couples from marrying, without violating the Equal Protection Clause. A State could rationally conclude that affording the benefits of marriage to all opposite-sex couples (except, of course, those involving close relatives or underage persons) would:

1. Encourage the institution of marriage generally among opposite-sex couples, which benefits society.

2. Avoid messy and intrusive inquiries into a couple's ability to have (and interest in having) children.

3. Channel the sexual energy of a fertile partner (let's say, hypothetically, the man) in such a way as to avoid a dalliance outside of the relationship that results in an unintended pregnancy and a child being born into a single-parent household.

4. Avoid the administrative nightmare and disincentive to marriage in the first place that would ensue from any requirement that couples who become infertile somehow be forced to divorce.

There may be others that have not occurred to me. Please note that not a single one of these reasons for limiting marriage to opposite-sex couples is based on hostility to homosexuals.

Mr. Majestyk said...

I should not have referred to the four points in my last post as "reasons for limiting marriage to opposite-sex couples.". They were, of course, reasons a State might want to allow infertile opposite-sex couples to marry. It is true, however, that allowing same-sex couples to marry (in the eyes of the State, I mean, not religiously) does not further any of these legitimate state interests, or at least a state could rationally so conclude. Hence, no equal protection violation from limiting state recognition of marriage to opposite-sex couples.

pigpaws said...

Inga, you apparently aren't learning anything. How does supporting those that enable the killing of the innocent while forcing others to participate, and believing in it yourself, square you with God's lessons? How about your support of government theft redistributed for votes under the guise of 'helping the poor', when God tells us that that is something WE, as individuals must do ourselves? Gays aren't a mistake but maybe they are the ones in need of a lesson, as you suggest, but they just want what they want, everything else be damned - me, me, it's all about me and did you know I'm gay - see rates of STDs, number of partners, substance abuse, domestic violence, etc... How does that translate in healthcare dollars?

You are full of crap because you too, are a very intolerant child. Everyone must live according to your views or we shall use the courts to make everyone compliant. As your dear leader stated "make it hurt".

harrogate said...

I join those expressing appreciation for learning of the existence of this site. It really is wonderful audio.

As for this specific exchange, seems to me it's vintage Scalia. He thinks he's really, really---no, really!!--really onto something with intellectual depth when he keeps asking "when did it become unconstitutional"? His reputation for brilliance, what it is rooted in and what's wrong with the reputation, all rolled up into one microcosm in that exchange.

Olsen's rejoinder that identifying that magic moment has never been a standard before, and the contextual examples he gives that ought to have ended the exchange immediately, Scalia ignores. Also vintage Scalia.

harrogate said...

Shouting Thomas writes:

"I'm in favor of the restoration of the patriarchy. You might try to understand that. I oppose everything you want. I hope you are defeated."

This is in line with his comments generally, but it remains unclear exactly what he means by it. What would "restoration of the patriarchy" look like in ST world?

sabeth.chu said...

Marriage is finished, at least in the West.
Governmen has the option to get out of it altogether - THAT would chime in with current reality.
The consequences, of course, would be INTERESTING. ("really, we are living in interesting times", Bert Brecht)
The barbarians before walls of Rome, I always thought, would, in this case, laugh their a*** off. But instead, they sent their first, tentative representative to preach on the balcony of St. Peter's, to tell peoples about what is going on outside the steam baths of the West, and invite them to care about the real needs (and needy) in the modern world. Very nice and tolerant toward the West, all things considered.

Aridog said...

Alex said...

Well the 14th amendment does not enumerate that only gender, race & religion are protected categories. It says any citizen is entitled to equal protection, which means gay marriage has to be allowed along with polygamy.

bagoh20 said...

One problem I have is that I want to leave my company to the employees when I die, but the estate taxes would probably destroy the company. If this polygamy thing comes to pass, could I just marry them all and leave it tax free?

You both pretty much approach my main point on all this, albeit from different directions.

What do the legal eagles think the impact of making the 14th Amendment apply to who gets married on Title 26 USC, the IRS code, will be? Do you think it will remain unchanged except that "married" gay/lesbian couples will receive what benefits contain therein as well as hetero couples? OR ...

Do you think the senior IRS bureaucrats, with the 14th Amendment judicial citation in mind, certainly, re-write the code-rules that would then say all individuals are to be treated equally and no exceptions for "married" anything?

What will the impact be when the interest group of married people approaches inclusion of potentially everyone? Meaning extinction of the interest group per se. Based upon my time as a "Fed" I can tell you...exceptions for the interest group will vanish because there will be no political impetus otherwise. I can tell you that senior bureaucrats will resolve the rules to most favor the federal government, which means themselves, which means no more exceptions on estate taxation or gifts...e-v-e-r-y-o-n-e will pay the transfer tax.

In my opinion this is actually the plan of the government in these cases. It allows more complete direction of government largess to voting blocks, not just cultural or traditional groups.

So, no Bagoh20...you won't get to benefit your employees by marrying your employees en mass, and Alex, I suspect you haven't really thought out what this expansion of the import of Amendment 14 will be.

I am only mildly surprised that the federal government has not already just flat out proposed revision of the IRS code to make everyone precisely the same in order to raise more money. This SSM fandango gives them a convenient beard for what they truly wish for anyway....more funds from everyone, no interest group exceptions, so that they can direct said funds more precisely to voting blocks....e.g., the government gets to totally define the recipients without the hassle of acknowledging lobbyists and interest groups for this or that.

Aridog said...

bagoh20 said ...

The fasted growing marriage status is the unmarried. They will not long put up with gradually becoming the only people without special government marriage privileges...

I should have read further before I commented late...you DO understand what is coming. Maybe not the details, but the extinction of an interest group.

Aridog said...

Bender said...

Here's a bit of trivia for you --

So when did the hyper-Democrat state of Maryland adopt the 14th Amendment?

I'm guessing that Maryland didn't ratify the 14th, just as another liberal bastion, Oregon, rescinded their initial ratification.

Aridog said...

Damn you Bender ! ....a little Google checking discovers ...

Maryland re-ratified the 14th in 1959
California got around to it in 1959
Kentucky managed it in 1976
Ohio re-ratified in 2003

Sheesh.

Aridog said...

Inga said...

And it's all being sent as a punishment from God, because of..... The Gays.

OMG! Inga's gone an joined Fred Phelps' church of what's happenin' now!

Bender said...

New Jersey, with its heavy Democrat government before and after the Civil War, attempted to rescind their ratification of the 14th Amendment as well, after also having voted against the re-election of President Lincoln in 1864.

Amartel said...

Court is for resolving disputes, not for education, edification or entertainment. Television allows people to stop thinking. It's the vision part. Reading and listening are active brain experiences; you have to keep thinking. With television, you can stop thinking and be passively shown. Supreme Court arguments are hard. Understanding them takes work; there is no short cut. Televising court will only allow the media to short cut and short change the public's understanding of the law. And encourage grandstanding (more grandstanding) by participants. No cameras in the court!