October 6, 2014

I was too lazy to blog my prediction, but — believe me! — I knew the Supreme Court was going to deny cert. in the same-sex marriage cases.

"This morning the Court... denied review of all seven of the petitions arising from challenges to state bans on same-sex marriage. This means that the lower-court decisions striking down bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia should go into effect shortly...."

My prediction was based on 2 data points:

1. In mid-September, at a forum at the University of Minnesota Law School, Justice Ruth Bader Ginsburg was asked when the Supreme Court will decide the same-sex marriage question, and she "noted that all three appellate courts to address the issue so far... have struck down state laws limiting marriage to opposite-sex couples... [G]iven that there is no disagreement so far, she concluded, there is 'no urgency' for the Court to take it right now."

2. Last Wednesday, at a forum for high school students in Colorado, Justice Scalia was asked the same question, and he said: "I know when, but I’m not going to tell you." After a laugh from the audience, he added: "Soon! Soon!"

I had the feeling that Scalia's "I know when" referred not a specific date, but to the specific condition, and that condition was the one Ginsburg had cited: When there is a split in the circuits. The Court has reason to believe that condition will never occur, and it can preserve its political capital by never weighing in on the subject.

I have thought ever since Windsor that any careful analysis of the Supreme Court precedent would lead any federal circuit to strike down the same-sex marriage bans. The uniformity we tend to think of as coming from the Supreme Court can come from unanimity among the circuits (after the nudge in Windsor).

Some people might want to get the answer nailed down for the whole country as soon as possible, but I'm guessing that the view on the Supreme Court is that things are already happening quickly and giving people a little more time to adjust — to evolve, as many like to say — is really more effective than a top-down dictate from the Court — which would give marriage equality opponents much more to cry out about.

And really, rejecting these cases is almost a clearer announcement that issue is over. Unless some circuit court decides to resist the compulsion of Windsor, at some point we will all look back and see that it was really already decided last year.

When will the Supreme Court decide the same-sex marriage question? The answer is probably: Never. Or: It already did.

ADDED: Look, Rand Paul is evolving.

149 comments:

Mark said...

Heads will explode. Should be an entertaining day.

Ignorance is Bliss said...

I assume the reason that they did not grant cert is that there are not four justices who are confident that they will get five to agree with their position.

Ignorance is Bliss said...

Why would heads explode? I assume you are thinking of heads on the right. Do you really think people on the right would be surprised by the Supreme Court not standing up for what is right?

Have you ever met a conservative? Like, in real life?

mccullough said...

They are too lazy to hear the cases.

Mark said...

The ones I see here are nothing like the ones I know in real life, Ignorance. Those have no issues with SSM, but plenty of people here sure do.

It's over. They are allowing marriage to expand and will not be taking those licenses back in the future.

mccullough said...

Bob,

These were federal court decisions striking down state laws. Of course the Supreme Court wouldn't hear a case about some disgruntled voter in Illinois who didn't like that the state changed its law to permit gay marriage.

But it's an abdication of responsibility to not review lower federal court decisions that strike down the same type of law in so many states.

sunsong said...

Some people might want to get the answer nailed down for the whole country as soon as possible, but I'm guessing that the view on the Supreme Court is that things are already happening quickly and giving people a little more time to adjust — to evolve, as many like to say — is really more effective than a top-down dictate from the Court — which would give marriage equality opponents much more to cry out about.

Kudos to Ginsberg! And congratulations to all states in the relevant circuits! A great day! What a fun way for this happen :-)

Michael The Magnificent said...

Nothing a Democrat hates more than democracy.

Bob Ellison said...

mccullough, yes, I noticed that I had the issues bass-ackward. That's why I deleted my post.

The Professor's reasoning seems to be mostly "because it's the right time to do the right thing".

mccullough said...

Marriage rates are decreasing and kids born to unmarried parents are increasing. Society has already transformed on marriage, starting about 50 years ago. No court can do anything about that.

Marriage, like joining a country club, is for the wealthy.

traditionalguy said...

Nobody cares anymore. It was always an identity war anyway: Protecting Marriage at the cost of hurting gay people.

So what if a traditional marriage just quits caring about the gays bad habits? They can still do what they do.

Mark said...

Michael, I prefer the constitution vs. mob rule.

garage mahal said...

A bad day for Scott Walker and JB Van Hollen is a great day for Wisconsin.

mccullough said...

Bob,

I think her reasoning is that they don't want to get involved in a social issue they don't have to. They did a good job sidestepping the California case last year.

mccullough said...

Garage,

Wasn't Wisconsin's gay marriage ban put in place while Dems were in power in Wisconsin?

Lyssa said...

The Rand Paul story is fascinating. I do expect that 2016 will be the last time that we see this issue as a truly national one, but I do hope that it goes away with a whimper, not a bang (which would reverberate for years to come).

mccullough said...

No story is complete without a reaction from a first term US Senator. Let's make another one of those fools president.

Ann Althouse said...

"The Professor's reasoning seems to be mostly "because it's the right time to do the right thing""

Not at all. How does that fit the situation where the Court declines the cases?

Your comment not only misreads me. It doesn't make sense.

Ann Althouse said...

The cases are basically premised on the need that there is that any law have at rational connection to a legitimate governmental interest, applied in a context where the states are not even willing to assert the interest that there is something wrong with homosexuality.

Curious George said...

"garage mahal said...
A bad day for Scott Walker and JB Van Hollen is a great day for Wisconsin."

LOL Neither of them care.

"mccullough said...
Garage,

Wasn't Wisconsin's gay marriage ban put in place while Dems were in power in Wisconsin?"

Yep. Why do they hate gays?

hombre said...

It's an exciting time we live in. Gay marriage is a go and dominates the front pages while we bankrupt our children, Islamists saw off heads and otherwise slaughter unbelievers, parasites swarm our borders, the workforce is at an all time low, food stamps are at an all time high, abortions approach 60 million, our corrupt government prints money to support the economy and persecuted its "enemies," our President is an indecisive adolescent and white people are racist pigs (There, Crack, no need to bust the thread with your whining.).

Our values are obviously "evolving." Time for Ellen and Portia to decide which will be mom and for Buffy, the cocker spaniel, and me to contact our wedding planner. Life is good.

garage mahal said...

Wasn't Wisconsin's gay marriage ban put in place while Dems were in power in Wisconsin?

Dems held the governorship and Republicans controlled the legislature.

Curious George said...

I big ole "hip hip hurray" cheer just was just made across Utah.

Bob Boyd said...

It will be interesting to see what percentage of gays choose marriage in say... ten years from now.

Jason said...

Until these assholes stop suing innocent bakers and photographers into bankruptcy fuck 'em.

Church lawsuits will be next and then the bloom will be off the rose.

Joe said...

But it's an abdication of responsibility to not review lower federal court decisions that strike down the same type of law in so many states.

Has is occurred to you that the majority concurs with the result of these appellate court decisions and so see no point of spending time to restate the obvious?

Curious George said...

"garage mahal said...
Dems held the governorship and Republicans controlled the legislature."

Governorship doesn't matter, as this wasn't a law to be signed, but an amendment to the WI Constitution. Needed to pass the Senate and Assembly two consecutive years, and then a state wide vote. It got support of some Democrats in the Assembly and Senate, and certainly Democratic votes when it was on the ballot.

Bob Ellison said...

So it's rational basis?

That's a flimsy piece of grass on which to build a national government's destruction of state-government laws.

Are you saying yay, they dodged it? Yay, people are evolving and the SCOTUS has noticed, so the SCOTUS can just walk around this obstacle?

What would be a positive argument that the SCOTUS should not address these cases?

CStanley said...

" ...a context where the states are not even willing to assert the interest that there is something wrong with homosexuality."

That's an interesting way to phrase it. What if instead a state were to assert, not that there is anything wrong with homosexuality but that homosexual unions are different enough from heterosexual ones that a "separate but equal" civil union should be Constitutional?

etbass said...

Seems to me that things would be a lot easier in this country if we would just abolish the congress and let the courts get on with the job of legislating which they are taking over anyway.

n.n said...

So, they decided to delegate responsibility, and shift reconciliation to a future generation/president. In the meantime, society will limp forward attempting to cope with the progressive incongruencies engendered by selective exclusion.

garage mahal said...

Governorship doesn't matter, as this wasn't a law to be signed, but an amendment to the WI Constitution.

Exactly. Different from your earlier post concurring that Dems were in power at the time. The amendment on the ballot helped Democrats retake the legislature.

hombre said...

"... that any law have at rational connection to a legitimate governmental interest ...."

The fact that the CDC reports that the vast majority of HIV/AIDS cases are among MSMs (men who have sex with men) evidently doesn't rise to the level of a legitimate government interest. I have to admit it doesn't interest me, but if it doesn't interest the gov't, why report it as a public health concern? Is government action that appears to promote MSM, that is, sanctioning homosexual marriage, aggravating a risk to public health?

I won't bother with the tradition, morality or absurdity issues because it clearly is not now among government interests to honor tradition, define morality or prevent itself or its people from appearing silly either here or abroad. But HIV/AIDS?

n.n said...

Evolution is a chaotic process. Progress is monotonic change. Neither are inherently qualified, as we observe with both.

wendybar said...

It's a country now run by liberal Judges. They overturn the vote of the people. Tell me why we vote again??? Why should we...they are going to dictate what is good for us, and what isn't.

hombre said...

Mark wrote: "Michael, I prefer the constitution vs. mob rule."

Should read: "Michael, I prefer the Constitution vs. mob rule when the former can be rewritten by avant garde, secular progressive judges to conform to my preferences."

There, fixed.

Mark said...

Hombre, I didn't realize Scalia was a progressive.

Left Bank of the Charles said...

The important case is Hollingsworth v. Perry, where Roberts provided the majority, not U.S. v. Windsor, where Kennedy provided the majority.

The Supreme court doctrine seems to be that marriage is within the purview of the states, subject to equal protection challenges to gay marriage bans.

Any state that wants to ban gay marriage can, if they can come up with a sufficiently compelling reason, but so far none have.

The question was, did Hollingsworth v. Perry just turn on standing, as it purported to? The equally opaque answer today is that it did not.

hombre said...

garage: "The amendment on the ballot helped Democrats retake the legislature."

Really? Wisconsin Dems turned out in large numbers to vote for the amendment, did they?

Mind your logic here, garage.

hombre said...

Mark: "Hombre, I didn't realize Scalia was a progressive."

Scalia has rewritten the Constitution to conform to your preferences, Mark? Really?

Try again.

Anonymous said...

Let's hope they can hold off taking a case on this for another 4 years or so.

First let's get a conservative in the Presidency, and then let's replace some of the Supremes.

Then they can decide on this.

Big Mike said...

A trenchant analysis, Professor, but I'd have an easier time believing you saw this coming if you had made your prediction before the first Monday in October.

Just sayin'

Brando said...

The Court has always had to consider its political impact as well as its legal impact. That was true with Marbury v. Madison and it's true now. Remember the "switch in time" in the 1930s as well.

So here, the Court sees public opinion shifting towards favoring gay marriage, and the legislatures and lower courts of a number of states beginning to reflect that. The pro-gay marriage justices have no incentive to upset that momentum by making a sweeping ruling that will make the antis feel cheated as they did with Roe v. Wade.

Lauderdale Vet said...

Personally, I'd rather the government just got out of the "marriage" business altogether. let the government "certify" and the churches "sanctify" as they will/wish.

Steve Uhr said...

Maybe the Justices who support gay marriage as a constitutional right don't want the court, possibly with a different makeup, to get involved and change the status quo. And the members opposed to gay marriage being a constitutional right would like to wait until they have some confidence their position will prevail. Hence a stand off for now.

Anonymous said...

Now that gay marriage is a fait accompli, we can proceed very quickly to dealing with the things the pro gay marriage crowd lied to us would never happen: lawsuits trying to force churches to perform SSM ceremonies (what's good for the baker and photographer is good for the pastor) and a widening expansion of the definition of marriage until it becomes basically just another contract. The second of which is fine, the first of which is another swing at the piñata for liberals to pursue their policy of eradicating religion from the public sphere. In such cases, I'm counting on the Supreme Court of Hosanna Tabor/Hobby Lobby to be the last defense of the first amendment.

Tom Gallagher said...

Conflating fairness and "the right thing to do" is like mistaking precision for accuracy.

Anonymous said...

lawsuits trying to force churches to perform SSM ceremonies

Exactly. Everyone can remember the thousands and thousands of lawsuits that were filed because churches refused to perform inter-racial marriages shortly after those were made legal by an activist judge.

Fending off those lawsuits is why the Catholic Church is now on the verge of bankruptcy. The homosexual agenda walks hand in hand with the atheist plot to destroy everything that has to do with religion in our country.

Crunchy Frog said...

Standing was the flimsiest possible issue that could have been the basis for a decision, but it was the only tool that Roberts had to avoid a 50-state solution. The writing was on the wall when Kennedy ruled for federal recognition in Windsor. It's a done deal as soon as there is a circuit split.

Which brings up an interesting question: people have floated Ted Olsen as a compromise scotus candidate if Ginsburg exits under a Republican Senate. Assuming this happens, wouldn't he pretty much be forced to recuse himself on the issue? What kind of judicial gymnastics would have to occur to avoid a 4-4 result on a consolidated case?

Beldar said...

Prof. Althouse wrote, "I have thought ever since Windsor that any careful analysis of the Supreme Court precedent would lead any federal circuit to strike down the same-sex marriage bans."

I think that's probably correct, but I would say "trends" rather than "precedent." If you look at the actual precedent, it's clear that they're wandering lost in the woods on equal protection. Justice Kennedy's ability to grasp the concept of equal protection review, like his fondness for substantive due process, seems to fade in and out depending on the issue. That confusion is unlikely to continue to his successor, whenever that is; and short of some other change in the balance of the SCOTUS, Prof. Althouse is almost certainly correct about the current likelihood of the SCOTUS taking another of these cases.

Beldar said...
This comment has been removed by the author.
hombre said...

Eric: "First let's get a conservative in the Presidency, and then let's replace some of the Supremes."

It ain't gonna happen. The demographic war is over and the parasites, the genitals and the pinkos have a clear margin of victory.

Conservatives may still be competitive in Congressional races, but neither Republicans nor conservatives will put a President in the WH in our lifetime. BO was a failed President and Romney was clearly the better man in 2012 and it wasn't close.

End of story.

sunsong said...

Marriages have begun in Utah!

Salt Lake Tribune cartoon

mccullough said...

Conservatives haven't had a president since Coolidge.

Revenant said...

Rand Paul's comments sound the same as his earlier remarks on the subject. I'm not sure what the "evolution" is supposed to be.

Beldar said...

@ Crunchy Frog: That Ted Olsen may have been on one side of a recent SSM case, or that he may have strong sentiments on the subject, are not sufficient reasons for him to recuse himself, or for him to be disqualified, on later SSM cases. If the recusal standards were that tight, Justice Kagan, for example — who as Solicitor General weighed in on behalf of the Obama Administration in essentially every SCOTUS case in which the federal government had an interest — couldn't be on the Court right now.

Beldar said...

(That's aside from the fact that politically, it's inconceivable that either a Republican or Democratic POTUS would nominate Ted Olsen.)

readering said...

The Sixth Circuit looks likely to uphold a gay marriage bans in Kentucky, Michigan, Ohio and Tennessee this year. So then there will be a significant split in the circuits and the Court can be expected to take up the issue. But maybe not until next term.

The Crack Emcee said...

Oh, you are such an expert on gay civil rights, but seem so unsure of your footing - when it comes to the people who made the concept of gay civil rights possible.

They're just like blacks, right? Except blacks don't have your full support like Scott Walker does = or gays, or women for that matter.

God, my disgust for all of you wells up so much I have to breathe,...

Big Mike said...

Justice Kagan, for example — who as Solicitor General weighed in on behalf of the Obama Administration in essentially every SCOTUS case in which the federal government had an interest — couldn't be on the Court right now.

You're writing that as though it would be a bad thing.

Drago said...

CR

Crack: "God, my disgust for all of you wells up so much I have to breathe,.."

Uh, you generally "have to breathe" regardless of your level of disgust.

Dummy.

rhhardin said...

As I understand the law situation now, thanks to the radio news summary, same sex marriage is now required only in states that have banned it.

buwaya said...

The Catholic church refused to do interracial marriages ?
When ?
The Church has never had a doctrine about race or racial discrimination.
And whatever local prejudice any Protestant church may have had, none were based on any particular theological doctrine or were supported by any tradition of Christian moral philosophy.

Jason said...

Madison Fella:

The Catholic Church never refused to perform interracial marriages, dumbass. Hell, it was churches and religious organizations leading the way on civil rights for African Americans all along.

And 1950 isn't today. The level of litigiousness is an order of magnitude higher.

Meanwhile, we already do have lawsuit-happy gays and lesbians and their enablers in government bankrupting ordinary people who don't cower to them on this matter of conscience that was wholly orthodox until an hour and a half ago. That's an undeniable fact.

aberman said...

"Evolve"? Well, I believe in evolution, but I also believe in survival of the fittest. Look at the reproduction rates of the so-called evolved. In a generation or two, America will be populated by people who manage to prioritize the traditional family model in the face of cultural headwinds, i.e., the most religious groups of all denominations. At which point, maintaining whatever legal framework the progressives have managed to hammer into place will fall apart.

buwaya said...

The US law and my understanding (and that of pretty much anyone educated on the subject) of moral philosophy have diverged. This is not an unusual situation.
That the law permits or even encourages depraved behavior is not strange or a cause for dismay.
Governments are prone to do evil, what else is new.
That depraved behavior is so popular, however, is. Worse even than that is the popular belief that this is a moral, virtuous thing. This is a symptom of a general collapse of virtue.
Its not Christians alone who would see this as dangerous and absurd.
Muslims, Buddhists, Hindus, Confucians, and even non-deistic Stoics (I don't need to wonder what Marcus Aurelius would think of it) would come to similar conclusions.

Anonymous said...

"lawsuits trying to force churches to perform SSM ceremonies

Exactly. Everyone can remember the thousands and thousands of lawsuits that were filed because churches refused to perform inter-racial marriages shortly after those were made legal by an activist judge.

Fending off those lawsuits is why the Catholic Church is now on the verge of bankruptcy. The homosexual agenda walks hand in hand with the atheist plot to destroy everything that has to do with religion in our country."

This is so ignorant it's painful.

The Church teaching has always been a man and a woman. The men and women in the middle east were people of color, not white people.

When you get lost in your own ignorance and decide you're going to equate all alternative forms of marriage to interracial marriage, you come up with such ignorant statements.

I believe the Mormon Church is the closest a Church would have come to not presiding over an interracial marriage.

I have a feeling a couple wanting an interracial marriage would have shrugged their shoulders and moved on to another Church, rather than force the Mormon Church to marry them.

You know, live and let live?

Can't have that today.

Mark said...

As a Libertarian, I'm pleased the Big Nine decided to just let it go.

Lyle Smith said...

Social conservatives are just wrong on gay marriage. They're not wrong on being worried about the slippery legal slope of gay marriage, but gays should be allowed to marry and fail at it, just like all the rest of us.

Jason said...

Why do those haters insist on punishing homosexuals with marriage?

Lyle Smith said...

Actually, certain passages from the Bible were used to support the existence of slavery in the United States. Protestant denominations actually split apart based on philosophical differences over the institution of slavery. There were even rabbis in New York who preached that slavery was an acceptable institution.

So, yes, sadly Judeo-Christian doctrine has been used to support racial discrimination.

Jason said...

You are confusing Judeo-Christian doctrine with departures from it.

Mark said...

The only way marriage (gay or otherwise) intersects the Constitution that I can imagine is through the Interstate Commerce Clause (the "sonic screwdriver" of the Left). And the only reason I can see it there is because of federal benefits legally owed to spouses when states, not the feds, decide who is and isn't eligible to marry.

It's not about the morality, folks, it's about the benes.

Revenant said...

In a generation or two, America will be populated by people who manage to prioritize the traditional family model in the face of cultural headwinds, i.e., the most religious groups of all denominations.

If beliefs were hereditary, nobody would be considering gay marriage in the first place.

buwaya said...

The legal slope is the least of it, just as the laws are the least of it. The real problem is the public attitude. Thats where the slippery slope is. Where is duty, virtue, and morality at this point ? The same arguments used for gay acceptance can be used for anything.
If I were to decide tomorrow that I want to spend the rest of my life as an alcoholic gambler I cannot be talked out of it. I probably was "born that way" after all (there being quite good proof of genetic predisposition). Obligations to family and ancestors ? They pale in importance to the power of my whims.

Anonymous said...

Lyle wrote;

"gays should be allowed to marry and fail at it, just like all the rest of us."

We SoCon's have never disagreed with this statement.

Anonymous said...

"As a Libertarian, I'm pleased the Big Nine decided to just let it go. "

I am too. For now.

Ignorance is Bliss said...

Lyle Smith said...

...gays should be allowed to marry and fail at it, just like all the rest of us.

They have always been allowed to. Any gay who wanted to marry, and found an opposite-sex partner who wanted to marry them, has been allowed to marry. Same rules as for the rest of us.

Ignorance is Bliss said...

Mark said...

The only way marriage... intersects the Constitution that I can imagine is through the Interstate Commerce Clause...

Check out the Full Faith and Credit clause.

Jason said...

Lyle Smith: Social conservatives are just wrong on gay marriage.

They're WRONG! I just KNOW they are!!! I just KNOW IT!!!!!

#reason #criticalthinking

Revenant said...

Where is duty, virtue, and morality at this point?

On the side of gay marriage. :)

Jason said...

Unless their baby comes out the wrong color.

buwaya said...

You will then support me (verbally anyway) on my desire to fulfill myself through alcoholism and gambling ?
And all who are contemplating this lifestyle ?
If you don't, you are clearly a hater.

n.n said...

Lyle Smith:

Slavery was only permitted in the original state of Israel, which was established and governed by God. And it was unlike any slavery since. For one, it was not institutional. It was closer to indentured servitude with a lifetime limited by order not compensation. Although, I don't recall the treatment of prisoners of war.

n.n said...

aberman:

We may also have womb banks and sperm deposits. Actually, we already do. The moral hazards are diverse and progressive. It will be interesting to observe how people reconcile the emergent incongruencies, if at all. It's more likely that they will exploit them for leverage, as the Democrats do today.

GRW3 said...

Gay Marriage: My first thought was - Why should they get a pass.

Actually it's just the latest in a string of social justice outrages the liberals beat the gullible conservatives with while libertarians kind blink our eyes at the spectacle.

Clearer heads would have seen it how it plays in with modern society and figured the fight was only worth modest resistance, say to get religious protections. Then the effort should have been to use the advent of gay marriage to reduce license. Want marriage benefits - get married, legally bound and committed. Just want to live together - too bad, so sad.

Bob Ellison said...

Why do we have a SCOTUS, if not to decide on questions of whether state laws conflict with the US Constitution?

Unknown said...

buwaya said...
"That depraved behavior is so popular, however, is. Worse even than that is the popular belief that this is a moral, virtuous thing." (1) there is a very small fraction of people who practice homosexuality, the behavior is not in any sense of the word popular outside of TV. (2) IMHO people do not believe homosexuality is moral and virtuous, only that people so bent should be allowed to have the same status (not rights, marriage in and of itself is not a right per se) as heterosexuals; no clue why this should be the case given the consequences, but there you go.

Massa Crack, we's sorry sir. Pleese suh, don' be disgusted with us.

MadisonMan said...

Madisonfella, that was well done and it went right over their heads.

Day when a Church will be forced to marry Gays: Never. Some churches may choose to have the religious sacrament include same-sex couples. But I cannot foresee the Government mandating what a Religious Sacrament must include.

You might as well ask when two Jews can sue (successfully) to be married -- without converting -- in a Catholic Church by a Catholic Priest. Ain't gonna happen.

Anonymous said...

"Day when a Church will be forced to marry Gays: Never."

Day when a baker will be forced to violate his sincerely held religious views and serve homosexuals pretending to get married? Never.

Day when the Catholic Church will be forced to violate their sincerely held religious belief's and adopt to homosexuals? Never.

Day when a photographer will be forced to violate their sincerely, held religious belief's and cater to homosexuals? Never.

You'll pardon me if I don't put much stock in your powers of prognostication, MadisonMan and fella.

Of course, what do you care? When it happens, you'll just backtrack and say, "Well, in this case, it's justified because...."

Big Mike said...

@Madman, I think eric's got you.

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

eric:

They will first "convert" the church, and the religious exemption will be moot. Not a few churches have already resigned from their religion and abrogated their faith.

As for the photographer, it's commerce first and beliefs second. It's always about the money.

Separation of "Church" and State: never. Roe v. Wade was argued as a faith-based exemption under the First Amendment. The privacy qualifier was added in order to respect a sincerely held belief: spontaneous conception. No "penumbra", just divergent faith, or actually a self-evidently false myth.

buwaya said...

The specific special case of homosexuality is not common. However the justification for it is extremely common and seductive.
It is almost or close to the general attitude towards sex, family, duty and vice.
In other words it is a valuation of whims and feelings over duty and virtue.

Titus said...

Scott Walker and Mike Spence said the fight is over in their states.

tits.

Drago said...

Titus: "Scott Walker and Mike Spence said the fight is over in their states."

If it's possible for you to emerge out from under the glow of Lena Dunhams deep, deep, deep scientific knowledge and love of scientific knowledge, perhaps you could provide a link.

Revenant said...

Day when a baker will be forced to violate his sincerely held religious views and serve homosexuals pretending to get married? Never.

The Constitution does not, unfortunately, protect the free exercise of baking.

Look, why don't you shelve the "ZOMG THE GAYS ARE RUINING EVERYTHING" rhetoric and go dig up an example of an American church being forced to marry people in violation of its own tenets?

Renee said...

You know what, we will rename the Sacrament.

Matrimony is Latin for act of becoming a mom. The definition is in its name. Nothing homophobic with the concept that children should be raised by both sides if kin under one roof.

Yeah, people think marriage is obsolete/piece of paper/ or whatever.

Legally marriage is 'history'. But obligations exist with or without it.

This a-gamy, the absence of it.

Titus said...

http://www.jsonline.com/blogs/news/278252541.html

Titus said...

https://www.facebook.com/GovernorMikePence/posts/400100000108757

that was hard-I try not to respond to other commenters Drago.

tits and have a great evening!

aberman said...

n.n:
It's not the question of capability of reproduction. There are sperm banks aplenty. It's a question of choice. Pro-Choice, right? The most avid proponents of pro-choice tend to *choose* very few children.

Jason said...

Revenant: The Constitution does not, unfortunately, protect the free exercise of baking.

The fuck it doesn't.

Renee said...

"What if instead a state were to assert, not that there is anything wrong with homosexuality but that homosexual unions are different enough from heterosexual ones that a "separate but equal" civil union should be Constitutional?'


New York came down with that in 2006
"In a recent decision from New York’s appellate division, court stated that: It is an undisputed fact that the vast majority of procreation still occurs as a result of sexual intercourse between a male and a female. In light of such a fact, “[t]he State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children.”65 The risk of a redefinition of marriage is that this social understanding and the goods it promotes are in danger of being lost in the new adultcentered version of marriage."
http://www.law.howard.edu/dictator/media/229/how_50_1.pdfpdf

Jason said...

Seriously, Revenant, if there were ever an example of scratching a liberal to find a fascist, there it is.

Francisco D said...

It seems like a good analysis to me, Professor Althouse. I am not a lawyer, but would like to play one on TV. However, I am saddled with two PhDs in Psychology, to my everlasting shame.

As a psychologist and follower of your blog, I wonder if it is annoying when you bring up a well reasoned set of points, only to see the thread go to hell with people who have personal/political issues that have seriously affected their judgment.

I am speaking of more than Crack and Garage. They are easy to ignore.

n.n said...

aberman:

Not true. For example, did you know that Pelosi has 5 children? I think pro-choice is directed for mass but not elite consumption. People should be more concerned about women with large families who also advocate for the "choice". Contrary to popular misconceptions, evolutionary fitness is not necessarily a species-wide principle.

Strange, the "bank" metaphor is lost on sperm. It would be more apt to construct a womb bank with sperm depositors, which earn interest, then upon maturation the principal+interest (i.e. "baby") can be collected. Essentially, abortion is a penalty imposed upon early withdrawals, which includes not only a loss of interest, but principle too. The womb bank can be regulated by The Treasury under the "Commerce Act".

James Pawlak said...

I was going to be too lazy to predict; But, I will foresee the application of Presidents Jefferson's prescription for tyrants to those judges "making law from the bench" contrary to the intent of the Founders of our Republic.


This could be done by allowing a "Free Exercise Of Religion" action to offer up, in Aztec style, those judges and justices to the gods of political correctness. (I have found a source for obsidian knives.)

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

RecChief said...
I think Mark had a pauline kael moment at 9:04 am.


Funny thing is, even though I consider myself somewhat conservative, that is, I think there is proper way to behave that I wish more people shared, I wouldn't dream of having the government impose that standard on the rest of the population. And I would prefer that federal recognition of homosexual marriage comes about through legislation, rather than a court case.

The most vocal proponents (of which I am one although not particularly vocal, guess that is the libertarian part of me) of gay marriage seem to want more than acceptance and tolerance. they want full throated celebration, and by god if you won't do it of your own free will, they will force you. And that is the problem I see with having the courts decide it. it will remain a divisive issue because it wasn't decided legislatively. There is a fairly large percentage of the voting population that sees a contentious issue, that maybe they could live with if a decision was reached legislatively, that feels as if a change of this magnitude is being shoved down their throats by the courts. Some call it lawfare by the left. You can call it anything you like, but I still contend that a solution forced down upon the citizens in this way will cause more division than it solves.

I notice that this blog focuses on appelate and Supreme court cases. Not surprising given that this is a law professor's blog. But I wonder if more attention shouldn't be paid to the other side of the law: the writing of the legislation. What is the percentage of lawmakers that make up Congress? It seems to me that well crafted, well debated legislation would result in less work for the courts, and less division in politics as well within the citizenry. All you have to do is look at the Senate or the House the last 6 years to see that legislation that contains no compromises doesn't get passed, and we are paying millions in salaries to elected officials and their staffs in both chambers for them to do nothing, leaving the actual rule making to bureaucracies and the courts.

Revenant said...

"Revenant: The Constitution does not, unfortunately, protect the free exercise of baking."

The fuck it doesn't.

You must be reading the same imaginary document in which the right to abortion is found.

aberman said...

n.n:
Yes, I know that Nancy Pelosi has five children. At 76, she is also from an earlier generation. She is also from an elite heritage-- and the rich are different.

somefeller said...

I love the smell of denial of cert in the morning when the Circuit Courts that have ruled on the issue have supported gay marriage. Smells like victory.

DavidD said...

"Marriage equality opponents".

Why not "supporters of traditional marriage"?

Revenant said...

At 76, she is also from an earlier generation. She is also from an elite heritage-- and the rich are different.

"Earlier generations" are the primary source of opposition to gay marriage.

The problem with the "traditional marriage will win through breeding" argument is that the actual people of breeding age overwhelmingly favor gay marriage. Even 44% of white evangelical protestants in that age cohort support it -- and those numbers are trending up, not down.

Drago said...

Titus: "that was hard-I try not to respond to other commenters Drago."

Not to worry.

Thanks for the link.

Static Ping said...

The Supreme Court makes this decision by dodging the issue. And so the judiciary has embraced the "I get what I want but in such a way that I can deny responsibility" philosophy currently in vogue with the executive and legislative branches. Does anyone in Washington actually want to make decisions?

Some people like to say we are mirroring the late Roman Republic. The problem with that analogy is while it was a most corrupt time, it also featured competent, daring men who risked life and fortune for their goals: Marius, Sulla, Caesar. It is hard to imagine anyone in Washington equivalent.

Renee said...

No one is breeding have you seen the fertility rates?

buwaya said...

Revenant is right.
There is no recovery from this - or at least, this is just a minor symptom of the greater illness from which there is no recovery.
The future is decadence, paralysis, decline.
A new power, or powers, are coming. The US and Europe have had their day.

Drago said...

DavidD said...
"Marriage equality opponents".

Why not "supporters of traditional marriage"?

Precisely. Does "marriage equality" extend to polygamy and/or polyamory?

If one is supportive of SSM (with 2 people), if that individual does not support more than 2 person marriage relationships does that make that person an opponent of "marriage equality"?

If not, upon what basis? Since the new standard is "people who love each other should not be denied the opportunity to get married".

Renee said...

Americans still think they are the center of the world.

Notice how the Catholic Church focuses on Africa, not because it does not love us... But the Church isn't going to waste her breath either.

It will be odd when the Pope comes to Philly in 2015.

Revenant said...

Why not "supporters of traditional marriage"?

Two reasons:

Firstly, because you do virtually nothing against threats to marriage that are both more common and more damaging, such as no-fault divorce and legal premarital sex. Metaphorically speaking, you're fighting for tougher punishment for jaywalkers while thieves and murderers go free -- claiming this counts as being "tough on crime".

Secondly, because you are pretending that "an adult man and woman" represents a tradition, while in reality it is only one part of many traditions, all of which had other parts you don't care about (e.g., parental consent, common social status, same race, same religion, and so on). Why shouldn't gay marriage supporters be allowed to cherry-pick the common trait of "a monogamous couple agreeing to be partners for life" and claim that THAT is the tradition that matters?

aberman said...

Revenent:
(last post - got other things to do)
If you do a simple analysis across generations, sure, gay marriage is more popular among younger generations than older. Look deeper at the various groups within the generations, and I suspec you will find something very different. I know that this is true for Jews (easy to look up Jewish views and birthrates of various denominations), and I suspect--but admittedly offer no proof-- it's true at large.

Chuck said...

Justice Scalia, dissenting in Lawrence v. Texas:

* * *

"Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653."

Chuck said...

"One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is 'an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.' Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as 'discrimination' which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously 'mainstream'; that in most States what the Court calls 'discrimination' against those who engage in homosexual acts is perfectly legal; that proposals to ban such 'discrimination' under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such 'discrimination' is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such 'discrimination' is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change. It is indeed true that 'later generations can see that laws once thought necessary and proper in fact serve only to oppress,' ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."

Chuck said...

"One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.' Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to 'personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,' and then declares that '[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.' Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), '[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,' ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution,' ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case 'does not involve' the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so."

Anonymous said...

If one is supportive of SSM (with 2 people), if that individual does not support more than 2 person marriage relationships does that make that person an opponent of "marriage equality"?

"This is a slippery slope. In addition to that at what point are we going to be okay marrying inanimate objects? Can I marry this table or this, you know, clock? Can we marry dogs?"

buwaya puti said...

Revenant is again correct. Each of the things he mentioned was a barricade once defended, ineffectively, and lost. This latest barricade is being lost now. I suspect I know what the next barricades are, and they will be the last ones. After that the deluge. There will be no family, duty, honest ambition, sincerity, education or initiative.
We are already seeing the paralysis of culture, economy and technology, and the increasing mass of useless plebs kept pacified by bread and circuses.

buwaya puti said...

The next step is that no one will marry anyone, least of all for the purpose of raising children.
The next generations, the luckier ones, will be feral singletons living for their empty pleasures. The rest will simply be feral, certainly whatever children there are will be.
If they are lucky the remnant will be conquered by a more vigorous culture.

Jason said...

Revenant: News flash, genius: the courts DID find a constitutional right to an abortion, and on many other occasions has upheld the right to freedom of association.

The only reason abortion is problematic is that I recognize a fundamental right to life that is not at issue here. An unborn child cannot very well pick up the Yellow Pages and find another mother willing to carry it to term; a gay couple can find another baker willing to enter into a contract with them. The fact that they'd rather bankrupt a family than go down the street to another baker makes them contemptible little brownshirts, along with their enablers.

Revenant said...

Scalia's argument is a good example of why conservatives are, in their own way, just as great a threat to human rights and freedom as progressives are.

Oh, sure, he dresses it up in lots of pretty words about tradition and entreaties to Please Think of the Children, but that's just the usual political doublespeak. What he's actually angry about is that people are losing the "right" to deprive people of freedom for the "crime" of mutually consensual adult sex.

But, of course, governments exist to protect rights, not to empower the mob to take them away from unpopular minorities. A government that imprisons people for exercising their natural rights is an illegitimate government, at least within the context of that action.

Scalia's argument is, in essence, that it is vital that we preserve the "right" to jail homosexuals because removing that right creates a slippery slope to legal gay marriage. Scalia, who has never done a good job of hiding his loathing of homsexuality, considers this a great danger. My view is more along the lines of "so if we stop violating peoples' rights, we get gay marriage too? Bonus!"

Revenant said...

Revenant: News flash, genius: the courts DID find a constitutional right to an abortion, and on many other occasions has upheld the right to freedom of association.

Since you're defining "Constitutional right" as "a right the courts decide is Constitutionally protected", that makes this simple: the courts have found that there is no right for bakeries to discriminate against married gay couples, so that settles that. No such right exists. You can stop wetting your panties with rage now. Or, alternately, use the actual Constitution instead relying on "whatever courts are saying this week" as your standard.

As for the right to freedom of association, the courts have routinely found that corporations --such as the bakery in question -- are strictly limited in how they may practice that right. Licensing requirements, zoning laws, allowed hours of operation, minimum wage laws, MAXIMUM wage laws, labor relations, when you're allowed to hire, when you're allowed to fire, who you're allowed to sell to, what price you're allowed to sell for, who you're allowed to buy from -- there is literally no part of business practice in which the courts do not tolerate imposition on the corporation's freedom of association.

Which is why the owners of the bakery tried the absurd tactic of claiming that making them sell a cake to a lesbian couple violated their religious freedom, even though cakes have nothing to do with Christianity and their church didn't ban selling baked goods to gay people. They knew the "freedom of association" argument was even more of a non-starter.

chickelit said...

My view is more along the lines of "so if we stop violating peoples' rights, we get gay marriage too? Bonus!"

But there's really nothing in your argument which couldn't be recycled to say:

My view is more along the lines of 'so if we stop violating peoples' rights, we get plural marriage too? Bonus!'

Absolutely nothing. Just give it time.

Oh and I disagree with your opinion of Scalia, but this post isn't really about Scalia.

Drago said...

madisonfella: ""This is a slippery slope. In addition to that at what point are we going to be okay marrying inanimate objects? Can I marry this table or this, you know, clock? Can we marry dogs?"

This is usually the tactic from those who refuse to answer a quite reasonable question related to a marriage type (polygamy) that existed for centuries past as well as exists today in some cultures and it's logical extension (polyamory) now that SSM has won acceptance.

Thats okay madisonfella. It's a difficult question to answer honestly for folks on your side without getting hoisted on your own petards.

I don't blame you for scurrying from the light.

What else can you do?

buwaya puti said...

Consider the question of the bakery as being larger than the law and the courts and what they consider to be rights. And it is larger than that.
Forcing all these things into the procrustean bed of "law" is a huge part of the problem. And this is deliberate. The law is a weapon.
That courts and masses of busybody officials have so constrained even simple bakers (and makers of advanced machine tools, etc.) is a direct cause of the collapse of small business and suppresses the rate of business formation.
This idiot gay lawsuit is just the cherry on top. Anything to crush the strivers.
The courts, the legal profession, the bureaucrats, the academics, the plutocrats and the fashionable are all part of the corrupt system that will destroy this society. They are the fatal infection.

Anonymous said...

"The future is decadence, paralysis, decline."

I would say this is prophetic, but instead, it's just obvious, at least to some of us.

The Revanants of the world will see this happen and they'll say, "What happened?"

If they are really fortunate, they will learn a lesson before the darkness descends.

But hope isn't a plan for these people. Save who and what you have now, because the time isn't that far off.

Kirk Parker said...

Rev,

"Firstly, because you do virtually nothing against threats to marriage that are both more common and more damaging, such as no-fault divorce and legal premarital sex."

WTF??? Do you have any idea how much hatred of no-fault divorce there is out there, in certain quarters?

Renee said...

Rev, thinks its 1990. People don't even get married.

But then again he thinks premarital sex was illegal.

AReasonableMan said...

This argument was lost a long time ago for the traditionalists. Once marriage came under the control of the state rather than the church it was inevitable that it would become increasingly difficult to exclude different minorities from its supposed benefits.

The Church is perfectly within its rights to deny marriage to divorced people but this is not an option for the state.

EMD said...

ARM is right. The freedoms attached to anything put under the purview of the State inevitably suffer.

I say this as someone who supports SSM in this reality, but would rather have the state out of the marriage business entirely.

Next up is our health.

Anonymous said...

"Thats okay madisonfella. It's a difficult question to answer honestly for folks on your side without getting hoisted on your own petards."

Ha! I put quote marks around those words for a reason. "My side" didn't say that nonsense. Rather they were spoken, in total seriousness, by someone you would vote for if you lived in Wisconsin.

You should google that quote so you can see for yourself exactly what kind of idiots you are being a cheerleader for.

George said...

The decision, also, provided yet another example of the idiocy of Slate's Lithwick.

Unknown said...

So it's ok to discriminate against two people who live together just like man and wife just because they didn't get a marriage license from the government? They have a joint household, they have children, they have love, in most states they have co-joined (?) health insurance. Now we are going to let the word "married" permit discrimination?

Jason said...

Revenant: - there is literally no part of business practice in which the courts do not tolerate imposition on the corporation's freedom of association.

Wrong. See the Hobby Lobby decision.

Jason said...

Revenant Since you're defining "Constitutional right" as "a right the courts decide is Constitutionally protected", that makes this simple: the courts have found that there is no right for bakeries to discriminate against married gay couples, so that settles that. No such right exists.

Must be a Dredd Scott fan.

It's as if the whole idea of the rights enumerated in the BOR being simply a formal expression of preexisting natural rights is lost on you and your cultural brownshirt friends.

Unknown said...

Point of order; are all natural rights Constitutionally protected? What is a natural right? Are natural rights malleable? Is someone claiming marriage as a "natural right?"

from the interweb:

"natural rights definition. Rights that Independence of the United States people supposedly have under natural law. The Declaration of lists life, liberty, and the pursuit of happiness as natural rights"

"nat·u·ral law: noun: natural law; plural noun: natural laws

a body of unchanging moral principles regarded as a basis for all human conduct."

Jason said...

If you are not at liberty to say "no, thanks, I will not be a wedding musician at your wedding," then you are not at liberty.

Mark said...

"If you are not at liberty to say "no, thanks, I will not be a wedding musician at your wedding," then you are not at liberty."

I am a musician in a band that doesn't play weddings. It's pretty easy to turn down weddings of all sorts.

But if I am in a wedding band, then I wonder where you would want the `line' on who you can and cannot discriminate against drawn?
I assumed no one was the answer on who you could discriminate from if you are the in the wedding business.

Anonymous said...

Draw the line? How about the people who make up the band get the liberty to choose?

For example, if its a band of gay people and they only want to play for gay people, that should be fine.

Or if its a band of black people, and they only want to play to crowds of black people, then they ought to be able to do that.

That's called liberty.

Jason said...

I know a number of musicians who specifically market themselves as wedding musicians. Quite common among string players, who often form quartets, etc.

Now, what if the leader of the quartet books a gig at a same sex wedding, and the cello player says, 'uh, no. Not my thing. I don't want to be a part of that.'

Does the quartet now have a tort against the cello player who dropped out? It's not that easy to just replace a cellist in a quartet on short notice for a weekend wedding in a small town. How does that work?

The quartet leader calls back and says, "sorry, we'd like to do it but my cellist says she has religious objections to a same sex wedding." If there's no contract to perform in place, does the party getting married have a claim against the whole quartet? The leader? A cello player whom they've never had any contact with whatsoever?

Let's assume the quartet wasn't a single entity but four different independent contractors. Does the State of Oregon fine the cellist? The quartet leader?Or everybody in the quartet? How does that go down?