April 29, 2015

Yesterday at the Supreme Court, struggling over whether the argument for same-sex marriage is better expressed in terms of fundamental liberty or equal protection.

In the same-sex marriage argument yesterday (PDF), the Solicitor General premised his argument entirely on the right to equal protection of the laws, but Justice Kennedy wanted him to talk about the right to marry. Kennedy framed the question on the old right-to-die case Glucksberg (which was getting its first mention):
JUSTICE KENNEDY: I'm interested in your comments on Glucksberg, which says what we should have to define a fundamental right in its narrowest terms. A lot of the questions that... we're asking your colleague in the earlier part of the argument... had that in mind, I think. What... do we do with the language of Glucksberg that says we have to define it in a narrow way?

GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental [rights] argument?
Verrilli refrains from saying because we thought it was the weaker argument (perhaps because of Glucksberg). He said because "this issue really sounds in equal protection." ("Sounds in" is legal talk.)

Later, Justice Breyer, questioning the state's lawyer, gave some indication that he thought the right to marry was a better ground for the decision than equal protection:
JUSTICE BREYER: [M]arriage is about as basic a right as there is; that the Constitution and Amendment Fourteen does say you cannot deprive a person of liberty, certainly of basic liberty, without due process of law; and that to take a group of people where so little distinguishes them from the people you give the liberty to, at least in terms of a -- of a good reason for not to, and you don't let them participate in this basic institution, that that violates the Fourteenth Amendment.
Breyer noted that equal protection gets the Court into "more scholastic" problems about the levels of scrutiny (since the Court has never said that sexual orientation is a suspect or "quasi-suspect" classification). The state's lawyer, John J. Bursch, started to answer and referred to the right to marry as "the right of privacy," a locution that Breyer did not accept: "What I said was that the right to be married is as basic a liberty, as basic a fundamental liberty, not the right of privacy, the right to be married, which has existed for all of human civilization, that that is the right which is fundamental."
MR. BURSCH: I'm using right to privacy interchangeably with the fundamental right that you're speaking about. And in Windsor, this Court said that the limitation of marriage to opposite-sex couples has always been thought to be fundamental. And so under the -- the Glucksberg test, that's dispositive. 
The actual quote from Windsor is: "The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion." And Glucksberg required a "'careful description' of the asserted fundamental liberty interest," using "Our Nation's history, legal traditions, and practices" as "the crucial 'guideposts for responsible decisionmaking.'" That's what Bursch found "dispositive."

Breyer tried to get Bursch back to his idea about marriage, which obviously isn't stuck with the traditional definition of marriage. But Bursch just repeats that Windsor plus Glucksberg are "dispositive." Sotomayor takes that boring repetition as a cue to interrupt, but she just restates Breyer's idea, and Bursch restates his Windsor plus Glucksberg formulation.

To the rescue is Chief Justice Roberts. He not only brings back equal protection, but he does it in a way that avoids that "scholastic" problem of whether to heighten scrutiny of the sexual orientation classification:
CHIEF JUSTICE ROBERTS: Counsel, I'm -- I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?
It's already well established that there's heightened scrutiny for sex discrimination. Sex discrimination is the shortest jump to an answer. This isn't something new that Roberts thought up. It's what worked in that early same-sex marriage victory — the Hawaii Supreme Court case in 1991, the one that riled up Congress and produced the Defense of Marriage Act. I've always liked that argument.

82 comments:

Mick said...

WHERE is the right to marriage in the Constitution?

Equal Protection refers to privileges and immunities originally had before the 14th Amendment, since that amendment only reaffirmed them for the sake of newly freed slaves. The 14th Amendment did not create any new rights (See Minor v Happersett and Fitzgerald v Green).

Ann Althouse said...

"WHERE is the right to marriage in the Constitution."

"Liberty."

Bob said...

They cast the lead into Glucksberg, and sounded, but found no ground.

MayBee said...

I absolutely believe in gay marriage. I do not understand people who are against it.

But if "liberty" is in the Constitution and gives the right for people to marry regardless of gender, I do not understand where any limits to marriage would be found Constitutional. Age limits, perhaps. But even minors can get married with parental permission.

Tank said...

Of course the answer is not that you can never discriminate based upon sex. What is the exact standard? Obviously not rational basis. Is it strict scrutiny? I think this discrimination would meet that test, but that's just me.

================================

Mick, you don't understand constitutional law or how to discuss legal issues.

Tank said...

MayBee said...

I absolutely believe in gay marriage. I do not understand people who are against it.

But if "liberty" is in the Constitution and gives the right for people to marry regardless of gender, I do not understand where any limits to marriage would be found Constitutional. Age limits, perhaps. But even minors can get married with parental permission.


States can pass limits, but not unconstitutional limits.

MayBee said...

States can pass limits, but not unconstitutional limits.

And what is not unconstitutional? Nowadays.

Tank said...



MayBee said...

States can pass limits, but not unconstitutional limits.

And what is not unconstitutional? Nowadays.


Whatever Justice Kennedy thinks.

Tank said...

That's a joke.

Sort of.

Ignorance is Bliss said...

The right to marriage is so fundamental that it cannot be constrained by its own definition.

MayBee said...

Because we all have no doubt limiting marriage to a man and a woman would not have been found unconstitutional 30 years ago.

MayBee said...

Got it, Tank.

PuertoRicoSpaceport.com said...

Is it really about the right to marriage? There is nothing preventing gays and lesbians from marrying, providing they marry someone of the opposite sex

Seems to me that the argument is about the right to marry whoever you choose

That seems to be a completely different argument.

John Henry

Lyssa said...

Sex discrimination makes so much more sense here than anything else. The fact that that's not the primary argument is extremely frustrating to me. Plus, that short-circuits the potential polygamy and incest problems. Go with sex discrimination, justices!

MayBee said...

Here's the thing:
I want the Court to find *for* gay marriage, but that is as a means to an end.
Which I also know will bring about another challenge on behalf of another group very soon. Because that's how things roll these days. That which was ridiculous becomes the only way very quickly, and any other opinion is to be shamed.

Look at the bakery. I know that is possibly tired, but it is true. And anyone who wants the Court to rule and ignores those cases is choosing not to engage in reality.

tds said...

" if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't." Except it is not government that is discriminating, but Joe. Works with gays, too. The whole concept of marriage is founded on sex-based discrimination, regardless whether gays can do it or not.

Lyssa said...

MayBee: Because we all have no doubt limiting marriage to a man and a woman would not have been found unconstitutional 30 years ago.

You know, the sex discrimination reasoning even explains this problem, IMO. People talk about "changing the definition of marriage," but fail to realize that the definition of marriage already changed - some decades ago, from one of rigid gender roles to one of equal partnership. It's a change that basically everyone agrees is right and good.

Same sex marriage made no sense under the older definition - you can't have an institution based on gender roles without two different genders. But you certainly can with one based on equal partners.

BDNYC said...

This should have nothing to do with liberty or fundamental rights. It's easy enough, and perfectly legal, to cohabitants with your gay lover and engage in relations. This is an equal protection issue. It's about creating a special relationship status with rights and benefits and keeping gays out of it.

EDH said...

Linking suspect classification to behavior, even if you believe that it's only the manifestation of an underlying innate sexual orientation, would be a huge mistake.

And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

Wouldn't this elevate the public toilet use issue to a constitutional question?

Fundamental liberty is the most logical basis, but also the one most likely to open the floodgate to the parade of horribles that opponents of same sex marriage predicted at the outset.

Bob Boyd said...

Jessica loves Laslo and Scarlett loves Laslo, but if Scarlett marries Laslo, Jessica can't.

Stupid question:
Why isn't that a straight forward denial of Jessica's basic liberty?
Because of the definition of marriage?

Why isn't it a denial of equal protection?

Ann Althouse said...

"But though Men when they enter into Society, give up the Equality, Liberty, and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislative, as the good of the Society shall require; yet it being only with an intention in every one the better to preserve himself his Liberty and Property; (For no rational Creature can be supposed to change his condition with an intention to be worse) the power of the Society, or Legislative constituted by them, can never be suppos'd to extend farther than the common good; but is obliged to secure every ones Property by providing against those three defects above-mentioned, that made the State of Nature so unsafe and uneasie."

That's one of the nominees for Best Bad Sentence Ever Written.

Basil said...

"Liberty", huh, Professor???

So you are ok with the liberty to contract?

When liberty means nothing but whatever the committee of lawyers say it means, the rule of law is gone and replaced by tyranny of the judiciary.

The issue is where does the US Constitution, as a written document as ratified by the people who voted on it and its amendments, address homosexual marriage? It doesn't. If you want it to address this topic, you should have to do the work done by those people who got it amended in the past, not just get five judges to impose their political preferences thorugh fiat.

Ann Althouse said...

"But if "liberty" is in the Constitution and gives the right for people to marry regardless of gender, I do not understand where any limits to marriage would be found Constitutional. Age limits, perhaps. But even minors can get married with parental permission."

The standard formulation (stated in Glucksberg, for example) is that the limit is constitutional if it is necessary to serve a compelling governmental interest.

Is the same as the question when intentional race discrimination is permitted.

Other formulations are found, notably "undue burden," which is the standard you see applied in abortion cases.

Ignorance is Bliss said...

Lyssa said...

People talk about "changing the definition of marriage," but fail to realize that the definition of marriage already changed - some decades ago, from one of rigid gender roles to one of equal partnership. It's a change that basically everyone agrees is right and good.

I've never seen a definition of marriage that included the gender roles. Those roles were certainly common in the implementation of marriage, and many other laws did discriminate based on those roles. But that was never part of the definition of marriage.

Meade said...

Bob Boyd said...
"Jessica loves Laslo and Scarlett loves Laslo, but if Scarlett marries Laslo, Jessica can't.

Stupid question:
Why isn't that a straight forward denial of Jessica's basic liberty?
Because of the definition of marriage?

Why isn't it a denial of equal protection?"

Because bad cases make law hard.

MayBee said...

The standard formulation (stated in Glucksberg, for example) is that the limit is constitutional if it is necessary to serve a compelling governmental interest.

But there is really no compelling governmental interest in keeping loving close relatives from marrying. Or multi partners. Every issue that arises from these groups marrying can be argued around in the same way gay marriage can. In terms of liberty, children, love, stability.

Basil said...

"But though Men when they enter into Society, give up the Equality, Liberty, and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislative, as the good of the Society shall require; yet it being only with an intention in every one the better to preserve himself his Liberty and Property; (For no rational Creature can be supposed to change his condition with an intention to be worse) the power of the Society, or Legislative constituted by them, can never be suppos'd to extend farther than the common good; but is obliged to secure every ones Property by providing against those three defects above-mentioned, that made the State of Nature so unsafe and uneasie."

That's one of the nominees for Best Bad Sentence Ever Written.

Securing property and freedom of the person is not the goal of the left. They are about power and compulsion to live as they mandate that you live, to the extent that you can't decline to bake them a cake.

The founders had little to no experience with what came to be the progressive ideal that everything belongs to "society" as determined by the socialist/communist political party.

Had they seen more of this they would have placed greater limits on the federal government. This is the great error of the founders and was predicted by James Mason and Patrick Henry.

Hunter said...

tds said...
" if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't." Except it is not government that is discriminating, but Joe.


Government is instructing Joe as to the manner in which he must discriminate. He is allowed to marry a woman instead of a man, but not to marry a man instead of a woman.

If you want to view it in terms of discrimination, then the government is itself imposing an unfair and discriminatory double standard.

Lyssa said...

Ignorance is Bliss said: I've never seen a definition of marriage that included the gender roles. Those roles were certainly common in the implementation of marriage, and many other laws did discriminate based on those roles. But that was never part of the definition of marriage.

The "definition of marriage" is about more than what Merriam Webster had to say about it - you couldn't possibly have failed to notice that there were social expectations and roles involved, as well as a system of laws that once did (but no longer does) impose differing legal rights and obligations.

Tank said...



tds said...

" if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't." Except it is not government that is discriminating, but Joe


The question involves whether gov't recognizes it which brings in all of the "marital" benefits (and detriments).

MayBee said...

some decades ago, from one of rigid gender roles to one of equal partnership. It's a change that basically everyone agrees is right and good.

I think that's a good moral argument, but not necessarily legal.
People weren't denied marriage licenses if the woman declared she intended to work outside the home.

jr565 said...

It's not an equal protection argument because you only have rights to marry how marriage is legally defined. And do if marriage is a man and a woman then you are equal in that you too Can marry a member of the opposite sex. You are equal in that you have the same tights to marriage (as defined by states) as everybody else.you don't have a right to redefine marriage, since that's not an equality argument.
And it's not a fundamental rights argument since you have a rot to marry as defined by the states. Same argument. You have a fundamental right to marry. But what does that mean? You still have to marry in the context of how its defined. So you don't have a fundamental right to polygamy, when we say marriage, beciase polygamy is legal.
The only good argument for legalizing gay marriage is that it's a good idea and that gays want to have a relationship codified into law that provides them rights. And that's not a bad argument. Since marriage isn't for them, make something for them that gives them something similar. Civil unions is the answer.

They don't have a guaranteed right to it, but they should have it simply because it's a good idea. My opinion. Of course, if society votes otherwise,then like all other restricted marriages they don't have rights to it.

Left Bank of the Charles said...

Marriage, or at least traditional marriage, is a magic trick. It can't be defended without exposing the secret of the magic trick, which would destroy the magic.

MayBee said...

Is there anybody here who does not believe there will immediately be a challenge from another group if SCOTUS finds a constitutional right?

Can we at least all admit we think there will be?

Anonymous said...

How about the right to get married to more than one husband?

I think she can claim "liberty" but not "equal protection".

Tank said...

The standard formulation (stated in Glucksberg, for example) is that the limit is constitutional if it is necessary to serve a compelling governmental interest.

Put in terms of that standard, I think there is a compelling gov't interest to differentiate between gay marriage and marriage marriage.

I know, Althouse disagrees with this.

Lyssa said...

People weren't denied marriage licenses if the woman declared she intended to work outside the home.

True, but entire legal systems were designed on the generalized assumption that she wouldn't (at least, not that much).

Douglas said...

Ann, I dissent. If a state wanted to eliminate marriage laws entirely, and leave the whole matter to private contract and churches, would the Constitution prevent that? I just don't see it. The establishment of marriage as social institution created by law, and blessed with various legal benefits, is not mandated by the Constitution, and to the extent the Court has previously suggested to the contrary, it was wrong. So Equal Protection is all that's left, and the test there is rational basis, and that boils down to whether the reasons for constituting marriage between men and women as a legally preferred social institution are rational or not. Obviously, people have radically different views on whether the traditional law satisfies the rational basis test or not. I don't know where Kennedy falls.

To me, the most interesting part of the argument was the SG's concession that a holding in favor of SSM as a constitutional right would open the door to Bob Jones-type challenges to the tax exemption of churches that do not perform gay marraiges. I wonder if Justice Kennedy is really prepared to see the Catholic Church stripped of its tax exempt status, which is what gay advocates will seek next.

jr565 said...

Althouse wrote:
"WHERE is the right to marriage in the Constitution."

"Liberty."

That's pretty broad don't you think? And yet liberty doesn't allow for polygamy. Or bigamy. Or child marriages. Or harems. Or polyandry. Or incestual marriage.
Suddenly liberty is actuall very narrow.
And oh look, it actually corresponds to marriage restrictions. So then, your liberty extends only so far as what is restricted. You don't have a right to something Greater than what is allowed. Granted, you can not appeal to govt and then you have much more leeway. But the push for gay marriage was always for legalization.

MayBee said...

True, but entire legal systems were designed on the generalized assumption that she wouldn't (at least, not that much).

I've been on ancestry.com lately. I have centuries of farmers in my family. In the census reports, the husband is listed as "Farmer" and the wife is listed as "at home", but you can bet your bottom dollar their responsibilities and labor were pretty equally divided.

I also have a couple divorces that took place over 100 years ago. I think women who divorce now are much better protected by law than women whose husbands left them back then.

So I guess I don't entirely agree with your premise.

Bob Ellison said...

Does "sounds in" (the legal phrase) come from the nautical verb "sound" (to measure the depth of something)? That doesn't quite sound in etymology, but I can't figure out how else it sounds right.

Zeb Quinn said...

"Forsaking all others" is pretty much the opposite of liberty.

Ignorance is Bliss said...

Lyssa said...

The "definition of marriage" is about more than what Merriam Webster had to say about it - you couldn't possibly have failed to notice that there were social expectations and roles involved, as well as a system of laws that once did (but no longer does) impose differing legal rights and obligations.

Of course I notice the social expectations. Those change. They change all the time. They vary across social status, and ethnic community, and religion.

What didn't change was the definition.

Basil said...

"Undue burden" now, there is a standard that limits the arbitrary power of unelected federal judges.

Bob Ellison said...

MayBee said, "But there is really no compelling governmental interest in keeping loving close relatives from marrying. Or multi partners. Every issue that arises from these groups marrying can be argued around in the same way gay marriage can. In terms of liberty, children, love, stability."

I've seen this contention cropping up a lot lately: why oppose SSM when there's no governmental interest in opposing consanguineous marriage or polygamy?

There are strong government interests in limiting both. When blood relatives marry, diseases of various types increase. Most basically, that increases welfare costs.

Polygamy tends to lead to child abuse, slavery, and lonely men. It just does.

Just laying it out there so that we can all be aware of the silliness of the no-government-interest analogies.

jr565 said...

Althouse wrote:

The standard formulation (stated in Glucksberg, for example) is that the limit is constitutional if it is necessary to serve a compelling governmental interest.

and having a framework where the biological parents of kids can raise their offspring meets that govt interest. No other pairing works quite as well. Gays have to have kids with surrogates. Polygamy you can have two different mothers have kids with one man leading to all sorry of paternity complications.
Every person born requires a mother and a father to at least provide the genetic material. Two dads doesn't cut it. They may be great as parents, but they Aren't the natural parents. Only one is, at most. And the mother or father is someone in a different relationship.

So then if that's the ideal, then why would you make other marriages the equivalent.
We want moms and dads to raise their kids. We don't want dad abandoning the kid and leaving the single mom to raise the kid. That's how we get Baltimore.
We don't want sperm donors as the norm.

Even our custody rules still favor biology. If a mother is out of a kids life for a while and he's being raised baby adoptive parents and the mother asserts her parental rights, the courts will usually side with the mother. Beciase biology is pretty damn important.

If we ALSO want a structure where guy people can get rights that are equivalent that's fine. But it totally changes why we'd want marriage in the first place. If we just want to give out licenses to people who love each other, the. Really why is there a compelling interest to not give out said licenses in polygamy.

You have to define marriage. If it means anything, then you really should get govt out of the marriage business like the libertarians say.

Mick said...

"Liberty" means the right to marriage Althouse? says who?

You said,

"The standard formulation (stated in Glucksberg, for example) is that the limit is constitutional if it is necessary to serve a compelling governmental interest".

And you just made my point. There is NO compelling governmental interest in sanctioning gay "marriage" (or 2 fags playing house). Heterosexual marriage propagates and legitimizes the citizenry. Homosexual marriage is against the law of nature... DUH.

So blinded by the gay son.

Bob Ellison said...

I should also add that polygamy tends to lead to consanguineous reproduction.

jr565 said...

Bob Ellison wrote:
I should also add that polygamy tends to lead to consanguineous reproduction.

so,does breeding in an insular community. We,re not,going to tell the Amish that they can't marry other Amish are we?

Cog said...

Will the Supreme Court determine the rights to gay marriage without raising the issue of the rights of children?

The only reason government got involved in the marriage business in the first place was because of the children that men and women produce. There are many other kinds of household-family relationships to be had, but the government never regulated any of them until gay marriage came along.

In families, when making life changing decisions the needs of children usually come first. It's one of the priorities of family life. Could being torn away from having a mother or father (or stepmother / father) violate a child's human right? With gay marriage the government indicates that the sexes are interchangeable for parenting. The Court ought to ask for the studies that back up that idea.

MayBee said...

There are strong government interests in limiting both. When blood relatives marry, diseases of various types increase. Most basically, that increases welfare costs.

Polygamy tends to lead to child abuse, slavery, and lonely men. It just does.


But we are being assured marriage isn't about children. What about non fertile blood relatives?
And think....we allow sperm donors and adoptions. Surely blood relatives actually do marry without even knowing it.
Would increased welfare costs of the few blood relatives who wanted to marry be even a drop in the bucket compared to the welfare costs of unmarried women having multiple children?

Does Polygamy lead to child abuse because it is currently prohibited, so only certain people are bold enough to engage in it?
Does it lead to more child abuse than women who have a non-related father figure in a house full of children?

Bob Ellison said...

jr565 and MayBee, maybe the arguments against cousins marrying and against polygamy come crashing down with evidence presented.

I'm just saying: recognize the arguments. They have been around a long time-- millennia, Kennedy might say. It's not something governments dreamed up recently as a way of limiting the rights of kissing cousins and Mormons.

MayBee said...

I'm just saying: recognize the arguments. They have been around a long time-- millennia, Kennedy might say. It's not something governments dreamed up recently as a way of limiting the rights of kissing cousins and Mormons.

Bob Ellison...yeah, I get you.
But isn't this exactly what is happening right this very minute with gay marriage?

Bob Ellison said...

Similarly, granting the government-granted privileges (taxes, inheritance, hospital-visitation, etc.) of marriage is not a sudden, recent invention.

That's my problem with the SSM arguments. C'mon, people, one-man-one-woman is not a new thing. To argue otherwise is just foolish.

jr565 said...

"There are strong government interests in limiting both. When blood relatives marry, diseases of various types increase. Most basically, that increases welfare costs."

don't we have something in this country called abortion? Why is it that only incestual couples are incapable of killing their kid if it has birth defects.
I have a friend with four kids. Two of which have autism. Don't know why, but clearly there is a high probability that his kids will,have autism. Yet we're not telling him he can't be married.
Sure, incest can lead to higher probability of birth defects. But how much higher. Is it grounds enou to deny consenting adults, who have access to birth control, family planning and abortion to not get married.
Leaving aside that if it's gay incest there is no possibility of kids, and so no spreading of genetic material.

Quayle said...

"[M]arriage is about as basic a right as there is"

Really? So how come my great grandfather was put in jail in the late 1800s in Utah, for marrying someone? They were both consenting adults at the time.

They didn't even live in an established state, but the U.S. government was so outraged, it felt it critical to push out thousands of miles into the untamed west to intervene and squash all such behavior.

Mormons said "There are constitutionally protected spaces that allow us to enter into non-western-typical forms of marriage."

And the SCOTUS said, "No there aren’t! The constitution carves out no such liberty on such a fundamental issue. The majority will decide what is an acceptable form of marriage and you will comply under threat of jail and loss of all your property!"

So after a few years in jail and the loss of their property, the Mormons got the message and complied, and later the Mormons said, “OK, as the majority in Utah, and as part of majorities in other states, we will participate in the majority defining what is an acceptable form of marriage, as the U.S. government has told us is the correct procedure for such a fundamental issue.

And now will the SCOTUS say, "No you won't! There are constitutionally protected spaces permitting groups to define marriage as they see fit, and into which no majority can trod, regardless of how fundamental the issue."?

Forgive me if I don’t take very seriously your so-called enlightenment and legal reasoning, Mr. Breyer.

jr565 said...

Bob Ellison wrote:
jr565 and MayBee, maybe the arguments against cousins marrying and against polygamy come crashing down with evidence presented.

I'm just saying: recognize the arguments. They have been around a long time-- millennia, Kennedy might say. It's not something governments dreamed up recently as a way of limiting the rights of kissing cousins and Mormons.

actuall agree. I'm not saying I think incest should be legalized. Only the basis for compelling interest to limit may not bear scrutiny, and may be the same sort of compelling interest used to say gay marriage shouldn't be legal. Those,who,want it would say compelling interest equals bigotry.

MayBee said...

That's my problem with the SSM arguments. C'mon, people, one-man-one-woman is not a new thing. To argue otherwise is just foolish.

Yeah.

If I had my way, people would just accept gay marriage in the way we all kind of decided that cheating on your spouse shouldn't be illegal and 16 isn't a great age to marry.

You know, just as a country we could grow into it.

Unless I'm wrong, and SCOTUS declared there is a constitutional right to cheat on your spouse.

Bob Ellison said...

MayBee and jr565, I think you two and I are pretty much on the same page.

jr565, the apostrophe is under your right middle finger. (Just ribbing, kiddo.)

jr565 said...

Compelling state interest seems to literally be opinion of judge. If they are swayed by the argument that say polygamy should remain legal, then there is comelling state interest in keeping it legal.
And if they think gay marriage should be legal then there is no compelling state interest in keeping it illegal.
Now this is all well and good, except that those pushing for legalized gay marriage are arguing that equality outweighs compelling state interest. If it does, then those wanting to legalize gay marriage but still keep other restricted marriage in place better come up with damn good reasons why compelling state interest allows them to continue denying people fundamental rights to marry.

jr565 said...

If marriage is there to have framework for kids then two is better. And a specific two. The two having the kids. But if marriage is not about kids, then isn't three better?
Three equals more sex. More income, better distribution of household chores. It would be like the movie multiplicity when he gets overworked so clones himself a few times so he can relax while his clones work.
In this case everyone can have a little more time on their hands since work is distributed among three and not two.
And you can have three ways.
So, maybe we should rethink our bans on polygamy.

MayBee said...

Exactly, Bob Ellison and Jr.

Our government is endlessly capable of creating new laws and programs to support the unexpected/undesirable outcomes of other actions.

There used to be compelling state interest to keep people married and to encourage people to be married before having children.
But we decided we didn't want the government involved in keeping people from having the liberty to divorce or procreate. So we created a welfare state and are now even remaking schools to make up for the lack of family structure.

So, I believe in the power of the government to find
all kinds of ways to compel citizens to "make up" for anything they no longer find compelling for the State.

MayBee said...
This comment has been removed by the author.
Jason said...

Althouse: "Liberty."

Oh, spare us. You don't give a rat's ass about liberty. If you did, you would have registered an objection to vendors being forced to sign a contract to compel them to participate in a same-sex marriage with a gun to their heads.

If you cared about liberty you would have registered an objection to a family with five children being sued into bankruptcy and driven from their homes simply for declining to make a wedding cake.

In a different era, this is like being forced to quarter British troops in your house against your will.

In a different era, this is like forcing Jews to urinate on the Torah, or on gravestones in Jewish cemeteries. "Look, there's no harm in pissing on the graves, and besides, they are going to urinate on the graves. We shouldn't allow these Jews to discriminate about where they won't urinate. We don't like discrimination. Discrimination is bad. So we will compel Jews, by force of law, to piss on the graves of their own ancestors anytime a gay couple walks in and asks.

Oh. "Liberty."

The willingness of the Pink Mafia and their Hitler Jugend supporters to throw every principle of liberty and reason under the bus to further the narrow interests of gay identity is breathtaking.

And ugly.

And dangerous.

No. You you're not about "liberty."

You're an imposter.

YoungHegelian said...

I think "compelling interest" provides the same function for the secular Left as "natural law" does for the religious Right: somehow "compelling interest" & "natural law" both always turn out to be what the ideologue at hand is arguing.

JAORE said...

To take a turn at the ridiculous, but (sadly) foreseeable in the inner working of the legal mind:

Where is the "liberty" for me and my pet goat. No, it's not animal abuse, I am very gentle and she practically BEGS for it. Yes, she consents, in her own way. We are virtually inseparable. It seems unlikely children will issue forth, but I'm not a biologist.

So, where is that compelling public interest in denying our love? Hell, I'm not even asking for the right to marry. She won't sign a pre-nup. But I sure want that pesky Sheriff to get off my back.

khesanh0802 said...

I am not a lawyer. To me Gay marriage is a perfect example of the role that states play in our Constitutional system. If you can convince the people in your state that Gay marriage should be licensed then that's what your state will allow. If you can't it isn't.

Aren't there three cases being conflated here? The only one I have even a passing knowledge of is the Ohio case. In that case the claim is that Ohio is remiss in not recognizing the licensing of a marriage by Delaware. Ohio would recognize a Del. drivers license, but has chosen not to recognize a marriage license. It seems to me that is the state's right, although I am drawn to Robert's sex discrimination argument as a narrow way to apply the 14th amendment in that case.

I have a "permit to carry" in MN. That permit is recognized in many other states, but is invalid in others. Am I being discriminated against under the 14th? I don't think so. I believe that each state has the right to make its own rules in this regard.

Ann, your views are understandably biased because of your gay son. I too have a son who is in a gay marriage, but I still don't think it is appropriate to force every state to accept a federal decree. It is Roe v. Wade all over again for a much less important issue. Given a little more time it will most likely be solved to everyone's satisfaction. Hell, if the Mormons can figure it out anyone can!

n.n said...

Well, this is entertaining. The liberals favor selective (i.e. pro-choice) exclusion over principled tolerance. The same principle that discriminated against blacks. The same principle that discriminates against unwanted or inconvenient human lives based on a fantasy and amoral/immoral judgment.

We live in corrupt and dishonest times. The adoption and establishment of a libertine religion -- cult, really -- creates progressive moral hazards left for unplanned Posterity.

Steve said...

Does the court weigh the existence of civil union laws when it considers any denial of equal protection or fundamental rights? If it does, then isn't the only difference between marriage and a civil union the role of adoption of children, and maybe federal tax status? Or is everyone really arguing about the need to endorse loving gay relationships? If the latter then the court is doing nothing but blatant social engineering.

Roger Sweeny said...

I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

That was an argument made against the Equal Rights Amendment, that it would require same-sex marriage. It was one reason the Amendment was never ratified.

Ironic that the Justices have pretty much ratified it in their interpretation of the equal protection clause. Turns out the campaign to ratify it (and the campaign to reject it) was just a lot of "sound and fury ..."

Brill said...

Brill is married to Priscilla but Brill also loves Tanya who lives with us. I cannot marry Tanya.
Where is my Liberty? After gay marriage is legal we will press on to overturn the polygamy laws.

Brent Newby said...

The equal protection argument has always struck me as sound. However, my issue is with the desire to change the plain meaning of the word marriage. Provide the same benefits and liabilities and find another word.
Insisting that a word only means what a politically motivated person wants it to mean, does not make it so. Words have meanings. That's why we use them.

Sebastian said...

"Liberty." Just to pile on: 1. It's made up. 2. It has no limits. 3. It doesn't work for marriage: if marriage is a "fundamental" liberty interest, states would have to be prohibited from eliminating the privilege ("right"?) altogether.

"The standard formulation (stated in Glucksberg, for example) is that the limit is constitutional if it is necessary to serve a compelling governmental interest."

Just to pile on: 1. It's made up. 2. It has no limits. 3. It does apply here, since government has an obvious interest in promoting stable heterosexual bonds, but it also doesn't apply, since SSM proponents can just deny it, case closed. In short, it's a recipe for arbitrariness.

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

Whether one is restricted from marrying an arbitrary number of people, an arbitrary gender of people, an arbitrary age, an arbitrary degree of consaguinity--all of these restrictions are equally arbitrary.

This is proved by the vast diversity of human marriage customs in time and space.

That is why I am finding these oral arguments tedious, but hilarious.

The traditional marriage advocates can't find a compelling reason why marriage should absolutely have to be one man and one one woman.

The same-sex marriage advocates can't find a compelling reason why, if same-sex marriage is justified, then isn't any form justified.

And the reason is the same for both sets of advocates--no such compelling reasons exist.

Sorry, rationalists. Not everything follows from universally accepted premises by sweet reason. Some things just are the way they are, until they aren't.

The question is who gets to decide how things are? I would say the people, but evidently this will be decided by black robes.

Ann Althouse said...

"Ann, I dissent. If a state wanted to eliminate marriage laws entirely, and leave the whole matter to private contract and churches, would the Constitution prevent that? I just don't see it. The establishment of marriage as social institution created by law, and blessed with various legal benefits, is not mandated by the Constitution..."

So? It's what we have and I don't see any serious efforts to change that.

Given that's the system, the question is what limitations and policies is the govt allowed to use.

Compare public schools. They aren't required, but just because they could be eliminated doesn't mean the govt is free to do whatever it wants with the system.

Unknown said...

You know, Ann, once you've gotten finished destroying this society, what comes after is not going to be good for you or your son or your other pet causes. There is such a thing as measure.

Mel said...

I don't care whom anyone marries, as long as I and my church maintain the protected right to refuse to participate in what we collectively, based on our reading of Scripture, consider to be a sin against our Holy God.
Don't ask me to make your cake, other food, take your photos or provide a minister against my religious conscience.
Unfortunately, that isn't how it's being done now so get the government out of my sacrament and my husband and I will have our lawyer draw up a contract regarding our finances and the raising of our children, who are a heritage from the Lord.

njartist said...

From the plethora of comments on this post in favor of homogamy, I am amazed at how far this nation has fallen in its depravity; even the claim is irrational that somehow the Constitution posses the magical powers do undo moral reality simply because it isn't mentioned in the document; equally depraved is the belief that the document can be used to permit even the basest of behavior.

Years ago I came across a quote from Reinhold Niebuhr which declared that an immoral law is no law and that an unconstitutional law is automatically void. Sadly, while a Google search of a year ago came up with the exact quote, now the same search returns nothing: i guess the 'net is being scrubbed of such badthink.

LibertarianSafetyGuy said...

I think this is both a fundamental liberty and equal protection case - and, as Roberts points out, is based on sex. I'd rather the government get out of the marriage business. But since it's in the marriage business, I hope the court rules in a way that expands liberty the most.

If this is a question of fundemental liberty and not equal protection, will this effect the wedding cake cases? It seems to me that equal protection protects the buyer of the cake from discrimination. But a fundemental liberty is only valid until it effects another's fundemental liberty. So, can't stop you from getting married but I don't have to bake you a cake.

Anonymous said...

1: The ERA failed. So the idea that the Supreme Court has legitimate grounds to force SSM on America because it involves "sex discrimination" is utterly ludicrous.

2: A man having sex with a woman can create a baby. A man having sex with a man can not do so. So any rational human being looking at the situation is forced to agree that heterosexual marriage is entirely different from SSM, since Heterosexual marriage, in the ordinary course of events, creates the future, and SSM does not.

Trashhauler said...

"But there is really no compelling governmental interest in keeping loving close relatives from marrying. Or multi partners. Every issue that arises from these groups marrying can be argued around in the same way gay marriage can. In terms of liberty, children, love, stability."

Hence, Alito's question about why a marriage between four lawyers would not be allowable. What Professor Althouse is refusing to admit is that Glucksberg doesn't matter much if there is no clear dividing line between what should be allowable and what should not.