June 26, 2015

"Just who do we think we are?" Chief Justice Roberts asks.

Let's move on to the Chief Justice Roberts dissenting opinion in Obergefell.  The Chief annoyed a lot of conservatives yesterday, saving Obamacare, so maybe he'll win some righties back today. I thought there was a chance that the Chief would join Kennedy and vote with the liberals. But he didn't. Let's look at why.

He begins: "Petitioners make strong arguments rooted in social policy and considerations of fairness." But that fairness only reaches the policy level. It's for the legislatures. It's not a constitutional right.
The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
So he's coming down hard on the "definition" argument, which I've always disliked. The legal issue isn't over who gets to define words, it's about how government can treat people. Government needs at least a legitimate interest for excluding same-sex couples from the various benefits of the status of marriage, which it maintains in the legal system. Government needs at least a legitimate interest for everything it does. (Oddly, the words "legitimate" and "interest" appear nowhere in any of the Obergefell opinions!)[ADDED: The word "interest" does appear (twice) but not in reference to the government's interest.]
[T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
That ignores — for the moment — the majority's argument that marriage has not stayed the same over time. (Justice Kennedy wrote that "The history of marriage is one of both continuity and change," and cited many examples of evolution in the institution, notably the changes in "the role and status of women," who under the doctrine of coverture were regarded as part of "a single, male-dominated legal entity.")

The Chief tells us that the "premises supporting this concept of marriage are so fundamental that they rarely require articulation." Only male-female sex produces children, and a children are better off (usually) if their parents stay together:
Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.
That brings up a couple ways marriage has changed: We don't restrict sex to married couples. And we let married people divorce pretty easily. 
[B]y bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without.
Maybe there's some effect to that, but what good is achievable by excluding others from marriage? Do you need nonprocreative couples to be disrespected so the procreatives can feel especially good about themselves? Who marries for that reason?

The Chief does get around to the majority's argument that marriage has changed over time. But, he says, these changes did not reach "the core structure of marriage as the union between a man and a woman.... The majority may be right that the 'history of marriage is one of both continuity and change,' but the core meaning of marriage has endured." How does he know what part of the meaning of marriage is the "core"? Why are judges able to do that and not make decisions about other things that require judgment?

The Chief mentioned the 4 "principles and traditions" that the majority found in the due process precedents but didn't go through them one by one. (You can see them discussed one by one in my earlier post, here.) He just says the majority’s approach is "unprincipled" and belongs in the junkpile of "discredited" decisions labeled Lochner.

There's no enumerated right — "no 'Companionship and Understanding' or 'Nobility and Dignity' Clause in the Constitution." The Due Process Clause it refers to "liberty," but in the context of referring to "process," so, Roberts says, judges should be circumspect about ranking some liberties as "fundamental" and protecting them in ways that go beyond good-enough process.  Roberts doesn't reject all of substantive due process case law — the right of privacy precedent —  but he cautions restraint and demands historical analysis — not philosophy that isn't "deeply rooted in this Nation’s history and tradition." 

The Chief distinguishes the right to same-sex marriage from everything else in the privacy precedents:
Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit.... [T]he privacy cases provide no support for the majority’s position, because petitioners do not seek privacy.

The Chief Justice drums up alarm by predicting a new right to polygamous marriage: "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage." Why should children in polygamous families "suffer the stigma of knowing their families are somehow lesser"? He cites a 5-year-old Newsweek article that estimates that there are 500,000 "polyamorous" families in the United States. (Here's my 2006 blog post about distinguishing same-sex and polygamous marriage.)

The Chief moves on to equal protection and says something I quite agree with:
The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases....
There's none of the usual equal protection doctrine in the majority opinion, no discussion of the level of scrutiny or what the supposed "legitimate state interest" is. I think equal protection should have been easy. Just say there is no legitimate state interest in excluding gay couples from marriage. But no. The majority used what Roberts called "the 'harm principle'" that "sounds more in philosophy than law."

There follows a long section on the value of democracy and the problem of unelected judges deciding too many things. There are some good sentences here, but it's quite repetitious!
Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.
But this does seem to be the sort of thing courts usually decide. And I think people will accept it quite readily. In fact, I think the overall reaction will be one of relief that we don't have to keep chewing over this issue. Let people get back to their personal relationships that were always going on anyway. The country wasn't collapsing because gay people love each other and seek the legal aspects of permanence. This isn't like Roe v. Wade — there are no unborns to save — though the Chief Justice adverts to Roe v. Wade at this point:
As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted).
It's memorable and important that Justice Ruth Bader Ginsburg said that. I appreciate that citation, and, in fact, I think there should have been more discussion of abortion rights in Obergefell. The word "abortion" doesn't even occur in the entire text of the 5 opinions. Roberts brought it up but hid it under the neutralizing phrase "another issue." It's the right that dare not speak its name.

103 comments:

jimbino said...

If a libertarian is someone conservative on economic issues like Obamacare and liberal on social issues like Gay Marriage, what is Roberts?

William said...

Evangelicals have no rights which the courts need respect.

Eleanor said...

Things might quiet down, and the general populace just fall into line if the same-sex marriage social justice warriors stopped here. But even the Solicitor General acknowledged they won't. My support for same-sex marriage took a nosedive when bakers, florists, photographers, and jewelers began being sued. The next step is forcing churches to perform same-sex marriages or lose their tax-exempt status. We know it's coming. The first lawsuit was filed against a wedding chapel this morning. If this upsets an atheist like me as much as it does, I can only imagine what it does to the faithful.

tim in vermont said...

How does he know what part of the meaning of marriage is the "core"? Why are judges able to do that and not make decisions about other things that require judgment?

Yeah! Why *CANT* judges just decide everything?

Gahrie said...

In a just released opinion, the Supreme Court ruled that the Third Amendment does not prevent the government from mandating that private citizens use one bedroom of their house to house a poor family. "Private home ownership produces a disparate impact in housing. So requiring private homeowners to house the homeless satisfies a legitimate government interest. This is clearly not a violation of the Third Amendment, because the Third Amendment clearly refers to "soldiers" and the homeless are not soldiers."

(I don't know why I remembered the third amendment using troops instead of soldiers.)

sunsong said...

Here's the real scoop: A quick guide to how the Supreme Court decision on marriage affects you:
If You Are a Heterosexual and Do NOT Want to Enter into a Homosexual Marriage:
You will NOT be required to marry a gay person. This is a common misunderstanding. This decision actually does not affect you in any way.
If You Are Currently in a Heterosexual Marriage:
This decision does not affect you in any way.
If You Are a Heterosexual Who Is Not Currently Married:
This decision does not affect you in any way. If You Are a Heterosexual Who Hopes to Eventually Marry:
This decision does not affect you in any way.
If You Are a Member of a Church That Performs Wedding Ceremonies but That Does Not Believe in Gay Marriage:
This decision does not affect you in any way.
If You Are a Religious Official Who Performs Wedding Ceremonies but Who Thinks Gay Marriage Is Wrong:
This decision does not affect you in any way.
If You Are an Individual Who Believes Gay Marriage or Homosexuality in General Is Wrong for Religious Reasons, and Wish to Continue Expressing Those Beliefs:
This decision does not affect you in any way.
If You Are an Individual Who Believes Gay Marriage or Homosexuality in General Is Wrong for Non-Religious Reasons, and Wish to Continue Expressing Those Beliefs:
This decision does not affect you in any way.
If You Are a Heterosexual Who Fears This Decision Adversely Affects Your Marriage or the Concept of Marriage in General:
This decision does not affect you in any way.
If You Are a Heterosexual Who Fears This Decision Negatively Affects You in Some Way:
This decision does not affect you in any way.
If You Are a Heterosexual Who Suffers Anger or Anxiety at the Thought of Gay Couples Getting Married as an Abstract Concept, and Believes the Only Cure Is to Legally Prevent Gay Marriage:
This decision will cause you some degree of anger or anxiety. Otherwise, this decision does not affect you in any way.
Hope this helps!

~ Thanks Kai Bolger

Geoff Matthews said...

Sunsong,

If only you were correct. Dissidents will not be tolerated, and there is a core group of believers who are willing to root them out.

Roadkill711 said...

It seems to me that incestual marriages (adult siblings, adult child and parent) are more likely to be the next slip down the slope. Such a pairing fits the rational of this judicial fiat much more closely than polygamy. With the added benefit of avoiding taxes (not to mention all that other not-so-memorable stuff that Kennedy feels marriage provides to two people in love).

David Begley said...

After the two ACA cases John Roberts has zero credibility.

The Drill SGT said...

I think this part of Robert's dissent deserves a read:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

The majority opinion could have explicitly protected religion. It does not.

tim in vermont said...

You know. It's not about gay "marriage." It's about how laws are made and cases are decided. To suggest that that "does not affect anyone in any way" is beyond stupid.

jr565 said...

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.”

why only two though? If nothing is more profound than marriage and it embodies the highest ideals of
I've why deny it to polygamists? Because no union is more profound! think of her children! Ok, I am
. Polygamists have children too. What about them?
How about Incestul marriages. It's the highest union! Two people become greater than they once were.

Is this a constitutional argument by the way? For the next lawsuit for polygsmy the lawyers should just cite kennedys argument verbatim. He will either nod in agreement and grant polygsmy or hold his head down in shame that he uttered that tripe.

And when the lawyers make that case Nino should turn to Kennedy and say "yeah, what about that Kennedy? cat got your tongue?"

tim in vermont said...

It seems to me that incestual marriages (adult siblings, adult child and parent) are more likely to be the next slip down the slope. Such a pairing fits the rational of this judicial fiat much more closely than polygamy

I can write the opinion striking it down for them:

"That's different!"

Why?

"Because."


It's all about contextual thinking. Once you can do that, this stuff is easy.

tim in vermont said...

Remember when the same people celebrating this decision were so angry about the SCOTUS deciding Bush v Gore?

By the way, I agree with them, the SCOTUS should have stayed out of it. Bush would have won legitimately when the constitutional method of giving each member of Congress a single vote. Bush had the clear majority there and liberals would have had to shut up about it.

Steve M. Galbraith said...

And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.

Well, that ignores a lot of history. Muslim cultures, today, practice a different form of marriage than we in the West.

To be a bit simplistic: a man and a man or a woman and a woman are simply not the same thing as a man and a woman. They are fundamentally different relationships.

The equal protection/liberty arguments are simply not persuasive to me. Let's change the definition by statute - I agree we should; but these rhetorical somersaults to find a right to have a SSM recognized are pretty weak for me.

Do SSM proponents really think Kennedy's majority opinion was sound? Or it doesn't matter; just the results?

Michael K said...

"Evangelicals have no rights which the courts need respect."

Today, driving home I heard a radio talk show host (Don't know his name) interviewing an opponent of the decision why would this have any effect on non-gays. It seems that these people do not understand that there are people, bakers and photographers and florists for example, who have sincere principles which they will be forced to conceal or to change their livelihood as they will be attacked by the gay mafia.

Even Roberts acknowledges that tax exemption will be attacked by this posse of radicals. My left wing lawyer son dismissed my concern about this years ago with his usual contempt for anyone who disagreed with him. "Impossible!" he said.

Twelve said...

The court has had a fine time this session kicking a few more of the nation's ribs loose. The republic has been circling the drain for some time but I had hoped to finish my time before it went down the memory hole. The O years have moved us quite a bit further along. I thought this was the likeliest outcome if he were elected from the first time l learned of his wretched existence but to give credit, or blame, to a single villain is too simple. He's just in at the kill. That's the extent of his accomplishments. There isn't any opposition worthy of the name and hasn't been for a long time. The robed vandals who spent this session shoving the nation's face in the dirt have shown as much again and again over the years. Orwell was a prophet. The goal of power really is power.

holdfast said...

Three takeaways:

1) Althouse really does live in a bubble

2) There is no longer any legitimate legal argument against polygamy or adult incest. It's a done desk

3) the Gay Left are the sorest winners ever. They will spend the next decade using this to wreck as many lives, churches and businesses as possible.

CStanley said...

I dislike your dislike of the definition argument, and call BS on this:

So he's coming down hard on the "definition" argument, which I've always disliked. The legal issue isn't over who gets to define words, it's about how government can treat people

The definition of the word marriage is obviously the core of the issue of how the state is treating people. If the definition of marriage remains what it has always been, then there is no equal protection problem at all. It's only by finding a new definition that this becomes a problem.

Gahrie said...

Do SSM proponents really think Kennedy's majority opinion was sound? Or it doesn't matter; just the results?

They're still defending Roe aren't they?

Real American said...

"That brings up a couple ways marriage has changed: We don't restrict sex to married couples. And we let married people divorce pretty easily."


In other words, let's not do a half-assed job of destroying this crucial societal institution.

Steve M. Galbraith said...

The definition of the word marriage is obviously the core of the issue of how the state is treating people.

Exactly.

What constitutes a marriage? What is the purpose? What does it mean?

After that we can decide whether there's an equal protection violation.

How can you determine the latter without first determining what rights are being demanded? The right to do what? It's the right to have your marriage legally recognized, to be given a license, to receive benefits.

So, what is a marriage?

It's like someone demanding veterans benefits without first defining what a veteran is.

The Drill SGT said...

Michael K said...
Even Roberts acknowledges that tax exemption will be attacked


No, far worse. Under questioning at the Orals, the Fed's Chief Litigator was forced to admit that a logical move would be for the Fed's to punish churches if they continued to exercise their Constitutional rights with regard to opposing SSM

Gahrie said...

"That brings up a couple ways marriage has changed: We don't restrict sex to married couples. And we let married people divorce pretty easily."

And some of us were opposed to both, and warned about the damages they would cause.

Or are you going to argue that no fault divorce and free love have strengthened marriage?

Eric the Fruit Bat said...

I'd like to go on record to say that if something should happen to my wife, if I should ever end up unmarried, for whatever reason, I'm going to make a federal case out of marrying my brother, because he's unmarried, and not doing well financially, and he could use the benefit of my medical insurance, and life insurance, and pension, and the tax-advantaged inheritance stuff, and all the other stuff, and truth be told, he's got a great-looking ass, and I've always wanted to know how much meat he's packing, so maybe someday I'll find out, good Lord willing.

Big Mike said...

We're heading for an interesting ride. The first child custody fight between a divorced gay couple happened years ago already, and the first gay spousal abuse case (that I know of) was recently in the news. There's going to be more of that.

On the plus side, it seems to me that we can do away with the notion of extending healthcare benefits and other employment benefits to unmarried "partners." With same sex marriage now legal everywhere there is no impediment to the couple getting married, so a company can get out of the business of deciding whether to extend spousal benefits to partners -- if the two of you like each other enough to be partners, then you should like each other enough to get married.

Eric the Fruit Bat said...

Hey, how could it be any worse than whacking off?

Quaestor said...

Utah was admitted to the Union on the condition that the territorial legislature ban what is known among the Mormons as plural marriage, or more precisely polygamy. Many Mormons resisted the ban by fleeing Utah into other territories such as Idaho and Arizona, where their descendants continue to live in unlawful polygamous unions. Many of these people live in remote colonies ruled over by a patriarch assisted by his adult sons who are armed to the teeth. They live this way because they consider themselves persecuted outlaws. Today's decision does nothing to bring these people into the larger society of the United States, even though polygamy is a time-honored tradition in many cultures. It is in fact a more natural alliance than monogamy given that Homo sapiens is the only monogamous primate. Instead the Court rules in favor of the frankly insane and useless practice of men marrying men an women marrying women.

tim in vermont said...

Remember when we defined babies that weren't born yet as "not human"? Good times... good times.

M Jordan said...

I have always been a live and let live kind of guy but this decision has pushed a button deep in me that I really wasn't aware of. To me, the idea of a gay marriage has always been a pretend thing, like dressing up your cat and dog in wedding gear and performing a ceremony. It's just absurd to call it a marriage.

I'm not saying gay couples shouldn't be afforded all the benefits heterosexual couples have, but to call it a marriage... It just defies reality, IMHO.

Big Mike said...

@Eric the fruit bat, just so he doesn't murder her now that you've told the world your intentions.

As I said, we're in for an interesting ride.

tim in vermont said...

" Today's decision does nothing to bring these people into the larger society of the United States"

They have no right to equal protection. "Why," you ask? Because shut up!

Real American said...

the state has an interest in encouraging opposite sex couples to stay together for the sake of the children that are a natural (often unwanted) product of those relationships. Illegitimate children are far more likely to commit crimes, do drugs, and have a whole host of other problems that impose costs on society. For example, blacks have a 72% illegitimacy rate. They also represent far greater percentage of the prison population than their population at large. That's not a coincidence.

There is no similar interest in encouraging gays to stay together. Sure, some gays have kids. They adopt or have fertility help or sometimes they were not gay until they realized they were and they had kids during the not gay phase. Those kids are not a natural biproduct of the same sex relationship. They're nearly all explicitly desired or come from straight relationships that didn't work out. The point is that the state's interest here is non-existent. The state has no interest in keeping gays couples intact. so far as i can tell, the only interest identified by Anthony "the constitution is whatever I pull from my asshole" Kennedy is that the state has an interest in preventing gays from feeling bad about being gay, or children of gays from feeling bad about their parents being gay. That is hardly a LEGITIMATE state interest.

jimbino said...

Sunsong says: This decision does not affect you in any way.

which is wrong. If you are single, your taxes will go up, since more married folks are now feeding at the gummint benefits trough and drawing benefits from Social Security and Medicare, even though they may not ever have contributed a FICA cent.

Real American said...

"The Chief Justice drums up alarm by predicting a new right to polygamous marriage".

I'm sure if you go back and look at your notes, Professor, you probably said the same thing about Scalia's warning in Lawrence that gay marriage was coming.

WestVirginiaRebel said...

I think the issue here is, does the Constitution determine the law of the land, or does the Court? I tend to err on the side of the Constitution, which I do think they followed in this case.

Also Roberts is a tool.

PS No evangelicals were harmed in this comment.

The Drill SGT said...

Quaestor said...
Utah was admitted to the Union on the condition that the territorial legislature ban what is known among the Mormons as plural marriage, or more precisely polygamy. Many Mormons resisted the ban by fleeing Utah into other territories such as Idaho and Arizona,


Or Mexico for the Romney's :)

ELC said...

"The Chief Justice drums up alarm by predicting a new right to polygamous marriage."

Oh, the drums are beating alright.

It’s Time to Legalize Polygamy: Why group marriage is the next horizon of social liberalism:

".... I suspect that many progressives would recognize... that the case against polygamy is incredibly flimsy, almost entirely lacking in rational basis and animated by purely irrational fears and prejudice. What we’re left with is an unsatisfying patchwork of unconvincing arguments and bad ideas, ones embraced for short-term convenience at long-term cost. We must insist that rights cannot be dismissed out of short-term interests of logistics and political pragmatism. The course then, is clear: to look beyond political convenience and conservative intransigence, and begin to make the case for extending legal marriage rights to more loving and committed adults. It’s time."

Dated today.

Bleach Drinkers Curing Coronavirus Together said...

The Chief annoyed a lot of conservatives yesterday, saving Obamacare, so maybe he'll win some righties back today. I thought there was a chance that the Chief would join Kennedy and vote with the liberals.

Do you feel some kind of dubious need to indulge your readers' wish to politicize an inherently non-politicizable branch of government?

jimbino said...

The "unbiased" justices all read the 'lection returns, whether Jews or Roman Catholics.

steve uhr said...

No coverage on the news tonight. I guess the hunt for one escaped convict is deserving of wall to wall coverage. Cnn, fox, msnbc -- none of them care about Real News.

Rick said...

The legal issue isn't over who gets to define words, it's about how government can treat people.

This is so wrong. The "government" doesn't treat anyone differently for marriage status except by its own choice. If government rules, i.e. the constitution, determine marriage is an inappropriate basis on which to treat people it may choose to set its rules independently of marital status. It lacks the authorized power to change marriage to suit its needs.

PB said...

If marriage has changed over the years, they why does offering it constitutional protection make any sense? It seems this just means that if some people have a particular arrangement they want to call marriage, then the state must respect it, perform it, and all other states must respect what is done in any other state.

Skeptical Voter said...

The "Chief"---more like Chief Buffalo Chips.

Dick Stanley said...

Gee, but he likes forcing Obamacare on everyone. What's a little gay marriage between friends?

jr565 said...

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.


So he's coming down hard on the "definition" argument, which I've always disliked."
You don't like it because that's the argument that gay marriage proponents have been arguing and its completely specious. You don't like it because you don't have an answer for it. Instead its all about FEELINGS>


"The legal issue isn't over who gets to define words, it's about how government can treat people. Government needs at least a legitimate interest for excluding same-sex couples from the various benefits of the status of marriage, which it maintains in the legal system. Government needs at least a legitimate interest for everything it does. (Oddly, the words "legitimate" and "interest" appear nowhere in any of the Obergefell opinions!)"

The legitimate state interest is that man and woman is the ideal relationship to promote as a marriage. It's the only one that affords a father and mother and is usually built around the actual biological parents of the kids who will be raised in the marriage" It was a valid reason when society came up with it and it remains valid.

What is the reason for gay marriage? You don't like how society treats people? Tell that to polygamists, bigamists, people in harems or incestual couples. I don't hear the Supreme Court making the lovey dovey argument There even though clearly the same facts apply.

You don't think the legitimate reasons for marriage are legitimate because you disagree with their legitimatcy. But why are the rules for other restricted marriages not similarly illegitimate based on your and kennedy's arguments for gay marriage (which are the same).

You don't have a constitutional argument so the next best thing is talk about love. Oh, the kids! think about the kids! No, think about the constitution. Is it a constitutional right or not. Give me THAT argument. Otherwise you are trying to bullshit me. (And by you I meant he liberals on the court)

steve uhr said...

I don't see this leading to polygamy or brother-sister marriage as a constitutional right. If you can't marry your sister, there are still hundreds of thousands of people that you can marry that you would find attractive. Not true for gay people who can't marry another gay person. Seems like a pretty obvious distinction to me.

Sprezzatura said...

"...and he could use the benefit of my medical insurance, and life insurance, and pension, and the tax-advantaged inheritance stuff, and all the other stuff..."

So, your opposed to this because you want to keep this sort of fraud only open to hetero marriages.

Btw, before Meadehouse existed, Althouse did speculate that she could consider this exact sort of fraud, if it could help someone else. But, now she's got a husband she actually wants for husbandy reasons, so she's fraud-restrained. Otoh, maybe legal polygamy is around the corners, as many here seem to expect. Then she could have a fraud marriage.

Bleach Drinkers Curing Coronavirus Together said...

The fundamental right to marry does not include a right to make a State change its definition of marriage.

Tell that to the Supreme Court deciding, ironically enough, in Virginia v. Loving that it was wrong to let a black man like Clarence Thomas marry a white woman, like Virginia Thomas.

Bleach Drinkers Curing Coronavirus Together said...

Today is a day for celebration. You can love whom you want, Conservatives!

It makes it harder to divide the nation and decide who we need to hate, whom we need to define as enemies, etc.

But don't let this get in the way of your politics, or anything.

Anonymous said...

Dred Scott decision happened in 1957.

Four years later, we had a civil war.

Normally, I wouldn't make any connections to this. However, I posted on Facebook today that if any State tells the Supreme Court to pound sand, I'm moving to that State. A friend who supports gay sex marriage said something like, "Look how that worked out the last time!"

Well, the last time, the North told the SCOTUS to pound sand. And they won.

Think it won't happen again?

Bleach Drinkers Curing Coronavirus Together said...

It takes someone incredibly uninformed, eric, to forget about how Lincoln's election and the whole Fort Sumter episode were the intervening incidents between Dred Scott and the conclusion you leap to.

Lewis Wetzel said...

Althouse wrote:
"Government needs at least a legitimate interest for excluding same-sex couples from the various benefits of the status of marriage, which it maintains in the legal system."

Roberts covered this with "As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?"

Perhaps laws against murder are subject to similar reinterpretation by five justices of the supreme court. Well, murdering unpopular, powerless people. Think of the glorious future that lies ahead! We will never have to argue difficult problems like euthanasia, five judges can make the decision for us.

Etienne said...
This comment has been removed by the author.
sinz52 said...

PB asks: "If marriage has changed over the years, they why does offering it constitutional protection make any sense? "

Because since the Constitution was ratified, federal, state and city governments have passed thousands of laws that in some way involve civil marriage.

Joint tax returns.
SS survivors' benefits.
Hospital visitation rights.

Just think about all the forms and applications you have filled out in your lifetime that have asked you about your marital status and if so, who your spouse is.

None of those things existed in 1789 at the Federal level. Back then, there was no Federal benefit to being married. There is now.

That's what this Supreme Court case was about. These cases involved gay couples trying to get various government-approved or mandated benefits formerly open only to straight couples.

Anonymous said...

We're all so easily distracted from what's really at issue. The issue of gay marriage isn't about love. There is no law preventing gay people from living together or loving each other or taking care of each other.

For that matter, there is no law against anyone loving another person, non-sexually. So this clearly isn't about love. Love is not under the purview of the law, and never has been. Love, in fact, isn't even subject to the will of the beloved. One can love and not be loved in return. This is not about love.

Is it about sex? Well, kind of, in the sense that people of a certain sexual orientation are the ones driving the changes. But it's not really about that, either. Since Lawrence v. Kansas, it's not illegal for gay people to have sex with each other. The idea that gay people have been prevented from having sex with each other in the absence of gay marriage is absurd.

Is it about families? I think we're getting closer, but even that's not quite it. Kennedy's opinion acknowledges that there are already gay families, so apparently we didn't need this SCOTUS ruling to protect that, either.

Is it about tax benefits, immigration benefits and other benefits that accrue to marriage? Perhaps, although those could have been pursued via civll unions, so no, it's not really about that, either.

What's left? The only thing I can think of is that this case is about legislatively forcing people to act as though gay marriage is exactly the same as traditional/real/ordinary marriage we've observed for millennia.

And because it's about that, we haven't heard the end of it. Not by a long shot. Churches and bakers and florists and photographers who resist will feel the full censure of the law, eventually. Because the gay lobby, like an army of zombies, never stops. There is no victory. There is only the next battle.

Eleanor wrote:

My support for same-sex marriage took a nosedive when bakers, florists, photographers, and jewelers began being sued. The next step is forcing churches to perform same-sex marriages or lose their tax-exempt status. We know it's coming. The first lawsuit was filed against a wedding chapel this morning. If this upsets an atheist like me as much as it does, I can only imagine what it does to the faithful.

You have it exactly right. This was never about love. It's about hate and conquering and revenge and retribution, plain and simple. I used to support tolerance of gay marriage to my fellow Catholics in a kind of libertarian way: "what right has the government to prevent two people from entering a contract?" But this battle is not about the contract or about love or about anything else. It's about enforcing conformity. And, as with almost all revolutions, the victors will became as bad as or worse than those over whom they have triumphed.

Go ahead, gay lobby. I challenge you to prove me wrong.

Bob Ellison said...

The "legitimate interest" constraint is libertarian. Philosophically sound, but it's not in the Constitution. Congress should be able to make brown hair illegal without constraint.

n.n said...

Gender equivalence with its demand for sacrificial rites normalized under pro-choice doctrine was the opening. Then came class diversity policies that discriminate against individuals based on their race, gender, etc. Finally, we have another victory for pro-choice doctrine with selective exclusion formally recognized by The Court today. Progress.

As for the government's compelling interest in natural marriage, it begins with the other named party in The Constitution: Posterity. A party which has been selectively terminated in order to advance a false gender equivalence, and compensated with excessive and illegal immigration. And now trans equivalence to further degrade women as womb banks and men as sperm depositors, necessary to create an illusion of normalcy. You've come along way, unplanned baby.

That said, now that the donkey is out of the closet, braying and kicking, the next step is to end selective exclusion, either through forcing the donkey back into the closet, or including those it has selectively excluded. Especially the wholly innocent human lives it has killed in mass under its selective-child policy, rationalized by some deluded or deceived women's sincerely held faith in spontaneous conception. A wicked solution to a "wicked problem" (a la premeditated murder). Selective-child and selective exclusion are the "slavery" and "racism" of the 21st century normalized and defended under a State-established pro-choice doctrine.

PeterK said...

'"The history of marriage is one of both continuity and change," and cited many examples of evolution in the institution, notably the changes in "the role and status of women," who under the doctrine of coverture were regarded as part of "a single, male-dominated legal entity.") "

while the roles and status in marriage may changed over the eons the fact remains that marriage still involved a man and a woman.

mccullough said...

The problem for Roberts, unlike Thomas or Scalia, is that he holds the Supreme Court as an institution in such regard with the stars decisis bs, etc.

People see the stuff for what it is. 5 justices think gay marriage should be in every state and don't like how difficult the constituion is to amend.

The easiest way to approach the countermajoritarian problem of unelected judges deciding contemporary social issues by looking at an almost 150 year amendment is to say: does the amendment address the issue? No. Did anyone at the time the amendment was ratified think it addressed the issue? No. Case done. Any other approach is just the personal preferences of unelected judges.

The Constitution was amended more than a dozen times after the 14th amendment. It addressed issues of equality in blacks, women and 18 year olds voting, along with other things. Under the We Shall Decide Important Issues approach, these amendments are superfluous. We should amend the Constitution to get rid of the Supreme Court. They are worthless. Let them run for public office like the other assholes


jr565 said...

Rhythm and balls wrote:
Today is a day for celebration. You can love whom you want, Conservatives!

So prior to today you couldn't love your boyfriend?
You always had that right.
Love does not = marriage.

jr565 said...

IT's time to legalize polygamy as per marriage equality advocate:


http://www.politico.com/magazine/story/2015/06/gay-marriage-decision-polygamy-119469.html?cmpid=sf#ixzz3eBgtvUuQ

Yes the slippery slope is real. Arguing that it wasn't was just a tactic to get gay marriage passed. But now that it has, we can readlily accept polygamy. As there are no valid reasons for being for gay marriage and not being for these other types of marriages.

Honesty at last. If you oppose just know that you are now on the wrong side of history and the cries of bigotry will begin in 5,4,3...

Michael K said...

" I posted on Facebook today that if any State tells the Supreme Court to pound sand, I'm moving to that State. A friend who supports gay sex marriage said something like, "Look how that worked out the last time!"

I think this might be the next trend. written by two men who have been studying history, suggests that the present arrangement of states may change with people relocating to areas with common interests. I would not be surprised to see the mid portion of the country separate peacefully or otherwise, from the "coastal zones" with blue political rule.

That will probably not be within my lifetime but I live in California because of my grandchildren and would not stay here otherwise.

Michael K said...

The link failed. The book is America 3.o

rhhardin said...

Guys write directly. Mark Steyn

I can respect those legislatures from Belgium to Uruguay where the people's representatives, accountable to their electors, have voted to introduce gay marriage by law. But a system where, in effect, Anthony Kennedy gets to decide for 300 million whether he can divine a right to same-sex nuptials that its drafters cannily left tucked discreetly in some or other subordinate clause of the US Constitution is to torture that document beyond rational meaning.

Why are guys so readable and girls so not?

Can girls even read their own stuff?

It's a sexual difference, at least.

But wait. Could that affect what marriage is?

rhhardin said...

Thurber says that Justice Roberts could add a note of dignity and austerity by using "whom" instead of "who"

Just whom do we think we are?

rhhardin said...

So far no Epstein podcast on today's fiasco, so we won't know the Constitutional issues for a while.

He favors SSM but opposes the use of force more.

commoncents said...

China PR vs. USA - FIFA Women's World Cup 2015 - Video

http://commoncts.blogspot.com/2015/06/china-pr-v-usa-fifa-womens-world-cup.html

ps. Link Exchange with CC?

Bob Ellison said...

"Who" is correct.

Popville said...

Mr. Big Stuff, tell me tell me
Who do you think you are
Mr. Big Stuff
You're never gonna get my love

I'd rather give my love to a poor guy that has a love that's true (oh yeah)
Than to be fooled around and get hurt by you
Cause when I give my love, I want love in return (oh yeah)
Now I know this is a lesson Mr. Big Stuff you haven't learned

Quayle said...
This comment has been removed by the author.
Clark said...

Roberts says in his dissent: “But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”

Are we supposed to take this seriously from the author of “King v. Burwell”?

Quayle said...

"The legal issue isn't over who gets to define words, it's about how government can treat people.... Government needs at least a legitimate interest for everything it does."

Ann, you’ve been living in the post-WWII paradigm and teaching its relatively stable framework of constitution law for so long, you may not have noticed that you have inadvertently become enclosed in an intellectual box and utterly unattached to reality.

Who cares what the legal issue is in the realm of humans and human morality

In a democracy, the government is nothing more than what the people - the citizens - put in motion and maintain with their votes. The government is nothing more or less than the people acting together (in one of many possible spheres.) That axiom requires us to therefore correctly recast your above statement into, 'the people need at least a legitimate interest for everything they do.'

And this, then, highlights exactly where you are wrong. The people need no such “rationality” to establish, abolish, or alter law.

That the constitution, and even the constitutionally prescribed means to alter the constitution, can be changed by a super-majority, neuters your insistence on both the necessity of legitimacy and the role of fairness. Said majority need not be fair to alter our law, and can't be stopped legally by any arguments of what is legitimate.

And because a super-majority has the power to alter the constitution for any reason or for no reason at, and could thus put an immediate end to SSM, on what possible basis would you then argue that a less than super-majority's vote to do the same is irrational?

For example, would you argue that there is magic in the exact threshold of 66.66% that renders the vote’s outcome legitimate? Would you argue Ann, that while it may be that a super-majority's vote to alter the constitution at will is possible to immediately put a stop to SSM, one vote less than said super-majority renders their acts irrational and lacking in a legitimate reason?

And if not 1 vote, then how about two? Would two votes shy of a super-majority render the majority’s decisions irrational and lacking in sufficient reason? And if not two, then how about three?

What’s your number Ann, at which a majority’s vote becomes inherently irrational and lacking a legitimate reason?

The legitimate reason is “because that is what the majority voted.”And, alas, that is how we will overturn this entire thing. We will garner a super-majority and we will alter the constitution and render rational basis analysis, and strict scrutiny to the dustbin of history.

Michael Haz said...

Why are you stalking my family, Meade? You posted information about my long-ago marriage and divorce. You posted the number of children I have, and by which wife. It took effort and purpose for you to find that, Meade. You did it purposely. What the hell is your problem? Whatever bullshit reason you have to vent your anger on that other blog, you leave my family out of it. Stop stalking my wife and my children.

Bob Ellison said...

Clark, Roberts is not the brightest candle on the nightstand.

William said...

I think every generation gets to define its own music and its own sexual mores. When I was younger it was unheard of to engage in anal sex during wife swap parties, but all that has changed. I hardly ever attend orgies anymore. You would think that people on gluten free diets would be more fastidious in their sexual habits, but you would be mistaken. Well, the younger generation is entitled to have their go at it......I've got nothing against gay marriage. The trouble is the SJW people are never content to say that they won, and then pack it in and go home. Social justice is like the horizon. It retreats before you. They'll kick the Marine recruiter off campus because there are no transgendered Marines on active duty. They'll track down some straight wedding photographer--they're out there--and demand that he make a tape of some gays' wedding night. If you try hard enough, you can always find someone to oppress you. And just as the definition of marriage is malleable, so is the definition of oppression.

Beloved Commenter AReasonableMan said...

Andrew Sullivan, at least, is happy.

Michael in ArchDen said...

Just who do we think we are?

Why, we are the one's we've been waiting for! The president said so!!

Anonymous said...

Whom is speaking to whom?

sunsong said...


"Never let your sense of morals prevent you from doing what is right."
-- Isaac Asimov

Guildofcannonballs said...

Oh were waiting.

Oh were waiting, oh yeah oh yeah.

You can't hold out,

You can't hold out.

Oh yeah,

Oh yeah.

https://m.youtube.com/watch?v=02rHc9O94BM

You'll find out,
Oh yes you will find out.

Aussie Pundit said...

Government needs at least a legitimate interest for excluding same-sex couples from the various benefits of the status of marriage, which it maintains in the legal system.

True. But the court is not the government. The court's role is to interpret existing law.

Carnifex said...

You would have to be a retard to think Roberts would not have voted for Queer marriage if his vote was needed to pass it. it wasn't so he tried to cover his ass for the piece of shit decisions about scotuscare. too late Roberts you piece of shit we know what you are. a fucking retard who shits on the constitution, you and all your ilk should be tried and hanged for the traitorous scum you are.

lostingotham said...

Today the SCOTUS has required states to give official sanction to institutions segregated based on sex. A sad day for equality.

Aussie Pundit said...

No union is more profound than marriage
Parenthood is a more profound union than marriage.

Carl said...

I dunno, Althouse. I think you're really missing the forest in your zeal for the trees. The dissents of Alito, Thomas and Scalia were eye-opening. They aren't especially concerned with whether gays can marry or not -- but they all three issue a very clear and worrisome warning about what has been unleashed here. What will you do when the shoe is on the other foot? You imagine you're living in England at the very dawn of the Enlightenment. Exciting times! A long march of increasing liberty, prosperity, comity, tolerance....!

But what if you're living in Weimar? What if Ginsburg and Kennedy die soon, as it statistically likely, and two out-and-out fascists are appointed to the bench, and the rest are cowed, or senile, or the bench is enlarged by a wildly aggressive Congress, and the Supreme Court finds in the 14th Amendment the "liberty" for a citizens to "define their identity" -- as loyal subjects of Allah, so that the new Wisconsin law that punishes homosexuality by throwing the guilty off of tall buildings is perfectly Constitutional, citing this very ruling as a precedent for discovering the evolving meaning of liberty according to some rationalization or other (which will surely be provided in soaring gauzy rhetoric equal to the majority's own here)? What then? Having sown the wind, will you argue with the whirlwind that's not exactly what I meant? Best of luck with that.

I get a weird sense of Faustian haste in this, as if the victory has to be now, and if the means seized in the haste produce some hideous side effect after you're safely dead -- well, the future must look to itself. But you may live longer than you think, and the times can change very rapidly indeed, far faster than the aristocracy think -- which is why so many ended up under Robespierre's guillotine and not safely in exile in the Netherlands.

There is a certain Mutually Assured Distruction aspect to ideological conflict in a republic: those on opposing sides of non-existential issues generally agree to rule out the most expedient of methods, from the naked fear that the bottle uncorked, the genie cannot be stuffed back in -- and God knows to what he can get up, certainly lots of things you haven't imagined in your rosy dreams. The wheel turns, and if you have exercised no restraint when you had the power -- none will be exercised when you are its victim.

This is what I think is regrettable about the present decision -- and in the stunningly short-sighted reaction of the legal aristocracy to it. You have uncorked the bottle and let the genie out. You have taught your enemies that 5 Supreme Court votes can do anything it damn well pleases, and you have taught those who might've been your future allies that you will betray them on the (non)acceptability of certain means if necessary to achieve your favored ends. Those lessons will not be forgotten.

In short, your textual analysis is all very interesting, but may ultimately be as sterile as debating the proper loading procedures for lifeboats aboard S.S. Titanic. It may be that the social psychology aspect to which the minority alludes will wipe it out as a hurricane does a sand castle. Good luck to us all.

Bleach Drinkers Curing Coronavirus Together said...

So prior to today you couldn't love your boyfriend?
You always had that right.
Love does not = marriage.


Well, maybe not for a social conservative, anyway.

Lewis Wetzel said...

Who knew Hollywood was so full of social conservatives?

Bleach Drinkers Curing Coronavirus Together said...

Why? Because of their supposed divorce rate, Terry?

I think if anything that means the opposite - that they love too much.

Interesting that we're the only two insomniacs left on these threads tonight. How's your night going?

I was out doing my own (totally unrelated) partying, but didn't want it to end. So I ran down the streets filled with all the patrons exiting from their favorite gay bars, and loudly yelled my demand that we all get married (no, not necessarily to each other. We're not Mormons).

I think I actually got the attention of one of the cutest (straight) fag hags there.

Alcohol. And celebration. What a recipe.

Bleach Drinkers Curing Coronavirus Together said...
This comment has been removed by the author.
james conrad said...

I dunno, Althouse. I think you're really missing the forest in your zeal for the trees

Exactly

hoyden said...

Perhaps the recent SCOTUS are a form of Government bailout for the legal industry. Not exactly a "cash for clunkers" but more of an indirect subsidy since so many more people will be swept up in the legal morass.

james conrad said...

Perhaps states should just out of the marriage business altogether, i am not sure they ever belonged there.

Rusty said...

I'll second that, James.

Michael said...

"The country wasn't collapsing because gay people love each other and seek the legal aspects of permanence." True. But the country is (slowly) collapsing because of the decline of the institution of marriage, which exists for the socialization of children and the transmission of culture (among other things...) The policy question is whether gay marriage strengthens or weakens the institution (I'll go with the former.) The legal question is, as Roberts said, who do we think we are?

DougWeber said...

James:
As an oppressed single person, I tend to agree.

Part of my concern is that we have used marriage in our laws as a simple heuristic for allocating resources.
When marriage means children(mostly) and stable households(mostly) it is reasonsable to say have a special tax rate for married couples. But it all that marriage means is that two people "love" each other, is it wise to give them special considerationl. Is the society that much better off if these people have obtained the sanction of the state or not; that the dissolution requires the intervention of the state?

The danger now is that legislatures will see that they cannot use marriage as a hook to direct special attention. They will eigther stop using it or find other mchanisms to get the resources to the actual intended people.

Not I am not sure if this is a bad result. I have to pay a higher tax rate because I am not married. Is that fair? When the lower rate was to provide support for families with children and a possibly non-working wife, it makes sense. When it is applied to two men who are both high payed lawyers, is it right?

Bricap said...

Professor, what do you make of his comparison of the decision to Lochner?

Uncle Pavian said...

Who do they think they are?
Obviously, they think they are supreme. And, so far, they've been right.

Anonymous said...

When it comes to preserving the institution of marriage and family, it's true that the horse left the barn a long time ago with our tolerance of easy divorce and abortion. Gay marriage is just the logical result of what we've already decided societally: that personal happiness and sexual freedom trump the needs of the family.

I don't think it's that liberals don't see the same data and statistics that everybody else does on the breakdown of the family. They just don't care. They don't think it's that important for a biological family to remain intact as a social, financial, and emotional unit. It's not the job of the family to take care of children — it's the state's job. And it is *certainly* not the job of the family to educate children about how to exist and function in society. The state must impose its will there.

So who cares if the traditional family is breaking down before our eyes? Sexual freedom is more important, and it's the state's job to mold our children anyway. Those we don't abort. Hmmm. Maybe the state should have more of a say in who gets aborted or not, too. Seems to work for other countries Paul Krugman admires.

Unknown said...

I would like to see as States grapple with how to honor this crap decision the removal of a marriage "gate keeper." No more "by the power vested in me." You fill out a government form, get a notary public to verify the people who sign it match the names on the form, send it in to the courthouse and they are married by their own declaration in the new definition of marriage. Those who choose can then celebrate with a wedding, a reception, or however they want. Ministers don't have to defend not providing a gay marriage. Churches are protected by rights to association. Natural rights (shudder to use in this context) are separated and do not apply to celebrations and weddings, just to SSM.

Kirk Parker said...

Althouse,

"The Chief annoyed a lot of conservatives yesterday, saving Obamacare, so maybe he'll win some righties back today."

In your dreams. In real life, his ridiculous whipsaw just confirms our contempt of him.

Kirk Parker said...

Sunsong,

Thanks for quoting what is surely the stupidest thing I read all month.

David said...

"There's no enumerated right — "no ... 'Nobility and Dignity' Clause in the Constitution."

Well ... there is actually, isn't there? Not "nobility and dignity," exactly, but see Article I, Section 10, Clause 1: "No State shall ... grant any Title of Nobility."

Contra Kennedy's opinion: "The lifelong union of a man and a woman always has promised nobility and dignity to all persons..." And at oral argument: “I don’t understand this ‘not dignity bestowing.’ I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. It’s dignity-bestowing, and these parties say they want to have that, that same ennoblement.”

If Kennedy's view is that marriage is a status or title which the state uses to dignify and "ennoble" people, and that a marriage ceremony is like a knighting or something, then arguably doesn't it run into that Constitutional issue? Kennedy is wrong that "ennoblement" is the state's purpose for marriage IMO, but to reach his conclusion he assumes that it is.