June 26, 2015

Justice Kennedy begins with the due process analysis, looking at the "right to marry" cases...

... beginning with Loving v. Virginia. These cases all "presumed a relationship involving opposite-sex partners," but courts necessarily make "assumptions defined by the world and time of which it is a part." Despite that assumption, the precedents had underlying reasons that "apply with equal force to same-sex couples." There are, we're told, 4 reasons:

1. The "concept of individual autonomy." This idea is found in the cases "concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make." (Abortion belongs on that list. Is it tactful — tactical? — to leave it off?) "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation."

2. "Marriage responds to the universal fear that a lonely person might call out only to find no one there." Is "unlike any other" relationship between 2 persons. It's about the assurance that there will always be "someone to care" for you.

3. Marriage is about bringing up children in a setting of "permanency and stability." Same-sex couples have children — biological and adopted children — and it makes no sense to exclude these parents and force the children to "suffer the stigma of knowing their families are somehow lesser."

4. Marriage is the "keystone of our social order." It's also — mixing architectural metaphors — the "foundation" and "a building block." Government confers many benefits based on the status of marriage, and there's nothing different about same-sex couples that provides a reason to exclude them from this statues and the "constellation of benefits that the States have linked to marriage." And it's not just "material burdens." It's the disparagement: "As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society."

Justice Kennedy rejects the completely historical definition of what is fundamental within the meaning of the due process clause. He looks at "ancient sources," but also seeks "a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." That's awkwardly put and will make critics wonder if he was avoiding saying something that would look wrong if said clearly. Justice Scalia, in dissent, offers a stinging paraphrase: "Ask the nearest hippie." [ADDED: I realize, on reading the Scalia dissent, that I misunderstood what Scalia was advising us to ask the nearest hippie about. He meant that the "nearest hippie" would tell you that marriage is a loss of freedom, man.]

Kennedy considers the argument for restraint, for letting this issue percolate/ferment out there in the political arena for a while longer. But we've already taken some time, and rights supervene majoritarian decisionmaking.

What about the argument that same-sex marriage will cause fewer opposite-sex couples to marry? The Court calls it "counterintuitive." It doesn't believe that's the way people think about the decision whether to marry.

Kennedy considers the new problem that now arises: What about those who opposed ssm for religious reasons? They are protected by the First Amendment "as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." That's a reference to speech. It isn't enough to satisfy those who want their religion-based conduct protected (the wedding cake questions and so forth). Indeed, the very same protection is available to those who opposed ssm for reasons other than religion. You have free speech. Nothing is said about the freedom to discriminate based on your disapproval.

I see that I missed the Equal Protection discussion the first time through. Let's scroll back to page 19. The Court says that Due Process and Equal Protection are "connected in a profound way" but rest on "independent principles." Once you see the burden on liberty, you must acknowledge the violation of equality "precepts," Justice Kennedy writes:
Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.
That "long history of disapproval" resonates with old cases about heightening scrutiny, but there's no talk of that here. There's a distinct absence of doctrinal particularity about the levels of scrutiny. There's no discussion of the government interest to be served and how closely connected it is to the policy that's supposed to serve that interest. The focus is on the gravity of the burden imposed.

This ends the live-blogging of reading the majority opinion. It's notable that the due process analysis predominated and drove the equal protection analysis. I think the inequality is easier to explain and understand, but there are reasons to prefer to frame things in terms of fundamental liberty. Equality is, perhaps, a cooler matter than liberty. There's more passion in liberty and more to disagree about. There's no end to demands for liberty, and which liberties get to be fundamental? That question sets us up for the dissenting opinions, and for those, I'll do separate posts.

Much of Justice Kennedy's opinion is workmanlike and dull, piecing together precedents in an earnest effort to show us that the right found today was really always already there and nothing to do with feelings and political preferences. But there were some glimmers of passion. My favorite example:

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

147 comments:

Sebastian said...

"the precedents had underlying reasons"

It's just a matter of "finding" them.

Con law as scavenger hunt.

tim in vermont said...

Where did that "two persons" come from?

CarlF said...

Polygamy here we come.

Gabriel said...

"The nature of marriage is that, through its enduring bond, two persons together"

Um, no, because polygamy was historically and geographically as least as common as monogamy. So it's NOT the "nature of marriage" to be confined to two people.

tim in vermont said...

These sound like the kinds of issues that legislators democratically elected used to consider.

PB said...

We are now free to define any word as we want at any time or place. No longer will the laws against slander and libel be applied. When I call you a thieving, racist, cannibal, I mean it in the nicest way possible and you should take it as a complement. Anyone who objects should be driven from polite society.

tim in vermont said...

Monogamy is a Christian construct and needs to go. This stuff is easy. That polyamorous triad down the street has as solid a claim to equal protection as anybody else.

Douglas said...

The only interesting question at this point is whether Hillary Clinton will join the gay activists in demanding the end of tax exemption for churches that refuse to perform gay marriages.

tim in vermont said...

I have an idea how to fix the educational crisis. We can just give a mortarboard and a degree to everybody.

Matthew Sablan said...

"These sound like the kinds of issues that legislators democratically elected used to consider."

-- So many legislators are sighing with relief that any contentious social issue they can just say: "That's a matter for the courts to decide."

tim in vermont said...

Make the minimum wage a million bucks an hour. Everybody will be instantly rich!

So many of these issues were so simple and I never could see it.

Tank said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there." Is "unlike any other" relationship between 2 persons. It's about the assurance that there will always be "someone to care" for you.

Oh, that's what it's about. LOL.

Pathetic.

La la land we is here.

Tank said...

Everything is gamergate now.

PB said...

Soon, the ability to perform legal marriage will be taken away from churches. They may perform whatever religious ceremony they like, but it will have no legal significance.

I hope we figure a way to completely get the government out of the marriage business so that the word has not legal implications whatsoever. If people want to get married as a private ceremony in whatever club you belong, great, have a nice party afterwards. If those same people want to commingle their assets and commit to joint responsibilities towards each other, then there are partnership agreements ready and waiting.

Matthew Sablan said...

I'll say this here, even though I said it in another thread:I like the RESULT of this decision, but I am really, really not liking the reasoning to get there.

BDNYC said...

I simply can't get behind the fundamental rights analysis when it comes to marriage. I think marriage is an important institution that the government is right to protect and encourage, but I would not be shocked if at some point in the future humans change their personal relationship preferences and ideas about family and marriage. Marriage may no longer be a necessary or even useful institution. I think the Court makes a mistake when it waxes poetic about personal intimacy and companionship and all that.

A fundamental right to cohabit and have sexual relations with another person of your choosing, sure, I can understand that. The government should not be micromanaging our personal lives like that. But a fundamental right to enter into a state-sanctioned relationship that bestows certain rights and responsibilities? No. I fail to see how that should be a fundamental right.

That said, the equal protection analysis is much more respectable and appeals to my sense of fairness. Equal protection is why I support gay marriage.

MayBee said...

While I have been concerned about the legal reasoning and precedent being this, I can't help but be thrilled today.

So much happiness for so many!!!!!!
All the love!!!!

Terry said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."
I don't need no fancy law degree to know that this isn't legal reasoning, it's horse shit.

sunsong said...

“Custom is a despot among men.”
~ Aleksandr Pushkin


“ Conservatism respects the past, but it can’t be seen as stuck in it or longing to return to it. The politics of nostalgia doesn’t work. “

~ Peter Wehner

garage mahal said...

Been a glorious week. TONIGHT WE TAKE ALL THE GUNS.

madAsHell said...

I suspect this will have the same outcome as a sex change operation. They were unhappy people before the operation, and they will be unhappy after the operation.

Quayle said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there." Is "unlike any other" relationship between 2 persons. It's about the assurance that there will always be "someone to care" for you.

Unless they find another partner or tire of you and divorce you, or Elizabeth Gilbert, the author of "Eat, Pray, Love" secudes your partner, in the which case you are alone.

"So much happiness for so many!!!!!!
All the love!!!!"


And what of the majorities in each state, including California, that didn't want this outcome? Aren't you ignoring how they feel? Don't you care at all about them?

EMD said...

Been a glorious week. TONIGHT WE TAKE ALL THE GUNS.

I laughed.

Quayle said...

“Custom is a despot among men.”

I can see your point. It has been the custom to build foundations of NYC skyscrapers with very hardened and stable materials, but that is all so despotic.

I advocate foundations of popcorn and feather boas.

EMD said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there." Is "unlike any other" relationship between 2 persons. It's about the assurance that there will always be "someone to care" for you.

This is utter tripe from a legal point of view. I'm with Matthew Sablan.

Birches said...

Is "unlike any other" relationship between 2 persons. It's about the assurance that there will always be "someone to care" for you.

That's the most hilarious thing I've ever read. The past 40 years have completely disabused our society of the notion of "For better or for worse."

MadisonMan said...

I hope we figure a way to completely get the government out of the marriage business so that the word has not legal implications whatsoever. If people want to get married as a private ceremony in whatever club you belong, great, have a nice party afterwards. If those same people want to commingle their assets and commit to joint responsibilities towards each other, then there are partnership agreements ready and waiting.

Agreed. A Marriage is a Religious Sacrament that the Government co-opted so they could issue Marriage Licenses for a fee, and employ some idiot Governor's half-witted brother-in-law to do it. Let Civil Unions be the moniker given to legal joinings of two people, and the legal documents from that will align with State/Federal laws that govern inheritance.

But I also read something yesterday (on slate, maybe, after I read Emily Yoffe?) about abolishing Civil Unions completely now, now that everyone can get married. Why should the state offer both Civil Union licenses and marriage licenses, after all?

PB said...

Kennedy is such an emotional tool.

Birches said...

Marriage is about bringing up children in a setting of "permanency and stability." Same-sex couples have children — biological and adopted children — and it makes no sense to exclude these parents and force the children to "suffer the stigma of knowing their families are somehow lesser.

Wait, what about the kids who feel lesser because Dad isn't around. What should we do for them so that Special Snowflake doesn't feel lesser? Life is full of lesser. If you don't want your kid to feel lesser, don't have a test tube baby with donated egg or sperm.

EMD said...

So the 14th Amendment guarantees equal protection nationwide, but the 2nd Amendment ...

Anonymous said...

So if someone legally marries a 13 year old cousin (think Jerry Lee Lewis in 1958 - which is legal in Louisiana, then that marriage is valide in New York, California and all other States?
Way to go Justice Kennedy; totally destroy States' Rights.

Browndog said...

I'd bet every time Scalia writes an opinion these days his ears ring with echos of liberals screeching "This is a conservative Court!"

PB said...

Matthew Sabien: Achieving a good result the wrong way only encourages more use of the wrong way, with good results not guaranteed and spectacular failure likely. Confusing causation with correlation does this.

Terry said...

Doesn't the constitution guaranteed us a republican form of government?
Guess not.

Joe said...

This is the direct consequence of using government to support marriage. Were there no economic benefit for marriage vis-a-vis the government, this would never have been a constitutional issue. When you ask government to promote and/or protect some cause, do not be surprised when the results are not what you wanted.

Unknown said...

Kennedy's opinion is embarrassingly bad. Roberts's dissent is excellent.

tim in vermont said...

Wow, the more that is up there, the more it is obvious that this is not legal reasoning and that Kennedy considers himself some king of philosopher king.

Joe said...

"...totally destroy States' Rights."

Say what you will, but that IS part of the constitution:

Article IV, Section 1:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

tim in vermont said...
This comment has been removed by the author.
tim in vermont said...

Wow, the more that is up there, the more it is obvious that this is not legal reasoning and that Kennedy considers himself some kind of philosopher king.

Fernandinande said...

Abortion belongs on that list. Is it tactful — tactical? — to leave it off?

It was logically correct to leave it off because killing another person is outside the realm of "individual autonomy".

PB said...

"consequence of using government to support marriage". True, but you have to remember our founding documents are predicated on a creator and religion. What better way to delegitimize our government and way of life by, (1) delegitimizing religion, (2) delegitimize our founders as slave-owners and racists.

Matthew Sablan said...

"Matthew Sabien: Achieving a good result the wrong way only encourages more use of the wrong way, with good results not guaranteed and spectacular failure likely. Confusing causation with correlation does this."

-- I agree. I dislike that we got to this end, when in the same case, a different legal argument could have been focused on [contracts/etc.] and gotten the same result.

Jane the Actuary said...

Next question: why is the state conferring benefits on married people in the first place? Doesn't that make single people feel "lesser"?

But, really -- how do you argue that Kennedy used solid judicial reasoning, as opposed to deciding what he wanted the answer to be and going from there?

Terry said...

"This is the direct consequence of using government to support marriage."
Governments have supported marriage since at least the time of Augustus Caesar.
This is a direct consequence of the totalitarian impulse of the Left.

PB said...

Say what you will about Donald Trump - ego-mad, publicity seeking, narcissistic demagogue, but after living under the current ego-mad, publicity seeking, narcissistic demagogue, we may need one of our own to get anything done. Logic and reason doesn't seem to be getting us anywhere.

traditionalguy said...

Love from family members who will never abandon you and always respect you even for your bad decisions should be an unalienable legal Right

I hope that works out for the gay lifestyle. But I doubt it will. Stay tuned.

who-knew said...

Another joke, another nail in the coffin for constitutional government. Scalia is right. Our republic is finished.

Meade said...

"Justice Scalia, in dissent, offers a stinging paraphrase: 'Ask the nearest hippie.'"

I get his point but, hoo boy, is Scalia living in the past or what? There ARE no more hippies to ask. Everyone knows the last true hippie faded away in 1977.

Hagar said...

"It was a dark and stormy night ..."

joeknows said...

Churches will have to get out of the marriage license business. If a same-sex couple wants a marriage license they are certainly available through the state. If a church, such as the Catholic Church, wishes to confer a sacrament upon a hetero sexual couple it seems that they should have a right to do that and at the same time I don't see how they can be forced to confer that same sacrament on a homo-sexual couple. The church in no way is denying a same sex couple the right to marry in that the couple is free to go and have a civil ceremony performed anywhere now. Will a church be able to say that "we are not in the marriage license business, you will have to go somewhere else for that. We perform religious ceremonies only"? A church is certainly not obligated to perform civil ceremonies,is it?

Theranter said...

"Marriage is about bringing up children in a setting of "permanency and stability.

Annnnnd with three-parent children just on the horizon, the three-way marriage is a shoe-in.

mccullough said...

This opinion should have been short. The reasoning is really bad. Since almost every state has a lottery and fantasy football is very popular, there must be a constitutional right to gamble.

Since you can join the military at 18 and die for your country, and 18 is the age of majority for most laws, the 21 drinking age is unconstitutional.

That is the reasoning

Monkeyboy said...

Full Faith and Credit

I can't wait until this ruling is cited in a decision to force New York to recognize my Virginia Concealed Carry.

PB said...

Interesting explanation of Kennedy on allowing churches to not perform SSM, but soon, the SSM supporters will demand that any institution that doesn't perform ALL types of marriages are performing something LESS than a marriage in the state's eyes. An effort to delegitimize the institutions which created marriage in the first place will gain strength.

mccullough said...

Since most states allow concealed carry, there is a constitutional right to concealed carry. It's a national consensus.

PB said...

Who cares about concealed carry, what clearer definition of the right to bear arms than open carry?

tim in vermont said...

It is really laughable to see so many *men* trying to abstract some logic from this decision that can be applied in other similar cases. Forget it!

The kind of abstract reasoning that built the greatest economy the world has ever seen, that put a man on the moon, and that won two world wars and an horrific civil war is now passe.

Now it is all about contextual thinking. So if somebody remembers a picture as a child of Charlie Brown in shorts, for example, then shorts make a man look like Charlie Brown! No matter how many episodes of Rat Patrol you may or may not have watched!

roesch/voltaire said...

Never a hippie, but called one, I can tell Scalia, that for me, marriage has increased and expanded our intimacy.Where you marry and whom you marry is a personal choice, but the state must recognize the legal obligations that go with it: financial, property ownership, hospital visitation etc. And now they must for all.

Monkeyboy said...

And now they must for all.

Not for all, as there is still bigotry that denies close relatives from marrying and polygamist grouping from being celebrated.

jimbino said...

Although Kennedy seeks to justify gay marriage on the basis of "individual autonomy," civil marriage together with its myriad benefits clearly disfavors the individual, as singles are soaked to support it while not entitled to any of those benefits.

Kennedy also cites the importance of "family relationships" in justifying government-sponsored marriage, while failing to acknowledge that a family consisting of grandmother-grandson or brother-brother is excluded from marriage and its myriad benefits.

The Kennedy opinion is total hogwash.

etbass said...

The professor like to ask, "What would Jesus say?'

You can find in Matthew 19;4,5 what Jesus said.
"And he answered and said unto them, Have ye not read, that he which made them at the beginning made them male and female,
And said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh?"

The Word of God determines what marriage is, not a bunch of judges.

Mark said...

The majority opinion really is amazingly flabby and results-oriented. It amazes me that this issue has been decided in this way. This along with the earlier Obamacare ruling basically invalidates the idea that the words actually written in our laws mean anything when they happen to be inconvenient.

I support same sex marriage; but this does for the issue EXACTLY what Roe v. Wade did for abortion.

mccullough said...

R/V, the taxpayer is responsible for supporting most children, not their parents, who aren't married. Rights without responsibilities are meaningless, as is this decision

tim in vermont said...

I love the way jimbino insists he does not benefit in any way from traditional marriage because nobody needs to have children because we can import them from South America if we need nurses in our old age or somebody to work at the store, or whatever.

Monkeyboy said...

Who cares about concealed carry, what clearer definition of the right to bear arms than open carry?

What concern of it of yours how I carry a gun? What you haters fail to realize is that there are more ways to carry than your outdated "open-carry only" bigotry can comprehend. No one is going to force you t carry concealed since you consider it "icky"

Virginia has validated my right to carry as I choose, its about time NY came into the 21st century.

Rick said...

MadisonMan said...
A Marriage is a Religious Sacrament that the Government co-opted so they could issue Marriage Licenses for a fee, and employ some idiot Governor's half-witted brother-in-law to do it.


This is not correct. The government involved itself in marriage as a byproduct of its neverending quest to increase its control over our lives. Popular opposition would have prevented the government from imposing an income tax or estate tax without special rules for married couples. Now it's tied into medical insurance.

As government invaded our lives to its current intimate level it had to recognize marriage or be thwarted.

PB said...

Monkeyboy: You misunderstand me. I don't care how you carry a gun. States that allow concealed carry but don't allow open carry seem to be hypocritical. If you support the right to bear arms you should support the right to bear that arm in the open and concealed.

Meade said...

"The Word of God determines what marriage is, not a bunch of judges."

In all fairness, when he spoketh those words, Jesus hadn't yet learned of Klinefelter's Syndrome.

rhhardin said...

Females can't do law.

PB said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there." This is a specious statement, as marriage is not the only thing that responds to that fear and I don't agree that fear is universal. More evidence of Kennedy's emotion over reason and law.

Matt said...

Why are conservatives still debating this issue? Gay marriage is now legal. Celebrate it or ignore it but stop fighting it. Go tend to your own garden; it needs some weeding.

Monkeyboy said...

PB -

Sorry for the misunderstanding, glad to hear that you are not some hoplophobe.

CStanley said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

And yet historically it was quite common for family members who were not spouses to create those kinds of unions, yet the new paradigm will not allow the benefits to be claimed by, for example, a sister caring for sister in old age. Honestly, Kennedy's reasoning is incredibly weak.

Marty Keller said...

Tim in Vermont hit the nail on the head. The postmodernist mania for "deconstruction" rules our public dialogue with the extra fillip that we must permit this because those "logic" and "reason" things are the product of the White European patriarchy and therefore must be suppressed.

Unfortunately for all of us, we cannot actually decree logic and reason nil and void, regardless of our fantasies about the imminent utopia, etc. There will be a terrible price to pay for this carelessness, but I am not sure it could ever have been avoided. Whether O'Brien and Big Brother are actually what is imminent, or whether this is just a particularly nasty phase of history--with which our entire history is rife--is difficult to tell when we're in the middle of the insanity.

Still, as Quayle foresees, we are now in a period where our societal and financial foundations are indeed made of popcorn and feather boas. As long as the Maybees of the world predominate, believing that it is government's job to make us happy rather than to ensure that we ourselves are free to pursue happiness as we see fit, we are sowing a wind that will generate a whirlwind for our children and grandchildren to reap in bitterness.

Nice job, fellow Boomers.

Anthony said...

I've ceased to view the SC as anything like arbiters of constitutionality, pretty much ever since Kelo. Now they're just activists making laws.

rhhardin said...

Is there a constitutional right to tuna fish?

My Doberman, surprised by a new scent when she came over for the traditional pre-lunch cube of chicken, encounterd a pinch of tuna fish.

She sniffed for about ten seconds, then licked it off my fingers.

Then she hunted in the carpet for any lost morsels.

Is there a hungry Doberman somewhere for whom there is nobody?

Eric the Fruit Bat said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

That's pretty good.

But I would have gone with . . .

Impassioned lovers wrestle as one,
Lonely man cries for love and has none.
New mother picks up and suckles her son,
Senior citizens wish they were young.


Nights in white satin, indeed.

hombre said...

"Marriage responds to the universal fear ...."

A fear so universal that marriage is on the wane, except, apparently, with gays.

"... that a lonely person might call out only to find no one there."

Constitutional protection from things that go bump in the night! Who knew?

Holy Toledo! What abject jackassery!

Erik said...


What If Someone Told You That "Homosexuals" Do Not Exist, Ann?
And What If They Were Right?

http://no-pasaran.blogspot.com/2014/11/what-if-someone-told-you-that.html

…/… Indeed, heterosexuals may not exist (so to speak), either.

…/… For centuries, for millenia, people have been primarily identified by their occupation — what they did, what efforts they made, for the benefit of their neighbor(s) and their community (soldier, farmer, worker, businessman, plumber, etc) — and not what they did for leisure, "for fun", for themselves, for their egotistical pleasure, whether in their home or elsewhere (certainly not in the privacy of the bedroom) — unless, of course, they were a prostitute (but in that case we would indeed also be speaking of that woman's, or of that man's, occupation). …/…

PB said...

Monkeyboy: I prefer concealed myself and I hope most people would as it's important to keep the low information voters wondering and polite.

PB said...

I understand the clerks do the heavy lifting in the opinions. Has anyone done a analysis of the political leanings of the clerks? Are the conservative judges getting swayed by liberal clerks? I probably don't have to worry about Scalia, Alito and Thomas, or the reliable left-wing, but Roberts and Kennedy's clerks might be interesting to analyze.

Erik said...

A strangling discussion: it’s been ‘a Two Minutes Hate’ against
anyone who doesn’t think gay marriage is the greatest idea ever

http://no-pasaran.blogspot.com/2015/06/a-strangling-discussion-its-been-two.html

Spiked Online's Brendan O'Neill:

… Around the world, the institutionalisation of gay marriage has been attended by authoritarianism, whether of the violent state variety or what John Stuart Mill called ‘the tyranny of prevailing opinion’.

… despite being turned by the media into the great unquestionable, almost sacrilegious cause of our age, still gay-marriage activists hilariously fancy themselves as underdogs and, worse, seek to shush or shame out of existence anyone who opposes them.

… far from mirroring the blacks who marched for their rights [in Selma], the gay-marriage movement … looks a lot more like the Montgomery cops who batoned those marchers off the streets

http://no-pasaran.blogspot.com/2015/06/the-state-recognises-at-gut-level-that.html

… the State recognises, at a gut level, that unlike pretty much every other demand for liberty or equality in modern times, the campaign for gay marriage does nothing to threaten their authority — on the contrary, it extends it.

hombre said...

Meade: "In all fairness, when he spoketh those words, Jesus hadn't yet learned of Klinefelter's (sic.) Syndrome."

Jesus spoke those words? Gay marriage is the treatment for Klinefelter Syndrome? Again, who knew?

Coupe said...

You blew it up!...Damn you...Damn you all to Hell - Planet of the Apes

Anglelyne said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there.

That is so gay.

SMGalbraith said...

"MARRIAGE RESPONDS TO THE UNIVERSAL FEAR THAT A LONELY PERSON MIGHT CALL OUT ONLY TO FIND NO ONE THERE"

So, unless the state recognizes SSM gay people can't find a person to love and share their lives with?

If every state government got out of the marriage business - that is, gave no licenses out to ANY couples - would that mean people couldn't get married? Or find someone to share their lives with?

People were getting married long before state government started giving out licenses. And if they stopped giving them out people - gay, straight, bisexual - would still get married.

If Kennedy wants to argue the equal protection point fine, but all of this other stuff is just appeals to emotion.

CarlF said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

But if you marry your dog, that fear is no longer there. [Cats not so much.]

hombre said...

matt: "Why are conservatives still debating this issue? Gay marriage is now legal. Celebrate it or ignore it but stop fighting it. Go tend to your own garden; it needs some weeding."

Somehow this comment makes the Kennedy statement in question seem erudite by comparison.

Terry said...

"The right to bear arms responds to the universal fear that a frightened person might reach for a gun only to find no gun is there."

Mark said...

Matt, how something is decided today affects how other things will be decided in the future. This was a correct outcome decided very poorly, IMHO.

Liberals have gotten away from arguing strongly from first principles in favor of arguing to the most convenient handy tool (usually the 14th Amendment or the Commerce Clause.)

Personally, I would have argued it primarily from a First Amendment freedom of association position, supported by the 14th. Ideally, as a liberal I would have passed a federal law establishing a right to marry between two consenting adults, then argued against the pushback from the 1st and 14th. As is the Right to Marry has been Roe'd; opponents will argue (correctly) that the SCOTUS just made up a new right out of thin air and did so on purely political grounds.

So, the short-term outcome is gratifying, but the ruling itself is very bad new for the future of liberty.

Terry said...

"The right to a ham sandwich responds to the universal fear that a hungry person might reach for a ham sandwich only to find no ham sandwich is there."

tim in vermont said...

"You blew it up!...Damn you...Damn you all to Hell" - Planet of the Apes

Good one.

I was going to go with "Sorry Ben, we couldn't keep it."

gerry said...

First, the liberals and Progressives came for the black family structure, and they destroyed it. What they can't kill with abortion, they kill with drugs, hedonism, and lawlessness.

The libs and progs are just finishing the job they started with the Great Society, only now they have the rest of us as their targets.

What worries me is, they won't leave anyone who disagrees with their morality alone.

Ah well, it's been a great run.

hombre said...

News flash, Dec., 2015: "The Gay Rights Division of the Oregon Administrative Law Court that fined Christian bakers $135,000 for refusing to bake for a gay wedding, today fined two Christian churchgoers $50,000 for directing discriminatory hate speech at a gay couple.

The gay couple, George and Harry Jones, 24 and 26, were picketing outside the Portland Evangelical Church carrying a sign that said, "Jesus was gay!" According to the Joneses, the parishioners, Mr. And Mrs. Smith, aged 86 and 84, respectively, upon exiting the church "confronted" them saying, "Shame on you!" The Joneses asserted that they took this to be an attack on their gayness and their marriage and that they felt "verbally raped" and physically threatened by the Smith's conduct.

Judge MacBugger of the Court ruled that since the Smiths are Christians, a hate group on the SPLC's list and since the interaction took place on a public sidewalk and since gay marriage is constitutionally protected, it was reasonable to infer - "reasonable inference" being the new standard of proof in such cases - that the Smith's engaged in prohibited speech and were subject to the fine. The Smiths who are retired missionaries living on Social Security, are financially unable to appeal.

SMGalbraith said...

The equal protection argument is persuasive; but all of this other dicta is really about what this is: the symbolic nature of the decision. Grandstanding by Kennedy.

And that's what this really is, isn't it: what is symbolizes and not what it's really about.

It's like the confederate flag controversy. No one thinks that Roof was driven to shoot those people by the flag. Or that the flag is harmful. It's about what it symbolizes. Fine.

I'm for changing the definition of legal marriage to include gay couples. But I don't care much for how this was done.

Monkeyboy said...

@Mark;

I mapped out an "NRA like" pathway in 2008.
Some states would accept gay marriage, most would accept civil unions, a few years later when opponents had seen that civil unions did no harm, push for marriage in those states through the legislature.

If that had happened 7 years ago we would have gay marriage in a majority of states right now without the acrimony or the government overreach.

It's unfortunate that for so many the part about doing harm to opponents was more important then the support to marriage.

hombre said...

Oh yeah. It seems important to clarify these days. My post at 12:25 is a parody - so far.

tim in vermont said...

The SCOTUS has been corrupted by their power. How long will it be before a POTUS asks again how many troops they have?

To be clear, I don't have an issue with Gay Marriage, I have an issue with SCOTUS overreach.

The Hilltop View of Morris County said...

Oklahoma state government is out of the marriage license business. And it's the states not the churches who handle the marriage licenses.

Sammy Finkelman said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there." Is "unlike any other" relationship between 2 persons. It's about the assurance that there will always be "someone to care" for you.

That's only presuming the two people are close in age, and actually it still does not prevent people being alone at a time when they are old and sick.

For that, for some people, children could be more important. Also other family.

And it is not necessary for teh state to recognize it for peoiple to be close. If it is useful for a relationship to be recognized, there are others that also could be.

In a medical crisisd, is it always a spouse who is the contact person??

Coupe said...
This comment has been removed by the author.
Cato Renasci said...

Homosexual marriage should have been a state question, to be decided by the legislatures (or directly by the voters in states which make provisions for referenda), not by the damned courts.

The quickest way for the courts to lose legitimacy is to rule as obviously as the decisions of the past few days for political, personal and social reasons.

In 2000, no Constitutional lawyer in his or her right mind would have said the 14th Amendment required homosexual marriage.

Today, a mere 15 years later, a bunch of left-wingers in black robes thwart the will of a majority of the people in many states out of whole cloth.

The court has beclowned itself.

Marc Puckett said...

Garage Mahal on 'good week; guns tonight' has been the only amusing thing I've seen online this morning.

n.n said...

So, it's not about marriage per se; but about unions, community, tribes, clans, etc.

It's not even about men and women, and human relationships. Kennedy upholds selective-child policy, right?

It's an awkward reconciliation of individual dignity, intrinsic value, nature, and secular interests.

buwaya said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

No it doesn't, or shouldn't.
That fear of loneliness does drive some to marry is correct, but these people are using marriage as a crutch. And the people who tend to use this crutch really aren't the people that society should be coddling - the old and irrelevant. Old, childless, infertile people marry out of fear of loneliness. They use this to legally bind themselves out of fear the other may decide to walk away. Marriage makes it more difficult to walk away. But for these people, should society care if their friend walks away ?

n.n said...

tim in vermont:

Raising minimum wage serves the same purpose as lowering the [Confederate] flag. It provides a quick fix that avoids addressing causes and projects culpability.

Leigh said...

Just remember, all would-be marrieds: there will be no Obamacare subsidies for you if your spouse is offered employer-sponsored "affordable" health insurance.

sparrow said...

Honestly why even pretend this is reasonable. The Supremes do what they want and fill in reasons/excuses later.

Richard said...

If a Catholic demands to be married in the Church, and is denied the "right," persists and is excommunicated, is there are remedy at law? Can the Church lose its tax exemption?

Paco Wové said...

"glimmers of passion"

Yes, that's what's been lacking in our government. Passion! Emotion! Feeeelings!

Just curious, did Kennedy cite the Moody Blues in his opinion?

AllenS said...

Meade said...
"Justice Scalia, in dissent, offers a stinging paraphrase: 'Ask the nearest hippie.'"

I get his point but, hoo boy, is Scalia living in the past or what? There ARE no more hippies to ask. Everyone knows the last true hippie faded away in 1977.


Not true.

mikeski said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

One of you dies first. The other remains lonely. 50/50 shot (minus the tiny chance of you dying simultaneously in the same plane crash or whatever.)

I guess we have the precedent for a Right to Gambling.

Herschel Smith said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

Okay, whatever. But what does that have to do with anything, especially what the constitution has to say about marriage or whether black robes can impose their world view on the underlings?

I recently said to my family, "This marks the end of the states. The great experiment in states as the laboratories of democracy is finished. The experiment was a failure. The states are just one more placeholder in a huge organizational chart all doing the bidding of the corporate masters."

Matt said...

This ruling hurts no one. Traditional marriage will not suddenly end. Men and women can still get married and raise families. So stop crying. All this ruling does is formalize what has been going on for years - two people of the same sex living and loving one another. That is not a threat to heterosexuals. If you think it is then go into hiding if you want. You're only making a fool of yourself if you do.

Real American said...

the only ancient source Kennedy consulted was his old fucking asshole. None of this garbage is the law. None of it is in the constitution. He fucking made it up. It's complete fucking fiction.

Marc Puckett said...

Justice Kennedy likes the 26th June, I gather. Lawrence, Windsor, Obergefell.
Kevin Walsh at Mirror of Justice, yesterday, commenting on David Lat.

Terry said...

"This ruling hurts no one."
First sentence of the comment is a lie.

A Washington state florist who refused to provide flower arrangements for a gay wedding “because of [her] relationship with Jesus” violated the state’s anti-discrimination and consumer protection laws, a judge ruled Wednesday.

“Religious motivation does not excuse compliance with the law,” Benton County Superior Court Judge Alexander C. Ekstrom said in his 60-page opinion. “In trade and commerce, and more particularly when seeking to prevent discrimination in public accommodations, the courts have confirmed the power of the legislative branch to prohibit conduct it deems discriminatory, even where the motivation for that conduct is grounded in religious belief.”
. . .
Ekstrom ruled in favor of the plaintiffs in both cases Wednesday, saying that while religious beliefs are protected, religiously-motivated actions are not, and that Arlene’s Flowers’ unwritten policy against serving gay weddings became illegal the day Washington voters legalized same-sex marriage in 2012.

“Stutzman cannot comply with both the law and her faith if she continues to provide flowers for weddings as part of her duly licensed business,” he wrote.

http://www.washingtonpost.com/news/morning-mix/wp/2015/02/19/relationship-with-jesus-doesnt-justify-florists-refusal-to-serve-gay-couple-judge-rules/

When dealing with progressives, it's best to assume that everything they say is an attempt to mislead.

Browndog said...

I remember when Roe V Wade ended the debate on abortion.

Saint Croix said...

Marriage is about bringing up children in a setting of "permanency and stability."

Law School Hypo #1

A married couple, Bob and Neal, decide to have a child. They contract with their friend, Vanna, to rent her uterus for nine months. Neal pays Vanna $10,000. In the contract she waives any claims to her baby.

At the IVF clinic, Bob masturbates into a little cup. A doctor unites his sperm with one of Vanna's eggs, and implants the zygote into her uterus.

Nine months later, Vanna gives birth to a little girl, Susie. Vanna is filled with love for Susie and decides to keep her.

Bob and Neal have a huge fight, and Neal moves into a shelter for battered men.

Bob sues for custody of Susie, and sues both Neal and Vanna for child support.

Neal sues for custody of Susie, and sues Bob for child support, and sues Vanna for child support and breach of contract.

Vanna sues for custody of Susie, and sues Bob and Neal for child support.

Discuss!

Gahrie said...

Vanna sues for custody of Susie, and sues Bob and Neal for child support.

She won't have to, the State will do it for her.

Carnifex said...

So?? According to the retards of the Stupid Court I can force someone to be in a marriage with me, because its my right not to be lonely? Jennifer Lawrence!! I call dibbs on Jennifre Lawrence!!

Anonymous said...

Blogger sparrow said...
Honestly why even pretend this is reasonable. The Supremes do what they want and fill in reasons/excuses later.


Why do we need law professors?

We really need to teach rhetoric. The law is no longer.

Anonymous said...

"Marriage responds to the universal fear that a lonely person might call out only to find only one there."

FIFY

Terry said...

Saint Croix wrote:
Law School Hypo #1
Ooh! Ooh! Let me guess!
The hypothetical is that there are such things as shelters for battered men?

Carnifex said...

Garage Mahal!!! Ask me. I'll give you my address. then you come and try to take them, asshat.

Saint Croix said...

The hypothetical is that there are such things as shelters for battered men?

ha! good one

Browndog said...

I was at a number of consumer bases establishments today-4, or 5-

From the parking lot, to costumer service, and beyond, strangers whispered amongst themselves "this country is going to hell..."

I'm not surprised at the over-riding sentiment-

I am surprised at how well trained we've become as a society to tread lightly when speaking publicly against the leftist outrage machine-

consequences...

MadisonMan said...

@Terry, there's a certain disjointedness in time to your rejoinder.

The ruling happened today. And to prove its impact you note something that happened last year, long before the ruling.

Do you have a TARDIS?

Terry said...

MadisonMan
"This ruling hurts no one" is present perfect. I think that it is reasonable to construe it as "this ruling will hurt no one", in which case I am allowed to show that identical laws have hurt people. The law thrown out said that Ohio had to recognize Obergefell's gay marriage that took place in another state.

Terry said...

Pro or anti gay marriage?
Doesn't matter, the elites will decide.
Pro or anti amnesty for illegals?
Doesn't matter the elites will decide.
Pro or anti voter ID?
Doesn't matter, the elites will decide.
Pro or anti affirmative action?
It doesn't matter, the elites will decide.
Pro or anti Obamacare?
It doesn't matter, the elites will decide.

One heck a republic we've got going here, fellas.

Richard Dolan said...

In reading Kennedy's opinion, it reminded me of Blackmun at his mushiest -- Roe v. Wade especially. It will persuade people who want to be persuaded, who really, really want this to be the right legal result. For the rest, not so much.

CStanley said...

Carniesx's snark about Jennifer Lawrence points to the absurdity of finding a positive right to marriage (for that matter, any positive right.) Such a right can only be exercised if there is either acquiescence or compulsion of other individuals. From the start of the arguments based on liberty, this kept running through my head: if gay people were so burdened by stigma of being unable to legally marry the person of their choosing, then what of any of the other millions of people who were unable to marry the person of their choice because that person did not want to marry him or her?? What, no dignity for those who are single but wish to be married?

tim in vermont said...

So I am sure that the courts will soon order re-education camps. They might call it "sensitivity training" but everybody on both sides will know what it means.

Laura said...

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

So now marriage partners must remain within earshot?

Divorce grounds: adultery, desertion, and failure to answer the phone.

David said...

""Marriage responds to the universal fear that a lonely person might call out only to find no one there.""

What bullshit. Single or married loneliness lurks. In marriage it can be greatly intensified. One discovers that the person who answers does not resemble the person they thought they were calling. Or they discover that the answerer is there, but the caller herself turns out to be missing. Or they find that they have always been hearing an echo. Etc. Etc. Etc.

Meade said...

"and failure to answer the phone."

LOL!

Browndog said...

Richard Dolan said...

In reading Kennedy's opinion, it reminded me of Blackmun at his mushiest -- Roe v. Wade especially. It will persuade people who want to be persuaded, who really, really want this to be the right legal result. For the rest, not so much.


yep-

Kinda make you wonder who's teaching lawyers...who become judges

Rhythm and Balls said...

What bullshit. Single or married loneliness lurks. In marriage it can be greatly intensified. One discovers that the person who answers does not resemble the person they thought they were calling. Or they discover that the answerer is there, but the caller herself turns out to be missing. Or they find that they have always been hearing an echo. Etc. Etc. Etc.

This, more than anything else, explains for me what divides reactionaries from the rest of us. A lack of any belief in the power of love.

Michael in ArchDen said...

I ,for one, love the ruling. Now that "Marriage responds to the universal fear that a lonely person might call out only to find no one there." Is "unlike any other" relationship between 2 persons. It's about the assurance that there will always be "someone to care" for you." I'm sure that all divorce statutes are, de facto, unconstitutional! After all, what assurance is there that there will always be someone to care for you, if one party to a marriage can choose to leave at any time? Meade was right about about this being a conservative decision! Of course, he'll have to stop living with another man's wife, but expanding liberty isn't always without costs..

Browndog said...

This, more than anything else, explains for me what divides reactionaries from the rest of us. A lack of any belief in the power of love.

This, more than anything else, explains why the left "love" to hate; everything is hate--and they love it.

EMD said...

A lack of any belief in the power of love.

Huey Lewis, call your office!

EMD said...

Discuss!

Depends, what's the hourly rate?

sunsong said...

"Man is kind enough when he is not excited by religion."
~ Mark Twain

Rhythm and Balls said...

This, more than anything else, explains why the left "love" to hate; everything is hate--and they love.

I love the people affected by the ruling and what they gained by it.

But you wouldn't understand that. Which illustrates my point.

Rick said...

sunsong said...
"Man is kind enough when he is not excited by religion."
~ Mark Twain


It's the very definition of kind to tar a wide group with the worst excesses of its members while ignoring that by the same standard your own membership in politics has had a far worse effect.

Unknown said...

Rhythm and Balls said...
What bullshit. Single or married loneliness lurks. In marriage it can be greatly intensified. One discovers that the person who answers does not resemble the person they thought they were calling. Or they discover that the answerer is there, but the caller herself turns out to be missing. Or they find that they have always been hearing an echo. Etc. Etc. Etc.

This, more than anything else, explains for me what divides reactionaries from the rest of us. A lack of any belief in the power of love.
6/26/15, 7:38 PM


Ritmo, did you ever, at any time in your life, find it necessary to believe the things you said?

Please point to any postings here you can find, that show any evidence that you are either capable or cognizant of love. You are a most reliably hateful poster.