From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” See De Officiis 57 (W. Miller transl. 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures,and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.
That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.
The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.
June 26, 2015
Justice Kennedy begins with history, but "cannot end there."
From the majority opinion in Obergefell v. Hodges (PDF), which just came out:
Subscribe to:
Post Comments (Atom)
Posts
77 comments:
Good. We can stop arguing about it and get on to important things.
Scalia says Kennedy is not a genuine westerner because California doesn't count.
Does this mean that "partner" benefits should be abolished everywhere now since any couple can get married? Or does that need to stay cause "some are more equal than others"?
Roberts dissented, saying that the Court should respect the law, not legislate from the bench. That's quite a change from what he said about the Affordable Care Act. In fact, what he said about same-sex marriage is like what Scalia said about the Affordable Care Act.
It shows how Roberts thinks: When it comes to issues of discrimination, the Court should defer to popular will. When it comes to economic issues like health insurance, the Court should exercise more latitude.
I will celebrate when I see the gay community become diverse and stop FORCING people to believe in their lifestyle (like the people who are losing their livelyhoods because of their beliefs)The Gaystopo are bullies
Beautiful! As someone tweeted:
marriage is now marriage
Marriage is not primarily about dignity. Anthony Kennedy is wrong.
This is the final official step in the removal of God's sustaining the United States of America as the world's leader, the world's greatest nation.
Mark this post. We will fall and never recover world dominance in the very near future. We have rejected the clear Word of God, called what is good evil and bigotry, turned selfish pursuits and feelings into policy. We won't be destroyed tomorrow morning. But we will never recover because as a nation we have rejected God's clear parameters fir safety.
Saddest day.
Marriage is now marriage. Modifiers just linguistic embroidery -- and therefore unimportant.
To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.
Without sexual exclusivity, all you've got is room mates. Something like only 25% of male homosexuals believe in chastity within marriage. It's higher for female homosexuals, about 75% of lesbians believe in chastity within marriage. The 75% number is about the same as heterosexual men. With heterosexual women, the number is about 95%.
For some reason, these numbers aren't easy to find.
But we're not changing marriage, no no no . . .
From Roberts: "The majority’s decision is an act of will, not legal judgment." Isn't it pretty rich of him to come out against judicial activism one day after participating in arguably the best modern example of it?
Roberts:
"Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sexmarriage have achieved considerable success persuading their fellow citizens—through the democratic process—toadopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."
I never thought state-marriage had any of this mystic hocus pocus to it. It was just a series of economic/other contracts between two people in a convenient package recognized by the state.
It was a clumsy way to get around to enabling it between homosexual couples, but it was going [and should] have happened.
The religious ceremony sanctifying a marriage as recognized by a church is unchanged by this ruling.
Do these justices feel they must invent law and rights at every turn?
The majority bases its conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) right to person choice in marriage is "inherent in the concept of individual autonomy"; (2) "two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order.
Really crappy reasoning (they must not teach logic anymore):
(1) right to choice should be based on free association, not autonomy (which isn't in the constitution, other wise I wouldn't have to pay taxes).
(2) two-person is unlike any other? Well two is not the same as 1, 3, 4 and so on, but it is "like" them being an integer. How does he judge "importance" couldn't male-female be more important than same sex?
(3) Marriage safeguards children and families: well same sex couples can't produce children or construct genetic families, but all sorts of other groups of people can safeguard children and families.
(4) Marriage is a keystone to our social order. I thought being a nation of laws not men was the key, along with other things mentioned in our founding documents. Marriage is a keystone only in the fact that a man and a woman are required to produce children which is necessary for the perpetuation of society.
They're just making it up as they go along. Oh those whacky liberals!
"From Roberts: "The majority’s decision is an act of will, not legal judgment." Isn't it pretty rich of him to come out against judicial activism one day after participating in arguably the best modern example of it?"
-- This furthers my theory that Roberts voted with the majority on subsidies so it wasn't a 5-4 contentious decision.
"The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity."
LMFAO. I can just imagine James Madison thinking that.
Young gay men will now save their rectums for the sanctity of marriage
Those are nice words from Justice Kennedy. Perfectly appropriate to a campaign speech in the course of a state referendum on marriage laws.
With no fucking relationship to any 14th Amendment equal protection review of duly enacted state laws.
As long as Kennedy is delving into history, does he say when exactly the Constitution of the United States -- which was drafted and amended in times when same sex marriage was unthinkable -- became a document which REQUIRES acceptance of same sex marriage?
Scalia was right all along in this series of cases. Chickenshit Kennedy was always moving toward a mandate for same sex marriages from federal courts. He just didn't have the balls to do it back in 2003. Scalia called it, and Kennedy dismissed it. Or else Kennedy was simply dishonest. I'm going with dishonest.
Between the reasoning of the majority and the hypocrisy of Roberts (laws not men), I'm having a good laugh over why we've twisted ourselves in knots over the minor concern of maybe 2% of the population. Goodbye "The City on the Make" it's now "The Country on the Make".
The first paragraph of that quote is stupid. "From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life."
Oh, really? So slaves who married were never separated, I guess?
"Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment."
"Immutable nature" is an interesting assumption that is in dispute. I don't have a problem with it, but Kennedy is going way out here.
Come on, dummies on the SCOTUS. Use real reasoning, not feel-good crap.
Marriage is not a creation of the state. The state recognizes marriage. The state can recognize a marriage between a couple of department store manikins, if it likes. The problem is that the state will now require me to recognize the marriage of a couple of department store manikins.
Horseshit. Kennedy goes on about the historical religious significance of marriage. That was never at issue in this case. Gays could always get a religious marriage and could even perform their own.
What is at issue is gummint recognition of and involvement in civil marriage that grants to the favored some 1000+ benefits in tax, inheritance, insurance, Social Security, Medicare and immigration, as well as a place at the welfare trough. Kennedy fails us in not even attempting to justify gummint's again rising to the challenge of granting special benefits, of choosing life's winners and losers.
Roberts again:
"The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?"
Answer: Your betters (the people who actually rule this country) make this and all other important decisions. Kind of tough news to take when you are CJ, I know. Sorry.
Judicial putsch by five lawyers in robes.
Voting doesn't count. We have lost the freedom to govern ourselves.
Raw political power grab.
Per Alito, now watch the suppression of dissent begin.
What a crock of shit.
the Constitution has been replaced by Anthony Kennedy's ass.
It can't end there if you have four other mindless liberals on your side.
Time for us to completely eliminate marriage as something that government has any involvement or interest in. If a man and a woman want a church wedding they can have it or not, their and the church's choice. If they want to join their assets in partnership, they can do it, or not. Their choice.
That gay couple that trots down to city hall to get married will find the volunteer at the reception desk telling them, "Oh we don't do that anymore. Have a nice day!"
What if a Southern gay couple went into a Northern bakery and asked for a wedding cake decorated with the Confederate flag?
Just crossing the wires. Test, test.
I am Laslo.
"The petitioners acknowledge this history but contend that these cases cannot end there."
Why?
"Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order."
Strawman of the year candidate. Imagine that as the basis of a case.
"But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point."
They say.
" Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities."
Privileges yoked to protected class status. There's the essence and the rub. The vehicle of their retribution. The respect of demanded acceptance over and above tolerance. You will respect, or be hounded or sued.
"And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment."
Born this way. Better find that gay gene. Gay immutable. The rest is construct.
Pretty words. Let's see if the objects of Justice Kennedy's opinion live up to them.
Appropriate to revisit the words of Neal Maxwell, the former Mormon Apostle. Prescient as he ever was, he could see this day back in 1978.
marriage is now marriage
Unless you want to marry more than one person, or marry a close relative, then you bigots are all about stopping them.
And let's be honest: SSM is not about gays and lesbians. It's about shoving SSM down your throat.
I support SSM, but I can see what's really going on here.
The hospital and inheritance issues are not the issues for those fighting for SSM. You must conform to the new politically correct thought. If you don't, you'll be ostracized.
I thought this article from a few days ago was pretty interesting: http://www.patheos.com/blogs/lovejoyfeminism/2015/06/are-evangelicals-rejecting-legal-marriage.html
Basically, the ruling doesn't affect Catholic marriage, because in the Church, the couple are the ministers of the marriage. The Church serves as witness to the vows. A Catholic couple could marry even if there was no state to certify the marriage.
But, for Calvinists and their various off-shoots, God has endowed the MAGISTRATE with the authority to determine who is and who is not married. That's why, for instance, they think civil divorce is legit. (Catholics don't recognize civil divorce, or civil marriage without a church marriage. If a state lowers the age of marriage below the Church minimum, the church still won't let people marry until they reach the Church minimum, etc. etc.)
So.... if you believe that marriage is determined by the state, and the state changes the laws of Marriage.....
What happens to your theology of marriage?
“Tradition is a guide and not a jailer.”
~ William Somerset Maugham
Actually, I'm kind of surprised that the Supreme Court doesn't seem to mention the benefits that come from being married and the contractual things [visitation rights, inheritance, shared custody, etc.] They might in the parts not quoted, but, like, that's a much bigger reason than "we want people to feel accepted."
I agree with the Court's decision; gay marriage is something that we, as a country, should recognize. But, I come to it from a legalistic approach [marriage is a pre-defined contract between two people that carries with it connotations of a romantic partnership recognized by the state], they come from it from a much different angle.
I think a lot of the backlash that the court's going to feel from religious and other conservatives not as socially liberal as me would have been blunted if they approached it my way.
Pulling stuff out of your ass is a legal principle.
Conspicuously missing from this discourse on the history of marriage is polygamy, which has gone on just as long and been just as widespread as monogamy, if not more.
He keeps talking about "two people" like that's the only kind of marriage there was.
Think of the legislature as a group of disorganized unruly undependable teenagers. Often it accomplishes nothing, and when it tries to accomplish something,it messes it up. It needs supervision. It needs correction. It must not be allowed to screw up Important Matters, about which its elders and betters know the truth. Indeed it needs a guardian. The Supreme Court, repository of wisdom and clarity, will not hesitate to intervene to set matters right.
Then imaging the reverse. The unreliable teenagers are in the Supreme Court--and I'm talking really unreliable not just the ideologically challenged of today, It can happen. Indeed, humans being humans,it will happen some day.
We can (in theory at least) elect a new legislature. Good luck replacing an out of control Supreme Court.
(You say that's already happened? Well, there's a difference of opinion on that, but you get the point.)
"Gays could always get a religious marriage and could even perform their own."
Yep. And civil unions could get them everything they needed from the state. The only reason to insist on legal marriage is to force your fellow citizens to treat your sham marriage like a real marriage.
The Honor and respect of marriage now belongs to gay people. What will they become entitled to next for status improvement?
Christianity is already illegal in public display on State and Federal land by signs and symbols. The Communist Party in China may lead the way here. They are forbidding public display of crosses on church buildings because they represent a political threat to their rule. The crosses actually are Judeo/Christian political claims to a presence in public.
The fun part is that the next time a contentious issue is before the supreme court, we're STILL going to be warned about how reactionary right wing the court is and that it needs to make the left decision so it is not on the wrong side of history, despite, as has been shown for at least 10+ years, the court is center to center left.
Professor Althouse:
I just finished reading the Kennedy majority opinion. And parts of the Roberts and Scalia dissents.
As a lawyer myself, I am stunned (as was Scalia) by the lack of any "legal veneer" (Scalia's phrase) in this decision. I expected Kennedy and his majority colleagues to fake it better. I expected them to cobble together some sort of 14th Amendment legal spackle, to trowel over what they were doing.
Scalia is particularly right, and I think it accounts for Roberts' unusually strong dissent; Kennedy and the five-Justice majority were just doing what they thought was right, knowing that there really wasn't any solid legal justification to be found.
Can you explain clearly how the Equal Protection analysis goes in this case?
Kennedy sure cited Lawrence v. Texas a lot, considering that at the time he wrote that opinion himself, he declaimed any reason to suspect that it was a new Equal Protection extension or that it even meant the inevitability of gay marriage.
This is the sort of craptastic opinionating I might expect from a low level state trial judge who forgot her or his constitutional law principles and only cared about the next judicial election. Coming from the United States Supreme Court in the most important decision of the year; if it weren't for the overwhelmingly liberal bias of law school faculty, I'm confident this would have been one of those opinions that got ridiculed and parodied by legal scholars. But since it went their way, the crummy legal reasoning in this case will simply be overlooked.
"in the most important decision of the year"
-- That was the subsidies case. This decision was a blip; if they had found it the other way, in a few years to a decade, most states would have legalized gay marriage.
"The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity."
Begs the question: what is that lawful realm?
If he says it's lawful, it's lawful; otherwise, not.
Are states now required to have marriage laws, or is Alabama-stye abolition now also unconstitutional? Because it doesn't allow people to "express their identity" properly?
Conspicuously missing from this discourse on the history of marriage is polygamy, which has gone on just as long and been just as widespread as monogamy, if not more.
Still practiced in many parts of the world, yet "marriage is two people" supporters like our hostess (or as I like to call them "Binary Bigots") would destroy poor families trying to immigrate into this country by demanding they conform to this "only two" fascism.
“Hate is powerful, but love is more powerful.”
~ son of one murdered in Mother Emanuel AME
"the crummy legal reasoning in this case will simply be overlooked"
Any reasoning that achieves Prog results can't be crummy.
“Hate is powerful, but love is more powerful.”
-- That's not true. If it were, we'd have long stopped the various genocides the world over, since there is CLEARLY a lot of love in the world looking at charitable giving and out pouring of affection for the lost.
Being more powerful doesn't make something better, though.
Who is the hater here? Does person who thinks a contrary opinion must necessarily emanate from hate rather than from reason seem loving?
marriage is now marriage
Unless you want to marry more than one person, or marry a close relative, then you bigots are all about stopping them.
Or marry your pet???? Keep thinking outside the box, there ain't no end.
Christianity is already illegal in public display on State and Federal land by signs and symbols
That is an untrue statement.
One of many examples:
On November 6, 2013, Governor Walker issued a press release announcing this year’s theme for the Capitol Christmas Tree would be “Wisconsin Traditions”.
Governor Walker wasn’t the only elected leader referencing the official tree as a Christmas tree. Fox6NOW.com quoted Mayor Tom Barrett’s invitation to attend Milwaukee’s historic 100th Anniversary Christmas tree lighting.
“I hope all of Milwaukee will join us on November 20th as we light the 100th annual Christmas tree,” said Mayor Barrett. “Our tradition dates back to 1913, and on Wednesday we begin another century of marking the holidays in this special way.”
In fact, on December 6th, 2013, the White House Blog posted President Obama’s plan to participate in “the lighting of the National Christmas Tree.”
With 95% of Americans celebrating Christmas each year (Gallup Polls December 24, 2010), 68% of them prefer “Merry Christmas” over “Happy Holidays” (Rasmussen Reports survey November 2012).
As named, the “Capitol Christmas Tree,” is consistent with the United States Supreme Court’s position that government can sponsor displays of religious heritage (Lynch v. Donnelly, 1984)
http://legis.wisconsin.gov/assembly/petersen/eupdates/pages/its%20a%20christmas%20tree.aspx
It's all over but the Shouting.
...and need—for its privileges...
That's it in a nutshell.
PB: They're just making it up as they go along. Oh those whacky liberals!
Well, they have to, PB. A body of law unmoored from the implicit, culturally-specific assumptions that undergird any stable society will of course go floating off into the æther. At that point there isn't anything left but a game of making things up.
Christmas trees aren't Christian, they are a pagan hold over.
Gabriel said...
Conspicuously missing from this discourse on the history of marriage is polygamy, which has gone on just as long and been just as widespread as monogamy, if not more.
Polygamy is an interesting case. If the decision is purely based on the legal principles polygamy will inevitably become legal, all it needs is sufficient advocacy to become relevant. As noted it has a far greater history of acceptance than gay relationships, which have never been considered marriages even where they were common and generally accepted.
But in opposition polygamy threatens the state coffers. An increasing number of people grouped together could drastically impact the income and estate tax receipts, as well as extending other rights more broadly (Obamacare "family" coverages), and creating significant administrative difficulty.
In the end I expect polygamy won't become legal because a government's first allegiance is to itself.
"I look at it as another commitment that I made to John," Obergefell says. "We started this fight for each other and I've completed it for him and for our marriage."
EDIT: Of my post above, just a few minutes ago...
I spoke of the Court's "Equal Protection" analysis and indeed Equal Protection was a central, much-debated and much-confused issue in Lawrence and some of the other decisions leading up to Obergefell. And Kennedy makes extensive mention of Equal Protection in this decision as well. But, as far as anyone can make out, the Court seems to have gone with "Due Process" as a legal basis. It's confusing, I must say, but I need to issue this clarification lest Professor Althouse grade me down for my earlier question to her.
"In the end I expect polygamy won't become legal because a government's first allegiance is to itself."
If it weakens the family, it will be made legal.
The first goal of totalitarians is to destroy any institution that stands between the individual and the state.
"Polygamy is an interesting case. If the decision is purely based on the legal principles polygamy will inevitably become legal,"
If the court has proven anything today, it is that one cannot rationally expect its decisions to be "purely based on the legal principles".
Putting lipstick on a pig comes to mind when reading this. If the court waxed any more poetic one might think they were writing for a freshman English class.
"But cannot end there"
In a way, I suppose it's helpful that liberals are now admitting that they are taking us on a never ending roller coaster of social experimentation....but those of us who can see the structural up soundness are wondering if we can make a stop at the station to get off the ride.
Scalia:
"...it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court."
dbp said...
If the court has proven anything today, it is that one cannot rationally expect its decisions to be "purely based on the legal principles".
By "legal principles" I simply mean the precedent the SC set today. This doesn't conflict with the idea that it was decided poorly.
This is what makes the test interesting. Based on today's ruling the expectation should be that the court will decide for polygamy as soon as the dominant intelligentsia comes to accept this as appropriate, which will be in 20 years or so. So which will turn out to be more important to the SC? Leftist academia / media consensus, or the government protecting itself?
Cicero, wrote, “The first bond of society is marriage; next, children; and then the family.”
back in Cicero's day marriage was between a man and a woman. after marriage came the children which resulted in a family. the child is created when the dna of the man and woman combine together
the only way that a SSM can result in a family is through artificial means either by medical intervention or by adoption.
two lesbians can not make a child together by combining their dna nor can two gay men
“Hate is powerful, but love is more powerful.”
~ son of one murdered in Mother Emanuel AME
Ask how they feel about SSM, you'll be surprised.
I am not really disagreeing with you Rick: All I am getting at is that if the leftist intelligentsia decides polygamy is a "right", the court would find a way to make it constitutional--with or without this precedent.
So Pi=3. Wow. Is there anything a court can't do?
Marriage is an institution for the wealthy, like the Supreme Court. . Almost half of kids are born to single moms. Divorce rates are still high.
This is a feel good decision that ignores the history of marriage and child rearing in the US over the last 50 years.
Love will have the final word."
Again, those that are for "democracy" use anti-democratic institutions (like the court) to get their way when democracy doesn't work for them.
Again, the court decides to be a mini legislature.
Again, the court gets to redefine words to meaninglessness.
This is how the end begins.
That's quite an error of logic in the last quoted paragraph. The fact that X is affirming the value of Y by desiring it for himself is entirely compatible with the proposition that giving Y to X would demean Y. ("Far from seeking to devalue the Nobel Prize for Literature, Stephenie Meyer seeks it for herself because of her respect—and need—for its privileges and responsibilities.")
Did the Supreme Court declare that marriage is so important that it was necessary to destroy it order to save it?
Or was there not much left to destroy anyway?
Do they not at least see the hazard in deciding such a contentious issue by a single vote?
Or was there not much left to destroy anyway?
Bingo. Marriage is nothing more than a welfare system for millions of graduating law students.
Christ, we don't even get a penumbra? They're not even trying anymore.
I will take bets on when we see the first national news story about two same sex family members getting married. The over-under is three and a half months.
Post a Comment