June 27, 2015

Justice Thomas decided long ago never to walk in anyone's shadow.

I burnt out trying to read (and blog) all 5 of the Obergefell opinions yesterday. I was getting annoyed slogging through the Chief Justice's long cogitation about restraint after getting through Scalia's relatively playful romp through the topic (and the frustrating fuzziness of the majority opinion), and I just couldn't get to the work of Justices Thomas and Alito.

But let me finish the task I assigned myself and move on to live-blogging my reading of the Thomas dissent (which is joined by Scalia):
The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. 
This is an excellent beginning, highlighting the main problem with using substantive due process — the idea of fundamental liberties (the "right to marry") — rather than equal protection. It's easy to see that the government is subject to equal protection limits as it hands out benefits, but maybe liberty should have only to do with being left alone to do what you can do on your own without interacting with the government.

So I'm very interested in what Thomas has to say about equal protection (which I think makes the most sense as the basis for the right), but he has almost nothing to say. He drops a footnote early on, observing that the majority says it's using equal protection, but it's "clearly" only using it "to shore up its substantive due process analysis." I agree, but when you're finding a right, one is enough. If you're rejecting the claim of right, you need to reject both grounds. Thomas should at least have articulated a legitimate government interest to be advanced by excluding same-sex couples from the legal institution of marriage. In my view, it cannot be done. (Listen to the oral argument to hear the ludicrous implausibility of the connection between the government's asserted interest — that children grow up with their biological parents — and the restriction of marriage to opposite-sex couples.)

To return to the subject Thomas does address — substantive due process — he opposes all of it. That is, he wouldn't even acknowledge the privacy rights that protect gay people from government interference with their freedom to engage in sexual activity. But there's case law that says these rights exist, so Thomas goes on to distinguish that case law:
Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships....

Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized....
Thomas accuses the majority of not caring enough about the problems its opinion will create for religious believers:
It makes only a weak gesture toward religious liberty in a single paragraph. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.
He's right that the majority only spoke of protecting freedom of speech and belief (a freedom that's protected whether your viewpoint is religious or not). But under the current Free Exercise of Religion precedent, there is no special treatment for religion-based conduct. Thomas alludes to that precedent:
Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. 
That refers to statutory law such as the Religious Freedom Restoration Act.
Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.
That is, if you leave everything at the statutory level, the people can make compromises between the various interests at stake (though those compromises would be subject to constitutional law-based challenges).

In the last part of the opinion, Justice Thomas talks about the government's role in giving or taking away "dignity." First, he looks at the text: "the Constitution contains no 'dignity' Clause," but more important than that is that government is not the source of dignity. "The government cannot bestow dignity, and it cannot take it away."
Human dignity has long been understood in this country to be innate.... The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.  Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.
This reminds me of the old Gerald Ford gaffe about Poland, "There is no Soviet domination of Eastern Europe," by which he meant to say "the Russians would never dominate the Polish spirit." In some uplifting, philosophical sense, we always have the free territory that is the inside of our own mind.

I'm picturing Whitney Houston swanning in — she's alive in my mind — singing: "No matter what they take from me/They can't take away my dignity."

But outside forces can impose indignities. Yes, you're better off finding dignity inside, putting your stock in the dignity that "They can't take away," but the indignities that arrive from the outside are still real. Slavery and internment are indignities. We can say that even as we like to think that those subjected to indignities will remember and treasure their sense of worth. I see the objection to looking to government for your self-esteem, but that doesn't mean that it never makes any sense to say that the government lacks the power to impose indignities on a politically disfavored group.

98 comments:

Aunty Trump said...

"Frustrating fuzziness"?

How does clarity benefit motivated reasoning?

Steve M. Galbraith said...

The liberty argument is very, very weak. I simply don't see it applied here.

I guess if Kennedy stuck to equal protection then he couldn't have gone off into his secular theology crusade, the romantic poetry prose.

That's not fun. Besides, future generations won't be interested in that technical stuff.

David Begley said...

Thomas cited Loving v. Virginia and he and his wife Virginia Lamp Thomas are direct benefificiaries of that exact case.

Mr. Justice Clarence Thomas knows his stuff and I, for one, am very pleased he and Ginny didn't cave to that high tech lynching.

mccullough said...

Thomas views on equal protection are well known and articulated, whether people agree with them or not.

Thomas believes the equal protection clause prohibits race based discrimination, including discrimination against whites (or whatever the majority race is) and Asians, not just freed slaves or their progeny. If the equal protection clause didn't protect gays in 1868, it doesn't protect them now, now matter how many states or people change their view on the issue. If people want the Constituion to protect gays from discrimination, the. It should be amended under Article 5, just like it was to ensure the right to vote equally among the races, sexes, and 18-20 year olds.

Trying to amend the Constituion by reinterpreting clauses to apply to contemporary circumstances it wasn't meant to be applied to at the time of adoption is amending the constitution by the judiciary, which Article 5 doesn't allow.


The contrasting view is that judges should interpret the equal protection clause in light of current trends among the upper class of the public, as long as the discern a trend among a few states in New England. This is the Kennedy view, shared by the five others and most law professors.

Ann Althouse said...

@mccullough

I'm not talking about heightened scrutiny, only minimal scrutiny.

Robert Cook said...

I'm no lawyer, but it seems obvious "equal protection" is the basis for gays to claim--and receive--the legal right to marry, and all legal benefits, protections, and obligations that pertain.

Of course, we're all born with the right to do whatever we please; it is society that defines and restricts behavior, based on the taboos particular to that society. Taboos arise from both practical necessity--protecting the members of society from harming themselves and others or from being harmed by others, as an example--and irrational beliefs--("God wills it" or "God forbids it"). So, society may always decide when to remove restrictions on behaviors when the reasons for the restrictions no longer apply, or the restrictions come to be seen as arbitrary, unnecessary, or counter-productive, etc.

Anonymous said...

Scott Walker–

"I believe this Supreme Court decision is a grave mistake. Five unelected judges have taken it upon themselves to redefine the institution of marriage, an institution that the author of this decision acknowledges "has been with us for millennia."

"In 2006 I, like millions of Americans, voted to amend our state constitution to protect the institution of marriage from exactly this type of judicial activism. The states are the proper place for these decisions to be made, and as we have seen repeatedly over the last few days, we will need a conservative president who will appoint men and women to the Court who will faithfully interpret the Constitution and laws of our land without injecting their own political agendas."

"As a result of this decision, the only alternative left for the American people is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage."


OK, polygamy is next.

mccullough said...

But if the question could be answered by asking: would the people who adopted the amendment in 1868 think it prohibited hetero only marriage, then that's it.

You can't answer this question: can state governments refuse to hire left handed people for every government job? by looking to 1868?

Maybe you can answer it by showing state government had no restrictions on handed ness for all government jobs in 1868.

They definitely had restrictions on marriage.

Etienne said...
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Etienne said...
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mccullough said...

Do state laws prohibiting 18-20 year olds from drinking iolate equal protection? Is it relevant that many states raised the drinking age to 21 in response to incentives to the federal government? How about that the voting age is 18, you can join the military at 18, and that the age of majority for everything but drinking alcohol (and owning using a gun (outside of military service) is 18.

Isn't the equal protection argument for drinking and/owning a gun among 18-20 year olds much stronger than gay marriage?

buwaya said...

Government does indeed bestow dignity (depends on your definition of dignity, but it is a traditional one), a sense of social status, and etc. It always has. Traditional governments granted patents of nobility and rents of all kinds. Modern ones add the propaganda of public education and messaging from the bureaucracies, plus the even greater messaging from the integrated political machine that is the mass media. And there is the modern versions of patents of nobility and land grants, through all sorts of politically directed employment and funding. A person with a government grant has been given a livelihood and a social station, no less than is someone knighted by the queen.

Aunty Trump said...

So, society may always decide when to remove restrictions on behaviors when the reasons for the restrictions no longer apply, or the restrictions come to be seen as arbitrary, unnecessary, or counter-productive, etc

I guess the people who decide how things "come to be seen" are not the people in a democracy, but rather the elites. The philosopher kings of the Supreme Court.

rhhardin said...

It's a right to individusls, not a right to couples.

Gays are as free to marry opposite sex as straights. That's equal.

If they don't want to, that's their choice, not the government's.

Is this hard?

mccullough said...

Tim,

Unless it involves guns. The fact that most states don restrict isn't relevant to Ginsburg. If she and her limited social circle don't like guns (because other people's children fight and protect her and her family) then gun rights don't exist under the Constitution.

Put aside the second amendment. Given the number of guns in private ownership in this country, the history of private ownership, and the gun laws of most states not restricting gun ownership and concealed carry among law abiding adults, how does someone like Ginsburg vote against gun rights under the Constitution but for gay rights?

Kennedy is remarkably consistent in protecting gay rights, gun rights, abortion rights and free speech rights under the Constitution.

DougWeber said...

I am sorry but I find the Equal Protection argument fails. Part of it is that no one wants to put forward that actual case, because it looks inappropriate in the current times.

First what is marriage. Let's put it right out there. Marriage is sex. That is it is the license that society gives to two people to have sex. All other effects of marriage follow from that. And if you call sex intimacy or not, it is still sex. Why is incest disallowed? One can try to push it but really it is because we find is disgusting that a man and women who are too closely related should have sex. We certainly allows adult brothers and sisters to live together. In fact, when the laws did not allow a landlord to rent to an unmarried couple, close relationships were exclude from this.

So marriage is about sex. That means it is about procreation, since until very recently that is the almost certain consequence of sex between people of different sexes. In other words, marriage is traditionally about managing procreation via managing sex. Remember that it is only recently that the laws the kept an innkeeper from renting a room to an unmarried couple have been eliminated.

So are a heterosexual couple and a homosexual couple indistinguishable before the law. With the formulation of marriage as proposed by Kennedy, no. but with the above definition clearly yes. A heterosexual couple will be expected to produce children without any intervention of the state. A homosexual couple cannot. Any children that a homosexual couple have must be adopted in some form either via direct adoption or via surrogacy and cannot contain the genes of both parents. This is a big distinction. Blood relations, which is more than just cohabitation, is deeply ingrained in human behavior.

Now it is possible that the nature of marriage is changing and that it is becoming a relationship between two people independent of the reproductive aspect. But is it time to declare this is done? It is only 50 years, a period within the lifetime of many who read this, that this is possible. Until the pill there had been no very successful way to control pregnancy. A woman had sex, she had a decent change of becoming pregnant. Do it enough and almost all women would become so. Only if a heterosexual relationship is not very likely to product children is it reasonable to remove the procreation aspect from it. Not the "it is good for children" aspect but the fact that this relationship will produce children and that society needs to have ways to incorporate those children into it.

Note that this is also the answer to people who point to marriages between people who cannot have children. Since marriage is the license to have sex and, historically, sex without that license was not accepted, if an infertile couple wanted to have sex, they needed to be married. The fact that our current society has loosed this bond does not mean that those who were brought up when that association was central can throw off their opinions.

rhhardin said...

Try to do a zinger-length argument for gay marriage.

There's no reason that women can't learn this.

Wince said...

Thomas should at least have articulated a legitimate government interest to be advanced by excluding same-sex couples from the legal institution of marriage. In my view, it cannot be done.

To me that legitimate interest was in preserving the opposite gender dynamic of traditional marriage, which exists largely in opposition to equal protection. Men are men and women are women, whether they are heterosexual or homosexual. Introducing equal protection to impose same sex marriage among all marriages will necessarily impose equal protection within all marriages. As a result, will there be an erosion of certain protections and responsibilities that have evolved within the common law of opposite sex marriage?

Moreover, Thomas did touch on another legitimate government interest: that of balancing the centrality of religion in marriage, religious freedom and existing anti-descrimination law.

Etienne said...

Would anyone want Same-Sex Marriage rights if there wasn't any wealth benefit in it?

Is this on the order of say getting the Right to Vote, or The Prohibition of Alcohol?

Would the Equal Rights Amendment pass in today's society?

...or, is it because it earns you benefits that you didn't have before? These benefits to be paid by debt or tax.

What if the States now decide to do away with Marriage? We would have the Court issuing you a bounced check, and yet still, the President lighting up the house to make you feel good for one night.

It's a conundrum.

Meade said...

"Try to do a zinger-length argument for gay marriage."

Okay but just how long is a zinger?

Two guys walk into a courthouse...

rhhardin said...

Women keep adding stuff until they're confused enough to reach the conclusion they feel was right.

Men wonder what the hell is going on with her.

Which you see today.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Slate beat you to it. They combed through his somersaults defending the anti-miscegenation laws stricken in Virginia v. Loving, to find the part that justified his rejection of the Obergefell ruling. That's why each one of those numbskulls wrote a different dissent. It's all personalized, emotive stuff; nothing resembling a coherent argument around which actually sound legal reasoning could coalesce.

mccullough said...

There is no legitimate interest behind most laws. Why is gambling illegal in most states even though they all have a lottery and many have casinos? There is none.

Most laws make no sense when you see how society works. People don't respect the law. There are too many of them, they are stupid. And the politically connected violat them with impunity.

But we would need to many judges and lawyers working around the clock to get these laws stricken from the books

Meade said...

"We'd like to purchase 2 bicycle licenses and 1 dog license."

"Sorry, no can do. You both look gay. If we give licenses to gays, all the straight people will fall off their bikes and their dogs will run away."

"Oh. But of course"


zing?

Anthony said...

The case that government has a legitimate interest in excluding same-sex couples from marriage is not all that hard.

Marriage, as an institution, is to provide legal means to ensure that men support their children, and that their children to not become an undue burden on society. This interest allows government to regulate who may marry, as existing laws forbid certain close relatives from marrying, forbid persons with certain diseases to marry, and forbids certain people from marrying with the sole intent of claiming certain benefits (though the remedy in green-card marriage is denial of the benefit, not of the marriage).

Since marriage imposes some costs on the parties, government includes some benefits available only to the married, and extends some of those benefits well pay the point where all the children of the marriage are independent adults.

The government can choose to not exclude certain persons from marriage for practical reasons and for privacy reasons. Many people are infertile, and cannot have children, but we let them marry because, quite often, the couple does not know that at all, or does not know with certainty that they are infertile or whether the infertility is curable or not. Infertility is a deeply personal and private issue, so it's appropriate for the government to not inquire. (Especially since the answer is often not entirely certain.) Because marriage is a symmetric relationship, we do not exclude women over 55 from remarrying because we do not exclude men of that age. However, the possibility that two men or two women would produce a child is zero, and that does not require an evaluation of medical history to determine.

Therefore, it is legitimate for the government to exclude couples (or groups) who are facially incapable of producing children from receiving the benefits of marriage, without excluding couples who are incapable, but not obviously so.

rhhardin said...

They're not refused licenses because they're gay but because they want to marry same sex.

A gay person has no trouble getting a license to marry opposite sex.

That's equal. It's the same as for straight people.

Michael said...

Well, even though he is not a real black person Thomas joins with real blacks in not being down with homosexual marriage.

Meade said...

"That's equal. It's the same as for straight people."

Now say that with a straight face.

rhhardin said...

In fact some recent romantic comedy had a straight girl marrying a gay guy, probably near the top of the watched pile....

Love and Other Disasters, Brittany Murphy

She was tired of straight men.

rhhardin said...

"That's equal. It's the same as for straight people."

Now say that with a straight face.


I don't see the problem. It's a right to individuals, not a right to couples.

Right: to marry opposite sex. Regardless who you are.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Lol. Yep. Brittany Murphy. Really recent stuff.

Eminem has aged nearly 20 years since he made his movie with Brittany Murphy.

The country moves on. Time stands still. Ronnie and Nancy need their frozen dinners served with the AMC channel broadcasting old throwbacks glowing like Poltergeist in front of their zombie-like countenance.

Michael K said...

"That's why each one of those numbskulls wrote a different dissent. "

Writes the local numbskull.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

I don't see the problem. It's a right to individuals, not a right to couples.

Right: to marry opposite sex. Regardless who you are.


I think this is why Stephens talked about the importance of individual, personal identity when it comes to the choice of whom to love and marry. rhhardin obviously has none.

I'm sure there's a country still practicing arranged marriages where he'd fit in even better. Hell, maybe even get a wife with a family willing to pay him a dowry of 12 gallons of insecticide and a bushel of rice. I bet he's getting a passionate stiffy even thinking about that.

Etienne said...
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President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Writes the local numbskull.

Go ask your ideological martyrs what the next step is, MK. Lem's local priest talked about organizing a mass request for imprisonment. You wrote about a Chicago Cardinal talking about naturally longing for imprisonment or humiliation in the public square. (You left unanswered my question of whether he was a pedophile). The problem with your leaders is that they don't lead, can't lead and don't want to or even know how. Think about it: Loveless celibates fulminating over a denied demand that they instruct U.S. society en masse in the finer art of romantic commitment. It's a joke, a serious joke. And the dwindling membership and identification with it illustrates as much.

So get off of my ass, Defensor Fidei. Pick a fight you can win. Or just pick an issue you can actually process mentally first, without the useless help of The Masters of Lost Legitimacy.

Anonymous said...

When will you go through the opinions of the four liberal justices?

rhhardin said...

"Right: to marry opposite sex. Regardless who you are."

I think this is why Stephens talked about the importance of individual, personal identity when it comes to the choice of whom to love and marry. rhhardin obviously has none.


It's the absence of personal identity that makes it a right. Here's what you can do regardless who you are.

Richard Dolan said...

The point of 'textually based, original public meaning' analysis was to do away with these free-wheeling exercises by courts in coming up with new constitutional rights. It has always been about making judicial restraint a byproduct of proper constitutional law-making, rather than just a tired and meaningless bit of rhetoric. Among the justices, Thomas is the most willing to apply that test and discard precedent that finds no support in the constitutional text, properly construed. He's definitely not interested in hearing about penumbras, emanations or living constitutions. That was also the basic theme of all four dissents. I found them far more persuasive than Kennedy's opinion.

But apart from the legal merits, what was so striking about all of the opinions was the preference for overblown rhetoric about marriage as a social institution, and a complete avoidance of any engagement with the social reality in today's America. As many writers have shown, marriage as an institution, and especially marriage as the institution charged with raising children, is alive and well only among up-scale communities in America. Marriage as an institution has largely disappeared from the African- American community, and is well on its way to disappearing from the lives of downscale whites. Even when two people do marry, most marriages end in divorce. As for child-raising, the statistics are equally depressing -- single mothers, often never married, raise most African-American kids today, with downscale whites not all that far behind. Even among upscale communities, marriage is less secure as an institution than it was even 30 years ago --they look good only by comparison. One of the upsides of the court's decision is that we will now get to see a large scale longitudinal experiment play out in real time -- will the experience of marriage as a social institution show the same patterns in gay America as it has in the general population up to now. So stay tuned.

But large scale experiments with basic social institutions come with lots of unknowns, even "unknown unknowns" that Rumsfeld used to talk about. I don't know whether the controversies about Gay marriage, gender fluidity, abortion and all the rest have played any role in the astonishingly rapid decline in the place and importance of marriage in American life over the last 50 years. But I'm quite sure that Anthony Kennedy (and Ann Althouse) don't know for sure either. That makes me very dubious about arguments played out with abstractions -- name " the legitimate governmental interest" being high on the list. The great virtue of the Thomas approach to these questions is that it avoids having to engage constitutional arguments at that abstract level, where what is deemed "legitimate" is always going to be influenced by each person's values and policy preferences.

Gahrie said...

When will you go through the opinions of the four liberal justices?


All you need to know is #lovewins

President Toilet Paper Shoe's Cooked-Up Drug Deal said...
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Anonymous said...

Put aside the second amendment. Given the number of guns in private ownership in this country, the history of private ownership, and the gun laws of most states not restricting gun ownership and concealed carry among law abiding adults, how does someone like Ginsburg vote against gun rights under the Constitution but for gay rights?

Because the Supreme Court is no longer a legal entity, it is a political one. Is there ever any doubt, on major cases like this, how the four liberals are going to vote?

Of course not. Because no one is in doubt about their politics. And they aren't bothering to apply their legal minds to the text.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

It's the absence of personal identity that makes it a right. Here's what you can do regardless who you are.

But no one defends being compelled to marry someone you don't want to marry as a right. Not even Michael K., or the guys who order him to believe as he does.

Anonymous said...

Blogger Gahrie said...
When will you go through the opinions of the four liberal justices?


All you need to know is #lovewins


I was being sarcastic. No one cares what the liberal justices think about the law. We all know those four are political creatures, not legal minds. They are a voting bloc for the left.

It's time the right understood this about the SCOTUS. We need our own voting bloc.

Etienne said...
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Unknown said...

The New York court of appeals opinion on same sex marriage was easily the the best defense of the traditional marriage some 10 years ago. Notwithstanding the professor and others must stop propagating the lie that people were denied equal government benefits. No one was denied a benefit. All straight gay trans are gauranteed the same benefits so long as they enter a marriage approved by democracy state by state. Period. No one was denied any benefits because of being gay. Never. Not once. People were denied bed fits by not entering into an approved marriage. This continues to be the case now because of outlawed polygamy as well as a failre of the state to allow benefits for cohabitators. This is actually stark kingly unequal now to discriminate according to the Supreme Court against cohabitators. Based on the scotus opinions state sanctioned marriage must be eliminated as a basis for bestowing a benefit, a tax break, a dignity.

Meade said...

Okay, I'll try again. Gay and a lesbian walk into a courthouse...

"Is this where we come to purchase a marriage license?"

"Could be. Prove that you're not the same sex."

"Prove? How can we do that?"

"Take off all your clothes so I can see that Tab A really fits into slot B."

"WHAA???"


zing?

Steve M. Galbraith said...

When will you go through the opinions of the four liberal justices?

They joined with Kennedy and didn't issue separate opinions.

Kennedy's is the last word.

Clark said...

rhhardin -- "Right: to marry opposite sex. Regardless who you are."

Ok then. Right to marry same race. Regardless who you are.

So you are willing to fail the Loving v. Virginia test? You are of course free to hold that view. It's not a terribly relevant view, but . . . .

Michael K said...

"Pick a fight you can win. Or just pick an issue you can actually process mentally first, without the useless help of The Masters of Lost Legitimacy."

You're so dumb it doesn't occur to you that I left the Catholic Church years ago. You just don't understand what principles are. The Cardinal was stating something that is about principles. The Church had a real problem once gays took over seminaries in the 60s. They got a whole generation of gay and pedophile priests.

We are watching our culture die through the efforts of fools like you who think that civilization just "happens." It doesn't and you may be young enough to find out what happens when fools run things long enough.

The principle is called "Entropy" and that is what is happening now.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

So you are willing to fail the Loving v. Virginia test? You are of course free to hold that view. It's not a terribly relevant view, but . . . .

But it keeps him consistent! You know, like oatmeal for the mind.

It offers no safeguard on the content or quality of what comes out of his mind. Just that it works consistently.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

You're so dumb it doesn't occur to you that I left the Catholic Church years ago.

Why should something "occur to" me when you never mention it? Especially when you act in such a way as to uphold exactly what you left?

You just don't understand what principles are.

Principles at the expense of reason are the most unprincipled sort there are.

The Cardinal was stating something that is about principles.

Yeah? And?

The Church had a real problem once gays took over seminaries in the 60s.

Ahhhh… THERE it comes! I knew it. So your problem is that an anachronistically ridiculous requirement of celibacy ultimately had a way of attracting the only people thought sexually deviant enough to desire celibacy into its ranks. Wow. As if that wasn't predictable. And as if the gays that joined were anywhere near as problematic as the pedophiles who joined.

They got a whole generation of gay and pedophile priests.

Oh yeah. That's right. (No seriously, here your conclusion is actually right). What's not right is your pretension to thinking that one of these groups was just as bad as the other. Or that their being attracted to the priesthood was not more problematic than the retarded celibacy requirement that invited their participation in the first place.

We are watching our culture die through the efforts of fools like you who think that civilization just "happens."

Oh. And here comes the part of one's Catholic hysteria that just doesn't die so easily, despite "leaving". And just which parts of the culture are "alive", versus "dead"? How does one measure that? Do instruct me in the finer art of cultural "anatomy" and physiology as it were, because all I know is that we have a lot of freedom, a lot of creativity, a lot of communication, generosity and GDP, and that seems well enough to me. But what do I know about all the intricate cultural "complexities" that could be actually dying as we speak? Can you break it down on a histological or molecular level? Are there "microaggressions" against the culture? Has the culture been traumatized? Should we request a cultural serum lactate level?

See, the thing that guys like you don't get, is that the only thing that matters is understanding free expression as the oxygen of the culture. It needs it to breathe. And upholding our rights is tantamount to maintaining circulation. NOTHING else matters, not your anal retentive need to control what's said, not your anal-retentive need to control how the information gets around and what's done with it. Just that rights are upheld and that free expression is capacious. All the other microparanoias are just your ancient Catholic urge to control what you can't. To see the society as a petri dish to poke and prod and ultimately control according to your design.

But humanity does NOT respond to that. Hence, the vanishing relevance of the Catholic church in America.

It doesn't and you may be young enough to find out what happens when fools run things long enough.

More vagaries. Do tell what went wrong and what I'm supposed to expect to see as a result of it.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

The principle is called "Entropy" and that is what is happening now.

Analogies without relation, from someone with control issues. Control thyself first, Michael. You'll find great relief in relinquishing your need to control others, let alone "the society" at large.

Think of it as the marketplace of opportunities for virtue. In the land of the blind, the one-eyed man is king. That means that even if we're as depraved as you seem to imply (without specifying how that is so), it makes it even easier for a nearly virtueless man like yourself to stand out as a shining example to mankind. So get going on it. Be the example you want to set. And stop acting like everything else is everyone else's fault. Control yourself first, and you'll find the psychotic need to control others will abate appreciably, offering you extraordinary relief in the process. And the world will look a whole lot nicer and shinier as a result.

It's a win-win. An amazing improvement. What a shame you're too scared to give up your need to control society to know it.

But that society is a self-healing organism. Just get Dr. Stand-in-the-way out of the way. It doesn't need your surgery, let alone some moral Ilizarov procedure. It will do just fine. With or without you, or any of the rest of us.

ken in tx said...

In Alabama, a marriage license is not required to get married. That's why some counties can refuse to issue licenses today. You can send a letter to the State Dept of Vital Statistics and you are married. As a common law marriage state, if you have ever held yourself out as married, you are married. But be warned, if you breakup there, you have to get a real divorce.

rhhardin said...

rhhardin -- "Right: to marry opposite sex. Regardless who you are."

Ok then. Right to marry same race. Regardless who you are.

So you are willing to fail the Loving v. Virginia test? You are of course free to hold that view. It's not a terribly relevant view, but . . . .


Same race is a restriction on marriage, opposite sex is not.

Civil unions would have done, without any constitutional prodding but just good will, what the gays claimed to want.

But then you couldn't terrorize the flower shops and bakeries.

Michael K said...

More mush from the fool.

"Do instruct me in the finer art of cultural "anatomy" and physiology as it were, because all I know is that we have a lot of freedom,"

Sorry. Beyond even my teaching skills.

"Control thyself first, Michael. You'll find great relief in relinquishing your need to control others, let alone "the society" at large. "

Oh, I've done a fair job for 77 years. A few degrees and a couple of books. Regale us with your accomplishments. Of course, you anonymous commenters can make them up. Let's see if you can make up some good ones.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Sorry. Beyond even my teaching skills.

Bullshit! Your problem is that you don't even know what you're trying to say. You just identify still with the Catholic need to control people and to control society. That's why you have trouble articulating it. You left it (for reasons you have yet to mention) without identifying the same problematic habits - that you maintain - that cause others to leave and feel less respect for it: A love of order, hierarchy and the control that comes with it. AKA authoritarianism.

Oh, I've done a fair job for 77 years. A few degrees and a couple of books. Regale us with your accomplishments. Of course, you anonymous commenters can make them up. Let's see if you can make up some good ones.

Why should I even feel a need to? That's ad hominem, contributes nothing to the conversation, and distracts with an irrelevant dick-measuring context from the issue at hand. Not to mention that it has nothing to do with virtue. Many learned people have very little virtue. That you've managed to educate yourself and others somewhat gives hope to your capacity for attaining the virtues of tolerance (as well as empathy and reason), but by no means assures it.

Nope. You can just go on controlling others. Preach to America about the need to hold the people of our country in a moral straightjacket, anesthetizing ourselves from reacting to the exclusion of gays, telling us how more control is necessary to avoid, what was it? Entropy! Yes. We will devolve into a social hellhole. Strap the people into their restraints, apply the Ilizarov apparatus to their consciences and own sense of moral development. Brace them! Brace them! Brace them! Control their consciences however one can! You never can never get enough of telling someone that their minds are too free and undisciplined! Keep their neurons in order! Tolerate NO disharmony in their alpha waves! Lives of purpose, procedure and papal organization are required! Love and commitment will follow precisely prescribed guidelines!

etbass said...

Well, I'm not a lawyer but I am not uneducated. It seems clear to me that Scalia spoke the truth. We gained a new "right" but lost a large chunk of freedom and self rule. You can twist legalisms all day long but a constitutional law professor should be ashamed to be so blind to a simple truth that we have made a small cadre of judges dominant over the democratically expressed will of millions of Americans. And don't tell me it's the constitution; it has't been in the constitution for over 200 years and it is not there now.

Michael K said...

"Why should I even feel a need to? That's ad hominem, contributes nothing to the conversation, and distracts with an irrelevant dick-measuring context from the issue at hand."

Says the boy with no accomplishments.

Maybe you should think about your rage against religion and calm down.

Michael said...

In which thread we again see the effects of combining amphetamine and alcohol.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

First, define religion (I don't define it as adherence to the dogma of an appointed priesthood). And I think the one who needs to calm down is the one who lamented the supposed end of civilization. The one who talked about the culture (that of the English enlightenment?) "dying".

But maybe saying things other than what you really mean is a skill that you learned well in childhood.

What you hate about this culture is that it was never yours to begin with. America was colonized by England, just a century after the Tudors broke with the terrible yoke of papal subservience. Catholics were never a majority in America, those who migrated to the South converted, and the ones who came to the North in the late 1800s with a strong church-based identity were viewed with suspicion by the rest of America. That attitude persisted until JFK ran for and won the presidency by declaring that the pope's dogma was something he would resist from encroaching into his duties as a public servant.

And people bought it. Or maybe JFK just had better integrity than you do. Either way, this whole "lost culture war" nonsense reeks of the grievance of realizing that we're just not a society run by the sort of control held to by priestly dictates. Nor were we, nor will we ever be. We were born of the English enlightenment and that's just the way it is. That's what defines our "culture" - as foreign to you as it remains.

Michael K said...

"We were born of the English enlightenment and that's just the way it is. That's what defines our "culture" - as foreign to you as it remains."

What an ignorant boy not to know that the "English Enlightenment " was Scottish.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Either way, it sure as s$^& wasn't Catholic.

The Englishmen Locke and Hobbes were more influential than any Scottish political philosopher. Not that it matters. By James I both countries were effectively united in union anyway, a fact further ratified by an act of the British Parliament at least 50 years prior to 1776.

But thanks for the irrelevant and meaningless pedantry. Is that the sort of malarky that got you to publish books and stuff?

Mark said...

I fail to see how it isn't a freedom of association issue. The government has very limited power to prevent individuals from entering into any kind of contract, as I understand it. The state can't force people into contracts - except in the case of Health Insurance, obviously - but for other private, personal contacts with no impact on life, liberty, or property of others, I just don't know of any other type of contract where the government is allowed to say one category of citizen is not allowed to enter into such a contract with a member or another category of citizen.

jr565 said...

""We'd like to purchase 3 bicycle licenses and 1 dog license."

"Sorry, no can do. You Look
Like pilygamy its. If we give licenses to polygamists, all the married couples will fall off their bikes and their dogs will run away."

"Oh. But of course"

zing?

jr565 said...

Rhythm and balls you talk about control. If we legalize gay marriage are we as a society giving up control on marriage? In the very next post althouse talks about why she's against pilygamy. It's still illegal right? So then she is supporting controlling people. I dont t see how you could not be unless you were for no marriage restrictions at all. If you are for LAW YOU ARE FOR CONTROLLING PEOPLE. no ifs ands or buys.

Michael K said...

"The Englishmen Locke and Hobbes were more influential than any Scottish political philosopher. "

Well, I'll grant that Hobbes will be the future after you and your foolish allies run civilization into the ground.

Congratulations.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

No civilization is being "run into the ground". This is typical, unenlightened, superstitious fear mongering.

We get that gays who marry each other are bad Catholics. Now piss off and allow us to get on with the business of protecting and defending the rights of our fellow citizens!

Michael said...

"Now piss off and allow us to get on with the business of protecting and defending the rights of our fellow citizen"

Fucking hilarious!! Priceless. Please please help us Mr. stoned failure, help us with your cheerleading, with your empathy, with your all. Please defend our rights. And thank you in advance Mr. care, Mr. enlightened.

Good stuff. Top drawer. Worth waiting for.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Raping and pillaging your fellow citizens is something you seek new ways to excel in every day, Michael. You'll get no help from me in that.

Michael was once invited to a philanthropic event, but he declined when was told that it didn't allow for berating indigent youth as lazy or punching grandmothers in the face, either.

Big Mike said...

@R&B, kindly get over your racism and pay attention to what the black Justice has to say. He's smarter than you, after all.

Michael said...

R&B

Good stuff, sir. Really great. Thanks.

Now get on with the business of protecting and defending the rights of your fellow citizens.

Hop to.

LOL

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Or you could always be like a business that thinks it's bigger than GOOGLE and instead admonishes people to:

"Just be evil."

LOL

Really, though. You're one hell of a retard. Too bad brains weren't a purchasable good. If they were, both you and Don Trump might be something other than raging buffoons!

LOLOLOLOLOLOLOL

Michael said...

R&B

You are wasting time here when you could be protecting and defending the rights of your fellow citizens.

Have another stiff one and go out into the world. Protect. Defend.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Instead of making fun of me, why don't you explain your aversion to moral concern?

Is it because you're amoral? That would make sense, as it would equally make sense that you'd hide that fact it on account of it making you an embarrassment to anyone agreeing with you here.

Perhaps it ruins the illusion of your own smug superiority.

In either event, you know that it's what makes you as contemptible as you are insufferable, and ineffectual in relation to any of the laws or judicial rulings of the day.

So I don't have to tell you to FUCK OFF. The highest court in the land already did.

But it would probably feel comforting to you if someone else did. Most sadists are also closet masochists. They're two sides of the same coin.

Michael K said...

"Instead of making fun of me, why don't you explain your aversion to moral concern?"

No, making fun of you is more rewarding. Hilarious. What were those accomplishments again ?

Anonymous said...

The amusing angle about this to me is that marriage, if one actually bothers to take the words of the vows seriously, is an obligation entered into. It is rather unusual to argue that one has the right to bind oneself, but there it is.

Equal protection would have more purchase with me if the government wasn't already terribly unequal in how it distributes its favors. There are all kinds of benefits that favor select interests (e.g. property and sales tax breaks in high-tax areas for the well-connected, giving tax breaks for hiring certain groups of people, disparities in education spending by district).

As far as legitimate government interest goes, there are some pretty low bars set out there already. Kelo comes to mind, as does a lot of what New York does, which is to selectively give "breaks" to certain high-end and/or well-connected projects under the guise of "economic development". Granted, the government's case would be more compelling if, for example, it made divorce very difficult (for the children), but since governments and the people haven't taken marriage very seriously for 50 years now, it wasn't unreasonable to suspect the Supreme Court wasn't going to either.

Michael K said...

Oh, and just to rub it in Ritmo, before you were born, I came within 9 minutes of winning the transpacific Yacht Race overall.

What were your accomplishments again ?

Michael said...

R&B

So now you have resorted to using all capital letters because I find you hilarious as well as pompous and sanctimonious and an asshole? You should calm down.

As a fool once wrote: Now piss off and allow us to get on with the business of protecting and defending the rights of our fellow citizens!

LOL

Michael said...

R&B

By the way, you should acquire and read Michael K's book. His has been an interesting and fruitful life. A good writer as well.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

If only he were as good a thinker.

I notice that you skillfully shift the topic away from one of laughter at moral concern or concern for people's rights generally. Perhaps because you know Michael K wouldn't agree with that.

I don't doubt that he can write a good book, though. Thanks for the tip.

Michael K said...

Ritmo, speaking of gays and laughter at moral concern, I like the following quote.

“One must have a heart of stone to read the death of little Nell without laughing. ”

Oscar Wilde

Have a nice Saturday night.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...
This comment has been removed by the author.
President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Michael (Not Michael K.) - Just as long as you tell me how much disregard for gays (or any others, for that matter) I'm supposed to have in order to not be an asshole, insufferable, pompous, or unaccomplished. I need to know these things, because you are a self-evidently great man, and the astounding linkage between these disparate ideas needs to be explained in better detail to a poor knave like me. Lol.

roesch/voltaire said...
This comment has been removed by the author.
roesch/voltaire said...

I like Judge Richard Posner's opinion expressed in Slate who notes: The United States is not a theocracy, and religious disapproval of harmless practices is not a proper basis for prohibiting such practices, especially if the practices are highly valued by their practitioners."

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

As for capital letters on two words (not ALL words - oh whoops, there I go again. One word capitalized for emphasis. Oh dear), it was in relation to what the Supreme (wrongly capitalized?) Court (also wrongly capitalized?) said. So I thought it opportune and worthy of emphasis. But then, we're talking about an institution that is occasionally abbreviated as "scotus". Actually, people do that abbreviation as "SCOTUS", but that is in all capitals so it might offend our most humble billionaire on the thread. Perhaps the supreme court shouldn't be so pompous and sanctimonious. It should humbly ask a certain someone's permission before presenting itself in that dignified way, as such. Where do the judges deciding the law of our land get off? It's not like they're living full lives or making more money than the less worthy citizens are making.

I see your dilemma, Mr. You have my full support for our opprobrium at the pomposity of the highest court in the land presenting itself as such. They should kneel before you.

Anonymous said...

If same-sex marriage results in "social entropy" or otherwise causes the dissolution of society, what exactly has occurred in the Commonweath of Massachusetts since 2004 that evidences this phenomenon? Or Canada since 2005? Or The Netherlands since 2000. Enough time has elapsed since enactment in several jurisdictions so that we should now see this "entropy" in process, no?

Sebastian said...

"maybe liberty should have only to do with being left alone"

Maybe. Used to be a nice American notion. Negative liberty and all that. Isaiah Berlin had a few nice things to say about it.

That was then. Progs rule now.

"I like Judge Richard Posner's opinion expressed in Slate who notes: The United States is not a theocracy, and religious disapproval of harmless practices is not a proper basis for prohibiting such practices, especially if the practices are highly valued by their practitioners.""

But the U.S. used to be a democracy, where the people, rather than our robed overlords Dick P and Tony K, got to decide issues not addressed by the Constitution. Not that Dick's statement is relevant to the actual decision, but: 1. So disapproval on other grounds might suffice? 2. In the absence of any actual constitutional provision for legalization, the "proper basis" for disapproval would be what? 3. If gay sex is not "harmless," disapproval would be OK? 4. If it turns out "practitioners" do not actually attach "high value" to their "practices" --say, if it turns out, that a majority of gay spouses in fact don't care about monogamy? -- approval can be reversed? [Not in Tony K's scheme of things of course -- constitutionalizing "rights" is a one-way street in the Prog scheme of things.]

Meade said...

rhhardin said...

"Same race is a restriction on marriage, opposite sex is not"

For that to make sense, you have to change the meaning of the word "restriction".


Aunty Trump said...

The United States is not a theocracy, and religious disapproval of harmless practices is not a proper basis for prohibiting such practices, especially if the practices are highly valued by their practitioners.

Well, we do have a culture as well, aside from any religious motivations. America is a nation as well as a country, and the Supreme Court is not some kind of judgocracy that dictates our culture.

cubanbob said...

Somewhere in all of this the federalism aspects of this has been lost. Federal law with respects to benefits has recognized the existence of State marriage licenses and within that who the State considers eligible for marriage. While as a practical matter state laws are pretty much uniform there is no underlying reason they have to be. States do limit the age of consent and the minimum age of marriage and could in principle add other restrictions so the question really is why did the Supreme Court involve itself where fundamentally it did not belong? There are no federal marriage licenses, no federal marriage contracts and no federal family courts so where is the federal issue? The federal benefits for the married are simply a political recognition of what the overwhelming majority people in the country wanted and voted for, that is what is called a democracy. Government interest is always a political decision and not something innate to a functioning government.

Robert Cook said...

"It's a right to individusls, not a right to couples.

"Gays are as free to marry opposite sex as straights. That's equal.

"If they don't want to, that's their choice, not the government's.

"Is this hard?"


No, just dumb.

Robert Cook said...

"Would anyone want Same-Sex Marriage rights if there wasn't any wealth benefit in it?"


In many cultures throughout the ages--even today--marriage is an economic transaction, or has an economic component to it. Arranged marriages have nothing to do with "love," but with the planned merger of two self-interested economic entities--the families of the two being married. Many royals have married for such reasons--and to create or strengthen political bonds--so it is not just a practice of the ignorant or the poor. Even today, rich people tend to marry within their own economic class; is it because they can only fall in "love" with other rich people, or is there a social pressure--overt or covert--that inhibits the rich from marrying commoners?

Robert Cook said...

"When will you go through the opinions of the four liberal justices?"

Do we have any liberal justices? I though we had the far right justices and a few centrists. But then, anything to the left of "far right" is "liberal," yeah?

Robert Cook said...

"The Church had a real problem once gays took over seminaries in the 60s. They got a whole generation of gay and pedophile priests."

Perhaps so many priests are gay--and an unknown number are pedophiles--because being a priest means never having to explain why you never married or had children. In other words, it's a "safe" place to be for those who fear scrutiny of their sexuality. (This is probably less true now than in the decades past when many current priests first decided to enter the seminary.)

I don't know if it's true that "gays took over seminaries in the 60s" as you assert, but I hardly think there is or was a conspiracy afoot to organize or recruit gays into the priesthood.

Robert Cook said...

"Well, I'll grant that Hobbes will be the future after you and your foolish allies run civilization into the ground."


Civilization is being run into the ground, and I do think civilization as we know it may very well see its end while many alive today still walk and breathe. However, it's not being run into the ground by those who advocate for gay marriage, but by those for whom the winning of yacht races is considered an important achievement, and among whom are those who participate in these yacht races or know those who do.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

I think anyone who entertains and spreads fears of "civilization(s) being run into the ground" should be required to define what they mean by that and how they even define civilization or its growth/end in the first place. Is literacy decreasing? Is GDP decreasing? Are people less free? Is expression, construction, or other markers of complex interchange being stopped? Did we revert to a barter economy? Did technological innovation or moral progress cease? Poof!

Of course the fuck not.

But for some reason, we've got this pestilential cultural virus that tells people they can measure civilization by their emotional gut instincts, rather than by the simple fact that any archeologist digging up the remains of 2015 America will find something one hundred thousand times more sophisticated than anything that came before it, and one whose legacy can only be stopped from enduring by people who have no appreciation for that fact or for what makes this one different in the first place.

Gahrie said...

Bolshie Bob has been rereading his well thumbed copy of Das Kapital again.