June 26, 2015

"The substance of today’s decree is not of immense personal importance to me," says Justice Scalia...

... beginning his dissenting opinion in Obergefell v. Hodges, today's same-sex marriage case. Scalia is joined by Justice Thomas, and Thomas also has a separate dissenting opinion, joined by Scalia.

The Chief Justice also has a dissenting opinion, joined by Scalia and Thomas. And Justice Alito has a dissenting opinion, joined by Scalia and Thomas. So Scalia and Thomas are on all 4 dissenting opinions, and the Chief and Alito are only on their own. That's a lot to sift through, and I'm going to do each of the dissenting opinions in separate posts. This is the Scalia post. I'm doing it first because I bet it's the most clearly written, and I expect to enjoy reading it (even though I'm a longtime supporter of same-sex marriage, and I think it was time for the Court to take a position on the right and end the disuniformity, and I think the majority opinion, discussed 2 posts down, is a worthy and competent application of the case law).

Justice Scalia has long objected to the Court's substantive due process cases, and that's what he does again here today. He thinks the Court is acting like a legislature when it protects the substance of fundamental liberties — he writes "liberties," in quotes — "that the Constitution and its Amendments neglect to mention." He writes that the people were doing a good job working through the same-sex marriage issue. It's been "American democracy at its best."

In a straining-to-be-memorable passage, Justice Scalia says the majority hides its usurpation of power "beneath the mummeries and straining-to-be-memorable passages of the opinion."  (A "mummery" is a "Ridiculous ceremony (formerly used esp. of religious ritual regarded as pretentious or hypocritical).") That's from the OED, which gives an example of the word from Frederick Lewis Allen's 1931 book "Only Yesterday/An Informal History of the 1920's": "[The Ku Klux Klan's] white robe and hood, its flaming cross, its secrecy, and the preposterous vocabulary of its ritual could be made the vehicle for all that infantile love of hocus-pocus and mummery, that lust for secret adventure, which survives in the adult whose lot is cast in drab places.")

Justice Scalia criticizes the majority's failure to stick to history as it delineates what liberties get protected as fundamental. You can see in the earlier post that Justice Kennedy set out 4 reasons that underlie the right-to-marry cases and that, he says, apply equally well to same-sex couples. Scalia does not try to distinguish same-sex and opposite-sex couples on these 4 points. He objects to talking about fundamental liberty in these terms at all, repeating over and over that the judges are acting like legislators. Even if it were acceptable for judges to make legislative decisions, the Supreme Court would be terribly unrepresentative of the people of the United States, Scalia says, because they are all lawyers, they all studied at the same 2 law schools (Harvard and Yale), not one is a Protestant Christian, and (except for one) they are all (as we say in Wisconsin) coasties.

Justice Scalia expresses astonishment at "the hubris reflected in today’s judicial Putsch." A "Putsch" is "An attempt to overthrow a government, esp. by violent means; an insurrection or coup d'état." That's the OED. "Hubris" is "o’erweening pride; and pride, we know, goeth before a fall." That's Scalia himself.

He complains that the "style" of the opinion "egotistic" — partaking of the "extravagances" ordinarily found in (ahem) dissenting opinions. He's especially bothered by: "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality." "Really?," he responds. "Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie."

I misread "Ask the nearest hippie" when I glanced at it earlier. I thought he was accusing the majority of being so sloppy about finding the meaning of freedom that it was equivalent to asking the nearest hippie. But he was joking about marriage. Hippie voice: Marriage as freedom?! That's freaked-out, man. Marriage is the death of freedom.

Justice Scalia picks on a line that I thought, see below, was especially opaque: rights come from "a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." His response is "Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?" That "stuff" isn't the "clear thinking and sober analysis" that belongs in a court opinion.

These are all familiar Scalia ideas. I get the impression he banged this one out pretty casually, making observations he's made many times before, in other opinions and in his many speeches. I'll hazard to say he's made his peace with same-sex marriage. He saw it coming long ago, and he's not upset about the social change. It's not of immense personal importance to me.

226 comments:

1 – 200 of 226   Newer›   Newest»
Sammy Finkelman said...

Could you link in one place all opinions on this, and on Halbig and other important interesting recently decided Supreme Court cases in a way so as to start reading whatever opinion you want?

What's left for Monday?

eddie willers said...

As usual, Scalia is right.

This should have been thrown back to the States.

dbp said...

The lasting shame will be thus:

SSM would have been the law for most, if not all, states in a few years anyway. It would have come about through a democratic process. Now, violence has been done to our institutions and SSM will never have the legitimacy it could have had.

madAsHell said...

gefallen, gefallt in German "to enjoy"

Obergefell seems like a name straight from central casting.

Expat(ish) said...

My kids were very for this.

I suggested that this was gonna be like Roe and cause all sorts of social issues for decades.

Well, until the country as a whole finds out that there are very few SS marriages gonna happen, but still.

-XC

Terry said...

What Althouse calls "disuniformity" I call freedom.

Coupe said...

This should have been thrown back to the States.

No. The States are taking too long. The court with one quick stroke has forced all the States to do what Congress is unwilling to legislate (they too are taking too long).

Alabama has the right idea. Be done with it. Get out of the marriage business.

They nullify the decision that way. Other States can follow their lead.

Matthew Sablan said...

I think having it decided in the courts and causing friction was, sadly, done by Democrats as a political tool. Now, not only will Republicans be forever accused of wanting to take away your choice about your body, they will now also be accused as wanting to take away your marriage. It was done this way to give another cudgel to politicians, instead of letting the issue be settled through the legislature, or through the courts being decided on in a way that makes sense.

I think gay marriage SHOULD be legal, but this decision is a weak way of getting to that end -- and plenty of stronger ways existed.

Amichel said...

This case is more about Justice Kennedy's ego than anything else. He's thinking about his place in History, not some piddling little scrap of paper like the Constitution.

William Chadwick said...

Personally I think the State should just be out of the marriage business altogether; and I am indifferent if a Gay couple feels the need to have some sort of official approval of their union from Big Brother. But the decision bothers mainly because the Hive (that loose confederacy of "liberals," State socialists, "tax lice,"* government sniffers and State-fellators) has been so pro-Gay marriage. When the Hive wins, you can be pretty sure that somewhere, on some level, America loses.


*as P,J, O'Rourke called the Clintonistas.

John Althouse Cohen said...

I suggested that this was gonna be like Roe and cause all sorts of social issues for decades.

No, it won't. For one thing, the Roe decision left the door wide open to prohibit abortions in many circumstances. Obergefell does no such thing; it says the terms and conditions of marriage always have to be exactly the same for same-sex couples as for opposite-sex couples.

Also, there's no particular reason to expect views on abortion to change over time. For the most part, those who believe it's tantamount to murder are going to keep believing that, no matter what. But views on sexual orientation have been progressing rapidly and will continue to do so. In general, the more people see same-sex couples in public doing normal things like getting married, the more people realize that same-sex marriage isn't going to cause anything horrible to happen.

hombre said...

Scalia: "With each decision of ours that takes from the People a question properly left to them — with each decision that is unabashedly based not on law, but on the 'reasoned judgment' of a bare majority of this Court — we move one step closer to being reminded of our impotence."

The "reasoned judgment" dig is particularly apropos. Just as the minions of the left base their judgment on the politics, rather than the substance, of a particular issue, our progressive legal scholars base their legal judgment about SCOTUS decisions on whether there is "reasoned judgment" behind the opinion, not whether it is supported by the Constitution.

"Reasoned judgment" is that judgment producing the result preferred by the scholar, here an end to "disuniformity." In that context it is apparently necessary to assume that "uniformity" is per se desirable, state-centered federalism be damned.

Gahrie said...

But views on sexual orientation have been progressing rapidly and will continue to do so.

Just ignore the results of all of those elections.......

The only views on sexual orientation that have been progressing rapidly are those of our ruling class and judges(but I repeat myself).

holdfast said...

I don't care overly much about the outcome, and am happy for the folks who are happy.

That said, when Lawrence v. Texas came out and Scalia and others said that the finding of a Constitutional right to SSM was the innevitable trajectory from Lawrence, there was much mocking pooh-poohing from the gay rights activists and other lefties. I think that Scalia and others are owed an apology. I don't mind folks advocating for their beliefs. I am tired of being lied to, however. This day has been the cultrural left's goal for at least 20 years, but they didn't have the decency to say it.

Also, all those conservative Democrats who believed Obama re his views on SSM back in 2008 are probably owed an apology too, but they were willing suckers so screw 'em.

Gahrie said...

the more people realize that same-sex marriage isn't going to cause anything horrible to happen.

It already has. It lead to this decision.

SMGalbraith said...

Too much theatrics but that's Scalia. Banging the table.

If Kennedy overdid it with the purple prose then Scalia's trying to out do him.

Terry said...

. . . the more people realize that same-sex marriage isn't going to cause anything horrible to happen.
Like fining someone $135,000 for not baking a cake?

garage mahal said...

"The substance of today’s decree is not of immense personal importance to me," says Justice
Scalia"

Oh, but it clearly is.

Rick said...

holdfast said...
I don't care overly much about the outcome, and am happy for the folks who are happy.

That said, when Lawrence v. Texas came out and Scalia and others said that the finding of a Constitutional right to SSM was the innevitable trajectory from Lawrence, there was much mocking pooh-poohing from the gay rights activists and other lefties. I think that Scalia and others are owed an apology. I don't mind folks advocating for their beliefs. I am tired of being lied to, however. This day has been the cultrural left's goal for at least 20 years, but they didn't have the decency to say it.


Remember this whenever anyone mocks the slippery slope. Their mockery boils down to "I'm support the circumstances at the bottom of the slope but it's not politically advantageous to admit it".

Rick said...

s/b I support. I have a lousy editor.

Quayle said...

"What Althouse calls "disuniformity" I call freedom."

Yes, indeed. The rebel south wanted to remove disuniformity, and so did the Nazis.

But then again, Althouse doesn't seem to have yet figured out that when a lawyer helps cut down the pillars of democratic society, they also cut off their own legs.

lgv said...

Ditto hombre.

We need a poll from AA on what the next constitutional right will be that currently isn't being allowed by majority vote.

Imaging a circle called Equal protection and/or due process. The circle just got bigger. What else got dragged into the circle with gay marriage.

It seems to me that the SCOTUS can make whatever they want fall in with their personal beliefs if they don't like how voters vote and legislators legislate and there is no opposite condition.

I have a right to doing drugs and assisted suicide.

FullMoon said...

It will not be like Roe because most people do not really give a damn. Roe is about life and death. Gay marriage is trivial. What most people are sick off is having this elevated to such craziness. Support traditional marriage, get fired from your job. Get your home vandalized. Have your life threatened. So,so, tiresome.

hombre said...

In Davis v. Beason, the SCOTUS ended disuniformity by upholding a statute under which hundreds of polygamous Mormons were imprisoned. I'm not going to bother, but I assume one could find some language defending traditional marriage that would not comport with Kennedy jackassery.

Of course those defenders of traditional marriage were merely imprisoning transgressors, not, horror of horrors, refusing to bake them cakes.

Michael said...

FullMoon

Exactly so. Now, on to compelling the churches to officiate if they wish to maintain their tax exemptions.

CJinPA said...

I'm not terribly moved.

These issues - marriage, government social/health programs, etc. - are ultimately decided in the cultural arena. The Right lost those cultural debates, and no matter what a court ruled, those issues weren't going away. They would have happened eventually.

Now the Left can go back it's previous message: "Marriage is a Pointless, Oppressive Relic."

They're quite proud that they've won gays admission to a beautiful cruise ship that they torpedoed long ago.

Alex said...

Shorter Scalia - get off my lawn!

Roughcoat said...


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

With apologies to the (appropriately) gay Oscar Wilde, one must have a heart of stone to read that sentence without laughing.

Mark said...

It's not surprising that the majority opinion is a competent extension of current case law. What is surprising is how florid and flabby it is. It's almost a meta-mockery of those most deeply affected by same sex marriage.

Garage, I believe Anne is correct that Scalia has personally thrown in the towel re: ssm. But his knickers are really twisted by the way the majority pulled a new right out of their asses.

The case was argued and decided from the foundation of getting the "correct" decision through the most expeditious route possible. That really is fine in legislation, not so much when it comes to keeping Law a solid foundation for a legal system.

hombre said...

holdfast: "This day has been the cultrural left's goal for at least 20 years, but they didn't have the decency to say it."

They didn't "say it" because, in management vernacular, this was merely an objective on the way to a greater goal. If you and jac (1:01) think otherwise, you are in for a rude awakening.

Farmer said...

At this point, what reason do states have to keep offering benefits to married couples? The state has never had an interest in whether a couple loved each other. It was always about what they were contributing to society (mainly children). I wouldn't be at all surprised to see conservatives pushing for no state-sanctioned marriage (or benefits) at all, or for restricting it solely to couples with children. Otherwise we're handing out tax breaks to people for ostensibly being in love. How does government justify that?

Roughcoat said...


The state has never had an interest in whether a couple loved each other.

You mean a state isn't concerned that a lonely person might call out only to find no one there? The horror.

Terry said...

At this point, what reason do states have to keep offering benefits to married couples?
It doesn't matter. Civil unions would have given them every benefit the state offers -- but it wouldn't have served to drive Christians from the public square. Got a B&B that your religion says you can't rent to unmarried couples? Guess who you are now required to rent to?

Chuck said...

Althouse, I don't know about Scalia having "made his peace with same sex marriage..."

I might say that wisely, Scalia saw this result coming, in his dissent in Lawrence, way back when Kennedy was declaiming that his majority opinion in Lawrence was intended to mean anything about marriage.

On the subject of homosexual rights, Justice Kennedy is profoundly dishonest.

Do you remember Scalia's warning in the Lawrence dissent? "Do not believe it."

Meade said...

"In general, the more people see same-sex couples in public doing normal things like getting married, the more people realize that same-sex marriage isn't going to cause anything horrible to happen."

Good point. Normal things like getting married, staying married, and rearing children in stable, nurturing homes. And the real test will be whether those children can reach adulthood and become independent and successful themselves — the very same test as with opposite-sex couples.

rhhardin said...

beneath the mummeries and straining-to-be-memorable passages

It would be more memorable with mammaries.

Real American said...

Supreme Court opinions are not supposed to be of immense personal importance to any of the justices. They are supposed to provide objective interpretation of the law as it is written, not as they want it to be. Instead 5 lunatics set out to rewrite the fabric of society because they want to be "on the right side of history." That's what of immense personal importance to them. Not that the constitution was followed. Personal glory an immense personal desire not to be criticized in classrooms and at cocktail parties.

Real American said...

At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence—the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 2484. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 2482 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 2484; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 2478; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Lawrence v. Texas (2003) 539 U.S. 558, 604-05 [123 S.Ct. 2472, 2497-98, 156 L.Ed.2d 508]

Meade said...

Roughcoat said...

The state has never had an interest in whether a couple loved each other.

"You mean a state isn't concerned that a lonely person might call out only to find no one there? The horror."

Good snark, but that really is what the Court is saying isn't it? — it belongs to the individual, not to the government, to define love for himself. A true conservative who favors a constitution which protects individuals' rights against a federal government with limited powers should be pleased with the outcome of this SCOTUS decision.

sparrow said...

Another step in the steady decline of America and freedom generally. 5 tyrants decided to do pretty much whatever they please - just like Roe. We won't see the full effect of this for a while but there's no way it'll be good.

Birches said...

In general, the more people see same-sex couples in public doing normal things like getting married, the more people realize that same-sex marriage isn't going to cause anything horrible to happen.

Single parent homes have been completely normalized, and yet, there is a growing chorus of experts who will now agree that it is a bad deal for children. This opinion was unspeakable among the experts 25 years ago.

tim in vermont said...

A true conservative who favors a constitution which protects individuals' rights against a federal government with limited powers should be pleased with the outcome of this SCOTUS decision

Now tell us about the true Scotsman, Meade.

K in Colorado said...

John Althouse Cohen, OMG, the baseless hysteria that churches will be forced to marry gay people, be sued if they don't, and so on. I pointed out in another post that churches have always been able to refuse any couple for any reason. No one could sue about it, so how could that change. I have yet to receive a reasoned answer, just the usual "gay mafia won't stop until churches are forced" and all that. Kind of like when I would ask for a clear, reasoned argument on why would letting a same-sex couple marry harm a hetero marriage. If I got "the children", I pointed out that that horse left the barn years ago with contraception and adoption.

Roughcoat said...


Meade:

Thanks for complimenting the quality of my snark.

holdfast said...

This won't leave the same kind of open wound as Roe. You can disagree with SSM and/or you can disagree that this wasn't the right way to do it. You can even think that homosexuality is a sin - but you can't believe it's Murder, which is what many sincerely pro-life people believe about abortion.

Ignorance is Bliss said...

Meade said...

A true conservative who favors a constitution which protects individuals' rights against a federal government with limited powers should be pleased with the outcome of this SCOTUS decision.

In what way does this support the idea of a federal government with limited powers? This certainly limits the powers of state government, by giving the federal government more power over the state.

Ignorance is Bliss said...
This comment has been removed by the author.
Gahrie said...

A true conservative who favors a constitution which protects individuals' rights against a federal government with limited powers should be pleased with the outcome of this SCOTUS decision.

What Constitution? The last two days the Court has basically said that the 10th Amendment has no meaning, and that the separation of powers is no longer in effect.

SMGalbraith said...


A true conservative who favors a constitution which protects individuals' rights against a federal government with limited powers should be pleased with the outcome of this SCOTUS decision

How does this limit the power of the federal government? It's a limit on the powers of STATE governments to define marriage but certainly not the federal government.

So that doesn't make much sense to me at all.

And how is not giving a marriage license out a violation of someone's right to marry? If you want to argue the equal protection violation, fine; but the liberty argument?

If the states gave no marriage licenses out at all, nobody would be prevented from getting married. People would still marry; they just wouldn't receive the legal benefits that that government/states give out.

In any case, I don't see how this limits government at all. It expands government since it's telling states they must recognize SSM AND they have to expand benefits to them.

I'm for SSM but I find the legal underpining for it in this ruling very questionable.



Roughcoat said...


As for A true conservative who favors a constitution, etc.:

No sir. I'm not touching that one.

Go get him, lads.

Ignorance is Bliss said...

Meade said...

And the real test will be whether those children can reach adulthood and become independent and successful themselves — the very same test as with opposite-sex couples.

Rather cruel of you to point out your wife's abject failure on her own blog, right to her own son's face.

*ducks*

eddie willers said...

They're quite proud that they've won gays admission to a beautiful cruise ship that they torpedoed long ago.

Wry and true.

FullMoon said...

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

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

Roughcoat said...

Steady on, troopers. Fight fair, and all that.

n.n said...

Selective-child and now selective exclusion in two judgments. Pro-choice doctrine has made progress, but it cannot be reasonably characterized as positive.

chuck said...

I don't understand why anyone is upset about this. It's just a bunch of old farts making shit up. In the absence of a social contract, and we no longer have one, it is just words.

CJinPA said...

Normal things like getting married, staying married, and rearing children in stable, nurturing homes.

You realize this is no longer "normal" right?

The same folks that brought us gay marriage first changed what "normal" families and "normal" child-rearing looks like.

Coupe said...

Think of it this way, the Great White Father is giving you more rights.

These new rights will exist as long as the sun comes up in the east...

SMGalbraith said...

Let's remember: SCOTUS is a branch of the federal government.

Seems to me that this ruling, right or wrong, increases the scope of Washington and doesn't decrease it.

To argue that the ruling supports a conservative view of a limited federal government seems incorrect to me.

The Drill SGT said...

K in Colorado said...
John Althouse Cohen, OMG, the baseless hysteria that churches will be forced to marry gay people, be sued if they don't, and so on. I pointed out in another post that churches have always been able to refuse any couple for any reason. No one could sue about it, so how could that change


The opinion could and should have firmly defended the freedom of religion. Nobody is going to force churches to marry gays, but the State has the ability to revoke tax exempt status.

already, the left is talking that way...

Birches said...

Worth a read today for all those people who say, "Gay marriage doesn't affect you."

Roughcoat said...

Think of it this way, the Great White Father is giving you more rights.

Endeavor to persevere.

SMGalbraith said...

"Nobody is going to force churches to marry gays, but the State has the ability to revoke tax exempt status."

Well, isn't that coercion? Ye olde "the power to tax is the power to destroy"?

This ruling doesn't end the debate; it really starts it up again. In a different way.

This isn't about a negative liberty - as Isaiah Berlin called it; it's a positive liberty. That is, how much power will the government then use to enforce it's ruling?



Todd said...

SMGalbraith said...
Let's remember: SCOTUS is a branch of the federal government.

Seems to me that this ruling, right or wrong, increases the scope of Washington and doesn't decrease it.

To argue that the ruling supports a conservative view of a limited federal government seems incorrect to me.

6/26/15, 2:27 PM


Well in a sense both Meade and the SC are in agreement; words mean what I think they mean, that the time I think they mean that. Nothing more and nothing less...

Todd said...
This comment has been removed by the author.
buwaya said...

"Kind of like when I would ask for a clear, reasoned argument on why would letting a same-sex couple marry harm a hetero marriage."

Because it makes the shirking of duty more acceptable.
Why must a man put up with an ethical or cultural constraint, if it requires patience, sacrifice or forgoing of pleasures ?

Men have been held to their duty much more by innate moral sense, custom and culture than by laws. The law is a very weak tool to make people behave. Symbols are much more powerful.

If being openly homosexual is acceptable, to the extent that religio-civic license is granted, and in most venues held to be honorable, then all moral, customary and cultural constraints are gone.

If homosexuals can do as they please, then so can all men, to take as many women as are willing, as often as the opportunity presents itself. And every other formerly illicit appetite or whim cannot be opposed. Every decision becomes a balance of pleasure vs pleasure, duty no longer being a factor.

So men should feel free to abandon pregnant women, fail to give their women the legal guarantee of marriage, or leave their wives, if the immediate cost-benefit balance doesn't look good.

The law can't effectively force men to do their duty.

SMGalbraith said...

Well in a sense both Meade and the SC are in agreement; words mean what I think they mean, that the time I think they mean that. Nothing more and nothing less...

I take Meade at his word. I think he believes that this ruling limits Washington.

In reality, it's an expansion of Washington since it strikes down the power of the states to define marriage. And now those states have to enforce this right on others who disagree with it. Churches? Religious universities?

The power of government expands after this ruling; it doesn't decrease.

I don't see how one can argue otherwise.


Meade said...

"Now tell us about the true Scotsman, Meade."

The true Scotsman is truly conservative. Under his kilt.

Michael said...

I think I would start with the Southern Baptists. They have the word South in their name and that obviously comports with their homophobic and hate filled theology. Easy target. Time is a waisting.

SMGalbraith said...

This ruling is much, much more than simply giving out licenses to gay couples. The state is giving its approval/sanction to these arrangements and the public sector, parts of it at least, will have to recognize them.

Government doesn't get smaller; it gets bigger.

It's really going to get messy now.



Ignorance is Bliss said...

buwaya-

I think you overstate it a bit, but you are on the right track. When the courts ruled that tradition was not a compelling government interest, they were correct, and entirely missing the point. Tradition is not the end. Civilization is the end. Tradition is the means of passing that civilization on.

Without our traditions, our lives would be as shaky as a fiddler on the roof!

(Yes, I know that's not the best quote to support my case, since the musical was about abandoning tradition to allow people to marry for love.)

Meade said...

"I take Meade at his word. I think he believes that this ruling limits Washington."

I didn't say that. This particular ruling might not limit Washington. But the first amendment surely does. No religious group will be forced by the government to perform weddings or other rites that are out of accord with its faith and tenets. If I'm wrong, I'll eat my cappello.

Anonymous said...

"In general, the more people see same-sex couples in public doing normal things like getting married, the more people realize that same-sex marriage isn't going to cause anything horrible to happen."

Yeah, I am very ery sure that one a gay guy marries he will forever end his practice of wearing assless chaps in the annual Gay Pride Parade.

chickelit said...

dpb wrote: Now, violence has been done to our institutions and SSM will never have the legitimacy it could have had.

Agree

buwaya said...

"Yes, I know that's not the best quote to support my case, since the musical was about abandoning tradition to allow people to marry for love."

I love "Sunrise, sunset" as I have felt that sentiment quite a lot by now !
Still, the message is pernicious, and always has been, popular as it has been for the last thousand years or so. "Fiddler" is subversive, sweet poison.

I don't think I am overstating it. I think of the old cartoon idea of the little angel and devil, sitting on a mans shoulders, debating across the poor befuddled fellows head. Consider them arguing about such a banal business as to whether to attempt a bit of adultery. The devil has a new argument, the angel has one less.

Meade said...

"In reality, it's an expansion of Washington since it strikes down the power of the states to define marriage."

And returns the right to define marriage to the people because the states, thanks to politicians like Bill and Hillary Clinton and other demagogic supporters of DOMA, couldn't seem to manage their state power without oppressing the People.

Gahrie said...

Given this current Supreme court, how long until the government passes a law that says all homeowners must provide a room to the homeless?

The Supreme Court will uphold the law, and say that the Third Amendment only applies to troops, the homeless aren't troops, so therefore the government can force you to quarter the homeless.

Roughcoat said...


I'm going to invest in cappello stocks.

Gahrie said...

And returns the right to define marriage to the people

No it didn't. Judges overturned the will of the people every time the people defined marriage in an election.

judges gave the right to define marriage to....themselves.

Meade said...

But it's not "an expansion of Washington". It's what Washington, with it's limited powers, was meant — by the constitution — to do.

Gahrie said...

No religious group will be forced by the government to perform weddings or other rites that are out of accord with its faith and tenets.

Of course not. They'll just have their tax exempt status removed and be abused by the SJWers.

SMGalbraith said...

"I didn't say that. This particular ruling might not limit Washington. But the first amendment surely does."

Well, you said, implicitly, that any conservative who believes in individual rights and limited federal government should applaud this ruling.

And I asked how does it limit the federal government? It limits state governments and their power to define marriage. That's an expansion of the federal government's powers over the states.

And once states are forced to recognize SSM then they will have to extend the same benefits to them that they give to heterosexual couples. So, again the power of government increases.

Now we have the issue of how much the private sector is forced to recognize these marriages. Churchs? Okay, we'll agree that they won't have to perform same sex weddings (although who knows at this point?).

What about religious universities that allow married couples to live on campus? Will Catholic University be forced to let gay married couples live on campus too?

It seems to me that for good or bad that the power of government - both Washington and individual states - will INCREASE after this day and not decrease.

I'll suggest that this is now an example of what Isaiah Berlin called "positive liberty" and not "negative liberty." When positive liberty or freedoms are granted then the power of the state increases not decreases.

This is a positive liberty. For right or wrong, good or bad.

Christopher said...

Whether this becomes another Roe is entirely dependent on whether ssm supporters start attacking religious institutions/people in large numbers.

A previous poster mocked this idea, but this administration's own representatives have confirmed that they could be looking to revoke the tax exempt status of groups opposed to gay marriage, and that's before we even get to the issue of the targeting of individual believers.

Look to the attacks on the pizza shop in Indiana or the Bakery in Seattle and the reactions they caused. If such targeting is continued then this will result in the same type of split.

Gahrie said...

But it's not "an expansion of Washington". It's what Washington, with it's limited powers, was meant — by the constitution — to do.

It was really rude of Hamilton, Jay and Madison not to warn us about that.

SMGalbraith said...

"But it's not "an expansion of Washington". It's what Washington, with it's limited powers, was meant — by the constitution — to do."

Sure it is.

The Supreme Court just said that states cannot define marriage in the manner that for 200+ years they did.

How is this limiting Washington? It's increasing it's powers over the state. The powers reserved to the states, e.g., to define marriage, have been diminished.

Again, whether the ruling was right or wrong is another question. But to argue that the power of the federal government over the states didn't increase with this ruling is not something I can see.

Meade said...

"judges gave the right to define marriage to....themselves."

Quote that definition of marriage for us, will you please? From the court's decision.

Rick said...

Meade said...No religious group will be forced by the government to perform weddings or other rites that are out of accord with its faith and tenets. If I'm wrong, I'll eat my cappello.

Given that Meade is recalling Hubert Humphrey's words promising affirmative action won't lead to quotas one has to presume he believes this will force churches to change their sacraments but we will call it "diversity".

bbkingfish said...

I know nothing about constitutional law, but I know quite a bit about good writing.

Scalia's writing always strikes me as that of a pompous, antique, gasbag. I simply don't see the brilliance which legal scholars (and A.A. hardly is the first) always assure me is right there in his writing. And, lately, he has been projecting all over the place in a manner that borders on clownish.

I almost fell out of my chair at the last sentence of his dissent yesterday...

" And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."

Bush v. Gore, anyone?

A total lack of self-awareness is never good advertisement for brilliance.

Gahrie said...

Quote that definition of marriage for us, will you please? From the court's decision.

"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."

dbp said...

"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."

buwaya said...

I don't see a reason to complain about the law, or this decision, as law.
The law is not important in itself. Even the prospect of legal warfare vs churches and individuals isn't a serious problem in itself. There aren't going to be many cases, and I doubt they will go very far.

The real problem with all this is symbolic and cultural. As the other side understands very well. From their point of view the whole reason for this exercise was symbolism, not objective benefits. That's the deeper game.

Focusing on the details of the legal proceedings, or even its use as a precedent, is a trivial business. It is like obsessing about the details of the guns mechanism after a shooting.

knighterrant said...

Scalia's use of the word "Putsch" is interesting. It is a German word inexorably linked to Hitler's beer hall rebellion of 1923. By choosing that word Scalia was clearly calling his colleagues fascists.

buwaya said...

"pompous, antique, gasbag"

Well, that describes me also.
I like pompous, antique gasbags.
Antique gasbags are the best. Young gasbags lack seasoning and learning, otherwise known as wisdom.

LarsPorsena said...

I ,for one, am glad the justices can cut the cloth of their consciences to fit the fashion of the times.

Meade said...

"But to argue that the power of the federal government over the states didn't increase with this ruling is not something I can see."

The power did not increase. The Court simply used its same (unexpanded) power to rule that the Peoples' constitutional right (liberty... freedom) to define marriage for [ourselves] is superior against the states' powers to dictate that definition.

If your interest is in an opposite-sex marriage, you've likely never felt oppressed by the power of the state(s) you've lived in to define marriage. But if your interest is in a same-sex marriage, you are now free from the power of your state to tell you, sorry, yours is not equal to the class of citizens who seem to be opposite-sex.

SMGalbraith said...

I don't see how, after this ruling, that religious universities can forbid gay married couples from living on campus if they allow heterosexual married couples.

The church/force marriage issue is another matter.

But Catholic University, Georgetown, Notre Dame...they'll have to give this one up.

dbp said...

"the Peoples' constitutional right (liberty... freedom) to define marriage for [ourselves] is superior against the states' powers to dictate that definition."

If by "the Peoples'" you mean the five justices that voted this way, then this makes sense. Neither the legislature nor the populace as a whole got any say in the new definition of marriage.

mccullough said...

If people don't agree with the decision or the way the culture is going, then don't join the military or a police force or fire department. The elites don't do this. Its perfectly fine to withdraw from society. People don't have to help each other much less agree with each other. There are effective ways to protest what you consider wrong. Teach your kids that our government is dysfunctional and run by corrupt assholes, that most citizens are lazy and want handouts and don't take responsibility. people spend too much time idealizing stuff. Your pretty much free to do what you want and things your not free to do you can get away with most of the time anyway. There never was a social contract. That was just bullshit someone tried to convince you about.

Meade said...

@Gahrie, that's not a definition of marriage. That's a description of the nature of marriage. And it makes clear who has the right to experience the nature of marriage: we all do.

Gahrie said...

The nature of something is it's definition.

buwaya said...

The Catholic church should disassociate itself from Notre Dame, Georgetown, etc.
They are no longer Catholic institutions in any meaningful sense. They have been fully captured by the corporatist nomenklatura and are busy propagandizing the culture and ethics of that class.

Gahrie said...

The first definition of nature from the Merriam-Webster dictionary:

a : the inherent character or basic constitution of a person or thing : essence

mccullough said...

Galbraith,

Notre Dame and Georgetown are shit institutions dependent on their students federal financial aid. Who cares if they disappear tomorrow. They are a drain on our tax dollars, as are all institutions, religious or secular, dependent on the the charitable deduction available to the top 28% of taxpayers.

One of the few things I agree with Obama on is getting rid of the charitable deduction. If people want to give away money, then great. If non-profits disappear because the taxpayers ar my subsidizing them, then that's the market at work.

Michael said...

Meade
"No religious group will be forced by the government to perform weddings or other rites that are out of accord with its faith and tenets. If I'm wrong, I'll eat my cappello"

You are correct. The govt will not force the churches to do anything at all. If they do not officiate at gay weddings, however, they will lose their tax exempt status. Hide and watch.

Gahrie said...

The Court simply used its same (unexpanded) power to rule that the Peoples' constitutional right (liberty... freedom) to define marriage for [ourselves] is superior against the states' powers to dictate that definition.

So you admit that this opens the door to polygamy and incestuous marriage.

jimbino said...

Recognition of the right of same-sex prisoners to marry, acknowledged by Kennedy, promises to open a whole new can of worms.

buwaya said...

"There never was a social contract. That was just bullshit someone tried to convince you about."

Thats not true. People largely behave according to what is culturally determined in their environment. People live more or less well according to what constraints they apply to their own whims and behavior. And they learn their duties and limits from what their neighbors do or say.
This is a social species.

Expat(ish) said...

What I meant by "it's gonna be like Roe" is that because the SCOTUS didn't let the states work it out but imposed an answer it will harden opinions.

My personal feeling is that they were also trying to shut the door on polygamy and other things we've "traditionally" been against.

-XC

PS - To be clear, I'm not advocating a position here, either way, just observing what I think the likely affects/effects will be.

Anonymous said...

No religious group will be forced by the government to perform weddings or other rites that are out of accord with its faith and tenets. If I'm wrong, I'll eat my cappello.

That will bring great comfort to us when we are forced to perform weddings and other rites that are out of accord with our faith.

mccullough said...

They should all lose their tax exempt status. I have to pay income and property taxes, so should they. Tax their gross revenues.

Gahrie said...

From the same dictionary defining "definition"

a : a statement expressing the essential nature of something

SMGalbraith said...

The power did not increase. The Court simply used its same (unexpanded) power to rule that the Peoples' constitutional right (liberty... freedom) to define marriage for [ourselves] is superior against the states' powers to dictate that definition

You're admitting that the Court said that, beginning today, the state's definition of marriage is not one that they, the Court agrees with. And with that ruling they have decided that THEIR power is greater than the states. And the people acting through their state legislatures.

Before today, the states had this authority to define marriage.

So, today's ruling increases the power of Washington - the Supreme Court - over the people acting through their state legislatures. If the people of Texas want marriage limited to heterosexual couples, the Supreme Court just said nope, our power and authority trumps yours.

I simply cannot see how you don't see that the power/scope/reach of the Supreme Court hasn't increased with this ruling.

And, I'll suggest, the federal government as a whole since the IRS, among other things, is going to force religious universities to abide by this ruling.

For good or bad, right or wrong, the power of Washington over our lives increased after today.

mccullough said...

Buwaya,

You can't be that naive. The social contract is what leaders invoke to send you and your buddies off to war while their sons stay home. You would think the Viet Nam war would have dispelled the social contract myth. You owe the government no duty.

I'm glad this ruling has alerted people to want should have been obvious. There is no such thing as the rule of law or the social contract. There never was. How many amnesties for me old also will it take to get that through your head.

Meade said...

"Neither the legislature nor the populace as a whole got any say in the new definition of marriage."

The state legislatures and the "populace as a whole" had plenty of say for plenty of time. During all that time, they protected the rights of some but they failed to protect the liberty and rights for all. Today that changed. Individual rights won; the government power of state legislatures and "the populace as a whole" lost.

If you are someone who values individual liberty over government power, you should be pleased. If you're a big fan of government power, sorry, you lost this one. Perhaps you can take solace in hope and change and the tendency of government to always seem to come back for another bite at the apple of expansion for itself.

Terry said...

How is an orthodox Jew harmed by dining or praying with a gentile or eating shellfish? What does science say?

Terry said...

"If you are someone who values individual liberty over government power, you should be pleased. If you're a big fan of government power, sorry, you lost this one."
State civil rights commissions suing people for exercising their right of free association != more individual rights.

mccullough said...

Scalia has been on the Supreme Court for a long time. But he's still not been there as long as Douglas, Brennan, or Stevens were. Must be a good gig. I'd be bored out of my mind.

Fritz said...

John Althouse Cohen said...
I suggested that this was gonna be like Roe and cause all sorts of social issues for decades.

No, it won't. For one thing, the Roe decision left the door wide open to prohibit abortions in many circumstances. Obergefell does no such thing; it says the terms and conditions of marriage always have to be exactly the same for same-sex couples as for opposite-sex couples.


That's a lawyers way of looking at it. For most people who disagree with gay marriage, its more like "The Supreme Court forced it down our throat, it tastes bad and we hate it even more".

FWIW, I don't oppose gay marriage. In MD both the legislature and the people approved it. I even think I voted for it.

But I do support the right of a state to decide what kind of marriages it will support, just as I think the state has a right to decide to support wind power at the expense of coal power. It's stupid, but it has the right.

When gay 1st cousins and brothers (and sisters) are forbidden to marry in a state based on the incest taboo, will they be protesting that since reproduction is impossible, it is irrelevant?

buwaya said...

" It's a fundamental human right."

No its not.
By what definition is this a right ? All rights are grounded in traditional ideas of the limits of public and private authority. If one tosses out tradition, what is the "rights" argument ?
There is no source for these new "rights".

"Scalia is confident that as an Italian Catholic man, a heterosexual one, he is inherently superior to an Irish Catholic woman, a gay one."

I don't see this. Its certainly not a Catholic idea.

"Stop pretending any of us care what the law professors, or the majority, thinks. "

Well, you do, obviously. You are "free under the law" because of what some law professors (those SC judges are, every one) think.

"Just think of how many lives this one came too late for though."

Indeed. Think of how many men suffered through unhappy marriages, or were depressed at their inability to satisfy their sexual urges, constrained as they were by the institution of marriage. We all sometimes have to suffer for duty. Have a look at the other side sometimes.

Gahrie said...

During all that time, they protected the rights of some but they failed to protect the liberty and rights for all.

Bullshit. Everyone had exactly the same right, the right to marry a member of the opposite sex. There were no laws stating that gay men could not marry a woman, or a gay woman could not marry a man. Judges created a new right, the right to marry someone of the same sex. The people, either through an election or legislation attempted to overrule the judges, and failed.

Peter said...

"Under the Constitution, judges have power to say what the law is, not what it
should be."

" The fundamental right to marry does not include a right to make a State change
its definition of marriage. And a State's decision to maintain the meaning
of marriage that has persisted in every culture throughout human history can
hardly be called irrational."

"This universal definition of marriage as the union of a
man and a woman is no historical coincidence. Marriage
did not come about as a result of a political movement,
discovery, disease, war, religious doctrine, or any other
moving force of world history-and certainly not as a
result of a prehistoric decision to exclude gays and lesbians. It arose in
the nature of things to meet a vital need: ensuring that children are
conceived by a mother and father committed to raising them in the stable
conditions of a lifelong relationship."


The third quote from the dissents may be debatable, but not so much the first two.

SMGalbraith said...

The state legislatures and the "populace as a whole" had plenty of say for plenty of time. During all that time, they protected the rights of some but they failed to protect the liberty and rights for all. Today that changed. Individual rights won; the government power of state legislatures and "the populace as a whole" lost."

Yes. And the power of the federal government just got bigger.

The federal government just ordered the state governments what they had to do.

You're now admitting that the power of Washington just got bigger. They now get to decide over the states and the people what constitutes marriage.

It may be a great decision, a wonderful decision, a proper decision. Fine. But in order to reach this historic point Washington had to override the will of the people in those states were gay marriage wasn't recognized.

The scope, the reach, the power of the federal government just got bigger.

K in Colorado said...

Even with SSM, there is no discrimination or equal protection under the law issues with churches denying to marry any couple, since they've been doing that to straight couples for generations. How is it right for a couple to be legally married in one state, have a job transfer to a state that specifically bans and does not recognize SSM from any other, then be told "you're not legally married". SJWs have been making noise about taking tax exempt status away from churches for decades. There has been no swing at all in public opinion for allowing religious organizations to retain tax exempt status, for taking away gun rights, and all that. There has been a huge change in public opinion on SSM in the last few years.

Humperdink said...

Meade said @ 2:51: No religious group will be forced by the government to perform weddings or other rites that are out of accord with its faith and tenets. If I'm wrong, I'll eat my cappello.
_________________________________________________-
"Two Christian ministers who own an Idaho wedding chapel were told they had to either perform same-sex weddings or face jail time and up to a $1,000 fine, according to a lawsuit filed Friday in federal court."

http://www.foxnews.com/opinion/2014/10/20/city-threatens-to-arrest-ministers-who-refuse-to-perform-same-sex-weddings.html

buwaya said...

"The social contract is what leaders invoke to send you and your buddies off to war while their sons stay home."

The social contract makes it possible for the state to impose conscription, and have young men obey the law, and require relatively little enforcement to show up and serve honorably with rather benign disciplinary regime in service. Lacking a social contract they would have to be rounded up like sheep, many would have to be shot as examples, and they could not be trusted to desert or surrender en masse without rigid supervision and a dreadful disciplinary regime. Large paramilitary organizations would have to be set up to hunt evaders and deserters. History has plenty of examples.
Conscript armies only work if the conscripts mostly believe in the "social contract" and go along.
Corruption erodes this belief.

The Cracker Emcee said...

Much ado about nothing Really, how many gay married couples will you ever come in contact with and, if they mow their lawn and don't blast their show tunes at 2AM, why would you ever care? This is an infinitely smaller issue than the repeated assaults on personal liberties we've seen recently. Plus, maybe now affluent white men can return to the GOP where, I'm told, they belong.

I do find it interesting that in the majority of these Supreme Court decisions, Althouse spends her energies parsing the opinions of the men. Is that because she has written off the women as predictable ideologues whose opinions are of little interest?

buwaya said...

"Gay people have been around forever. All this ruling does is formalize what has been going on for a while"

So have adulterers been around forever. And every other sort of sinner. The difference here is that the state, nowadays more powerful as an ethical teacher than any church, now says that sin is good.

dbp said...

"The state legislatures and the "populace as a whole" had plenty of say for plenty of time. During all that time, they protected the rights of some but they failed to protect the liberty and rights for all. Today that changed. Individual rights won; the government power of state legislatures and "the populace as a whole" lost.

If you are someone who values individual liberty over government power, you should be pleased. If you're a big fan of government power, sorry, you lost this one. Perhaps you can take solace in hope and change and the tendency of government to always seem to come back for another bite at the apple of expansion for itself"

This is incoherent: The state and populace had their say, but their say was wrong so it was taken away? If so, how did they ever have their say? They would have gotten to keep things their way as long as they chose correctly.

Marriage is the government officially recognizing an otherwise private relationship. To the extent that we are self-ruling, it is the people as a whole, or society if you will that is recognizing this relationship. It is up to the polis to determine what kind of relationships receive its endorsement. If it does not rise up from the will of the populace, it is tyranny.

As to the the issue of government power: I think that is oblique in this case. We are a democracy and a republic: Some things are decided by the will of the people directly or via elected representatives--this is the democracy part. Other things are decided by rules written down in the founding document. SSM did not come about for the whole nation via democracy, so that leaves the constitution. There is a due process claim, which Thomas dissects in his dissent and I cannot improve on what he wrote. Essentially, they have the idea backwards: It is a limit to what the government can do to you without due process, namely deprive you of life, liberty or property. It has nothing at all to do with what you can claim from the government.

Terry said...

"You make wedding cakes?"
"Yes."
"I'm a gay atheist and I want you to make a cake for me and my boyfriend's wedding."
"No."
"Discriminating against us because we're gay, huh? I'll sick the state civil rights commission on you!"
"No, no, I am Muslim. I only bake wedding cakes for Muslim couples!"
"Oh. okay. I thought you were discriminating against me because I'm gay."
"You know what? I misspoke. I am a Christian. I only bake cakes for Christian couples."
"So you are discriminating against me because I'm gay! Man, by the time I'm through I'm gonna own your stupid bakery!"

buwaya said...

"You deserve all the suffering you have in store for you"

So do we all, don't we ? Is suffering such a bad thing ?

mccullough said...

Buwaya,

The social contract would mean all able bodied serve, not hand out waivers to the sons of elites. It's an imposition on those without political power or influence. The U.S. has always been like this. Different rules for different subjects.

Anyway, the military is all volunteer for now, and the elites don't volunteer, just like most didn't serve when there was conscription.

The social contract also means that the government make a good faith effort to deport those here illegally. But Reagan and Obama and their supporters don't care about that. The government never held up its end of the bargain. Only naive citizens believe in the rule of law and the social contract. our leaders aren't bound by the law. Never were.

garage mahal said...

Plus, maybe now affluent white men can return to the GOP where, I'm told, they belong.

If/when gay is taken out of partisan politics I imagine the GOP is a natural home for many gays. Gay people that I have personally interacted with were not liberals for the most part.

Rick said...

mccullough said...
One of the few things I agree with Obama on is getting rid of the charitable deduction. If people want to give away money, then great. If non-profits disappear because the taxpayers are subsidizing them, then that's the market at work.


This would be fine as long as (1) the rule applies to non-religious charities and NGOs also, and (2) marginal rates are reduced so total taxes remain the same.

But of course Obama doesn't want that. He wants to remove deductions to fund more spending.

buwaya said...

"Much ado about nothing Really, how many gay married couples will you ever come in contact with and, if they mow their lawn and don't blast their show tunes at 2AM, why would you ever care? This is an infinitely smaller issue than the repeated assaults on personal liberties we've seen recently. Plus, maybe now affluent white men can return to the GOP where, I'm told, they belong."

This is not, as often mentioned, merely about the issue. This is about the symbol. The other side cares about it entirely because of its symbolic value. This is tribal warfare in the culture. The two sides of white people hate each other with a passion. Their side is pushing this in our face, proclaiming their power over us.

This is part of the assaults on personal liberties. The other side is a corporatist-bureaucratic conspiracy. Those "affluent white men" are the enemy, they benefit from the "assaults on personal liberties".

MadisonMan said...

For most people who disagree with gay marriage, its more like "The Supreme Court forced it down our throat, it tastes bad and we hate it even more".

Those who opposed inter-racial marriages had the same reaction.

Shock, denial, anger, bargaining, depression, acceptance.

Roughcoat said...

So you admit that this opens the door to polygamy and incestuous marriage.

If the left is against polygamy there will be no polygamy. If the left is for polygamy we will get polygamy. In the cultural sphere, whatever the lefts wants, it gets. The left has been having its way with the culture since the 60s. In the past 50 years the culture has moved left, always left. There have been slowdowns in the leftward movement but it has never been stopped. Now, and especially in the past two days, it is accelerating. And not just in the cultural sphere; the political sphere is also moving left.

Highly disturbing.

sunsong said...

“There are signs that liberals are making a comeback — and not just because a socialist is running for president, gay marriage is spreading like wildfire and pot legalization is gaining acceptance.”
~ Janet Hook

I Callahan said...

No one could sue about it, so how could that change. I have yet to receive a reasoned answer,

Because we didn't have gay marriage until now. The other types of couples that got shot down by a church aren't a big political block.

buwaya said...

"The social contract would mean all able bodied serve, not hand out waivers to the sons of elites. It's an imposition on those without political power or influence. The U.S. has always been like this. Different rules for different subjects. "

The "social contract" is not necessarily fair. Peasants in feudal societies had a "social contract" also. It just requires belief and some expectation of value. Waivers and shirking service weaken the belief. Like all human social things this is not a true/false situation.

sunsong said...

“On every issue save abortion, social liberalism is suddenly ascendant in America. The shift on same-sex marriage has captured the headlines, but the change is much more comprehensive: In just 15 years, we have gone from being a society divided roughly evenly between progressive and traditionalist visions to a country where social conservatism is countercultural and clearly in retreat.”
~ Russ Douthat

Peter said...

"Meade: Don't look now, but by your own definition, your marraige with ann is failing."

It's hardly necessary that every heterosexual sex act result in a live birth to realize that many of them will. And thus that if a culture believes that stable unions foster improved outcomes for children then the state has an interest in fostering these stable unions.

Do you have some other explanation of why practically all cultures at practically all times have promoted childbirth within marriage and discouraged it outside of marriage?

The fact that less than 100% of all marriages are procreative hardly negates the origin of the institution of marriage in human procreation, and from the needs of children resulting from that procreation.

Law can do many things, yet it lacks the power to free anyone from the realities of biology.

Beach Brutus said...

Scalia dissent footnote 22:

"If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: '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,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."

Witty, sad, and true.

chickelit said...

sunsong quoted...
On every issue save abortion, social liberalism is suddenly ascendant in America. The shift on same-sex marriage has captured the headlines, but the change is much more comprehensive: In just 15 years, we have gone from being a society divided roughly evenly between progressive and traditionalist visions to a country where social conservatism is countercultural and clearly in retreat.

Yes, and 40 years ago, Roe v. Wade had much more popular support. People slowly changed their minds after unintended consequences emerged and became more apparent. The same could happen with this decision. Save that last bottle of champagne.

chickelit said...

Terry @ 4:01 PM Pitch perfect! Bravo!

Roughcoat said...

Individual rights won; the government power of state legislatures and "the populace as a whole" lost. If you are someone who values individual liberty over government power, you should be pleased. If you're a big fan of government power, sorry, you lost this one. Perhaps you can take solace in hope and change and the tendency of government to always seem to come back for another bite at the apple of expansion for itself.

Interesting argument, and I get your point, but I disagree; I think you're wrong.

The situation reminds of how the political elites in Muslim countries use democracy and democratic processes to subvert and destroy democracy. That's sort of what's going on in here. I'm not saying the situation is analogous. I'm saying there are similarities.

mtrobertsattorney said...

Kennedy has always thought of himself as something of a philosopher. More often than not, his writing style simply strings together a grab bag of pompous bromides that signify absolutely nothing. Scalia nailed it in his dissent when he described Kennedy's "reasoned judgment" as nothing more a collection of the "mystical aphorisms of a fortune cookie."

Reasonable people will not find Kennedy's opinion persuasive and serious legal scholars will find it an embarrassment.

Coupe said...

Roughcoat said...Endeavor to persevere.

I'm invisible!

Roughcoat said...

Coupe:

You got the reference. Kudos.

The Cracker Emcee said...

"So have adulterers been around forever. And every other sort of sinner. The difference here is that the state, nowadays more powerful as an ethical teacher than any church, now says that sin is good."

Quite the opposite. The state is saying (perhaps tacitly admitting would be more accurate) that it doesn't know sin from shinola, but that all free, white, and 21 citizens are entitled to the same legal protections and privleges. I realize the whole hoo-ha has been driven by Left and that they wouldn't in the least be interested in promoting the legal protections and privleges of, say, Christians. Nevertheless, as others have pointed out, this is actually a conservative outcome. I just wish the state would keep it's nose out of a whole bunch of other citizen interactions as well.

Roughcoat said...


this is actually a conservative outcome.

" ... using democracy to subvert and destroy democracy."

Terry said...


MadisonMan wrote:
"Those who opposed inter-racial marriages had the same reaction. Shock, denial, anger, bargaining, depression, acceptance."
I've heard that the Japanese interned at Manzanar also had the same reaction.

Anonymous said...

"that's not a definition of marriage. That's a description of the nature of marriage."

LOL.

Meade, you are a blithering idiot.

And by the way, I'm gay and against this decision, so I'm more than entitled to my opinion of you.

sunsong said...

“Freethinkers are those who are willing to use
their minds without prejudice and without
fearing to understand things that clash with
their own customs, privileges, or beliefs. This
state of mind is not common, but it is essential
for right thinking...”

~ Leo Tolstoy

Terry said...

Cracker Emcee wrote:
"this is actually a conservative outcome."
I usually agree with you, Cracker, but I think that you are off base here. What does the outcome conserve?

buwaya said...

"The state is saying (perhaps tacitly admitting would be more accurate) that it doesn't know sin from shinola,"

Hardly. This all is SOP in the public schools, to start. The state propagandizes ethical points and even what amount to religious rituals (sorting garbage !). What the state pushes is good, true and moral, what the state punishes is evil. That's what the state teaches, with rewards and punishments, and also propaganda.

What the state ought to be, in some libertarian ideal, and what the state actually is, in any human society, are not the same.

The Cracker Emcee said...

Sunsong,
The people you're quoting can't distinguish libertarianism from statist liberalism. That's not surprising but I don't think the Zeitgeist is moving quite where they think it's moving.

Humperdink said...

Samsung, do have an original thought?

CStanley said...

Good snark, but that really is what the Court is saying isn't it? — it belongs to the individual, not to the government, to define love for himself. A true conservative who favors a constitution which protects individuals' rights against a federal government with limited powers should be pleased with the outcome of this SCOTUS decision.

Then this is an argument that the state should remain silent on whether or not to support marriages...ie, leave marriage to the churches or other institutions, or individuals themselves, to define!

I have said before....marriage as it's understood as a secular institution really has changed, and the advance of artificial means of contraception and procreation has removed the underpinnings of the traditional institution. So this does in fact call into question why the state should have an interest in promoting heterosexual unions but not homosexual ones. I can easily see the equal protection issue there....but it can be resolved by removing state support for heterosexuals just as well as it can be done the way this has been decided. Or, if the state still sees an interest in promoting unions that are beneficial for support of individuals, then it should also include people who are acting as caretakers of others.

Defining a state interest in promoting "love" is asinine, and basically the state is now endorsing all that has gone wrong with marriage to weaken it to this point. It is putting a stamp of approval on the idea that committed unions only last as long as the feelings do.

SMGalbraith said...

Boy, you have to have a cold, dark heart to ignore the joy that these gay men and women are having today.

I find Kennedy's reasoning really weak and the sort of top down approach wanting.

But your heart overrules your head here. At least mine.

I hope for lots of joy and happiness for these men and women as they seek partners to share their lives.

And in the end, nothing else really matters anyway.

buwaya said...

Tolstoy was a great writer but a poor philosopher and a worse historian.
A bit of a besotted romantic in emotional outlook too, being all about the heroic artist.

Ctesiphon Paisades said...

Ann, you failed to rebut a single argument made by Scalia. Whatever separation of powers was once intended by the framers is now virtually gone; and I suspect we will find, at some point in time, how dearly we miss an independent judiciary, or a society where laws are enacted democratically, as opposed to by judicial fiat. The worst element of all this is not that the judges are making new law, which they are, but that they are trampling on the will of the majorities in 30 states.

I support same sex marriage, but I certainly do not support judge-made law. Nor do I support this ridiculous re-definition of rights and liberties.

These last two decisions have opened the door to the worst excesses of our new judicial masters. Of course, as a lawyer, this is not a whit appalling to you, but, for those laymen who grasp the consequences, this is a disaster.

LibertarianSafetyGuy said...

Think about this ruling this way. First, people have rights and there some limits to those rights prescribed by the constitution. The constitution grants powers to the various states. And the constitution grands powers to the federal government. What the ruling today said is that neither the various states or the federal government have the power to define marriage differently for same sex couples than it does for different sex couples. It says this right is retained by the people. How awesome is that? Today, liberty was expanded and confirmed. We need more rulings like this, not less. It's easy for some traditionalist to only see what they have to give up, which isn't much. I'd rather look at what the world gains. Today, America got a little bit freer and Americans enjoy a little more liberty.

Titus said...

Cracker is right. The affluent gays I know wouldn't be democrats if it wasn't for all the pube politicians bluster about the fags. We don't give a shit about abortion and we want less taxes and limited government.

And us and the blacks are not friends.

And we hate government handouts-we are the 1%-no takers here!

Titus said...

And none of us are members of unions-icky.

Gahrie said...

Q:

When two lesbians with children get divorced, who will be forced to pay child support?

A:

Whatever man was dumb enough to donate his sperm.

Roughcoat said...

And in the end, nothing else really matters anyway.

Wait, what? Nothing else really matters apart from gay men and women having lots of joy and happiness as they seek partners to share their lives? I can think of many things that matter more.

The Cracker Emcee said...


"this is actually a conservative outcome."
I usually agree with you, Cracker, but I think that you are off base here. What does the outcome conserve?"

Realistically, it damages nothing and the state actually retreats a bit from limiting our personal interactions. I understand and agree about the bakers and florists and whatnot but that is really a seperate issue from marriage itself. Fight them as fascists, not as folks seeking the protections of marriage like any other couple.

buwaya said...

Titus, you can be an amusing fellow, but in the end not everything is about money.
Political philosophy is about the sort of future you can imagine for your descendants.
If no descendants - no real stake in the future
A Titus-world - what would it be ?
from where I can see it, I can foresee an SF gay world, I don't know how they think in Boston.
An SF gay world would have fun without limit for a couple of decades, followed by disillusioned boredom, followed by lonely despair, followed by empty streets given to wild dogs and squirrels.

Terry said...

"Today, America got a little bit freer and Americans enjoy a little more liberty."
There is one and only one reason to prefer marriage over a civil union, and that is that you can then force recognition of your "marriage" on people who do not wish to recognize it. More liberty my ass. This was brought to you by the crowd who believes that people have privileges granted by the state, not natural rights, and the first order of business of the state is to take privileges from one group and give them to another. Freedom, to them, is a zero-sum game. You give some people liberty by taking it away from someone else.

tim in vermont said...

The "outcome" may be conservative. I accept that certainly. What bothers me is the courts arrogation of power to itself to reflect and philosophize as to what is best for the country and to find whatever excuses they can in the law to then make that the outcome.

Monkeyboy said...

The state legislatures and the "populace as a whole" had plenty of say for plenty of time. During all that time, they protected the rights of some but they failed to protect the liberty and rights for all.

My Virginia Concealed carry permit is not recognized in Wisconsin. I eagerly look forward to the Supreme Court expanding freedoms by taking that option away and making all permits legal in all states.

The Cracker Emcee said...


"My Virginia Concealed carry permit is not recognized in Wisconsin. I eagerly look forward to the Supreme Court expanding freedoms by taking that option away and making all permits legal in all states."

Amen, Wouldn't it be funny if this case could be used as a precedent in that future civil rights struggle.

Titus said...

Buwaya-I don't like San Francisco-if SF is what you are referring too.

And I am not a fan of gay enclaves-which have all but disappeared.

There are a very few fags in my hood but most are straighties with young kids.

I am totally an east coast coastie.

I don't care for the west coast.

tits.

Gahrie said...

June 26, 2020

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

Chuck said...

Meade; ol' buddy, your ramblings about love and respect and privacy and freedom might sound nice in the context of a debate when a state is considering a vote on same sex marriage.

They have no place in this case, where the question was whether the Constitution, with no new amendment, REQUIRES states to adopt same sex marriage rules. I wonder what part of the constitution makes such a requirement and exactly when such provision(s) began to take on that meaning.

n.n said...

Social conservatism is not in retreat. It was affirmed today with the ruling for [selective] trans marriage. As if the number two has some mystical quality, other than it corresponds to coupling of one male and one female for reproductive purposes.

As for elective abortion, it was a sacrificial rite, before it was classified as premeditated murder, then resurrected as a sacrificial rite under progressive liberalism. Only a blind ideologue or a person with an amoral, opportunistic religious/moral philosophy, would deny that a human life evolves from conception. Selective-child policy establishes the premeditated termination or killing of a human life for causes other than self-defense, notably for wealth, pleasure, and leisure.

Progressive liberalism rejects both moral axioms: individual dignity and intrinsic value on principle. Its priests, acolytes, and congregants are only concerned with environmental stability and reduced personal liability, and, of course, the accumulation of capital, control, and material luxuries.

Terry said...

Obergefell said that he needed the state of Ohio to recognize his non-Ohio marriage, or he wouldn't think it was real. I doubt if many same sex couples have issues like this.

sunsong said...

for those who have facebook

Humperdink said...

The tenth amendment thingy gets me (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.)

Struggling to find the word marriage or it's definition in my trusty pocket size constitution.

SMGalbraith said...

Realistically, it damages nothing and the state actually retreats a bit from limiting our personal interactions

Sorry, how does it retreat? After this ruling it has to increase its reach. States must now recognize the marriage, give out licenses, extend benefits, and protections. So the state grows.

And it must enforce recognition. If a law firm doesn't want to recognize the marriage for religious reasons, it must do so. If a business doesn't want to give the same benefits to gay married couples it must do so.

What about religious institutions that give benefits to married heterosexual couples? They must now give the same benefits - under penalty of law of the state - to gay couples.

I don't see how the state decreases its reach here; it has to increase its reach to protect the rights of these gay married couples.


Terry said...

If it did not increase the reach of the State, the left would not be in favor of it.

sunsong said...

Andrew Sullivan's 1989 essay - "Here Comes the Groom"

The Cracker Emcee said...

SMG,

All of which the state already did for heterosexual couples. How does it increase it's reach? Consenting adults who are not closely related truck down to the Auditors office, get a license, and contract a marriage. So what? The social (and moral) value of that marriage will be determined entirely by the participants in that marriage. My wife and I have a beautiful family and a marriage I value above all other relationships. It's the height of absurdity to suggest that two dudes contracting a marriage somewhere somehow threatens or demeans our "institution of marriage"

The Cracker Emcee said...

Really, I blame television for all the panic about gay marriage. Ward and June have a lot to answer for.

Humperdink said...

Among Bible believing Christians, there is no panic, none at all. Just sadness.

buwaya said...

Cracker,

Culture is a piece. It is inherited by a collective of people as a whole. It defines social expectations of individuals and standards of personal behavior. It is far more important than law. It regulates all sorts of things, like the likelihood of getting cheated in retail transactions, or standards of performance of professional duties, or the "Birkenhead drill". If you have heard of the idea of high-trust vs low-trust societies, that's part of it. This is a system whereby we regulate ourselves to be more efficient cogs in the social machine. And we must be good pieces in the social machine, because we are social creatures.

Knock out a rather fundamental piece, such as the idea that heterosexuality is the standard, and that posterity requires descendants, which people are obligated to provide, and the rest of the structure looks like it has no foundations that can take such a challenge. Which leads to deterioration of the whole. How do you convince someone to sacrifice for the sake of social standards ? He can point to this law and reply that there no longer are social standards, as per the state, the great moral teacher, and he will do as he wishes.

Leaving explicit religious belief aside, after this how can I advise my sons that it is their duty to marry the mother of their children, or not to cheat on her, or not to abandon them all if they prefer another woman ? Any argument is trumped. "I will pay child support to comply with the law" is not an response that would have left such a person with a respectable reputation under the old cultural understanding, which required sacrifices the law can't and doesn't.

Rhythm and Balls said...

Ok. So he only pretends to believe that grave constitutional issues are being erroneously trod upon. Great to know that he lacks the same courage of conviction that just about every other neo-conservative these days lacks.

Rhythm and Balls said...

"Today, America got a little bit freer and Americans enjoy a little more liberty."
There is one and only one reason to prefer marriage over a civil union, and that is that you can then force recognition of your "marriage" on people who do not wish to recognize it.


Oh, ok. So you lack the power to personally nullify someone els's "civil union" but not their marriage. Good to know.

Terry said...

"How does it increase it's reach?"

Back in May, when a federal judge first overturned Idaho’s ban on same-sex marriage, the Hitching Post Chapel in Coeur d’Alene expressed concern about the possibility of having to marry same-sex couples. The wedding chapel located just across the street from the Kootenai County Courthouse recognized that it would be subject to the city’s nondiscrimination ordinance, which requires that public accommodations (like businesses) offer service equally regardless of sexual orientation. Now that marriage equality is the law in Idaho, the Hitching Post owners Donald and Evelyn Knapp have filed a federal lawsuit for the right to discriminate.

At the time, Coeur d’Alene City Attorney Warren Wilson explained, “If you turn away a gay couple, refuse to provide services for them, then in theory you violated our code and you’re looking at a potential misdemeanor citation.” Wilson clarified that religious entities are exempt under the city ordinance, but apparently told Mr. Knapp at the time that the Hitching Post was not exempt because it is a business, not a religious corporation like a church. As same-sex couples began marrying last week, the Hitching Post did apparently turn away a same-sex couple.

http://thinkprogress.org/lgbt/2014/10/20/3581733/idaho-marriage-chapel-adf/
This is a Good result as far as thinkprogress is concerned. This is what they wanted to happen. This is the purpose of the law.


Rhythm and Balls said...

Anyway, your own "personal" recognition is immaterial, and meaningless. The only recognition required is by the same states bound by the 14th amendment in being prohibited from choosing classes of citizens upon which to visit discrimination.

Big Mike said...

"Putsch" is a nice jab at Ginsberg, Breyer, and Kagan.

Rhythm and Balls said...

"Putsch" is a nice jab at Ginsberg, Breyer, and Kagan.

But YoungHegelian's (deleted) jab at priests on deserted islands seeking kids to fuck is not, by your protest. I see how you roll.

Terry said...

Oh, R&B, you are such a babe in the woods. The Supreme Court has no problem with discriminating against classes of citizens:
"Held: The Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or §1981."
Pp. 9-32. http://caselaw.findlaw.com/us-supreme-court/539/306.html#sthash.YIlovCoo.dpuf

Rhythm and Balls said...

Scalia's cranky, irascible rant was as inscrutable as they come, lately. You can tell by his hostile and wholly unprofessional complaints and insults just how unreasoned, results-oriented and judicially activist his dissenting opinions have been, lately. If he actually had some sound reasoning behind his piques of fit, he would just calmly state his case. But he can't because he's ruled by an emotional need to placate removed institutions that have nothing to do with America's culture and its conception of its own rights.

Those institutions are almost as removed and unaccountable as his own attempt at "reasoning", I'm sorry to say. Maybe that's where he takes his example from.

Rhythm and Balls said...

Yes, when it comes to the deprivations of white citizens as a class relative to all others (but especially at the hands of those mean, rights-stealing blacks), I am totally naive. I have yet to discover an instance whereby I can claim that a black person was used as an excuse for a sacred right of mine.

But maybe I am less unlucky than you.

Either way, I agree that affirmative action should be ended.

Rhythm and Balls said...

I could be wrong, but my understanding of the 14th, as with any amendment, is that there is no such thing as a right that could never come into conflict with any other right. It's just that the choice of which right to privilege has to be defended soundly and resoundingly. As such, no other right offered was strong enough to trump the 14th, in this case. Hence, the meandering emotionality and lack of reference to judicial precedent in Scalia's dissenting "opinion".

As I said, he gets (and takes) his orders from somewhere else. Not the Constitution and not the traditions of American jurisprudence.

The Cracker Emcee said...

Buwaya

I'm afraid I don't understand how some construct of "culture" is going to dictate my values to me or to the vast majority of folks. Even in the most horrifically debased societies (say, Nazi Germany) most people still valued family life, still were fairly ethical with their neighbors (with that notable exception, hence horrifically debased) and generally tried to be decent people by their own lights. This in no way compares to that, and that's why I use the word panic. As has often been pointed out, any damage done to the institution of marriage in the last 70 years was wrought by heterosexuals. It far exceeds anything a handful of homosexuals wanting to marry might inflict. If our sons do not feel an obligation to be true fathers to their children then that is my failing, because I ceded the responsibility to impart values to your amphorous "culture". People in a dither about gay marriage are just admitting they're not up to the task of living what they profess to believe.

Humperdink,
I'm a Bible-believing Christian too and the first lesson I draw from the gospels is my responsibility for my own faith and actions. Holy shit, talk about "sufficient unto the day"!


Terry said...

Apparently you missed the part, R&B, where Kennedy said it was all about love. You seem to think it was all about giving license to hatred.

Rhythm and Balls said...

I took no hatred with me from the decision. I still love just as many if not more people today than I did yesterday.

Rhythm and Balls said...

And my love for my country has even deepened, in the wake of this.

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