Today's case — analyzed at some length in the previous post — reinforces this prediction. In Kerry v. Din, there was a question about the fundamental liberty interest in marriage within the meaning of the Due Process Clause, and that interest was rejected by 3 members of the Court — Roberts, Scalia, and Thomas — and accepted by 4 members of the Court — Ginsburg, Breyer, Sotomayor, and Kagan. Then there were the 4th and 5th votes — Kennedy and Alito. These 2 didn't want to answer that question and just said that assuming there is a fundamental liberty interest, the government gave all the process that was due.
So, Kennedy and Alito reveal a resistance to the topic of the fundamental liberty interest in marriage. They find it particularly difficult somehow or they worry about the repercussions if that aspect of due process is nailed down with a majority opinion. They search for other ways to resolve the case.
And, in fact, in the same-sex marriage case, it was apparent at oral argument that the equal protection ground was a less complicated way to find the right in question. (And only by finding a right can you avoid the other ground.)
If you go back to the post about the oral argument in the same-sex marriage case (Obergefell v. Hodges), you'll see that the Solicitor General's brief only used the equal protection ground, but Justice Kennedy tried to get the SG to talk about the due process/right to marry ground:
I'm interested in your comments on Glucksberg, which says what we should have to define a fundamental right in its narrowest terms. A lot of the questions that... we're asking your colleague in the earlier part of the argument... had that in mind, I think. What... do we do with the language of Glucksberg that says we have to define it in a narrow way?In today's Kerry v. Din, Justice Scalia relies heavily on Glucksberg (which rejected a right to physician-assisted suicide), and Justice Kennedy's concurring opinion never mentioned it. Kennedy seems to be struggling with the idea of letting go of Glucksberg's narrow approach, and in the same-sex marriage case, the Equal Protection Clause avoids the subject. The Solicitor General's response to the invitation to talk about Glucksberg was no, "this issue really sounds in equal protection."
ADDED: My favorite Scalia quote, from that other right-to-die case, Cruzan:
Are there, then, no reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause... Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.
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I don't understand the headline wrt the first two paragraphs of your post.
It will NOT rest on due process, or it reinforces your theory that it will?
But is there a Right way to marry, and a wrong way? The easy way out is to outlaw marriage like Alabama did.
So we tell the Taliban Guy to think Sharia and apply to ISIL where marriage is sort of easy to captured females. Then everybody is happy.
And, in fact, in the same-sex marriage case, it was apparent at oral argument that the equal protection ground was a less complicated way to find the right in question. (And only by finding a right can you avoid the other ground.)
I have full confidence our Justies will find it, even though the tricky little bastard has been successfully hiding in one of those penumbras for the last 200+ years.
I'm sure if they look for it, they'll find it. It's been right there in plain sight for over a century now.
Why, it boggles the mind how we didn't find this right sooner.
But I wouldn't get too anxious about it. The Judges are our betters and they know what's right and how to properly read the constitution. It's a wonder we still pretend at this whole idea of a Representative Democracy when we have 9 judges who know better than the rest of us.
Gay marriage is a step on the way to the dissolution of the culture. I personally don't care except as it affects those who wish to remain in the traditional culture. I was assured by my left wing lawyer son that I was foolish to be concerned about such matters but recent developments with bakers and photographers show that it was right and he was wrong.
The next steps are already underway with sex self-selection and transgender bathrooms in elementary schools. Since I am old, I will not have to cope with the final result of such nihilism. It is possible that sanity might resume but I doubt that will happen without calamity and calamity is probably our future. Your future anyway.
They should offer law courses in the University, "How to find the Rights that have always been there but no one has ever noticed before."
The next steps are already underway with sex self-selection and transgender bathrooms in elementary schools. Since I am old, I will not have to cope with the final result of such nihilism. It is possible that sanity might resume but I doubt that will happen without calamity and calamity is probably our future. Your future anyway.
I wouldn't be so sure. The destruction of society can really pick up speed. You may not be as old as you wish.
@MayBee I added a parenthetical to make the point more obvious.
"I have full confidence our Justies will find it, even though the tricky little bastard has been successfully hiding in one of those penumbras for the last 200+ years."
Nope. That's my point. Penumbras is due process stuff. This will be good old out-in-the-sunlight Equal Protection.
Thanks! Yes, I see now!
Well, polyamorists, polygamists, bigamists, incestophiles, all deserve "equal protection" too.
I can't wait to hear how their cases are nothing like Bruce Jenners!
Blogger tim in vermont said...
Well, polyamorists, polygamists, bigamists, incestophiles, all deserve "equal protection" too.
I can't wait to hear how their cases are nothing like Bruce Jenners!
Maybe those others don't meet the "Good old out-in-the-sunlight Equal Protection" clause in the constitution. Could be a lot more years before that's found.
I just want to add that I don't actually oppose gay marriage. I just oppose extra-democratic lawmaking on cultural issues.
As a non-lawyer, to the extent that I understand it, equal protection seems a more pertinent justification to protect the rights of gays and lesbians than due process. So much of the inequality of same-sex relationships vs relationships in marriage has to do with managing the affairs of a partner who is dying, or dies, or in other ways becomes unable to manage their own affairs. Some families who don't accept such relationships wait for such situations to dive in and take responsibilities and assets away from the control of the more competent partner.
It seems to me that due process arguments would lead to messy situations that could conceivably not provide complete protection for gay couples -- a malevolent family could follow all the requirements of due process and still find a loophole to mess around in the affairs of a gay couple in trouble. Equal protection, however, seems like a blanket approach. If it applies to hetero marriage, it applies to gay marriage or "marriage equivalent" relationships.
Of course, IANAL. (Which is an unfortunate acronym considering that I am a gay man.)
Maybe one of these days I'll finally figure out how the opposite sex requirement is applied one way to heterosexuals and another way to homosexuals.
They will not exclude trans couplets, but they will selectively exclude other relationships. Progress, indeed. Pro-choice doctrine enjoys the notoriety of creating yet more moral hazards.
I was assured by my left wing lawyer son that I was foolish to be concerned about such matters but recent developments with bakers and photographers show that it was right and he was wrong.
I hate to say it Michael K., but I think he was lying or being wilfully blind. My left/gay aquaintences who, when presented with similar hypotheticals 10 or so years ago, assured me that such abuses would be impossible and unthinkable, back when they were arguing for gay marriage, are now completely on board with punishing Christian bakers and jewlers. And they don't have an ounce of shame.
Of course, I had the advantage being from Canada where this whole sad drama has already been played out. Wait until the governmental SJWs come after preachers for quoting non-PC scripture - that's the next phase IIRC.
Some families who don't accept such relationships wait for such situations to dive in and take responsibilities and assets away from the control of the more competent partner.
Weird that this problem couldn't be simply solved with a contract.
Equal protection must be the guiding right. It's a no brainer. What people don't understand, was that sodomy was a crime in most states, and that equal protection never came up. Now that sodomy is legal, then it follows that some higher right prevails.
Thus, States must change their marriage laws, or liquidate them.
I think the whole idea of marriage is unconstitutional, as it provides no equal protections to those who don't marry.
Weird that this problem couldn't be simply solved with a contract.
Not weird, but typical. I had a so-called "living will," signed by my partner and witnessed, that should have enabled me to be involved in the affairs of my partner of ten years as he died. Hennepin County Hospital in Minneapolis basically blew it off -- I had no better standing to them than a complete stranger. And my situation (circa 1994) was not unique.
Again, I'm not a lawyer, but it just seems that due process arguments allow more wiggle room than equal protection arguments.
I think the whole idea of marriage is unconstitutional, as it provides no equal protections to those who don't marry.
Yup.
Damn, my writing sucks today. Sorry.
As a non-lawyer, to the extent that I understand it, equal protection seems a more pertinent justification to protect the rights of gays and lesbians than due process. So much of the inequality of same-sex relationships vs relationships in marriage has to do with managing the affairs of a partner who is dying, or dies, or in other ways becomes unable to manage their own affairs
Which is why the moderates on this issue proposed the idea of civil unions to protect such rights.
"the Court will use equal protection"
An apt phrase. Prog Justices will "use" whatever they need however they need it.
"the equal protection ground was a less complicated way to find the right in question. (And only by finding a right can you avoid the other ground.)"
Another apt phrase. They will "find" whatever they are looking for.
"out-in-the-sunlight"
Where even the framers of the actual amendment couldn't see it, but never mind.
Ann Althouse said... "This will be good old out-in-the-sunlight Equal Protection."
BUT to use Equal Protection you'd have to assume that "gay marriage" is not substantively different from [heterosexual] marriage. Yet disputing that assumption is the essence of the argument opposing "gay marriage."
If the question were deciding whether dogs have four legs or five, would declaring all tails to be legs as a precondition to discussion be legitimate?
The next battle should be over the equal-protection right of singles not to marry but to still participate equally in the 1001+ special rights the gummint grants to married folks--rights pertaining to inheritance, insurance, immigration, taxes, hospital visitation, Social Security benefits and so on.
Regarding due-process rights: singles have a right to sponsor friends and lovers for immigration that needs to be recognized by SCOTUS. Not to do so would now signify elevating marriage to a ex-terrorist above mere friendship, companionship or sex.
"I think the whole idea of marriage is unconstitutional, as it provides no equal protections to those who don't marry.
Yup."
And congratulations, this is where you lose a bunch of otherwise potentially sympathetic conservatives. Because it's patently clear that what America needs is more kids raised by unmarried, single parents. Frankly, the biggest practical (as opposed to equitable) argument for gay marriage is to provide support and benefits for gay couples raising kids (mostly lesbians).
And yes, their are childless married couples. And there a people who choose to drive 50mph in a 65mph zone.
I assume that "good old out-in-the-sunlight Equal Protection" will somehow solve the definitional problem: For as long as we have historical records, "marriage" has been a relationship in which the party(ies) on one side and the party(ies) on the other are of opposite sexes. Relationships in which both sides are of the same sex existed, but weren't "marriage". I believe that this was the situation in the 1860's when the equal rights provision was added to our Constitution. So I am puzzled how an "equal" right to enter into a relationship changes the definition of the relationship. I'm sure the Court will explain that.
I assume that the Court will also explain how "good old out-in-the-sunlight Equal Protection" doesn't require that States recognize the right to marry multiple people, of whatever sex or sexes. If my neighbor has a "good old out-in-the-sunlight Equal Protection" right to marry her girlfriend, why doesn't my other neighbor have the right to marry his (or her) four girlfriends (or boyfriends, or some of each)? I'm sure the Court will explain that.
Also, there's that troublesome age of consent thing . . . .
I'm sure the Court will explain all that. Aren't you?
If the question were deciding whether dogs have four legs or five, would declaring all tails to be legs as a precondition to discussion be legitimate?
Sure. In fact, if you don't endorse tails as legs, and treat them as such, you will be hounded out of civil society.
Then everyone can agree that dogs have five legs.
The Godfather,
Why would the court explain it when promoters like Ann haven't bothered to explain it?
Do you really think there is an explanation?
Word of the day: Special Pleading
Special pleading is a form of fallacious argument that involves an attempt to cite something as an exception to a generally accepted rule, principle, etc. without justifying the exception.
Since "same-sex couples cannot be excluded from the government's recognition of marriage" on an "equal protection" basis, could someone explain just what, again, is the basis for racial, ethnic and gender affirmative action in government hiring and contracting? Does "equal protection" not cover equal opportunities to the swill in the government trough?
@mikee,
If someone were to explain that you you, you would probably just ask them why abortion is protected as a matter of "privacy between a woman and her doctor" but Obamacare's directives to physicians regarding your medical care do not intrude on that privacy.
This will accomplish nothing more than revving up the special pleading machine again.
Most conservatives have a mental disorder. We are insufficiently sensitive to social pressure.
See that word "insufficiently"? Don't ask what it means or you will be diagnosed as a "conservative" yourself!
It's certainly easy to see how the opinions are likely to be written in Obergefell v. Hodges.
Breyer, Ginsburg, Sotomayor and Kagan will say that a state law limiting marriage to male/female unions denies equal protection to gays because a gay person is denied the right to marry, the definition of marriage itself being the excluder here. The current definition of marriage, they will say, is based on irrational considerations divorced from current realities (the state's interest in fostering childrearing, outdated and silly notions derived from religious beliefs, whatever), and thus cannot support the differential treatment of gay couples and straight couples. Scalia, Roberts, and Thomas will say that a gay person is not denied the equal protection of the laws because a gay person has the same right to marry someone of the opposite sex as everyone else, even if (being gay) she has no interest in exercising it. They will also dispute whether the traditional definition of marriage is based on irrational and outdated notions (that's the part of the exchange that will generate some terrific rhetorical fireworks).
Kennedy will agree with Breyer, et al., and will probably be the author of the majority opinion which he will try to write as narrowly as he can (because everyone can see what's coming next, and it makes enough of them uncomfortable that they want to keep open the option of saying "this far but no more." Good luck with that.).
There is a possibility that Alito will either join the majority, or concur in the result. But I suspect he will end up with Scalia, et al.
because everyone can see what's coming next, and it makes enough of them uncomfortable that they want to keep open the option of saying "this far but no more." Good luck with that.
They needn't worry, there is no amount of special pleading that US "intellectuals" can't stomach. If it turns out, for example, that polyamorists are not politically popular among the people giving the best cocktail parties in D.C., their cause is done. If they are! Good times! And you are a bigot for asking!
"This far and no more" will apply right up until they run into a traditionally Republican constituency. For instance if the Koch Bros wanted to get married for tax reasons.
For instance if the Koch Bros wanted to get married for tax reasons.
There are State laws that forbid sibling marriage. And of course, we love State laws for as long as we agree with them.
Does this current conversation outdate those state laws? It seems like the purpose behind anti-incest laws is to avoid offspring of such a union. But now that gay sex is fine and dandy, why not incest? Or, not even incest. Koch brothers can't have offspring, so, what's the objection, other than ick?
"hat I think the Court will use equal protection (and not due process) — to find that same-sex couples cannot be excluded from the government's recognition of marriage. " They aren't. They can marry members of the opposite sex, just like everyone else.
BTW, this is another route that States could take in opposition to the courts ruling. Whereas Oklahoma went the way of getting rid of marriage (sorta), another direction would be opening up marriage to everyone.
Seems like burning it down quicker may be the way to go at this point. Who would sue the state if a state made new marriage laws to accommodate any number of people, any mix of genders, and even those who are related?
, so, what's the objection
Ummm. They're Republicans?
Richard Dolan:
Thomas will say that a gay person is not denied the equal protection of the laws because a gay person has the same right to marry someone of the opposite sex as everyone else, even if (being gay) she has no interest in exercising it.
Indeed. Thomas will say that a single person is not denied the equal protection of the laws because a single person has the same right to marry someone of the opposite sex as everyone else, even if she has no interest in exercising it.
Eric:
Whereas Oklahoma went the way of getting rid of marriage, another direction would be opening up marriage to everyone.
Opening marriage up to everyone is no solution to the rights abuse inherent in gummint-recognized marriage. Do you suppose the gummint would be justified in establishing a system of priviliged nationwide tennis courts open to mixed pairs only? If it did, would the solution be to open it up to un-mixed couples and singles and even to three-somes?
NO, the obvious answer is that, in the interests of individual liberty, the gummint has no right to establish privileged tennis courts at all open to anyone.
NO, the obvious answer is that, in the interests of individual liberty, the gummint[sic] has no right to establish privileged tennis courts at all open to anyone.
It seems to me that I read somewhere that we lived in a democracy, not a constitutional dictatorship where all rules were strictly decided by libertarian analysis. But the article could have been wrong.
"are now completely on board with punishing Christian bakers and jewlers. And they don't have an ounce of shame. "
Oh, I agree. His brother says he does this just to disagree with anything I say but I think there is more to this.
The left, and he is one in spite of alleged libertarian ideas, is all about what they want, when they want it and nobody has any right to deny or even impede the march toward anarchy.
I recently read "Days of Rage " and am now reading The Revolt Against the Masses " which is pretty enlightening on the history of "Progressivism"
@eric, you ask, "Do you really think there is an explanation [why equal protection supposedly requires States to allow gay marriage but doesn't require that they allow plural marriage, etc.]?"
No, I don't. Maybe Althouse has one, but I haven't seen it.
I favor gay marriage. I want to see it approved democratically. There are a lot of things I favor that won't happen unless a democratic majority also favors it. With patience and persuasion, gay marriage would soon have gained majority support in most states. I understand that's what happened in Ireland, of all places. Instead, it's going to be imposed by judicial fiat, and there will be consequences.
"Equal protection" is in fact the despicable weaselyness of Justice Kennedy's judicial vandalism on this issue.
Having had the chance to base a broad decision on equal protection grounds in Lawrence v. Texas, he declined to do so and no member of the court did so. Kennedy stated explicitly that the court declined to find any fundamental right under the Constitution to homosexual sodomy.
You may be right in predicting an outcome in this case, Althouse. I think differently; but either way, there isn't any decent way -- apart from an extra-legal desire to normalize homosexuality in American society -- that can explain Kennedy if he invalidates state law defining marriage in the traditional sense that was universally known throughout the time of the drafting and adoption of the Constitution and every single Amendment thereto.
Might too much be expected from equal protection in the same-sex marriage cases?
Kerry v. Din could be the tell that we should expect a plurality decision where 4 Justices find a right to marry, and a 5th and possibly 6th find a breach of equal protection without reaching the question of a right to marry.
tim in vermont:
American conservatives believe in principled tolerance, not selective exclusion. Pro-choice doctrine favored by the American left and established as a State religion, has a notorious legacy of unprecedented collateral damage and creation of unreconcilable, unreconciled moral hazards. I still think it's trans heterosexuals, including the gender equivocators, who are hiding behind trans equivalence, class diversity, debt/wealth equality, etc.
I've said this before but it bears repeating. There is obviously no "liberty" right to marriage. That is, there is no constitutional right to marry. Otherwise, it would be unconstitutional for a state to repeal all of its marriage laws, and that seems like an extraordinarily weak claim to make. So, EP it is, or nothing.
There's a difference between marriage and state recognition of your relationship as a marriage. There's no constitutional right to have the state recognize your relationship as a marriage and state recognition doesn't prevent people who love each other from being in a relationship. The state simply provides status and recognition to encourage some relationships based on the obvious benefits they produce for society (stable raising of children naturally produced by the relationship) while other relationships that do not provide those, similar or any benefits to society can be ignored (other than via contract law or other statutory provisions) and don't require encouragement. In some cases, the state has an interest in discouraging the relationship by punishing those that are in them (bigamy, for example).
nevertheless, Kennedy will pull some unconstitutional bullshit from his ass and invent new rights where none previously existed.
There is arguably a right to get married on 1st Amendment religious freedom grounds.
However the State & Federal Governments are under no obligation to grant benefits based on any specific religious ritual.
I think it would be better if all levels of government treated all people as individuals, with marriage being a contractual matter between the parties involved. Much simpler. No discrimination or equal protection issues.
I don't see an easy way to get the country there, but perhaps Alabama will end up there despite the motives of its recent move, as they've put themselves in an unsustainable position and removing all state recognition of marriage is one way out.
There is arguably a right to get married on 1st Amendment religious freedom grounds.
You mean that unnamed religion that, for the past thousand years has celebrated same-sex marriage?
Remind what the name of that religion is. And where any of their churches might be found. I'm guessing it is something like The Most Holy Church of the Seven Lucky Devils in Venice Beach, California. Except that it has only been in existence since 1993, not a thousand years, and they offer mail order ordinations. Oh, and they are also a medical marijuana clinic as well.
Marriage is not mentioned in the US Constitution. There is also no model for what passes for "traditional Amerikan marriage" in the Bible, except perhaps for the torment suffered by Job at the hands of his wife.
Jesus and Paul, famously single and childfree, spoke out against marriage. Marriage, the world over, has little to do with romantic love, which was an invention from around the time of Romeo and Juliet, who also didn't marry.
While the Founding Fathers would have lived in a world where the romantic love delusion was paramount, there is every reason to assume that they were cognizant of "traditional" marriage varieties that included polygamy, homosexual marriage, marriage to gods and animals and so on. Ditto for those who actually voted to establish the state constitutions, which of course control gummint-recognized marriage.
It is time for the gummint to get entirely out of the business of certifying and recognizing marriage. Let those who believe in it get married in the private venue of their choice and leave the rest of us alone.
@jimbino: Romeo and Juliet WERE married. It's an important part of the plot.
We don't actually know whether Jesus was married; all we know is that no wife is mentioned in the scriptures. I don't recall anything Jesus said that was "against marriage" -- except that he said that there would be no marriage in the new earth after the general Resurrection.
Paul was unmarried, and he said that there were advantages to the single state. This was particularly true in the early years when the Second Coming was expected any day. Why concentrate attention on marriage when you should be preparing to meet Christ face to face? But even Paul said it was better to marry than to burn (with passion).
But there is a decent argument that the government ought to leave marriage to the churches (and synagogues, temples, mosques, etc.). That argument is more persuasive if made by someone who can spell "government".
Can someone explain to me how Equal Protection can be extended to Gay Marriage but not Polygamy or Bigamy? Thanks.
If as discussed that the decision will be based upon "equal protection" and not "fundamental right" analysis the implications are very significant. "Equal Protection" analysis generally requires finding a "suspect class". The law would be incredibly muddied if the Court in order to find a Constitutional right of homosexuals to marry found homosexuality to be a "suspect class" as it would necessarily stretch the bounds of the concepts of determining such classes and would open a flood gate of litigation. I think that it is more likely to use the approach of Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003)if it finds in favor of a Constitutional right for LBGTs to marry it will be based upon penumbral (shadowy and ill-defined) liberty interests.
As I was taught in Law School more than 30 years ago in the wake of the death of Lochnerisim strict scrutiny will only apply where there is a "protected class" (suspect classification) which is generally defined as a discrete insular minority (Caroline Products footnote #4) exhibiting "obvious, immutable, or distinguishing characteristics that define them as a discrete group" and which is "politically powerless." (Lyng v. Castillio - 1986). Under this standard the Court would be required to find that "homosexuality" is a "suspect classification".
Numerous courts have rejected the notion that homosexuality is a suspect classification. See Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir., 2008; and the extensive list of cases cited therein.
The problem with defining homosexuality as a suspect class lies both in the "immutability" of this status (i.e., can people become or stop being homosexuals or lesbians etc.) and the lack of this class being readily identified. How does one know that someone is or is not a "homosexual" or "lesbian" other than their self identification?
There is a current dogma not supported by scientific evidence regarding a "once-always" claim as well as a "from birth" claim which by necessity must follow from the once-always proposition. However this of course is not supported by scientific evidence as would be by classifications of race or national origin are, which by definition are beyond the control of the individual and can never be altered (i.e., even though one was born Japanese they can become a US Citizen they can not undo their Japanese heritage). Furthermore, the outward appearance of a person of Japanese heritage is obvious as a person of Asian descent. Homosexuality does not always lend itself to such outward identification.
Lastly, even were there sufficient evidence to establish the LGBT etc. community as a "suspect class" there is sufficient evidence that "community" currently lacks political power requiring the courts to intervene, given successes in the political process of several states to change the marriage laws.
If the decision is based upon the "suspect classification" due process analysis it will have very significant implications across the board.
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