September 4, 2015

Tennessee judge asserts that the Supreme Court's same-sex marriage case has rendered him unable to decide divorce cases.

It's Hamilton County Chancellor Jeffrey Atherton, denying a divorce to an opposite-sex couple:
“With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee’s judiciary must now await the decision of the U.S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage,” Atherton wrote in his decision.

“The majority’s opinion in Obergefell, regardless of its patronizing and condescending verbiage, is now the law of the land, accurately described by Justice Scalia as ‘a naked claim to legislative — indeed, super-legislative — power.'”

“The conclusion reached by this Court is that Tennesseans have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage, and, thereby, at minimum, contested divorces… [A]ccording to Justice Scalia, the majority opinion in Obergefell represents ‘social transformation without representation.'”

Atherton continued: “Although this Court has some vague familiarity with the government theories of democracy, republicanism, socialism, communism, fascism, theocracy, and even despotism, implementation of this apparently new ‘super-federal-judicial’ form of benign and benevolent government, termed ‘krytocracy’ by some and ‘judi-idiocracy’ by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court.”
If following Supreme Court precedent is too much of a "challenge" for you, resign.

How would you like to be the couple who spent their time and money litigating over divorce only to find their judge grandstanding and bullshitting like this?

As for "iron fist and limp wrist" — interesting that the judge didn't edit out the phrase that is certain to be read as homophobic. Obviously, there's room to deny that "limp wrist" referred to gay people in that sentence. It's a description of the government, and the government doesn't have a sexual orientation. But it's like complaining about what the government is doing about race and then calling the government "watermelon-eating."

As for "krytocracy," it's not in my dictionary, and Googling it, I see it had some currency back in 2005, in the context of the Terri Schiavo case.

202 comments:

1 – 200 of 202   Newer›   Newest»
Sharc said...

"How would you like to be the couple who spent their time and money litigating over divorce only to find their judge grandstanding and bullshitting like this?"

Right. Because say what you want, gay rights advocates have always observed a strict policy against political grandstanding and bullshitting. This really stands out.

Another good question: "How would you like to be nearly everyone else who participated in a democratic process to designate the limits of a state government function, only to find out that a small group of federal judges decided to recreate your laws for your own good?"

Mark said...

All the attention seekers want their 15 minutes too. I don't think we are done with the juvenile anti gay tactics yet.

I have little doubt this thread will be full of people shouting 'squirrel' and making false comparisons with other times people have ignored the law.

Two wrongs don't make a right. You cannot excuse bad behavior by pointing out other bad behavior.

Ann Althouse said...

"Right. Because say what you want, gay rights advocates have always observed a strict policy against political grandstanding and bullshitting. This really stands out."

They are not judges, entrusted by the people to do the work of government. Government is held to a different standard. You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble.

The same point needs to be understood about Kim Davis.

Sharc said...

"You cannot excuse bad behavior by pointing out other bad behavior."

No, but it's a recognized method of pointing out hypocrisy.

Basil said...

Ad hominem argument, Professor. How about responding to his point which is, if marriage is defined by ones own concept of existence, upon what basis are divorces to be granted? Can't us the state statue because it is based on an unconstitutional definition f marriage and used terms like husband and wife and concepts like duty to support which are no longer valid. Upon what basis do you define my concept of divorce to impose a support obligation? Majority rule through Legislative action is no longer acceptable.

Why do you defend that sociological mess of words jumbled together which is Oberkfell? It reads like a Judy Blume book.

Mark said...

Apples to oranges comparisons don't show anything, Sharc.



Basil said...

"You cannot appropriate the power of government for your own purpose" ???????? What do you think the whole gay marriage and abortion movements are doing? Of course, they didn't have to get the entire government and the consent of the people. Oh, no, they just had to get five lawyers and an in the closet at the time homosexual trial judge.

When the rule of law breaks down, it doesn't do so in the left's tidy little boxes. I see you still haven't read "We the Living" which explains it all from that time when Russia tried its little social experiment.

Sharc said...

"They are not judges, entrusted by the people to do the work of government. Government is held to a different standard. You cannot appropriate the power of government for your personal purposes."

But in many cases, that's exactly what liberal judges are already doing -- appropriating the government for their personal purposes. That's why it's called judicial activism -- going beyond his/her judicial role by ignoring what the legislature says, deciding what the law should say, and legislating from the bench.

Do I agree this TN judge is acting inappropriately? Yes. Is it any different from the courts that have "discovered" a constitutional right to gay marriage and unilaterally imposed that right on whole states? No.

Robert Cook said...

"How about responding to his point which is, if marriage is defined by ones own concept of existence, upon what basis are divorces to be granted?"

How about the fact that the couple seeking the divorce want their union to be legally sundered?

Paco Wové said...

"You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble."

Ship, sailed. Gander, goose; sauced.

Robert Cook said...

There is quite a bit of difference between public influence on the legislature or judiciary resulting in changes in law (or interpretation of the law or Constitution) and officials of the court unilaterally refusing to perform their functions (issuing licenses, rendering legal judgments, etc.) for personal reasons.

Bob Ellison said...

"It's the law of the land." Fine, granted, so long as you grant that the SCOTUS really is a political body that has assumed legislative power. You can have your "so resign already" argument if I can have my "the judicial branch is not what you claim it is" one.

Ann Althouse said...

"Ad hominem argument, Professor."

No, it isn't. An ad hominem argument is an argument that a particular proposition is wrong because the person who believes it is bad. I know nothing about this person other than the argument that he is making, which is bad. I have absolutely no opinion of him as a man.

"How about responding to his point which is, if marriage is defined by ones own concept of existence, upon what basis are divorces to be granted?"

He is a judge, tasked to follow the law, which is understood within a hierarchy of courts in which the Supreme Court is the highest authority. His "own concept" can't be plugged in instead. If his own concepts are such that he can no longer work with the doctrine that he is obligated to apply, then he is incapable of doing his job and should resign. He could write dictum in his opinions, explaining his objections, but he has to decide the cases according to the law. He's not a law unto himself, and ironically, he objects to other judges supposedly doing just that, so even in his own terms, he's incoherent.

"Can't us the state statue because it is based on an unconstitutional definition f marriage and used terms like husband and wife and concepts like duty to support which are no longer valid. Upon what basis do you define my concept of divorce to impose a support obligation? Majority rule through Legislative action is no longer acceptable."

Judges have to work with statutes, constitutional law, and the precedents. If they're at a loss to put these things together properly, they are incapable of doing judicial work and should resign.

"Why do you defend that sociological mess of words jumbled together which is Oberkfell? It reads like a Judy Blume book."

Because the Supreme Court has the power, under the Constitution, to decide the cases and its opinions are binding. A judge can't refuse to follow the precedent even if the reasoning is incoherent.

Sharc said...

"There is quite a bit of difference between public influence on the ... judiciary resulting in changes in law ... and officials of the court unilaterally refusing to perform their functions."

Not really. A judiciary that changes the law (or even changes its interpretation of the law) because of "public influence" (as opposed to, say, legislation) has abandoned its proper role.

Birkel said...

The answer, Professor, is more law and foot stomping. Am I right?

Robert Cook said...

@Sharc: Public influence on the judiciary is inevitable and ever present. Judges want to retain their jobs, and judges who don't need to worry about their jobs may still bring greater attention to matters of great public debate as a result of the public's passionate interest, such that they may reexamine their own or prior judicial opinions on the matter and find them wanting or in error, with reappraisals warranted.

My name goes here. said...

Professor, I have question(s).

In Kentucky it is illegal to marry the same person three times. That is, as I understand it, if Terry and Pat are married, then divorced, then re-married, then re-divorced, they can not be re-re-married in Kentucky.

After the Obergefell decision, is this still true?

Does it deny the dignity of the couple that wants to marry each other a third time?

Further, if the couple were expecting a child, or maybe even two, and they wanted to avoid the stigma of illegitimacy. Does the Kentucky law deny "safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education" as outlined in that decision?

How would a person know if the Kentucky law is still valid?

Hagar said...

Basil may have a point. Tennessee's divorce laws may well be specifically built around dissolving a "traditional" marriage, and the Hamilton County Chancellor may reaonably not feel qualified to break new ground in the law himself, but prefer to wait until the Tennessee legislature sorts out these new directives from on high.
Or, of course, that the Supremes furnish explicit guidance for how state judges are to proceed in dealing with the unexpected consequences of their command.

Lyssa said...

I don't want to be read as defending this (and it actually hits a little close to home for me to want to say much at all), but, if you read through the opinion and have a general understanding of TN divorce law (which I've practiced), the divorce was denied on reasonable grounds. There are a number of requirements that have to be met (you either have to have an agreement or meet one of the requirements for "grounds," and the couple did not), so it's not that he denied the divorce on the basis of Obergefell - he did it because they didn't meet the requirements for divorce. He did use the opinion as a platform for grandstanding about Obergefell.

I hope that I don't wind up commenting about Obergefell too frequently, because I'm going to have to look up how to spell it every damn time.

Lyssa said...

Tennessee's divorce laws may well be specifically built around dissolving a "traditional" marriage, and the Hamilton County Chancellor may reasonably not feel qualified to break new ground in the law himself, but prefer to wait until the Tennessee legislature sorts out these new directives from on high.

No. There are no legal differences that would affect divorce and nothing for the legislature to change; the laws are written in a sex-neutral fashion. And even if there were, it would not matter in this case, as this involved an opposite sex, traditionally married couple.

Goldenpause said...

Gosh, a grandstanding judge!! What a novelty

Birkel said...

If two consenting adults can get married because Supreme Court, how can Tennessee have a law that prevents two people from withdrawing from that marriage for any reasons whatever?

More rules leaving than going in? Quick, get the Super-legislature on task!!

Jeff said...

The problem is that when five Humpty Dumptys on the Court redefine an institution just because they feel like it, or when just one Humpty Dumpty decides a fine for not doing something is actually a tax, the Court itself is lawless. If the highest Court in the land effectively proclaims that it's not bound by any law, then in a very real sense there is no law.

There is a growing sense out there that following the law is for suckers. Bailing out the obvious fraudsters on Wall Street in 2008 startled a lot of people. Then we had the clearly unconstitutional Obamacare decision by Roberts, and now this gay marriage stuff wherein words in common usage for centuries suddenly don't mean what we thought they meant. The law is whatever the people in charge say it is, and that's no law at all.

That's what the judge in this case is complaining about, and he's right to do so. It's also what the Kentucky clerk is about. Why should she follow the law when the law is bullshit?

What's happening here is that some people are so fed up with the lawlessness of their supposed betters that they are rebelling in the only way they can, short of bloodshed. The popularity of Trump is just one mild manifestation of people's disgust with the way the country is being run. Trump supporters don't care about "issues", they just want to lob a hand grenade into the arena.

A popular bumper sticker says "An Armed Society is a Polite Society". We may start seeing what that really means.

Terry said...
This comment has been removed by the author.
rhhardin said...

I'm with the judge.

Kryptocracy is a fine word, without even looking it up. Is Greek hard?

I'd guess government by secret decrees. Am I right?

It must be a classically trained judge. Maybe he knows Roman law too.

The Supreme Court should decide all divorce cases, one by one. We need the acute moral sense they have up there to deal with stuff that comes up.

If they want to leave it to the people someday, let them put the constitution back the way it was.

Tank said...

Ann Althouse said...

"Right. Because say what you want, gay rights advocates have always observed a strict policy against political grandstanding and bullshitting. This really stands out."

They are not judges, entrusted by the people to do the work of government. Government is held to a different standard. You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble.

The same point needs to be understood about Kim Davis.


LOL. You must be joking. Is this the Onion? Have you been asleep? Judges and Justices and the President and the Congress have been relentlessly ramming their personal bullshit down our throats. This President does whatever he wants. The laws are no impediment. His administrative agencies do the same. The Supreme Court makes up the most obvious bullshit while denying reality.

We're supposed to be upset about this judge calling a spade a spade? His opinion is as rational as the gay marriage decision, or more !

gerry said...

In the postmodern legal realm there are no real definitions of anything, because emotion rather than reason rules the day. Althouse's haughty demand that the judge resign is but another symptom of a system that has become undefinable and chaotic. The tyranny of legal opinion that trumps democratic reality, that places behavior above biological fact, that ignores history to placate hysterical ruminations, demands dissent and opposition.

Tank said...

Robert Cook said...

"How about responding to his point which is, if marriage is defined by ones own concept of existence, upon what basis are divorces to be granted?"

How about the fact that the couple seeking the divorce want their union to be legally sundered?


This is not how divorces are granted. You have to prove a cause of action as set forth in statute. Of course, the Sup Ct has ruled that the marriage statutes of most states are faulty, so how can this Judge know if the divorce laws are ok or not?

rhhardin said...

They are not judges, entrusted by the people to do the work of government. Government is held to a different standard. You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble.

The same point needs to be understood about Kim Davis.


I think the trouble is that Althouse is not amused by literary effects.

Boilerplate cliches point to that as well. Who makes that writing choice?

The trouble is that literary effects are responsible for the working of language. You get left behind, and not only left behind but baffled, when literary effects appear.

That's how gay marriage has existed unchanged in argument for years, its status changed only by judges.

rhhardin said...

That's not funny!

Maybe it's women in general who can't do literary effects. So many jokes depend on them.

tim in vermont said...

Shorter Althouse: "We won. Fuck you, shut up!"

rhhardin said...

Judges have to work with statutes, constitutional law, and the precedents. If they're at a loss to put these things together properly, they are incapable of doing judicial work and should resign

What happens when it's the supreme court? As just happened.

CStanley said...

Our system is completely breaking down. Under normal circumstances, judges do have to reconcile statute with constitutional law, but when SCOTUS subverts the expressed will of the people then it really isn't possible for the lower courts to square the circle.

rhhardin said...

I think it deserves a "sudden Ahthouse" tag. A strong response to something nobody else sees.

Unknown said...

If the Supreme Court wants to assert itself in judicial legislating on marriage I see absolutely no distinction between a county clerk equally asserting herself asking for a reasonable religious accommodation and a county judge refusing to grant a divorce to a newly created marriage experiment. The Supreme Court defined this new rule of law and now we all must suffer the consequence. This is of course how it should be. Politicians in robes. If the court decides what marriage is then it should decide what divorce is to and when marriage ceases to be a mArriage. Logic

And professor you are making ad hominem because you invect against the anti gay as if that is what is happening.

rhhardin said...

Divorces can be decided the trational way, with gunfire.

Who needs the law.

rhhardin said...

Ad hominem classically is an argument appealing to the conceits of the opponent, not one disparaging him. It ought to be brought back.

What's called ad hominem is actually contra hominem, its opposite.

HoodlumDoodlum said...

Ann Althouse said... But it's like complaining about what the government is doing about race and then calling the government "watermelon-eating."

It's like some other, better simile rooted in an actual saying or phrase in common use that might at least make some sense in context.

Hagar said...

Lyssa, Lovely Redhead, above, says that Althouse's post mis-states the case. The divorce was denied on legitimate grounds according to Tennessee law, and the county chancellor just used the occasion to throw in something like a post script stating his own feelings about the mess we are in. Kind of like Scalia does sometimes in his dissents.

I would think though, that while Tennessee's laws may have been updated to "gender neutral," many state laws around the country may still be based on "she gets the mine and he gets the shaft," and it may well be confusing to a county judge when the plaintiffs appear and both look like Mrs. Doubtfire.

Robert Cook said...

"If the Supreme Court wants to assert itself in judicial legislating on marriage I see absolutely no distinction between a county clerk equally asserting herself asking for a reasonable religious accommodation and a county judge refusing to grant a divorce to a newly created marriage experiment."

It's the job of the Supreme Court to render decisions on the law; it is not the job of Country Clerks or individual judges to render their own de facto decisions on the law by refusing to perform their duties under the law as it is at any given time.

rhhardin said...

It's been years since I've been tasked with anything.

I remember mocking the boss, who was given to such memoranda, resulting finally in a memo-generating program called Festoon.

Somebody picked up a printout of one of the Festoon memos on my department head's desk, complete nonsense in bureaucrat prose, and said "They _pay_ people to write this crap?"

That was a triumph. He couldn't exactly tell.

HoodlumDoodlum said...

Ann Althouse said...You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble.

So I'm pretty sure everyone agrees with that--I certainly do. The John Doe probe targets do, Rick Perry does, the conservative groups who had their IRS applications held up do, the groups who face grossly unreasonable treatment by the EPA do...and so on. Gov workers using gov power for their own political, ideological, or religious ends are wrong and dangerous, and the truth is most people don't seem to mind too much unless the target is someone they're sympathetic towards. The Media is sympathetic towards the plight of homosexuals, so these cases get a lot of play and the outrage machine kicks in (and some outrage, at least, is appropriate here). The Media doesn't really care about those other victims, so no sympathy, no coverage; "politics ain't beanbag," etc. Ho-hum.

Hagar said...

How about going to Colorado?
If a couple can drive to a mountain top in Colorado, tell each other they are married, and go to the County Clerk in that county, state that they just got married and get a certificate, why can't they do the same for divorce?

Sharkcutie said...

CStanly @8:02--The very purpose of SCOTUS is to subvert the majoritarian will if it is in opposition to the Constitution. Think Bill of Rights.

Michael K said...

The middle-class revolution has begun. Civil Disobedience will spread.

Instapundit mentioned this 2010 article on Middle Class Anarchy.

Here is an early sign.

rhhardin said...

I wonder if "writers' workbench" still exists (Lorinda Cherry, Bell Labs, in the late 70s).

It's great at warning you about cliches. You can completely drive them from your writers' inclination.

Hagar said...

"She gets the gold ....," but you knew that!

Farmer said...

"They are not judges, entrusted by the people to do the work of government. Government is held to a different standard. You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble."

That's exactly what people like Kim Davis have been complaining about. That you don't see the irony isn't surprising, given that you seem to have no understanding of what Christians believe or why they believe it, but it's still pretty galling.

From the perspective of the average American Christian, a woman has just been jailed for her religious beliefs re: gay marriage. That you're apparently quite sure that's not going to be a problem for your side is a perfect illustration of your arrogance. Even a small number of pro-SSM advocates speaking out against jailing a public official for refusing to do her job due to her religious convictions - not transferring her or firing her or impeaching her but imprisoning her - that would be be something, at least. Instead, you're employing a scorched earth policy, which is odd considering your mantra-like insistence that the war is over and your side won.

SomeoneHasToSayIt said...

You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble.

You just now noticing that, sweetie? Your man Obama and his whole fucking administration have been doing just that since Jan 2009.

Robert Cook said...

"This is not how divorces are granted. You have to prove a cause of action as set forth in statute. Of course, the Sup Ct has ruled that the marriage statutes of most states are faulty, so how can this Judge know if the divorce laws are ok or not?"

And how can this be suddenly impossible to prove (or to be determined by a judge) simply because now same sex couples may marry? What, otherwise, has changed, particularly with regard to any specific couple wishing to divorce?

(Another commenter above has pointed out that the refusal to grant the divorce was actually based based on standing law of the state, and that the judge simply claimed falsely--that is, lied--after the fact to say his decision was made impossible to render because of "teh (sic) gays.")

Larry J said...

Ann Althouse said...
Government is held to a different standard. You cannot appropriate the power of government for your personal purposes.


Try telling that to Obama. Hell, try telling that to any politician or bureaucrat. That statement is so comically naïve. It gave me a good laugh this morning.

Gahrie said...

How would you like to be the couple who spent their time and money litigating over divorce only to find their judge grandstanding and bullshitting like this?

Almost as bad as that pizza shop owner who was attacked by the gay rights lynch mob.

Æthelflæd said...

Awww, Althouse doesn't like it when the shoe is on the other foot.

Unknown said...

is it pointing at a squirrel to claim that a judge made an unjust decision because he expressed a personal opinion after using the law to make the decision?

I thought better of you Mrs. A.

Tank said...

@Cook. I was responding to your statement that the divorce should be granted because they wanted to be divorced.

HoodlumDoodlum said...

Mark said...Two wrongs don't make a right. You cannot excuse bad behavior by pointing out other bad behavior.

For the record, I'm not arguing that they do, and I'm not excusing anyone's behavior. Judges should carry out their duties as judges and county clerks should carry out their duties as county clerks. Gov employees should treat citizens fairly and not use gov policy in political ways (to advance their own political agendas).

When people only seem to care about CERTAIN abuses of power, of CERTAIN violations of this principle, though, it's worth pointing out. A principle has to apply to everyone, otherwise it's not a principle, it's just another political tool (attack my opponents with this argument, ignore the argument when it might apply to my political allies). People who support local jurisdictions ignoring the law/rules of higher authorities--situations like "sanctuary cities," say--can't really argue that their objection to other instances of the same type of behavior is based on respect for a principle like the rule of law.

Todd said...

Ann Althouse said...

Government is held to a different standard. You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble.

9/4/15, 6:26 AM


LOL! Ann, you own me a new keyboard! I can NOT believe you just wrote that! Between Obama, Hillary! Louis, Holder, etc., really? It is now a game anyone can play, Obama and Co. showed us all how!

Robert Cook said...

@Tank: Yes, I'm aware of that. And I still ask: if they presumably could have satisfied the requirements to divorce under state law prior to gay marriage being made legal, what has changed that prevents a couple from proving they have satisfied the legal requirements to be granted a divorce after gay marriage has been made legal? In short, marriage is marriage; the genders of the partners is immaterial, as much as is the ethnicity of the partners, (to refer to a former aspect of personhood that prevented people from marrying).

Lyssa said...
This comment has been removed by the author.
Basil said...

Professor, the Communist Party in Russia also had the power. But it was an illegitimate power because it did not rely upon the consent of the governed. The Supreme Court and the federal judiciary are becoming nothing more than "committees of the party faithful", mere ad hoc structures for exercising political power and persecution of those out of favor with the party.

I am shocked that an American law professor does not understand the concept behind the basic idea of the American founding which is that government power that does not flow from the consent of the governed is illegitimate.

What exactly is the conceptual difference between Anthony Kennedy and King George II? They each had the power to unilaterally imprison those who refused to follow their subjective decisions of life and death. Would the revolution not have happened had King George been a committee of five lawyers?

Lyssa said...

that the judge simply claimed falsely--that is, lied--after the fact to say his decision was made impossible to render because of "teh (sic) gays.

I did not say that. He grandstanded and added a good bit that was irrelevant to the opinion. In response to Hagar, he led with it, rather than adding it as a postscript, and it was the bulk of the opinion, so I can see why a person would think that it was the most important parts.

I would think though, that while Tennessee's laws may have been updated to "gender neutral," many state laws around the country may still be based on "she gets the mine and he gets the shaft," and it may well be confusing to a county judge when the plaintiffs appear and both look like Mrs. Doubtfire.

No. I am not aware that there are any state laws that say that, and if there are, there is certainly other law that says that they are to be read in a sex-neutral manner even if that is not the wording.

Tank said...

Robert Cook said...

@Tank: Yes, I'm aware of that. And I still ask: if they presumably could have satisfied the requirements to divorce under state law prior to gay marriage being made legal, what has changed that prevents a couple from proving they have satisfied the legal requirements to be granted a divorce after gay marriage has been made legal? In short, marriage is marriage; the genders of the partners is immaterial, as much as is the ethnicity of the partners, (to refer to a former aspect of personhood that prevented people from marrying).


Nothing has changed, they can get married if they satisfy the statute. Again, I was addressing your statement.

CStanley said...

Sharkcutie said...
CStanly @8:02--The very purpose of SCOTUS is to subvert the majoritarian will if it is in opposition to the Constitution. Think Bill of Rights.

9/4/15, 8:13 AM


Which is why they should take that responsibility very seriously and not overreach. The times that they should overrule legislatures on broad issues should be quite rare.

Do a thought experiment and imagine a situation where SCOTUS overrules state statues in a broad manner on an issue where you disagree with their interpretation. What then should state officials do? I assume you don't think Obergefell was wrongly decided, but if you imagine a situation where you do think they got it wrong then it becomes easier to see the dilemma.

Basil said...

"No. There are no legal differences that would affect divorce and nothing for the legislature to change; the laws are written in a sex-neutral fashion. And even if there were, it would not matter in this case, as this involved an opposite sex, traditionally married couple."

Lyssa, you are assuming the answer in your answer. The divorce law was written by the same Legislature that wrote the marriage law which is not invalid. Therefore, why should the divorce law not also be invalid? Because it isn't? or because it would be hard?

The "concept of one's existence" (still can't believe I am typing this as the holding of a court) basis for invalidating marriage also invalidates a lot more than marriage.

Terry said...

Did Atherton or Kennedy treat the Peoples Laws with greater respect?
I do not think that Althouse "gets this." This is a republic. When judges make up laws based on whatever stray thoughts pass through their minds, those laws are given the respect they deserve.

Larry J said...

Todd said...
Ann Althouse said...

Government is held to a different standard. You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble.

9/4/15, 6:26 AM

LOL! Ann, you own me a new keyboard! I can NOT believe you just wrote that! Between Obama, Hillary! Louis, Holder, etc., really? It is now a game anyone can play, Obama and Co. showed us all how!


Perhaps someone has been in her Ivory Tower too long.

"In theory, there's no difference between theory and practice. But in practice, there is."

Ignorance is Bliss said...

He is a judge, tasked to follow the law, which is understood within a hierarchy of courts in which the Supreme Court is the highest authority.

This, right here, is our problem in a fucking nutshell. We have a constitutional law professor who teaches her students that the Supreme Court, and not the Constitution, is the highest authority.

Hilarity ensues.

Peter said...

"Because the Supreme Court has the power..."

Well, yes, that's the difference. It's all about might makes right and therefore SCOTUS is sure to win (just as surely as Nat Turner was sure to lose). Has anyone disputed that the court clerk has insufficient power to prevail (and therefore is sure to lose)?

Nonetheless, SCOTUS' lawless actions are a far greater threat to the Republic than the actions of this court clerk precisely because of their greater power.

The essential problem is that might is only justified when it is, in fact, right. SCOTUS should have let the democratic process proceed until the issue was resolved instead of discovering a right to re-define marriage in the 14th amendment, a right which those who wrote and ratified it could not have imagined was hiding in it.


Terry said...

If the present trajectory continues, I expect that one day, in the not too distant future, we will have the SC deciding that a presidential appointee and an army of bureaucrats may elect to withhold medical care from those whose "social costs" to the Federal government exceed their "social value."

Hagar said...

@Lyssa,
If no state laws say that, then how come that's generally how it works?

Coupe said...

Well, obviously, the Constitution has had a lot of interpretations, and is thus, at most, a worn out mold.

Every piece made from the mold gets more and more defective, until you reach that point where you just start making things without the mold.

If you go before a judge and quote the Constitution, be prepared for a room full of laughter. There's about 6 feet of interpretations written into every statute existing.

The term krytocracy is usually used by Republicans. Almost never by Democrats. Even when the krytocracy gave the Presidency to Bush.

Birkel said...

I enjoy the way Althouse assumes the power of the Supreme Court.

Think about that a bit more, Professor.

Lyssa said...

Lyssa, you are assuming the answer in your answer. The divorce law was written by the same Legislature that wrote the marriage law which is not invalid. Therefore, why should the divorce law not also be invalid? Because it isn't? or because it would be hard?

Because that's not how things work. Laws are invalidated - that's baked into our system and the way that it has been since the formation of our union (more or less). It's always a possibility. Just because one law is invalidated does not mean that the entire system collapses. Every education statue in Kansas was not invalidated on the basis of Brown v. Board; every medical care statute was not invalidated on the basis of Roe. Part of being a judge (or any lawyer) is to exercise judgment in determining whether one change logically requires another, and there is no reason that it would here.

I get that people are angry and feel helpless. I don't have a solution there. Lawlessness is bad on both sides of the aisle, and it is absolutely a problem. But stamping your foot, or denying other people their rights, or saying "they did it, so we get to, too" doesn't help things, either.

Static Ping said...

Government is held to a different standard. You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble.

The country is in big trouble.

n.n said...

The Supreme Court did not define marriage, but rather ruled to establish a selective congruence between heterosexual couples and transgender couplets. By virtue of applying the pro-choice [religious/moral] doctrine, it set a precedent that marriage is effectively undefined. And yet the government has seen fit to promote transgender relationships, while selectively denying others.

tim in vermont said...

I agree with him. The Supreme Court should be deciding every divorce now that they have arrogated the power over marriage to themselves on the most ludicrous legal reasoning.

Lyssa said...

Hagar said: If no state laws say that, then how come that's generally how it works?

Because the husband generally makes more money. (And, in some cases, because of bias and outdated assumptions on the part of the decision makers - there's always a lot of room for subjective judgement in these cases; there's obviously no way to make a law that objectively covers every possible divorce. Hence, everyone leaves thinking that they got the shaft. Divorce sucks balls; I'm really happy not to be practicing it anymore.)

gerry said...

It's the job of the Supreme Court to render decisions on the law; it is not the job of Country Clerks or individual judges to render their own de facto decisions on the law by refusing to perform their duties under the law as it is at any given time.

So it's OK to cart Jews off to gas chambers because it's the law as it is? It's OK to sick dog on Negroes and beat them because segregation law is the law as it is?

OK. Typical Progressive. Shut.the.fuck.up.

Sorry. When a law is immoral, it must be disobeyed.

cubanbob said...

If following Supreme Court precedent is too much of a "challenge" for you, resign.

How would you like to be the couple who spent their time and money litigating over divorce only to find their judge grandstanding and bullshitting like this?"

How about the Supreme Court resigning since it has long past gone beyond its function of resolving disputes among the states, the federal branches and whether statutes are constitutionally permissible. Since Row where the court invented out of its ass the right of woman to be judge, jury and executioner albeit under limited circumstances and going forward with such idiocy as being taxed for not engaging in commerce.

Terry said...

The divorce laws were written and passed assuming the couple divorced would consist of one male and one female, weren't they? Suppose Kennedy decides that polygamy is buried right there in plain sight in the holy 14th -- do we just continue to use current divorce laws and apply them to polygamous marriages?
It is a remarkable thing that some educated people believe that "republic" means rule by lawyers, and the narrow social class that produces lawyers, judges, and legal scholars.

David Begley said...

There's an old lawyer joke about federal judges.

"What can a federal judge do?
"Anything he thinks he can get away with."

Not that funny in any context.

Hagar said...

Geez, Lyssa. You had better get together with Althouse so that she can set you straight. Everybody knows judges "are held to a higher standard" and in no way are they influenced by their personal views!

Tank said...



Tank said...
Robert Cook said...

@Tank: Yes, I'm aware of that. And I still ask: if they presumably could have satisfied the requirements to divorce under state law prior to gay marriage being made legal, what has changed that prevents a couple from proving they have satisfied the legal requirements to be granted a divorce after gay marriage has been made legal? In short, marriage is marriage; the genders of the partners is immaterial, as much as is the ethnicity of the partners, (to refer to a former aspect of personhood that prevented people from marrying).


Nothing has changed, they can get married if they satisfy the statute. Again, I was addressing your statement.


Oops, meant to say divorced, not married.

Eric the Fruit Bat said...

It's been my experience that being open-minded and being fair-minded are pretty much the same thing.

Static Ping said...

Because the Supreme Court has the power, under the Constitution, to decide the cases and its opinions are binding. A judge can't refuse to follow the precedent even if the reasoning is incoherent.

Now I realize why you didn't already know this country was in big trouble.

CStanley said...

So if I understand it, he really wasn't using this point as a reason for denying the divorce, he was just using snark to illustrate that SCOTUS had overruled the statutes of his state and that should make his decisions moot.

To be fair, the judge is wrong because it's pretty easy to use Kennedy's opinion to define when a marriage should be legally dissolved. Did one partner or the other call out in the night only to find no one there? Marriage dissolved....next case!

Eric the Fruit Bat said...

Astronomers can measure things like the mass of a galaxy cluster 100 million light years away, and tell you how fast it's moving away from us, but I have yet to hear anybody claim that they have even a scintilla of evidence that the legalization of same-sex marriage has done any harm to the institution of marriage, whatsoever.

I'm not holding my breath.

chickelit said...

Lyssa wrote...I hope that I don't wind up commenting about Obergefell too frequently, because I'm going to have to look up how to spell it every damn time.

As a German speaker, I'm always confusing Obergefell with Oberbefehl.

Lyssa said...

Terry said: Suppose Kennedy decides that polygamy is buried right there in plain sight in the holy 14th -- do we just continue to use current divorce laws and apply them to polygamous marriages?

That would be a massive problem as applied to polygamous marriage. Huge. I'm hoping that that is something that will be clear to the Kennedys of the world because this is why polygamy is a very different issue than SSM. Laws can, should be, and are written and read sex-neutrally, but they cannot be written or read in a number-neutral manner. These are very different issues.

However, even if that were to happen, it would not change divorce for a normal, two person couple like the one here.

Hagar: There are many things in this world that should be, but that doesn't mean that they always are. (In my experience, that's the way liberals think - it should be fair, so it is, unless those nasty ReThuglicans mess it up.)

Birkel said...

Lyssa:
How dare you call multi-marriage abnormal, by implication. Why would you deign to deny the right to self-determination because you don't agree with their lifestyle?
/sarc

cubanbob said...

It is this kind of decision making that requires the constitution to be amended by passing an amendment requiring that all laws and regulations at both the state and federal level be of single topic, have limiting principle, a statement of purpose, citation of the relevant constitutional authority (federal and or state) and an expiration date.

Bob Ellison said...

Lyssa, I can write a law in a number-neutral manner.

"A person or group of people who wishes to marry another person or group of people shall not be denied that right."

I haven't looked, but I suspect that most states' marriage laws are gender-specific, yet the SCOTUS declared that they must henceforth be gender-neutral.

How about "A law duly passed by this state Legislature, and signed by its Governor, and not obviously, through its language and common convention, found in violation of the U.S. Constitution, shall be deemed the law of the state, unless some cabal on the SCOTUS has other ideas."

chuck said...

Ann gets testy when she discovers that her field of study has become a joke. What will she do next year when constitutional law becomes the subject of mythology?

David Begley said...

Lyssa:

Why does marriage have to be limited to two people? Millions of Muslims disagree with you. You got something against Islam?

Bob Ellison said...

On NPR this morning, a China expert was discussing the inscrutability of Chinese government decision-making.

SCOTUS decision-making is similarly opaque with regard to reason. With regard to political leanings of the justices, however, it clears up somewhat.

Why not just roll the law schools up into their associated Political Science departments?

Ann Althouse said...

My points the rule of law and the corruption of appropriating govt power for individual use are in no way dependent on the reality of individuals in power falling short of the standard. Of course they fall short often, and for that we should criticize them and try to get the out of power or change them. To just give up on the rule of law is no solution. There's no good alternative.

rhhardin said...

This falling short is the same falling short as the Supreme Court made, not a different one.

It's marriage means marriage, the same exact thing.

Let the law get that right and the problem disappears. Remember civil unions?

Anglelyne said...

AA: As for "iron fist and limp wrist" — interesting that the judge didn't edit out the phrase that is certain to be read as homophobic.

If I'd come up with a turn of phrase as glorious as "iron fist and limp wrist", I'd be loath to edit it out, too.

How would you like to be the couple who spent their time and money litigating over divorce only to find their judge grandstanding and bullshitting like this?

I wouldn't. But it's hilarious when it happens to those other people who are the wrong kind of people, right? Or at least, it's a no big deal, stop-whining-losers sort of thing.

(See, I'm evolving on this whole "laws not men" thing. I'll admit, I was raised in a pretty hardcore fundie "rule of law" and "civic virtue" household. My tight-ass parents were always all "play fair" this and "sauce for the goose" that, and all those other "right and wrong are not determined by your feelings or your friends" platitudes that you get from dogmatic fundies with their retarded black-and-white view of justice. I'd like to give a shout-out to all the progressives out there who are helping me to overcome my narrow-minded upbringing.)

David Begley said...

Ann:

Agree with you wholeheartedly that there is no good alternative to the rule of law. But someone should tell that to Obama and his gang.

Destruction of the rule of law is the real Obama legacy.

HoodlumDoodlum said...

Ann Althouse said...Of course they fall short often, and for that we should criticize them and try to get the out of power or change them.

Agree, but that "should" is doing a lot of work. Do "we?" Does the Media? Does the public generally? If the answer is no (and it is) do "we" fail to do so in a systematic, predictable way? Does the failure to care about certain violations of the rule of law have a, shall we say, disparate impact?

A principle isn't a principle if it isn't applied in every case. Using the language of "this principle must be respected" when the speaker doesn't apply that principle--or demand that it be applied--in other cases is cheating; it's coopting respect that isn't deserved. That's why people are reacting incredulously when the rule of law is invoked in this case. No one expects perfection, and I don't doubt that Prof A. herself genuinely believes the rule of law should be upheld, but its very clear many are now invoking that principle in an unprincipled way.

rhhardin said...

I love my dog but I don't want to marry her. The relationship is a fully adult man/dog relationship of the kind that's been going on for aeons, not a marriage.

For the same reason that dogs are not substitute children. It's a different relationship.

We have words for these relationships.

How do the reciprocal responsibilities run and so forth. She is my wife, she is my pet, she is my daughter. All different, all with a possessive. She is my partner is another.

The latter would be a civil union, just what the gays should have wanted. Let it take on its own connotations and don't try to take over those of marriage. Earn your own.

Static Ping said...

Robert Cook: Public influence on the judiciary is inevitable and ever present. Judges want to retain their jobs, and judges who don't need to worry about their jobs may still bring greater attention to matters of great public debate as a result of the public's passionate interest, such that they may reexamine their own or prior judicial opinions on the matter and find them wanting or in error, with reappraisals warranted.

Any judge who considers anything besides the facts before him or her, the constitution, and the law in his decisions is corrupt and should resign. The whole purpose of the courts is to be a power outside of public influence, save for the public influencing the constitution and laws. We have two other branches of government for direct public influence. If the judge is more concerned about his or her job, then the judge is corrupt.

If a judge needs to go back an reexamine prior decisions and regularly finds that they are in error, that judge is incompetent and should resign.

If you are admitting that judges are political animals, a statement which I agree with, then we should stop pretending there are neutral arbiters. The judicial branch experiment has failed and we need to start over.

Static Ping said...

Ann: My points the rule of law and the corruption of appropriating govt power for individual use are in no way dependent on the reality of individuals in power falling short of the standard. Of course they fall short often, and for that we should criticize them and try to get the out of power or change them. To just give up on the rule of law is no solution. There's no good alternative.

Oh, I don't disagree.

But if the rule of law is already gone then anyone who puts faith in the rule of law is a fool. It won't protect you when you need it and is therefore useless. The Great Wall is of no value when the Mongols are already in Beijing.

You can't argue the rules with someone who is no longer playing the same game.

mccullough said...

The alternative to the rule of law is the system we have in place. People pretend to enforce the law even handedly. What's changing is that the non politically connected aren't pretending anymore and going along with the ruse. If enough people don't follow the law, then the people who enforce the law will have to give them amnesty from enforcement. What are they going to do, throw millions of peoe in jail?

khesanh0802 said...

As with so many things that have to do with gay "rights" the Professor has a blind spot here. She wrote: " A judge can't refuse to follow the precedent even if the reasoning is incoherent.", but isn't the judge saying that because of the SC's "incoherence" he is unable apply the precedent in the case before him? If it is, in fact, civil disobedience on the judge's part I applaud him. I think he made a good case for his puzzlement.

Hagar said...

In Britain, Parliament rules supreme with no president or supreme court to contend with.
It is, however, my understanding that Parliament every now and then passes a law that the people just do not like, and the judges at Common Law around the country then gets busy thinking up "pilpuls" that show the cases before them just do not quite fit within the new law, and they are obliged to go by the old, time-proven precedents.

Hagar said...

and I understand that it tends to be that eventually the judges at Common Law win, and Parliament modifies its repugnant statute to accommodate the peoples' wishes.

rhhardin said...

When will the first emoji appear in a Supreme Court ruling, if it hasn't already.

Jason said...

This is what you get when you shitbirds skip the entire deliberative and committee process that is the basis and raison d'être of legislative bodies and make broad sweeping changes to administrative law by judicial fiat. I mean, why not save 535 salaries and those of thousands of staffers and just hire a handful of MENSA members to figure all this out?

You and your petty fascist friends created this mess, professor.

rhhardin said...

DANIEL (out of turn) Sorry.

JUDGE What is wrong with you people? Do you want to be the only man ever held in contempt at his own wedding?

DANIEL No, Your Honor.

JUDGE Counselor Daniel Rafferty, do you take this woman to be your lawfully wedded wife?

Laws of Attraction, Pierce Brosnan and Julianne Moore

CStanley said...

Ann Althouse said...
My points the rule of law and the corruption of appropriating govt power for individual use are in no way dependent on the reality of individuals in power falling short of the standard. Of course they fall short often, and for that we should criticize them and try to get the out of power or change them. To just give up on the rule of law is no solution. There's no good alternative.


How does this relate to the incident in question? In what way did the judge "appropriate power for individual use"? And didn't he criticize the SCOTUS decision, which seems to be one of the remedies that you are suggesting when the individuals in power fall short of the standard?

chuck said...

To just give up on the rule of law is no solution.

Bit late for that argument. Paper money, paper laws, too much of either and they become worthless. I admit I enjoy Ann's analysis of the Supreme Court decisions, but it is entertainment, more a reality show than something I should take seriously.

Mattman26 said...

I don't generally support judicial civil disobedience; our courts are hierarchical, and when it comes to the U.S. Constitution, the Supremes are the final word (other than amendment); lower courts (and state courts on US Constitutional issues) are bound to obey.

That being said, when the Court finds a right in a document that its drafters and ratifiers would have found absolutely daft, and when the Court majority decides they are our betters who must tell us that marriage must include a bond that no one would have dreamt of 50 years ago just because they say so, I think perhaps a little thumb in the eye is not such a bad thing.

In terms of this country being in "real trouble," I'd argue that what the Supremes did is far more problematic than this judge's symbolic poke. As to the couple that would like to end their marriage, this speed bump is no worse than what divorcing couples get put through by their spouses and the courts thousands of times a month; I imagine they'll get what they want before long.

Anglelyne said...

AA: My points the rule of law and the corruption of appropriating govt power for individual use are in no way dependent on the reality of individuals in power falling short of the standard.

Sadly, the rule of law is very much dependent on the attitudes of both those in power and the everyday attitudes and behavior of the mass of individuals in a society going about their daily business.

Or did you think that "rule of law" just falls from the sky, capriciously lavishing its benefits on some societies, and withholding them from others, such that the lucky societies can always recover "rule of law", no matter what they do, because it's "in no way dependent" on the behavior of individuals in power? Or, it follows, "in no way dependent" on the protective response that some threshold level of corruption must inevitably provoke in the non-powerful?


To just give up on the rule of law is no solution. There's no good alternative.

Yeah yeah yeah. It's all penumbras and living documents and evolving consensuses fun and games until some jackass judge starts screwing around with your peace, prosperity, or life...

RAH said...

If SCOTUS abrogate the power to decide what marriage is then a court can say they don't have the power to decide divorce. This is what comes with arrogant usurpation of power. People resist and that is what the judge is doing. Tough. Deal with it .

The couple will ask the judge to recuse himself and get another judge They will still get their divorce.

Michael K said...

To just give up on the rule of law is no solution. There's no good alternative.

Tell that to ISIS. You might be able to do so in person before too long.

It's coming sooner than you think.

Though tragic and disturbing, these events mark the first time that the Western left has had to directly face a reality, which until now has been held at romantic arm’s length. Africa and the Middle East have come to Berlin and the clash may break the EU.

For many it will be a rude awakening. It was one thing to applaud UN migration chief Peter Sutherland’s call to “undermine the national homogeneity” of Europe while the refugees were idealized subjects in a documentary video. It is quite another to see these multicultural multitudes in the flesh swarming over Eurostar train roofs. Sutherland said with the greatest assurance:

The EU should “do its best to undermine” the “homogeneity” of its member states … Peter Sutherland told peers the future prosperity of many EU states depended on them becoming multicultural.


Yes, they will be here soon.

CStanley said...

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/kim-davis-and-the-limits-of-disobedience/

I think I agree with Volokh's take on the civil disobedience aspect. I also think that whether it is justified to keep one's job as an agent of government in these circumstances depends not only on how evil one thinks the commands are but also how corrupt the system has become. In other words, Kim Davis might feel that homosexual marriage endorsement is akin to the holocaust (pretty ridiculous, but some people seem to feel that way ) but for other individuals there might be a sense of moral imperative to retain government positions while disobeying orders for the sake of showing that the orders are coming from corrupt channels. To insist that these people must resign and fight to reform the system from the outside is in a sense saying they need to unilaterally disarm before they take up the fight.

Birkel said...

No (firmly believing) Christians need apply.
And if you already have the job, resign.

Anglelyne said...

CStanley: ...but for other individuals there might be a sense of moral imperative to retain government positions while disobeying orders for the sake of showing that the orders are coming from corrupt channels.

The long march through the institutions begins with a single step.

Jason said...

udges have to work with statutes, constitutional law, and the precedents. If they're at a loss to put these things together properly, they are incapable of doing judicial work and should resign.

Agreed. But enough about the Supreme Court and Judge Bunning.

holdfast said...

Ann gets testy when she discovers that her field of study has become a joke. What will she do next year when constitutional law becomes the subject of mythology?

Check out Canadian land claims lawsuits sometime - they are literally based on mythology, all of it oral.




holdfast said...

So was Oberfeldwebel the case that allowed gay marriage among Senior NCOs?

gerry said...
This comment has been removed by the author.
Grackle said...

No, holdfast, Oberfeldwebel made it mandatory.

Youngblood said...

rhhardin wrote:

"Kryptocracy is a fine word, without even looking it up. Is Greek hard?"

Kryptocracy might be a fine word. Too bad the word he used was "krytocracy".

rhhardin wrote:

I'd guess government by secret decrees. Am I right?

Nope.

Fabi said...

Remember when 'deriving their just powers from the consent of the governed' was all the rage?

Good times. Good times.

Coupe said...

Kryto- not Krypto-

The link no longer works, but there is a cached version:

The American KrytocracyThe Role of Judges Throughout American History.

J. Farmer said...

What's amazing is how many people are getting bent out of shape on the same-sex marriage issue. It's a tiny issue. It affects maybe 3% of the population. There are less than 200,000 same-sex marriages in this country compared to about 60,000,000 opposite-sex marriages. SSM is about 0.3% of all marriages. Given big issues like immigration, demography, and finances, same-sex marriage is a pretty absurd line to draw in the sand.

Mark said...

"That being said, when the Court finds a right in a document that its drafters and ratifiers would have found absolutely daft, "

Yes, those slave holding founders and their 3/5 of a person compromise and lack of voting rights by women.

Please tell me about how ideal their system was again. I get the feeling over half of the population might not agree with you.

Coupe said...

P.S. The short definition, outlined in the paper:

"Judges in a krytocracy utilize their supreme power to impose their personal discretion in order to reach “preferred” outcomes to legal decisions."

Oh dear...

mtrobertslaw said...

The Professor overlooks the subtlety of Judge Atherton's argument.

The clear inference drawn from J. Kennedy's decision is that the people of Tennessee are "incompetent to define.. a keystone/central institution such a marriage... ." If that is true, then it follows that the people of Tennessee are incompetent to define "divorce". That is, they are not competent to define the necessary conditions that allow a court to declare a marriage no longer exists. What then is a judge of the State of Tennessee to do when faced with a divorce case?

What make matters even crazier is that all agree that Kennedy's decision, which purports to justify this inference, is "incoherent".

deepelemblues said...

"A judge can't refuse to follow the precedent even if the reasoning is incoherent."

Judges do that to precedents literally every day. Supreme Court rulings included.

Maybe not every day for the SC rulings but they're definitely in there.

"To just give up on the rule of law is no solution. There's no good alternative."

There are several prominent exceptions to that rule in American history that beg to disagree. It's all about who has the most political support in the end.

Larry J said...

"Blogger Ignorance is Bliss said...
He is a judge, tasked to follow the law, which is understood within a hierarchy of courts in which the Supreme Court is the highest authority.

This, right here, is our problem in a fucking nutshell. We have a constitutional law professor who teaches her students that the Supreme Court, and not the Constitution, is the highest authority.

Hilarity ensues."

Ding, ding, ding!! We have a winner!!

J. Farmer said...

"We have a constitutional law professor who teaches her students that the Supreme Court, and not the Constitution, is the highest authority."

So what do you do when there is disagreement over the interpretation of the Constitution? Does the First Amendment protect independent political expenditures? Is pornography speech? Is a shoulder-launched rocket "arms" per the Second Amendment? When is a search unreasonable? When is a punishment cruel or unusual? When does a piece of legislation fall within the Commerce Claus and when does it not?

Believing that the Constitution is the highest authority does not alleviate the need for some kind of system to adjudicate disagreements in interpreting the Constitution. The Supreme Court's power is checked by the legislatures impeachment power and by the mechanism of amending the Constitution.

J. Farmer said...

p.s. If you read that sentence, it is saying that the Supreme Court is the highest authority "within a hierarchy of courts."

Qwinn said...

Ann Althouse
February 16, 2004

"Is Mayor Newsom like Judge Roy Moore? Rod Dreher at The Corner poses a question with an easy answer--and not the easy answer he implies is the easy answer:

"What I don't get is this: why was it wrong for Judge Roy Moore of Alabama to unilaterally declare federal law wrong, and defy it by installing a Ten Commandments monument in a courthouse rotunda ... but it's okay for San Francisco Mayor Gavin Newsom to unilaterally declare state law wrong in prohibiting same-sex marriage, and defy it by issuing marriage licenses to gay couples? I mean, I know why the media was outraged by the former episode of grandstanding and not the latter, but as a legal matter, what's the difference?"

Moore was made a party to a lawsuit, which he lost. He was ordered to remove the monument, and he defied the court order. If a court orders Newsom to stop and he continues, then he'll be like Moore. It's one thing to act upon one's own "unilateral" decision about what the law means in the first instance, quite another to defy a court order. Moore had his opportunity to defend his legal interpretation in court. Newsom is basing his actions on an interpretation of law, and his day in court has not yet occurred.

There are some similarities too, though. Both men decided to use their position of power to stage a demonstration that stirred the intense passion of a large group of supporters and made them feel deeply invested in preserving the new state of affairs. Maybe I'm not reading enough of the news stories about Newsom, but I don't think he's getting much approval from the press. The events are being covered, but Newsom isn't being hailed as a hero at this point. I think the coverage of the two men at the same stage in the events has been roughly similar. If Newsom is ordered to stop and he persists, he will undermine his own reputation the way Moore did.

UPDATE: Prof. Yin agrees with me (or "tends to agree" with me) about the Moore-Newsom distinction. He goes on to make the point, which is surely correct, that just because what Newsom is doing isn't as bad as what Moore did doesn't necessarily mean it's laudable: there were other ways to test the state law and produce a court opinion on the issue. On the other hand, as I discussed here, there is something to a big, visible demonstration that affects (in both directions) how people think about the legal issues. Eugene Volokh has some good discussion of the Moore-Newsom distinction and of the basis for Newsom's legal interpretation here."





"You cannot appropriate the power of government for your personal purposes. If people don't perceive that difference, this country is in big trouble."

"On the other hand, as I discussed here, there is something to a big, visible demonstration that affects (in both directions) how people think about the legal issues."

Jack Wayne said...

Ann, the best part of the Supreme Court is that they are infallible. More infallible than the Pope. Because no matter what side they choose, it's always the right side. Logically, that means law is meaningless. We might as well have the Red Queen deciding our cases.

Qwinn said...

Oh, and incidentally, this is how Newsom defended his action at the time:

"SAN FRANCISCO, California (CNN) -- San Francisco Mayor Gavin Newsom said Sunday he is willing to sacrifice his political career over his belief that denying gay men and lesbians the right to marry "is wrong and inconsistent with the values this country holds dear."

Doesn't sound like a legal argument to me.

"Justice Kennedy doesn't have the Constitutional right to redefine words that have meant the same thing for millennia" does sound like a legal argument, and it's one that everyone's making, but somehow... somehow the Professor just can't seem to acknowledge it as one.

J. Farmer said...
This comment has been removed by the author.
J. Farmer said...

@Jack Wayne:

How do you propose that Constitutional questions be settled? For example, on a question of what is protected speech, if there is a difference in opinion, how is that difference adjudicated? Are the Supreme Court decisions you agree with just as illegitimate as the ones you disagree with?

Mattman26 said...

Mark: "Yes, those slave holding founders and their 3/5 of a person compromise and lack of voting rights by women.

Please tell me about how ideal their system was again. I get the feeling over half of the population might not agree with you."

The point isn't that it was ideal; the point is that it was in the document. Slavery was abhorrent; it wasn't unconstitutional. It became unconstitutional via amendment to the constitution.

Ditto (more or less) women's suffrage.

The point isn't what's good or bad. It's that judges are not our rulers. We are. If you make judges our rulers as to the issues on which they will follow your policy preferences, you make them our rulers on the others as well.

Qwinn said...

Here's the upshot of my position:

I will give a millisecond's consideration of the Professor's cry that "the rule of law must be obeyed!" when, and only when:

1) She forcefully and vehemently demands the imprisonment of Lois Lerner.
2) She forcefully and vehemently demands the imprisonment of John Koskinen.
3) She forcefully and vehemently demands the imprisonment of Eric Holder.
4) She forcefully and vehemently demands the imprisonment of Gary Newsom.
5) She forcefully and vehemently demands the imprisonment of Hillary Clinton.
6) She forcefully and vehemently demands the imprisonment of Barack Obama.

Every single one of these people has blatantly violated the law. Blatantly.

I've never once seen her state that, if any of these individuals is not held accountable for their lawbreaking, that "this country is in big trouble".

The Professor says: "My points the rule of law and the corruption of appropriating govt power for individual use are in no way dependent on the reality of individuals in power falling short of the standard. Of course they fall short often, and for that we should criticize them and try to get the out of power or change them."

So, in *these* cases, since you voted for Romney in 2012, there's nothing more needs doing, right? Hey! You tried to get them out of power! You're clear!

Posts that denounce those 6 figures with the same "this country is in big trouble" passion, and demands for their immediate resignation, never mind imprisonment? Nah, that's not necessary. We wouldn't want to be ugly about it or anything.

hombre said...

The Professor's sense of irony is dulled by her commitment to LGBT-dom.

It's just a bitch when the ducks in high places don't just fall into a row when the SCOTUS oligarchs go, "Quack, quack."

It is apparently less offensive when the Obots ignore federal court directives related to drilling in the Gulf or when Kennedy, J., joins the libs to choose the infamous crime against nature over sound jurisprudence.

Perhaps, "Now it begins." Or perhaps we need to wait until there are more fake rapes at university, "xe" (or whatever) replaces "he", Christian bakers are required to bake cakes for Satanist rituals or until the polyamorists invite Kennedy to sanction marriage between any number of people and their pets.

Robert Cook said...

"So it's OK to cart Jews off to gas chambers because it's the law as it is? It's OK to sick dog on Negroes and beat them because segregation law is the law as it is?"

No.

"Sorry. When a law is immoral, it must be disobeyed."

I agree. But those disobeying immoral laws must expect to be censured in some way, from being suspended or fired from their jobs, up to imprisonment or execution, depending on the law they protest and the type of society in which they commit their protest.

But a law extending freedom and equal treatment and protection under the law to previously excluded members of the populace is not immoral: allowing same sex couples the right to marry and enjoy the same legal privileges, protections, (and obligations) as male/female couples--which serves to extend freedom to these members of the society, is not immoral. (The law is not obliged to observe and abide by those behaviors that particular religions may consider immoral. You may consider certain behaviors immoral under your religious precepts, but this does not necessarily make such behavior objectively immoral. If marriage is "moral" for male/female couples, it is "moral" for same sex couples, the religious beliefs of some members of the larger society notwithstanding.)

Also, that you or others may not like for a previously excluded cohort of the society in which you live--many of whom are your neighbors and work colleagues or even family members--to belatedly receive the same legal rights and protections as you is not equivalent to a law sending a despised minority to the ovens or to siccing dogs on them or beating them.

Todd said...

Robert Cook said...

Also, that you or others may not like for a previously excluded cohort of the society in which you live--many of whom are your neighbors and work colleagues or even family members--to belatedly receive the same legal rights and protections as you is not equivalent to a law sending a despised minority to the ovens or to siccing dogs on them or beating them.

9/4/15, 2:10 PM


I understand and as I have said on prior occasions, SSM is now the law so until something changes, so be it.

That said, riddle me this Batman: Have all of those various businesses and corporations that over the last (I don't know) dozen or so years went and added same-sex couples benefits coverage to their benefits plans due to the lack of SSM support in the country, now removed those policies as they are no longer needed? Have they announced to their employees that as of December 31st, all of those plans are no more and if you wish the coverage to continue, go get hitched? Or are all of those benefits still in place and still being honored cause most of this had nothing to really do with the ability to actually get married and more to do with pushing the buttons of those "wrong thinking" folks?

In fact, since SSM is now the "law of the land" any shareholders of any of those companies should file sue on fiduciary duty grounds as the company is needlessly wasting money by giving "married people" benefits to non-married people. You wanted to get married, OK, now get married...

Qwinn said...

"Also, that you or others may not like for a previously excluded cohort of the society in which you live--many of whom are your neighbors and work colleagues or even family members--to belatedly receive the same legal rights and protections as you is not equivalent to a law sending a despised minority to the ovens or to siccing dogs on them or beating them."

Really? Because their *not* being able to get married was depicted as "equivalent to a law sending a despised minority to the ovens or to siccing dogs on them or beating them." every single f'ing day for the last decade.

Gahrie said...

"My points the rule of law and the corruption of appropriating govt power for individual use are in no way dependent on the reality of individuals in power falling short of the standard. Of course they fall short often, and for that we should criticize them and try to get the out of power or change them."

I don't remember a similar post when Gavin Newsome and others were breaking the law by issuing marriage licenses to gay couples even though it was then against the law.

Ignorance is Bliss said...

Robert Cook said...

Also, that you or others may not like for a previously excluded cohort of the society in which you live...to belatedly receive the same legal rights and protections as you...

Nobody was excluded. Gays already had the same right to marry as anyone else. Same sex couples already had the exact same rights as opposite sex couples. ( Hint- opposite sex couples had no rights, rights belong to the individual. )

Gahrie said...

Yes, those slave holding founders and their 3/5 of a person compromise and lack of voting rights by women.

Anyone with an ounce of intelligence and/or education knows the purpose of the Three Fifths Compromise was to weaken the power of slaveholders and the slave states. The slave owners wanted to count slaves as a whole and those opposed wanted to not count the slaves at all.

Gahrie said...

...and the 19th Amendment was a huge mistake.

Ignorance is Bliss said...

J. Farmer said...

Believing that the Constitution is the highest authority does not alleviate the need for some kind of system to adjudicate disagreements in interpreting the Constitution.

I agree. However, it is very clear that we are not dealing with a disagreement in interpreting the Constitution. We have justices who believe it is their job to set policy which they cloak in a fig leaf of legal reasoning.

Gahrie said...

A judge can't refuse to follow the precedent even if the reasoning is incoherent.

Really? Then why have judges? Just hire a clerk at lee than half the price.

Gahrie said...

judge can't refuse to follow the precedent even if the reasoning is incoherent.

Then how the hell was Brown V Board decided? It completely ignores the precedent of Plessy!


hombre said...

"But a law extending freedom and equal treatment and protection under the law to previously excluded members of the populace is not immoral: allowing same sex couples the right to marry and enjoy the same legal privileges, protections, (and obligations) as male/female couples--which serves to extend freedom to these members of the society, is not immoral."

Here's Cook confirming, again, that he is a moral relativist who was born yesterday. Let's hear it for the oligarchy, eh, Bob. But then, without the totalitarians to tell us what is and what is not moral, how would we know?

Gahrie said...

What's amazing is how many people are getting bent out of shape on the same-sex marriage issue. It's a tiny issue. It affects maybe 3% of the population

Nooo...it effects 100% of the population. Just ask pizza parlor owners, bakery and photographers.

Achilles said...

Ann Althouse said...

"To just give up on the rule of law is no solution. There's no good alternative."

Wanna bet on that?

There be some "good" solutions coming. The government in all phases at the federal level has been acting badly. It is time.

Achilles said...

Anglelyne said...

"(See, I'm evolving on this whole "laws not men" thing. I'll admit, I was raised in a pretty hardcore fundie "rule of law" and "civic virtue" household. My tight-ass parents were always all "play fair" this and "sauce for the goose" that, and all those other "right and wrong are not determined by your feelings or your friends" platitudes that you get from dogmatic fundies with their retarded black-and-white view of justice. I'd like to give a shout-out to all the progressives out there who are helping me to overcome my narrow-minded upbringing.)"

The progressives are going to be sad when we start acting as badly as they have for the last 7 years.

Static Ping said...

Mark: Yes, those slave holding founders and their 3/5 of a person compromise...

You do realize that the 3/5 thing was an anti-slavery compromise, right? The South wanted to count them all straight up.

Achilles said...

Gahrie said...

"I don't remember a similar post when Gavin Newsome and others were breaking the law by issuing marriage licenses to gay couples even though it was then against the law."


I don't think SSM or marriage in general is a government issue at all. Government should not define marriage, give benefits, or try to manipulate that institution.

BUT. The progressive left has acting badly and in bad faith from the start on pretty much every issue and this statement by Gahrie just demonstrates how completely without moral integrity they are on this one in particular.

Achilles said...

Static Ping said...
Mark: Yes, those slave holding founders and their 3/5 of a person compromise...

"You do realize that the 3/5 thing was an anti-slavery compromise, right? The South wanted to count them all straight up."

The DEMOCRATS in the south wanted to count their slaves as full voters. Don't ever allow them to forget that slavery was enshrined in progressive policy and when we fought them for the freedom of the black slaves we were fighting democrat controlled state institutions. After they lost on slavery the democrats/progressives moved on to eugenics and Jim Crow and used state policy to enshrine their racism. Today it is Democrats who push to keep the black kids in shitty public schools and run planned parenthood(eugenics) whose mantra is still about killing unwanted babies.

J. Farmer said...

@gahrie:

"Nooo...it effects 100% of the population. Just ask pizza parlor owners, bakery and photographers."

You're confusing two separate issues. (1) should there be SSM; (2) should business owners be compelled to provide services for same-sex weddings. It's perfectly compatible to believe in (1) but not (2). And you can have (2) without (1) because of state anti-discrimination laws that include sexual orientation. So, for example, a bakery that refused to provide a cake for a gay pride celebration would run afoul of anti-discrimination laws even without marriage. I support SSM, but I also believe that private businesses have the right to refuse their services to anyone for any reason. But, of course, "pizza parlor owners, bakery, and photographers" are not 100% of the population.

Again, I think opposing homosexuality on the basis of Bronze Age Hebrew mythology is pretty stupid, but it's a perfectly private belief that people are entitled to have. Nonetheless, same-sex marriage is an insanely trivial issue compared to the problems that face our country.

Anglelyne said...

Robert Cook: But a law extending freedom and equal treatment and protection under the law to previously excluded members of the populace is not immoral: allowing same sex couples the right to marry and enjoy the same legal privileges, protections, (and obligations) as male/female couples--which serves to extend freedom to these members of the society, is not immoral.

Always with the question-begging sleight-of-hand. No, I take that back. I think you're an honest man, so "sleight-of-hand" is unfair, as it implies deliberate intent to sneak in a logically fallacious argument. I'll grant that you, and most people who pull this stunt, aren't even aware of what they're doing.

Qwinn said...

Oooh. I read a great idea at Ace's. Let's just say that Kim Davis is the mayor of a Traditional Marriage Sanctuary City. Boom. Problem solved.

And then let's have just as many Traditional Marriage Sanctuary Cities as the Left has created Illegal Immigration Sanctuary Cities.

And then let's make a whole hell of a lot more.

Robert Cook said...

"Nobody was excluded. Gays already had the same right to marry as anyone else."

Oh? How so? You mean if they chose to marry partners other than whom they preferred, (i.e., opposite sex partners) That's some right, that "same right to marry as anyone else"!

"Hint- opposite sex couples had no rights, rights belong to the individual."

Hint: playing pedantic word games is not compelling, but I'll humor you: "Extending the right to individuals to marry partners of the same gender is not immoral, etc., etc."

Qwinn said...

"Nonetheless, same-sex marriage is an insanely trivial issue compared to the problems that face our country."

And which side does this condemn, in your eyes? The people who were perfectly content with the way things stood for 6000 years, for whom it was NOT an issue? Or the people who have turned it into the equivalent of opposition to slavery?

My guess is, since you personally favor gay marriage, you blame the side resisting the change, not the side forcing it.

But an honest and consistent application of the principle you're expousing here, then you'd hold the side that actually turned the issue from trivial to non-trivial fully responsible.

Robert Cook said...

"Always with the question-begging sleight-of-hand. No, I take that back. I think you're an honest man, so "sleight-of-hand" is unfair, as it implies deliberate intent to sneak in a logically fallacious argument. I'll grant that you, and most people who pull this stunt, aren't even aware of what they're doing."

What question-begging did I commit?

Robert Cook said...

"If you are admitting that judges are political animals...."

Of course they are!

But beyond that, there are legal decisions that warrant being revisited and changed by later courts. Changing social attitudes and mores change the the way the courts look at contentious issues before them and the way they interpret the Constitution as it relates to contemporaneous legal debates.

Anonymous said...

"If following Supreme Court precedent is too much of a "challenge" for you, resign."

How can one follow Supreme Court "precedent", when it is utterly unbound by anything other than the personal whims of five black robed thugs?

The only real "precedent" generated by Obergefell is that nothing matters other than the desires of the majority on the Court. So, unless one is a mind reader, how should one know whether or not the "right to marriage" means that if one partner still wants it, and the other doesn't, then the first one's right trumps?

You've decided it's good to piss all over the US Constitution, the rule of law, and democracy. Fine. We're not going to play along, and pretend that those things still exist, and still matter.

If you want it, own it.

Anonymous said...

obert Cook said...

"Nobody was excluded. Gays already had the same right to marry as anyone else."

Oh? How so? You mean if they chose to marry partners other than whom they preferred, (i.e., opposite sex partners) That's some right, that "same right to marry as anyone else"!


Ah, so age of consent laws, incest laws, and laws against bigamy must all go away, since they too deny people the "right" to marry who they "prefer".

Could you please point out where the US Constitution talks about love? Or marrying who you prefer? Because I can't find it in there, anywhere.

J. Farmer said...

@Qwinn:

"And which side does this condemn, in your eyes? The people who were perfectly content with the way things stood for 6000 years, for whom it was NOT an issue? Or the people who have turned it into the equivalent of opposition to slavery?

My guess is, since you personally favor gay marriage, you blame the side resisting the change, not the side forcing it."


I condemn both sides. There is no reason to treat it like a binary either/or issue unless you buy into the same kind of stupid left/right, democrat/republican dichotomy that infects nearly every discussion on political matters. I thought people who were calling same-sex marriage the "civil rights issue of our time" were foolish, and I thought the people saying that SSM would mean the end of marriage and civilization were being overwrought and histrionic.

SSM does not affect opposite-sex marriage in any meaningful way. Do you know any heterosexual married couples who value their marriage less because SSM exists? Do you know any single heterosexual marriage who no longer wishes to get married because of SSM? If people believe that a marriage exists that is defined and ordained by god, then it makes no difference if the state permits a certain legal arrangement that it also calls marriage.

The 2005 Kelo vs. City of New London case, which permits the state to seize private property and hand it over to a third-party, is a far greater assault on fundamental liberty than any SSM case. Opposition to SSM has very little to do with perceived effects on opposite-sex marriage and is much more a result of people's belief that homosexuality has been condemned by the creator of the universe. How they are so sure on this topic, I have no idea.

Anonymous said...

Robert Cook said...

But beyond that, there are legal decisions that warrant being revisited and changed by later courts. Changing social attitudes and mores change the the way the courts look at contentious issues before them and the way they interpret the Constitution as it relates to contemporaneous legal debates.


Not if the judge is an honest and decent human being.

It say s"We the People" at the beginning of the US Constitution, not "We the members of the Supreme Court". When "We the People" change our minds about something, "We the People" can vote in legislators to change the laws, and even to amend the Constitution.

The only reason to have judges make the change, is because you're a thug working with other honorless thugs to force your views on the rest of us.

Anonymous said...

J. Farmer said...

SSM does not affect opposite-sex marriage in any meaningful way.


Bullshit. Gresham's Law: Bad money drives out good. SSM turns marriage into a joke. Got a roommate without employment benefits? "Marry" him, and he gets them, too. Enough of that happening, and the formerly accorded benefits of marriage (given to heterosexual married couples because heterosexuals getting married is actually proved to make them better people, and make society better off) go away.

Can you tell us about any social institutions "improved" by the left that have actually been improved for the non-psychotic part of society? Marriage? Divorce? Welfare? How's life for teenage black males now, compared to 1950? What's the marriage rate for black females now, compared to 1950? Poverty rates? Likelihood of growing up with two parents?

Why would anyone who's not an ideologue, and not an idiot, think that "this time" the left won't fuck things up?

J. Farmer said...

@gregq:

Your response to me is incoherent and makes no sense. Just because I support same-sex marriage after considering the arguments for and against, and I am prepared to defend my position. It is a total non-sequitur that just because this issue is associated with "the left," that I must therefore defend or support any string of policies or positions also associated with "the left." If same-sex marriage negatively affects opposite-sex marriage, then make that case.

Again, same-sex married couples are about 0.3% of the total married couples. If less than 200,000 gay marriages is going to destroy 60,000,000 straight marriages, then I would like to know how that has happened. Do you know any married couples who are getting a divorce and leaving each other because their marriage has been rendered a "joke" by same-sex marriage. I certainly don't know any.

Patrick Henry said...

"SSM does not affect opposite-sex marriage in any meaningful way."

The problem is that SSM was always about the couple and marriage had always been about the social institution best suited for the preparing of children to be functional adults. What SCOTUS did was completely ignore the children.

Some say that children can be brought up just as well with a SSM couple as parents. Yet, many children of SSM parents would argue differently. And, what about the rights of the children to have a mother and a father? Divorce in the vast majority of the cases burdens the children the most. We (collectively) have lost sight of the purpose of marriage and Kennedy redefined that purpose completely away and turned it into a romance novel (which aren't based on reality).

SSM may not impact natural marriage, but to argue it doesn't and won't have a long reaching consequences is plain wrong. We're in Rumsfeld's unknown unknowns territory.

But the real point I want to make is that just like Roe didn't "settle" the abortion question Obergefell has set us up for new front in the culture wars. Kim Davis is simply a small skirmish among many with more significant battles to come.

Anglelyne said...

Robert Cook: What question-begging did I commit?

"But a law extending freedom and equal treatment and protection under the law to previously excluded members of the populace is not immoral."

The bolded bit above is an example of begging the question.

Come on, it can't be that difficult to grasp that people who consider gay marriage immoral aren't operating from the premise that it's merely a matter of "extending freedom and equal treatment and protection under the law to previously excluded members of the populace". If they thought that the "equal protection" view covered all the civic aspects of marriage satisfactorily, its meaning and function in society, they wouldn't be arguing with you about it now, would they?

J. Farmer said...

@Patrick Henry:

"We (collectively) have lost sight of the purpose of marriage and Kennedy redefined that purpose completely away and turned it into a romance novel (which aren't based on reality)."

So what? I know a lot of married couples, and I know a lot of single people who want to get married, and none of them care what Anthony Kennedy thanks the meaning of marriage is.

"SSM may not impact natural marriage, but to argue it doesn't and won't have a long reaching consequences is plain wrong."

This is obviously true, but it's true of any decision you make in any direction on any issue. Nothing has changed about the social institution of marriage. If you are going to make the argument that SSM must be opposed because of a detrimental effect on marriage, then you should be able to describe how such an effect will manifest itself. I'll say it again: if people believe that marriage has a religious meaning, then that meaning will not be changed one iota by the state changing the way it defines marriage in a secular sense.

There are certainly people that discount the importance of marriage, but it is not reasonable to blame SSM for this. Do you know anyone who considered marriage important and has since ceased to do so because of gay marriage?

Shouting Thomas said...

I just want to know whether Larry cut off his dick so that the doctors could sew it onto Althouse.

Problem solved!

Qwinn said...

On the discussion of "precedent", can we at least admit the plain and obvious truth that it is nothing more than a one-way ratchet that locks in leftist preferences? It's pretty similar to the way the Left commits voter fraud, actually: keep recounting the votes until they win, then stop counting immediately. Kings County, WA, anyone?

We had hundreds of years of "precedent" affirming the traditional, conservative positions on marriage, abortion, and pretty much every other dispute under the sun. Did any of those "precedents' mean a damn thing when the Left decided they wanted something else? Nope. Did the very first case they got to go their way in each of these issues instantly become inviolable "precedent" that completely overrode every case that went before that decided things the other way? Yep. It's absurdly obvious, and the idea that we're all supposed to keep playing along and "respect the law" when the system is so obviously rigged is laughable.

Static Ping said...

Robert Cook: But beyond that, there are legal decisions that warrant being revisited and changed by later courts. Changing social attitudes and mores change the the way the courts look at contentious issues before them and the way they interpret the Constitution as it relates to contemporaneous legal debates.

Um, no. If the facts are the same, and the constitution is the same, and the laws are the same, then the decision is the same. That's how it works. Changing social attitudes and mores are completely irrelevant. Otherwise their rulings mean nothing as they can be changed on a whim. That's not rule of law. Unfortunately, here we are.

As I said before, if a judge makes decisions based on public influence, he or she is corrupt and should resign. And any judge who puts keeping his job as a priority over doing his job is corrupt and should resign.

Lakas said...

"If following Supreme Court precedent is too much of a "challenge" for you, resign."

I would be wonderful if you spent as much time saying this about say....the DC mayor who is ignoring the court concerning firearm permits and Sanctuary cities.

It seems you enjoy the low hanging fruit. Very dangerous because eventually you become the low hanging fruit.

HoodlumDoodlum said...

Qwinn said...Oooh. I read a great idea at Ace's. Let's just say that Kim Davis is the mayor of a Traditional Marriage Sanctuary City. Boom. Problem solved.

Naah, sanctuary cities have BODY COUNTS, bro, people have been killed by illegal immigrants who would have been deported except for local jurisdictions deciding they didn't have to follow nor cooperate with Federal law enforcement. Kim Davis inconvenienced some people; leaders who have allowed and promoted sanctuary cities are partially responsible for murders.

But remember, the Media believe that the rule of law matters, really they do.

Static Ping said...

And, for the record, I stand by my statement from the other thread that Shouting Thomas is still better quality than that Twitter feed. And, yes, I know that is a low standard.

Qwinn said...

JFarmer:

It kinda amazes me that you can read dozens of posts from previously normal law abiding citizens who have pretty much became completely fed up with the whole concept of "rule of law", that they feel their own government no longer faithfully represents them, that Christians are being marched off to jail or fined 5 figure sums for following their conscience (which means resisting being forced to actively participate, nothing more), and you just sit there, shrug and claim "what harm has it done? So trivial!"

Qwinn said...

And to everyone saying she has to resign, please explain how this does not represent an explicit religious test for public office? Aren't those unconstitutional? I don't even have to search for a penumbra for that one.

But what harm has gay marriage done? Oh, obviously nothing at all, and those silly Christians were obviously worried about nothing, even as every consequence they repeatedly predicted are most notable for falling short of the mark.

Incidentally, I've been agnostic for over 30 years. And you know what? The Christians are the only crowd around that hasn't gone batshit insane. It almost makes me inclined to reconsider. Cause the secular crowd obviously can't be trusted with any power at all.

Static Ping said...

J.Farmer: There are certainly people that discount the importance of marriage, but it is not reasonable to blame SSM for this. Do you know anyone who considered marriage important and has since ceased to do so because of gay marriage?

I know you are speaking out of good faith.

However, this argument is poor. Some changes - social, legal, whatever - have very obvious immediate effects. Others have very subtle effects that only immediately affect the fringes, those on the fence if you will. While the initial change can be very small, they can result in vicious or virtuous cycles that encourage more and more of that behavior. It may take years or even generations, but the impact of "trivial" changes can be enormous. Of course, sometimes trivial changes results in trivial impacts. There are many factors in play.

I will take your word for it that you have not met anyone who has changed their opinion on marriage because of the SSM ruling, but I assure you they exist. Few if any of us have contact with all the classes and subcultures of this country. That said, the SSM ruling has cleanly delinked marriage from child rearing. That will have an effect. Yes, the link had been frayed by other factors, but this is a clear blow.

What will happen? No idea. Personally, I suspect nothing good. But I know two things for sure. First, marriage is one of the pillars of civilization. You mess with it at your own peril. Second, it is generally the responsibility of the party wanting to make a change to fully investigate the impact of the change and convince others that the risk is worth it. The thing about tradition is it is time tested and appears to work. The question of impact is one for you to answer, assuming you champion the change. Otherwise, it becomes a variation of the "Hold my beer. Watch this!"

Jeff said...

By the time SSM got to the Supreme Court, several states had already made it legal, including some by votes of the state legislatures. Like many others, I would probably have voted for it if it had come to a referendum in my state. But the Court is not supposed to be putting a finger to the wind and deciding cases on what they think will be popular.

Someone commented above on the absurdity of claiming that the 14'th Amendment implies a right to SSM when the people who wrote and passed it obviously would disagree. If mores change over time, and we the people now think that SSM should be legal, then all we have to do is pass laws that say so. That's how it's done in a free country that respects law. When enough people disagree with existing law, they vote in people who will change it. Judges should have nothing to do with it, that's not their job.

This is so simple and obvious that I really don't understand how it can be controversial. Didn't we all learn about separation of powers in fifth grade?

virgil xenophon said...

"Didn't we all learn about separation of powers in fifth grade?"

There is a TV game show that frequently proves that statement to be sadly wrong..

Unknown said...

'Stroke of a pen.. Law of the land, kinda cool'

What law authorizes President Middle-East-In-Flames to import tens of thousands of Syrians with a guaranteed frisson of Isis sleepers? What law enabled Government Motors to shut down profitable dealerships that happened to be owned by Republicans? What authorized DHS to open large immigration staging sites and to plan to fly Central American illegals in? What Rule of Law was observed when the Mayor of Baltimore decided that her citizen’s property was not to be protected. What rule of law is being supported by 'Pigs in a Blanket'? What rule of law has the IRS followed in providing documents required by Congress in oversight. The EPA is ordered to stop their new water rule and they just say, well we’ll stop in this judicial district but drive on everywhere else.

Obama’s government appears to be a lawless collection of arrogant fiefdoms, none of which has accountability to written law. As far as I’m concerned that judge has a phone and a pen too. That clerk has established a Sanctuary license office and will soon be joined by others.

I used to be a rule of law guy, but apparently I’m a sucker. Prepare for a much less functional polis.

President Trump will have a phone and a pen too, but his phone will be gold plated.

Birkel said...

Anybody who thinks J. Farmer argues in good faith is wrong.

But do have fun playing the game.

Birkel said...

Anybody who thinks J. Farmer argues in good faith is wrong.

But do have fun playing the game.

J. Farmer said...

@Qwinn:

"that Christians are being marched off to jail or fined 5 figure sums for following their conscience (which means resisting being forced to actively participate, nothing more), and you just sit there, shrug and claim "what harm has it done? So trivial!""

First, go back and read the sentence I wrote where the word trivial came from. I'll save you the time by reproducing it here: "Nonetheless, same-sex marriage is an insanely trivial issue compared to the problems that face our country." I did not say it was trivial in an absolute sense but compared to other problems. Go look at a demographic projection of the US for the next 50 years. That's a serious problem.

Davis was not jailed for her religious beliefs. She was jailed for violating a court order. She was offered the opportunity to have her deputies issue the licenses, and she refused. She said she wouldn't quit because then she couldn't be a "voice for god's word." Lat I checked, that isn't in the clerk's job description. Also, what do you say to the heterosexual couples who cannot get marriage licenses there? Davis is refusing those, too.

From what I can recall, and I concede I may be forgetting one, there have been about four cases of people who have faced repercussions for refusing to provide services to gays: bakers in Colorado and Oregon, a florist in Washington, and a farm owner in New York. Now, I have made this point repeatedly in this blog, and it is repeatedly ignored, but I will give it one more go. These injunctions are a result of state anti-discrimination laws that prohibit people who engage in commerce from discriminating based on certain criteria (e.g. race, gender, religion, sexual orientation, etc.). For example, if a baker had religious beliefs against interracial marriages, if they refused to provide services to an interracial couple, they could be fined. If an event hall refused to rent their space to Jews, they could be fined. If a restaurant owner refused to serve Arab customers, they could be fined. If a hotel owner refused to rent rooms to Spanish speakers, they could be fined.

Now, as I have said repeatedly, I oppose anti-discrimination laws in private businesses. I believe that any business owner has the right to refuse services to any person for any reason. However, I don't think these laws represent the death of religious liberty in this country. I think that is the same kind of hysterical, overwrought conclusion that pro-SSM advocates engage in when they compare it to the fight against segregation or slavery.

@Static Ping:

I will repeat a point I made earlier. There are less than 200,000 same-sex married couples in this country, and there are 60,000,000 opposite-sex married couples. That's 0.3%. I think it is disingenuous to claim that opposition to SSM is primarily a result of concern for marriage and child-rearing. Black Americans are one of the most anti-SSM demographics in the country, and the black community is not exactly a paragon of marriage advocacy. Evangelicals tend to have higher divorce rates than either mainline protestants or Catholics. Marriage was delinked from childrearing with the invention of the birth control pill 60 years ago. Add into the mix a welfare policy that incentivizes women to have children while neither marrying nor living with the father, and you've got a recipe for disaster. I'm right there with you in supporting traditional marriage as the best arrangement for raising children. And people who support SSM are most likely to fit in that category. People of conservative religious and the poor are much more likely to be divorced. The social forces that are responsible for this have nothing to do with SSM.

J. Farmer said...
This comment has been removed by the author.
J. Farmer said...

@Birkel:

"Anybody who thinks J. Farmer argues in good faith is wrong."

Haha. Just out of curiosity, what argument have I advanced do you think I don't actually believe?

Qwinn said...

"Haha. Just out of curiosity, what argument have I advanced do you think I don't actually believe?"

Mind if I answer?

"People of conservative religious and the poor are much more likely to be divorced."

I'd like to see you back up this claim. I've got a pretty good idea of what the context behind this claim is, and if I'm right, it's utterly disingenuous to the point of representing bad faith, in my book.

J. Farmer said...

@Qwinn:

On the issue of marriage and social class, Charles Murray notes in his book Coming Apart: The State of White America the following:

"One group still largely resists the trend: college graduates, who overwhelmingly marry before having children. That is turning family structure into a new class divide, with the economic and social rewards of marriage increasingly reserved for people with the most education."

Amy Wax, author of Race, Wrongs, and Remedies makes a similar point when she quips about upper-class elites that they "live the 50s but talk the 60s." Single-motherhood is a major impediment to social mobility. Wax's book also references the work of Brooking Institution's Isabel Sawhill who notes that there is a simple, effective recipe for avoiding poverty: graduate high school, keep a job, and don't have children outside of marriage. I have worked in the field of criminal justice and child welfare for the last 15 years and see every single day the effects of broken, dysfunctional family patterns.

As to the issue of divorce rates and religious affiliation, the findings are based on a survey conducted by the Bana Group. Unfortunately, the report does not seem to be available online anymore. However, the results are discussed at length (from a Baptist perspective) at this link:

http://www.adherents.com/largecom/baptist_divorce.html

This suggests that divorce is not significantly impacted by one's personal beliefs about divorce or the so called sanctity of marriage. This correlates with the socioeconomic point, since conservative Christians are more represented among poorer individuals. I am not asserting any kind of causal relationship between evangelical Christianity and divorce.

It's worth noting that the divorce rate has hovered around 40-50% for at least the last two decades. And just as an aside, the divorce rate in Massachusetts has stayed consistent since 1999 despite having SSM for more than 10 years.

There are numerous factors that have affected the divorce rate--widespread use of contraception, broader employment opportunities for women, no-fault divorces, welfare laws, etc. In my opinion, these forces tended to have a greater impact against the lower classes due to their lack of social and human capital, while the upper classes were able to draw upon their human capital to shield them from the social convulsions that occurred in the country in the post-1960 period.

I take the argument of weakening marriage seriously, but I find the argument that SSM will have this effect utterly unconvincing. It seems to rely on a very peculiar understanding of how social organization works. The notion that marriage is an important institution does not come from governmental definitions or Supreme Court briefs. It is a value that is inculcated by one's family and community. I will reiterate once again that gay marriages represent 0.3% of all marriages in this country. The notion that these marriages will have some significant, detrimental impact on the social arrangements of heterosexuals is tail wagging dog at a gargantuan level.

J. Farmer said...

@Qwinn:

I should add an additional point. Your entire argument seems to rest on the notion that by the Supreme Court redefining marriage, it will have some kind of domino effect on the way the rest of society defines marriage. But aren't you a living refutation of that notion? Antony Kennedy's definition of marriage seems wholly unpersuasive to you. After all, SSM is now the law of the land, but you have not abandoned your belief in the supremacy of heterosexual marriage. Why assume that large swathes of the American public will abandon belief in traditional marriage as a result of the Supreme Court's ruling? Are these people stupider, less educated, less informed than you? Seems like your argument relies on extremely unconservative assumptions about the American public. Do you honestly believe that the American public relies on Anthony Kennedy to define marriage for them, or do you believe that American citizens are quite capable of defining marriage for themselves?

Jason said...

Know what else is precedent?

Decisions upholding the RFRA.

Nichevo said...

onetheless, same-sex marriage is an insanely trivial issue compared to the problems that face our country.
9/4/15, 4:22 PM

Then your side should not have fought for it.

SSM is not the camel's nose in the tent, that ship sailed when it became the Stonewall Riots instead of the Stonewall Massacre. No, the camel's nose is well within the tent, SSM is more like the shoulders.

Farmer, it's unpleasant to tell you this to your face, but homosexuality is a disease. It is pernicious and should be discouraged and discountenanced by every possible means. SSM is the opposite. I'm sorry, Farmer, but if you must exist, you should exist within the closet. I hope one day there is a cure.

Static Ping said...

@J.Farmer: I think this thread is getting stale, so I'll make one more statement and move on.

The fact that the number of SSM is small is not relevant. Small numbers can have huge impacts. "Yeah, what could possibly go wrong releasing a couple dozen rabbits in Australia." If you insist on repeating this point, I will have to assume that you are not taking this seriously.

Furthermore, it is difficult to convince someone that traditional marriage is the best choice for raising a child when in the next breath you advocate that marriage should be extended to relationships that cannot have children naturally. Trust me, even people with modest intelligence and general apathy will pick that apart in a second. It is the same problem now trying to convince the new generation to get married when when they see their parents not take the institution seriously. No-fault divorce was a terrible idea, welfare policies that encouraged single motherhood were a terrible idea, and SSM is just the next blow. Will the benefits of SSM outweigh this effect? Perhaps. Doubtful.

ken in tx said...

Kim Davis is a political prisoner. There is a UN commission about that, right? Amnesty International is making a protest, right? NOT! Wrong kind of political prisoner. She can't even use gofundme.

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