It's good day to be gay . . .

[Mr. Deez]

The Supreme Court said today that it is CLEAR the Constitution and 14th Amendment grant equal marriage rights to same-sex couples but not to polygamists or siblings... because of made up fundamental rights and stuff. The Supreme Court said today they are above the Constitution. The opened the door to do whatever they want on anything until congress, the president or the people say they've had enough.

I am for the second amendment but I did not celebrate Heller, because Scalia simply did not follow the constitution and made up a right to self-defense. Today many celebrate this decision because they got the result they wanted paying no attention to the means. They seem to not realize that if the wrong partisan republican president is elected in 2016, the court can easily be turned around and start ignoring the Constitution to the left's disadvantage. Hell it's ridiculous what conservatives on the Court have already done to the 4th amendment.

Many say "but they expanded rights, how can that ever be bad?" Well in 1905 in a case called Lochner, the Court made up a "right to contract freely" and used it to invalidate workers' rights (legal protections and later rights to organize). We also had the Court make up a right to abortion in Roe v. Wade that created disunity and an issue that never seems to go away.

It would be really nice if this aggressive court would at least do something productive and f***ing enforce the anti-trust laws. The Court is letting businesses in this country grossly violate anti-trust laws unchecked to the detriment of society and the consumer.

The substantive due process doctrine needs to go. It is judicial tyranny - an arbitrary doctrine a court can use to strike down any law it wants. It's all about how the issue gets framed. It has been used to abuse the Right in recent years, but it has gone the other way as well, as you pointed out with Lochner. And of course, Dred Scott was essentially a substantive due process case.

 

[Mr. Deez]

So from a legal perspective, does the ruling mean that all consenting adults must be granted marriage licenses? Just curious. Seems like the ruling means opens the door for polygamy etc. Not sure how the state could ban any marriage given this ruling. Love to hear a lawyer's view.

The ruling didn't explicitly go that far, and of course, the issue of polygamy wasn't before the Court, so I wouldn't expect it to go that far. However, significant and important language in the opinion (specifically dealing with the idea of personal autonomy in marital matters and personal intimacy) could arguably be applied to polygamy. (The incestuous marriage issue is much more of a stretch, and the man marrying his dog analogies some put forth are downright goofy.) Gay marriage advocates foolishly scoff at the the idea that polygamy could arise from this, but if you read the opinion, it relies extensively on language contained in the Loving v. Virginia case that invalidated interracial marriage bans, even though gay marriage would have been considered an absolute freak show and travesty when that case was handed down. The verbiage and even dictum in today's court opinions become the basis for tomorrow's court opinions.

Polygamy is coming, and frankly, after this opinion, it would be somewhat of an injustice if it didn't.

 

[Htown77]

They did interpret the Constitution

This statement is conclusory. It has no evidence to backup it up.

Both George W. Bush and Barack Obama have infamously claimed to "interpret" the constitution when doing some fairly unconstitutional things in regards to the war on terror. Interpret = to explain the meaning of. What the Supreme Court did yesterday was completely ignore the meaning of the Constitution, make a decision on their own personal feelings and their perception of public opinion, then they called it "interpreting the constitution" without any evidence.

One good Robert's quote yesterday:

The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions.

It's really not limited to his one point. When it comes to the constitution itself, the majority opinion was more or less conclusory. "It is because we say it is, dang it!"​

 

[theiioftx]

No doubt the man versus dog issue is goofy and will never be an issue. However, the incestuous relationship is apparently already in process in New Jersey. (Don't have a link - heard it on the radio yesterday). If it is two consenting adults, I do not see how this ruling does not support their wishes - no matter how offensive the general public thinks it is. If you don't support them, you are now a bigot in today's new thinking.

 

[Hollandtx]

I have no issue at all with the Court's decision, and I think after the dust settles everyone will see that the world is still revolving and not much has changed. It was a matter of time as many states had already legalized marriage for gays,and it has been legal in Canada for years and they seem to be doing just fine.
However, I do not think it appropriate, and I certainly don't support the Nation's White House being lit up in rainbow colors. There are still people in shock over this announcement, and I feel like that is an "in your face" to those people. The gay population still make up a small minority of the general population, and though many straight people felt the decision fair, I don't seem to recall (and I could be very wrong) a White House bathed in lights to support a divisive and political cause.
This should be a time of trying to understanding and healing--the White House is the house of the American people. I don't think it should be used as a backdrop to support any political issue.

 

[Dionysus]

However, I do not think it appropriate, and I certainly don't support the Nation's White House being lit up in rainbow colors.There are still people in shock over this announcement, and I feel like that is an "in your face" to those people. The gay population still make up a small minority of the general population, and though many straight people felt the decision fair, I don't seem to recall (and I could be very wrong) a White House bathed in lights to support a divisive and political cause.
This should be a time of trying to understanding and healing--the White House is the house of the American people. I don't think it should be used as a backdrop to support any political issue.

I agree, well said.

It’s unnecessary and seems like a very insensitive or tone-deaf move given the current divisiveness over the issue.

 

[Driver 8]

Something funny I saw on the interwebs today, titled "This is basically what people hating gays sound like."

You: Waiter, I’d like the cake.
Guy at other table: Uh Waiter, cancel the cake.
You: (Confused) I was gonna have the cake.
Guy: Oh, I don’t like cake.
You: Yeah, but I was gonna have cake over here by myself.
Guy: I don’t want anyone to have cake.
You: Why, what’s wrong with cake?
Guy: God hates cake!
You: You made that up.
Guy: My kids are here, if they see you eating cake, they’re going to want to eat it too! You can go home and eat cake in private, but we’d prefer if you didn’t call it cake - maybe a civil muffin?

 

[Mr. Deez]

No doubt the man versus dog issue is goofy and will never be an issue. However, the incestuous relationship is apparently already in process in New Jersey. (Don't have a link - heard it on the radio yesterday). If it is two consenting adults, I do not see how this ruling does not support their wishes - no matter how offensive the general public thinks it is. If you don't support them, you are now a bigot in today's new thinking.

I initially put incestuous relationships in there as well, but a gay friend of mine (who supports the ruling but is conscientious enough to respect the other side and admits that what the gays see is a redefinition of marriage and therefore avoids using the phony term "marriage equality") made a point about incest that's at least worth noting. Incest is provably and demonstrably destructive for genetic reproduction, which creates a reason not to allow it beyond moral and religious beliefs. I'm not necessarily saying he's right and you're wrong, but it is a possible distinction and a point at which the line could reasonably be drawn. It's enough for me to reserve judgment on the issue, but polygamy is certainly on its way. After the ruling, there's just no seriously arguable reason not to allow it.

 

[Seattle Husker]

Meh...this is a lame duck administration playing to its base leading into an election cycle. This certainly isn't a "unifying act" but this also is a significant milestone during a tenure absent of significant milestones for the left.

On another note, I don't have a problem with polygamy either. I'm not a Mormon but if multiple consenting adults want to be married to each other who am I to argue? I once had a coworker of a polygamous family and they were well adjusted. That individual was no longer Mormon and generally didn't talk about their 11 siblings but they were as normal as anyone else.

 

[theiioftx]

I initially put incestuous relationships in there as well, but a gay friend of mine (who supports the ruling but is conscientious enough to respect the other side and admits that what the gays see is a redefinition of marriage and therefore avoids using the phony term "marriage equality") made a point about incest that's at least worth noting. Incest is provably and demonstrably destructive for genetic reproduction, which creates a reason not to allow it beyond moral and religious beliefs. I'm not necessarily saying he's right and you're wrong, but it is a possible distinction and a point at which the line could reasonably be drawn. It's enough for me to reserve judgment on the issue, but polygamy is certainly on its way. After the ruling, there's just no seriously arguable reason not to allow it.

No way that reproduction can even remotely be part of the discussion since homosexuals obviously cannot reproduce. In fact, part of the argument for same sex marriage was that reproduction was not a necessary part of marriage. Not being licensed does not prevent incestuous couples from sex. I understand your points and agree. But that is why the ruling is a slippery slope.

 

[Htown77]

It was a matter of time as many states had already legalized marriage for gays

Then why are we happy that the Supreme Court completely subverted the constitutional order with reasoning that is almost certain to lead to further abuses by the Supreme Court of their power and role?

Why not, like with a women's right to vote, obtain rights the CORRECT way which preserves freedrom, democracy and our constitutional order? I can only conclude the people celebrating this decision do not understand how our government is supposed to work and will not understand what this means until the court abuses its power against their own beliefs (probably still will not). Like i said, the story here is not the issue of marriage, it's the abusive way the court got the result it wanted.

 

[towersniper]

This (same sex marriage) is not an issue that I have thought much about, and to the extent that I have, I can see both (actually, I see more than two options, so I should say "many") sides. I could probably have said "ok" not matter what the Court decided.

The polygamy issue is interesting, though, and comments above about incest, and the apt observation about the compelling reasons for anti-incest laws (at least within reasonable degrees of consanguinity(see also European royal families)) made me realize that we are probably heading to Compelling State Interest analyses on these issues. Ain't no way the
courts are going to permit poly marriages in the next 3 or 4 decades. Applying a CSE analysis is their way out.

My very much shot from the hip (and not carefully thought out) suspicions:

After Lawrence v. Texas, anti-cohabitation laws, and multi-cohabitation laws are probably unconstitutional. I don't think you will see prosecutions and certainly not convictions for poly amorous relationships, so long as the man (for convenience, I'll assume a Big Love type setup) has one legal wife and a passel of non-legal sister wives. It is not the state's business if the single, legal wife is ok with it. Some sister wife will inevitably claim that she is entitled to equal status to the existing legal wife, of course.

With same-sex marriage, all the attributes and legally prescribed relationships are identical for same sex or "traditional" marriages. (though, of course, for child issues a same sex marriage will always involve an adoption created parent-child relationship for at least one parent, where that is a relative rarity in traditional marriages.) It is more difficult, therefore, to discern a Compelling Interest of the state to ban those same sex marriages in light of equal protection type interests, and the fundamental right to marry that Kennedy got so weepy about. ( I recognize that the case was not expressly decided on equal protection grounds)

Not so poly marriages. Inheritance rights become a mess--- does a sister wife that was married into the clan fifteen minutes ago have the same inheritance rights as the wife that was lucky enough to snag that stud 30 years ago? Do sister wives inherit from each other? What about parent child relationships in these poly clans? Do the rules change when there are multiple husbands and multiple wives in one happy, reality series ready family? Would the states have to accept multiple parent adoptions among brother husbands and sister wives? What happens with spousal medical and other spousal decisions when the sister wives disagree? Does each poly-spouse have to report some percentage of each sister wive's income on an individual tax return? Does each sister wife have a community interest in other sister wive's income? Can a sister wife veto new sister wives, since there will be such an impact on their lives? With so many permutations possible, there is not an equal protection interest that compares to that in the same sex marriage question. With the equal protection argument so attenuated, or even gone, the state's interest in regulating the legal appurtenances of marriage by saying the first marriage is the only one with attendant legal rights can be seen as "compelling." I think the courts will conclude that the state has a compelling interest in banning this type of impossible matrimonial chaos. The matrimonial chaos in my life is plenty complex.

That is the courts' out, and I think that they will, and probably must, use it.

 

[Htown77]

^ this is a fantastic legal analysis and is almost certain what will happen.

The problem I have is, like with court challenges to abortion regulation since Roe v. Wade, is the arguments concern public policy not the interpretation of the constitution. The argument against is basically "It would be bad public policy for the Court to create a right to polygamy, because it would lead to chaos in inheritance and divorce." So here we have two lawyers arguing our nation's public policy (really each state's public policy) before 9 unelected judges. These judges, who know nothing but the law, will decide the public policy for everyone. Meanwhile, in a legislature, there would be input from all sides and from all walks of life. Discussion would not be limited to lawyers or elitists. The majority's will would then be decided through vote. Any citizen could participate by calling their representative, lobbying, or simply trying to convince their neighbor to vote for a representative that supports what the citizen wants. Instead of the people determining what interests of the state are compelling, a small group of lawyers and judges who feel they are above and know better than the people, will decide and the people's voices will not be heard. Alas, government of the people, by the people and for the people is dead. We, the people, shall have no voice in the polygamy decision. An area of regulation, that belonged to us to regulate through our state governments until a constitutional amendment said otherwise, has been taken away. It is for Harvard and Yale to regulate.

Our Judges:
1. Born in Buffalo, New York
2. Born in Trenton, New Jersey
3. Born in Sacramento California
4. Born in Pin Point, Georgia
5. Born in Brooklyn, New York
6. Born in San Francisco, California
7. Born in Trenton, New Jersey
8. Born in Bronx, New York
9. Born in New York, New York.

All went to Harvard or Yale. They now make the public policy of Texas.

 

[TheWalkingHorn]

It was also a good day to be straight. I had an amazing time on 4th street last night. <3

 

[theiioftx]

Great analysis above. Again, I agree there are many sound, legal arguments against both. I think the court created a situation that allows arguments, and ultimately laws for both to happen. I think polygamy does happen quicker than estimated above. Hopefully, the incest piece never happens.

 

[Mr. Deez]

No way that reproduction can even remotely be part of the discussion since homosexuals obviously cannot reproduce. In fact, part of the argument for same sex marriage was that reproduction was not a necessary part of marriage. Not being licensed does not prevent incestuous couples from sex. I understand your points and agree. But that is why the ruling is a slippery slope.

The issue isn't whether or not procreation can take place but what happens when it does. In incestuous relationships, you can have significant genetic and health issues in the offspring, which could impact the public in ways other types of relationships would not. Again, I'm not saying I buy the distinction and say the Court will never legalize incest, but it gives me pause.

To be honest, I'm not comfortable with courts weighing the merits of any of this. That is the role of legislatures. The judicial analysis should be largely academic.

 

[Mr. Deez]

This (same sex marriage) is not an issue that I have thought much about, and to the extent that I have, I can see both (actually, I see more than two options, so I should say "many") sides. I could probably have said "ok" not matter what the Court decided.

The polygamy issue is interesting, though, and comments above about incest, and the apt observation about the compelling reasons for anti-incest laws (at least within reasonable degrees of consanguinity(see also European royal families)) made me realize that we are probably heading to Compelling State Interest analyses on these issues. Ain't no way the
courts are going to permit poly marriages in the next 3 or 4 decades. Applying a CSE analysis is their way out.

My very much shot from the hip (and not carefully thought out) suspicions:

After Lawrence v. Texas, anti-cohabitation laws, and multi-cohabitation laws are probably unconstitutional. I don't think you will see prosecutions and certainly not convictions for poly amorous relationships, so long as the man (for convenience, I'll assume a Big Love type setup) has one legal wife and a passel of non-legal sister wives. It is not the state's business if the single, legal wife is ok with it. Some sister wife will inevitably claim that she is entitled to equal status to the existing legal wife, of course.

With same-sex marriage, all the attributes and legally prescribed relationships are identical for same sex or "traditional" marriages. (though, of course, for child issues a same sex marriage will always involve an adoption created parent-child relationship for at least one parent, where that is a relative rarity in traditional marriages.) It is more difficult, therefore, to discern a Compelling Interest of the state to ban those same sex marriages in light of equal protection type interests, and the fundamental right to marry that Kennedy got so weepy about. ( I recognize that the case was not expressly decided on equal protection grounds)

Not so poly marriages. Inheritance rights become a mess--- does a sister wife that was married into the clan fifteen minutes ago have the same inheritance rights as the wife that was lucky enough to snag that stud 30 years ago? Do sister wives inherit from each other? What about parent child relationships in these poly clans? Do the rules change when there are multiple husbands and multiple wives in one happy, reality series ready family? Would the states have to accept multiple parent adoptions among brother husbands and sister wives? What happens with spousal medical and other spousal decisions when the sister wives disagree? Does each poly-spouse have to report some percentage of each sister wive's income on an individual tax return? Does each sister wife have a community interest in other sister wive's income? Can a sister wife veto new sister wives, since there will be such an impact on their lives? With so many permutations possible, there is not an equal protection interest that compares to that in the same sex marriage question. With the equal protection argument so attenuated, or even gone, the state's interest in regulating the legal appurtenances of marriage by saying the first marriage is the only one with attendant legal rights can be seen as "compelling." I think the courts will conclude that the state has a compelling interest in banning this type of impossible matrimonial chaos. The matrimonial chaos in my life is plenty complex.

That is the courts' out, and I think that they will, and probably must, use it.

Sniper,

I think you raise a lot of good questions about the mess that polygamy would create. However, if we're dealing with constitutional rights, none of those issues should matter. I'm not saying they won't, but they shouldn't.

 

[56 Bells]

^ this is a fantastic legal analysis and is almost certain what will happen.

The problem I have is, like with court challenges to abortion regulation since Roe v. Wade, is the arguments concern public policy not the interpretation of the constitution. The argument against is basically "It would be bad public policy for the Court to create a right to polygamy, because it would lead to chaos in inheritance and divorce." So here we have two lawyers arguing our nation's public policy (really each state's public policy) before 9 unelected judges. These judges, who know nothing but the law, will decide the public policy for everyone. Meanwhile, in a legislature, there would be input from all sides and from all walks of life. Discussion would not be limited to lawyers or elitists. The majority's will would then be decided through vote. Any citizen could participate by calling their representative, lobbying, or simply trying to convince their neighbor to vote for a representative that supports what the citizen wants. Instead of the people determining what interests of the state are compelling, a small group of lawyers and judges who feel they are above and know better than the people, will decide and the people's voices will not be heard. Alas, government of the people, by the people and for the people is dead. We, the people, shall have no voice in the polygamy decision. An area of regulation, that belonged to us to regulate through our state governments until a constitutional amendment said otherwise, has been taken away. It is for Harvard and Yale to regulate.

Our Judges:
1. Born in Buffalo, New York
2. Born in Trenton, New Jersey
3. Born in Sacramento California
4. Born in Pin Point, Georgia
5. Born in Brooklyn, New York
6. Born in San Francisco, California
7. Born in Trenton, New Jersey
8. Born in Bronx, New York
9. Born in New York, New York.

All went to Harvard or Yale. They now make the public policy of Texas.

Thank God that the Supreme Court justices make these decisions and not bozos like Ken Paxton....and about 105 other elected Texas officials.

And, if this site is going to have a dialogue about this issue, perhaps putting the Supreme Court's ruling.....completely.....and fully....at the beginning of this dialogue, where everyone can read it, could stop such ridiculous analogies with incest, polygamy, etc. Such analogies cannot even be remotely attached to this court's ruling. It's very explicit, actually. Such hysteria and silliness!

 

[56 Bells]

I have no issue at all with the Court's decision, and I think after the dust settles everyone will see that the world is still revolving and not much has changed. It was a matter of time as many states had already legalized marriage for gays,and it has been legal in Canada for years and they seem to be doing just fine.
However, I do not think it appropriate, and I certainly don't support the Nation's White House being lit up in rainbow colors. There are still people in shock over this announcement, and I feel like that is an "in your face" to those people. The gay population still make up a small minority of the general population, and though many straight people felt the decision fair, I don't seem to recall (and I could be very wrong) a White House bathed in lights to support a divisive and political cause.
This should be a time of trying to understanding and healing--the White House is the house of the American people. I don't think it should be used as a backdrop to support any political issue.

I found it honorable and in good taste to light up the White House in rainbow colors. After all, whether some people are in "shock" over this court's decision, the decision finally gave many American citizens their civil rights. America is a greater country because of this decision, and those in "shock" would have been in "shock" when whites were given the right to marry blacks, as well. Remember, part of that argument was based on religious doctrine. Anything that strengthens the liberties of an oppressed minority of American citizens deserves as much fanfare as humanly possible. What a great day for our country and our Constitution!

 

[zork]

http://time.com/3939374/rand-paul-gay-marriage-supreme-court/

 

[HornHuskerDad]

I found it honorable and in good taste to light up the White House in rainbow colors.

I have a difficult time with the colors on the White House. It reminded me (again!) of the divisiveness that Obama has fostered.

 

[56 Bells]

Then why are we happy that the Supreme Court completely subverted the constitutional order with reasoning that is almost certain to lead to further abuses by the Supreme Court of their power and role?

Why not, like with a women's right to vote, obtain rights the CORRECT way which preserves freedrom, democracy and our constitutional order? I can only conclude the people celebrating this decision do not understand how our government is supposed to work and will not understand what this means until the court abuses its power against their own beliefs (probably still will not). Like i said, the story here is not the issue of marriage, it's the abusive way the court got the result it wanted.

Firstly, the Supreme Court performed its role as the judiciary branch of the government---it interpreted the law---thus following the Constitution of the United States.
Secondly, if we American citizens want to overturn any part of the Constitution, there is a CORRECT way to do that which preserves freedom, democracy and our constitutional order---amending the Constitution.

 

[56 Bells]

I have a difficult time with the colors on the White House. It reminded me (again!) of the divisiveness that Obama has fostered.[/QUOTE
The only divisiveness I see is from the ultra-right winged religious bigots and the always-divisive Tea-Baggers.

 

[Htown77]

it interpreted the law

What law did it interpret? Where is the right to gay marriage in the constitution? Explain. Yes the correct way to amend the constitution is through an amendment. The supreme court amended it by adding something that is not there. Your statement is conclusory. Just because the supreme court says it interpreted the constitution does not mean thats what they did.

Actually, where is the right to any marriage in the constitution? Please find it for me. The supreme court was unable to find it in the constitution, but maybe you can?

The decision was not based on the constitution. It was based on "fundamental liberties." What are those fundamental liberties? Well we wrote them down in a constitution and voted on them. We require a super majority in an amendment to make something a fundamental liberty. If fundamental liberties are not written down, then what are they? There are just lots of other fundamental liberties out there, somewhere, waiting to be discovered? A majority of justices get to just declare something a fundamental liberty one day? What if they one day decide there is a fundamental liberty to work with only people you want to work with? What if they discover there is a fundamental liberty to never have to be offended? I know these are extreme examples, but the problem with unwritten natural rights is, where do they come from? How do we know what they are? 5 people can just make them up one day, that's the law? The people have no say?

Thank God that the Supreme Court justices make these decisions and not bozos like Ken Paxton....and about 105 other elected Texas officials.

Well for starters, as the attorney general, Paxton would not make such a decision. HOWEVER, in the Judicial Supremacy > Democracy system that you support, Paxton is much more powerful than he would be in a balanced system like we used to have. Also there are 150 state reps, 31 state senators, 1 governor and ultimately 20+ million Texans that would get to make that decision. Your position is "F*** democracy if I don't get my way."

What a great day for our country and our Constitution!

Never forget that as the supreme court continues to run amok in the future, this was your position. When they violate the constitution to your disadvantage, remember this.

Sorry Zork, they've pulled me back in again.

 

[56 Bells]

What law did it interpret? Where is the right to gay marriage in the constitution? Explain. Yes the correct way to amend the constitution is through an amendment. The supreme court amended it by adding something that is not there. Your statement is conclusory. Just because the supreme court says it interpreted the constitution does not mean thats what they did.

Actually, where is the right to any marriage in the constitution? Please find it for me. The supreme court was unable to find it in the constitution, but maybe you can?



Well for starters, as the attorney general, Paxton would not make such a decision. HOWEVER, in the Judicial Supremacy > Democracy system that you support, Paxton much more powerful than he would be in a balanced system like we used to have. Also there are 150 state reps, 31 state senators, 1 governor and ultimately 20+ million Texans that would get to make that decision. Your position is "F*** democracy if I don't get my way."



Never forget that as the supreme court continues to run amok in the future, this was your position. When they violate the constitution to your disadvantage, remember this.

Sorry Zork, they've pulled me back in again.

If we followed your line of thinking concerning what you consider a democracy to be, blacks would STILL not have voting rights, or the right to an education, or the right to marry anyone other than another black, or to own land, etc., etc., etc.

Minorities can never outvote a majority, obviously. But all American citizens, whether minority or not, have EQUAL RIGHTS under our great Constitution. That's why we have the Constitution---to protect the rights of ALL American citizens....not just those in a majority. If you don't like our Constitution, amend it.....that's the way it's done.

And don't be so pretentious to tell me "F***democracy if I don't get my way." How ludicrous! Many Supreme Court decisions passed down over my lifetime are at odds with my personal opinions and/or legal opinions. But I choose to abide by the rule of law as interpreted by the Supreme Court. For those who want to purport that the court is nothing more than propaganda and a political machine every time a decision is handed down that they don't agree with need to re-read what the Supreme Court's duties are.

 

[Htown77]

I drafted something much longer but i think its pointless. You said black would not have voting rights.
For starters the 15th amendment:
"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."

I do not have time to impart the basics of the constitution. You do not seem to understand that only exisiting rights can be treated equally. The justices' jobs are to interpet the constitution. They can only interpet rights that are there. There is no right to gay marriage there. There is no right to marriage there really. They made up a right. That's not interpretation. That's legislative. They've been making up rights recently. (See cases i mentioned earlier)

At one point 100 years ago, judges said workers could not unionize because it intefered with a "right to contract" they made up. It was later overturned because it was ludicrous.

By the way, failure of judges to follow the 13th, 14th, and 15th amendment in the early 1900s, is no different than their decision today. Would you argue they were doing their job when approved laws disenfranchising blacks in the early 1900s in violation of the 15th amendment? Blacks lost their voting rights BECAUSE the courts stopped following the constitutun. You seem to believe they are infallible for some reason.

 

[Htown77]

I'll add one last thing, I have discussed this topic with some of the foremost constitutional scholars out there on both the right and the left for the past few years. They will tell you there is no fundamental right to marriage in the constitution, just as there is no fundamental right to abortion, contraception of freedom of contract. Those that support the Court do so because they believe lawyers and judges are superior at making law than the people. When you ask them "what about Dred Scott?" (as Mr. Deez pointed out earlier) they reply "Well that's the risk, but I think the system of judge-made law is better." Maybe it is better today, but will be tomorrow? That is my entire point. The people can make bad laws, but it is still in the people's hands to fix those bad laws. This is no longer in the peoples hands. There is no point in a constitutional amendment because the judges would just ignore it as they ignored the existing constitution.

New rights cannot be found. Old rights can be applied to new technologies, such as the invention of new weapons. However, homosexual behavior has existed since this country began. The Constitution did not protect a right to gay marriage for the previous 220+ years. It does not suddenly begin to do so without amendment.

Also we had amendment dealing with race, the 13th, 14th and 15th. They did not apply to everything. That's why the 14th amendment did not give women the right to vote. That had to be passed by constitutional amendment under the 19th amendment (and the people passed it!). If there was no need for an equal rights amendment, why did so work so hard to try and pass one in the 1970s? No, equal protection of marriage based on sexual orientation (limited to gay or straight but ignoring sexual attractiveness to anything else) was not contemplated anywhere in the document. The supreme court abused it's discretion to interpret by interpreting rights that do not exist as equal.

To assume that I am simply unhappy with the result is show ignorance both of the constitution and my knowledge of the law, the constitution, and the history of the constitution.

I leave you with the word's of justice thomas:
“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built....Worse, it invites judges to do exactly what the majority has done here—“‘roam at large in the constitutional field’ guided only by their personal views” as to the “ ‘fundamental rights’ ” protected by that document.”

 

[56 Bells]

I drafted something much longer but i think its pointless. You said black would not have voting rights.
For starters the 15th amendment:
"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."

I do not have time to impart the basics of the constitution. You do not seem to understand that only exisiting rights can be treated equally. The justices' jobs are to interpet the constitution. They can only interpet rights that are there. There is no right to gay marriage there. There is no right to marriage there really. They made up a right. That's not interpretation. That's legislative. They've been making up rights recently. (See cases i mentioned earlier)

At one point 100 years ago, judges said workers could not unionize because it intefered with a "right to contract" they made up. It was later overturned because it was ludicrous.

By the way, failure of judges to follow the 13th, 14th, and 15th amendment in the early 1900s, is no different than their decision today. Would you argue they were doing their job when approved laws disenfranchising blacks in the early 1900s in violation of the 15th amendment? Blacks lost their voting rights BECAUSE the courts stopped following the constitutun. You seem to believe they are infallible for some reason.

Firstly, the 15th amendment was manipulated in certain states with the use of a "poll tax" which kept the poor, blacks, as well as those who did not own land, from voting (depending on which state laws you choose to review). So, our Constitution was amended with the addition of the 24th Amendment to stop the manipulative local and state laws which kept blacks (and other poor people) from voting.

As for "existing rights," the decision by our Supreme Court to grant marriage to same-sex couples is derived from the 14th Amendment. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of the law; nor deny to any person within its jurisdiction the equal protection of the law." Thus, it is fully congruent with the Supreme Court's ruling on gay marriage. Due to this 14th Amendment, no court could decide otherwise. It's IN THE CONSTITUTION. As you say "they (the Supreme Court judges) can only interpret rights that are there." And, yes, the rights ARE THERE.....in the 14th Amendment. And, yes, the judges of our Supreme Court interpreted the rights that are there---thus same-sex marriage.

As I read very recently "I do not have time to impart the basics of the constitution to you. You do not seem to understand" that elected leaders hell-bent on usurping the laws of our land do so with personal and political agendas in mind. And our Supreme Court must accept the challenges and interpret our Constitution to determine right from wrong.....what our laws are meant to cover and protect vs agendas of radicalized local/state (and sometimes federal) government.

Most legal scholars seem very comfortable with the decision on same-sex marriage as it pertains to the 14th Amendment of our Constitution. (the early statistics are about 85% of legal scholars agree with the ruling)

Once again, if Americans are determined to stop same-sex marriage, it can be done through an amendment to our Constitution.

Otherwise, accept the law of the land and move on. And if the attorney general of Texas, or Mississippi, or Louisiana, or any other state wishes to refuse to abide by our federal law and the Constitution they have sworn to uphold, let them be removed from office for such illegal practices. And trying to manipulate their refusal to follow the United States Constitution on religious grounds will hold no water for employees who work for the city, county, or state governments. Legal precedent precludes such arguments.

 

[Htown77]

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of the law; nor deny to any person within its jurisdiction the equal protection of the law."

So you genuinely believe that the right of same sex marriage has ALWAYS been there in those words. I guess no one realized it until Friday? You believe that's what the authors' of those words intended? You believe that what happened Friday, did not change the constitution, but actually interpreted what was always there? You believe that those words truly mean that a person has a right to marry, even though no right to marry have ever been recognized before ever? You believe those words not only mean there is a right to marry based on sexual preference for a partner of the same sex, but do not mean there is a right to marry based on sexual preference for multiple partners or any other sexual preference?

Explain to me how the 14th amendment ALWAYS gave a right to gay marriage (or any right of marriage for that matter), but did not give a right to women the right to vote?

Otherwise, accept the law of the land and move on. And if the attorney general of Texas, or Mississippi, or Louisiana, or any other state wishes to refuse to abide by our federal law and the Constitution they have sworn to uphold, let them be removed from office for such illegal practices. And trying to manipulate their refusal to follow the United States Constitution on religious grounds will hold no water for employees who work for the city, county, or state governments. Legal precedent precludes such arguments.

Thomas Jefferson and James Madison did not accept the law of the land and move on when the supreme court got it wrong at the alien and sedition trials (the supreme court actually said that the people did not have a first amendment right to criticize the president). Abraham Lincoln did not accept the law of the land and move on when the supreme court got it wrong in Dred Scott. I give you his words "At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal." The NAACP did not accept the the Supreme Court's decision in Giles v. Harris (1903) when the black men of Alabama were disenfranchised (and no that did not involve the poll tax. Actually, the original point of the poll tax was for political bosses to find out who was voting. It later became more about keeping people from voting, yes. It was cured by a amendment, NOT THE COURT, as you pointed out).

The supreme court said there was a right to freedom of contract in Lochner (1905), then decided in 1934 that there was no right to freedom of contract. None of the founding fathers believed if the supreme court says so, it's the law and we must all just move on. Why? Because the Supreme Court is not infallible. The Supreme Court can get it wrong. Here they did not just get it wrong, that's not my complaint. My complaint is they did not do their job of interpreting the law, and the brazenly did not interpret the law.

Justice Roberts puts it more eloquently than I do:

"Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment."......

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s ap- proach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

The majority’s decision is an act of will, not legal judg- ment. The right it announces has no basis in the Consti- tution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invali- dates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthagin- ians and the Aztecs. Just who do we think we are?

It can be tempting for judges to confuse our own prefer- ences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitu- tion “is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a ques- tion the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that ques- tion. And it answers that question based not on neutral principles of constitutional law, but on its own “under- standing of what freedom is and must become.” Ante, at 19. I have no choice but to dissent.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of mar- riage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.....

Racial restrictions on marriage, which “arose as an incident to slavery” (this is banned by the 13th amendment) to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court....

Shortly after this Court struck down racial restrictions on marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Lov- ing, and this Court summarily dismissed an appeal. Baker v. Nelson, 409 U. S. 810 (1972)...."

^ Hey look, the Supreme Court in 1972 said the constitution did not include a right to gay marriage. This is strange since according to you, gay marriage is in the constitution. The 14th amendment existed in 1972. Why did not everyone accept that and move on in 1972?

"The majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that char- acterized discredited decisions such as Lochner v. New York, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law. "

Please take the time to tread the above and actually read the opinion (both the majority and the dissent). Your whole argument is "it's there because the supreme court says so." Okay what if the supreme court says "We do not see a right to free speech." I guess its not there because they say it is not there?

And trying to manipulate their refusal to follow the United States Constitution on religious grounds

Who said anything about this? Your supreme court just manipulated the constitution based on their own opinion of what they thought good public policy should be and added something that was not and has never been there.

Most legal scholars seem very comfortable with the decision on same-sex marriage as it pertains to the 14th Amendment of our Constitution. (the early statistics are about 85% of legal scholars agree with the ruling)

Unfortunately, most legal scholars think they know better than the people and that judges should decide everything.

 

[Mr. Deez]

And, if this site is going to have a dialogue about this issue, perhaps putting the Supreme Court's ruling.....completely.....and fully....at the beginning of this dialogue, where everyone can read it, could stop such ridiculous analogies with incest, polygamy, etc. Such analogies cannot even be remotely attached to this court's ruling. It's very explicit, actually. Such hysteria and silliness!

Since you asked, here's a link to the full opinion.

It is explicit, because it dealt with a narrow and specific issue. Most court opinions are that way. However, the language used in court opinions today are very, very often indicative of future opinions on difference cases. For example, when Loving v. Virginia, 388 U.S. 1 (1967)(invalidating state bans on interracial marriage) was handed down, people would have gasped and said one was a paranoid nut to predict that same-sex marriage would come out of that opinion. However, the opinion at issue relied very heavily on Loving's rational, especially on the due process issue. The point is that a very large portion of the rationale justifying invalidating the same-sex marriage bans of due process grounds could also could reasonably apply to polygamy bans. In fact, if you apply the alleged substantive due process analysis (which admittedly is subjective and result-oriented horse crap, but I'll pretend it matters for the sake of discussion), the polygamists actually have a stronger case than the gays do.

See Chief Justice Roberts' discussion on point.

aside and revives the grave errors of that period. One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14- 4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015).

I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.

As for "existing rights," the decision by our Supreme Court to grant marriage to same-sex couples is derived from the 14th Amendment. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of the law; nor deny to any person within its jurisdiction the equal protection of the law." Thus, it is fully congruent with the Supreme Court's ruling on gay marriage. Due to this 14th Amendment, no court could decide otherwise. It's IN THE CONSTITUTION. As you say "they (the Supreme Court judges) can only interpret rights that are there." And, yes, the rights ARE THERE.....in the 14th Amendment. And, yes, the judges of our Supreme Court interpreted the rights that are there---thus same-sex marriage.

First, I reject the "marriage equality" slogan. It's a misnomer, because there is no inequality in the literal sense. My marital choices are no different from a gay man's. (That distinguishes it from bans on interracial marriages which were racially discriminatory against both blacks and whites and restricted their choices against each other.)

However, let's set aside the logic problems with treating this as an inequality issue and assume that same-sex marriage bans discriminate. Your analysis still ignores the 14th Amendment's intent and historic context and turns basic equal protection jurisprudence on its head. The 14th Amendment was a Reconstruction-era amendment designed primarily to protect former slaves from abusive state-sponsored actions and discriminatory laws. It wasn't designed to mandate absolute equality on all grounds in every law.

For example, my 16-month old son can't vote regardless of how informed or smart he proves himself to be, but I can. Is that discriminatory? Yes. Is it unconstitutional? Of course not. A progressive income tax system discriminates against rich people. A regressive tax system (like the sales tax) discriminates against the poor. These policies are still constitutional, despite the fact that they are discriminatory, because not all forms of discrimination are actionable. (As someone else rightly pointed out, the 19th Amendment wouldn't have been necessary had all forms of discrimination been prohibited by the 14th Amendment.) Homosexuality was never intended to be part of the equation any more than these forms of discrimination were. It's something the Court has simply decided on its own accord and without any textual or historic support. That steps over the line from applying the law to the facts to making the law up as one goes along to reach the desired result.

And I'm not necessarily an anti-gay marriage zealot. I can see a possible rationale to impose gay marriage, albeit more narrowly (through the full faith and credit clause) and agreed with the Court that the federal DOMA was unconstitutional. However, as a lawyer the rationale a court uses matters to me as much or more than the result does.