SCOTUS decides for Constitutional right for gay marriage

[Bob78164]

Several states have made same sex marriages legal, most, as of now, do not recognize same sex marriages. Some have passed laws defining marriage as between two people of opposite sex. This decision, without any basis in the Constitution, overrides existing laws which are in the State's jurisdiction. How can these laws be ruled unconstitutional when the Constitution does not give the Federal Government any say on what the definition of marriage is? (Other than an interpretation of the 14th amendment that could be used to mean anything).

Since you've apparently been living in a vacuum for the last century or so, the Constitution through the 14th amendment says that no state shall deny any person within its jurisdiction the equal protection of the laws. That means all the laws, including marriage laws, not just those laws that you think it should apply to. Our courts have spent decades determining whether thousands of laws on both serious and mundane subjects violate that equal protection clause. 2015 is a little late to start raising that argument. Perhaps you've heard of a case called Brown v. Board of Education. The Constitution doesn't talk about local public schools either, so I guess you think that case was wrongly decided as well.

Seems like according to Scalia's vision, the Court must have decided Brown wrongly because when Plessy v. Ferguson was decided relatively contemporaneously with the adoption of the Fourteenth Amendment, people apparently thought that separate but equal was consistent with the Equal Protection Clause. --Bob

[Pastor Fireball]

I'm just wondering if Scalia used the phrase "interpretive jiggery-pokery" again.

That's my new favorite phrase.

[Bob Juch]

Several states have made same sex marriages legal, most, as of now, do not recognize same sex marriages. Some have passed laws defining marriage as between two people of opposite sex. This decision, without any basis in the Constitution, overrides existing laws which are in the State's jurisdiction. How can these laws be ruled unconstitutional when the Constitution does not give the Federal Government any say on what the definition of marriage is? (Other than an interpretation of the 14th amendment that could be used to mean anything).

Since you've apparently been living in a vacuum for the last century or so, the Constitution through the 14th amendment says that no state shall deny any person within its jurisdiction the equal protection of the laws. That means all the laws, including marriage laws, not just those laws that you think it should apply to. Our courts have spent decades determining whether thousands of laws on both serious and mundane subjects violate that equal protection clause. 2015 is a little late to start raising that argument. Perhaps you've heard of a case called Brown v. Board of Education. The Constitution doesn't talk about local public schools either, so I guess you think that case was wrongly decided as well. .

The dissenting justices should walk out in front of their building and read what is written above the entrance:

Spoiler

[SportsFan68]

Several states have made same sex marriages legal, most, as of now, do not recognize same sex marriages. Some have passed laws defining marriage as between two people of opposite sex. This decision, without any basis in the Constitution, overrides existing laws which are in the State's jurisdiction. How can these laws be ruled unconstitutional when the Constitution does not give the Federal Government any say on what the definition of marriage is? (Other than an interpretation of the 14th amendment that could be used to mean anything).

Since you've apparently been living in a vacuum for the last century or so, the Constitution through the 14th amendment says that no state shall deny any person within its jurisdiction the equal protection of the laws. That means all the laws, including marriage laws, not just those laws that you think it should apply to. Our courts have spent decades determining whether thousands of laws on both serious and mundane subjects violate that equal protection clause. 2015 is a little late to start raising that argument. Perhaps you've heard of a case called Brown v. Board of Education. The Constitution doesn't talk about local public schools either, so I guess you think that case was wrongly decided as well. .

If he's following the logic of his own argument, he has to think that. But one never knows about Flock. He usually demonstrates that he concedes the other side in an argument when he makes a snarky non sequitur like the one above: "Of course. You know best. I guess the rest of us will just have to get used to it."

But he kept on arguing after that, so no concession yet.

[SportsFan68]

Sir Ian McKellan just commented from Gay Pride Week in New York City on MSNBC. It was very enjoyable to listen to, although it got a little confusing toward the end, plus Casey was barking at some dreadful, life threatening bicyclist out front. I hope I can find the whole thing later on YouTube or something.

[Bob78164]

Scalia is pretentious and egotistic.

LOL

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.

Obergefell v. Hodges, Docket No. 14-556, slip op. at 7 n.22 (Scalia, J., dissenting)

[SpacemanSpiff]

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.

Obergefell v. Hodges, Docket No. 14-556, slip op. at 7 n.22 (Scalia, J., dissenting)

Kind of like these guys?

[silverscreenselect]

I am often dumbfounded when conservatives who get aghast whenever someone passes a law requiring businesses to pay an extra 25 cents an hour to employees or to stop polluting the air have no problem with that same government deciding the most fundamental decisions of their lives such as who they may and may not marry.

[Bob78164]

I am often dumbfounded when conservatives who get aghast whenever someone passes a law requiring businesses to pay an extra 25 cents an hour to employees or to stop polluting the air have no problem with that same government deciding the most fundamental decisions of their lives such as who they may and may not marry.

To be fair, it's been nearly a century since most conservatives have attempted to ground their opposition to minimum wage laws on constitutional grounds. I was bemused to note that Chief Justice Roberts's dissent compared the Court's opinion to Lochner v. New York, the case in which the Court struck down minimum wage laws as a violation of substantive due process for violating employees' right to contract. --Bob

[Bob78164]

Several states have made same sex marriages legal, most, as of now, do not recognize same sex marriages. Some have passed laws defining marriage as between two people of opposite sex. This decision, without any basis in the Constitution, overrides existing laws which are in the State's jurisdiction. How can these laws be ruled unconstitutional when the Constitution does not give the Federal Government any say on what the definition of marriage is? (Other than an interpretation of the 14th amendment that could be used to mean anything).

Since you've apparently been living in a vacuum for the last century or so, the Constitution through the 14th amendment says that no state shall deny any person within its jurisdiction the equal protection of the laws. That means all the laws, including marriage laws, not just those laws that you think it should apply to. Our courts have spent decades determining whether thousands of laws on both serious and mundane subjects violate that equal protection clause. 2015 is a little late to start raising that argument. Perhaps you've heard of a case called Brown v. Board of Education. The Constitution doesn't talk about local public schools either, so I guess you think that case was wrongly decided as well. .

The dissenting justices should walk out in front of their building and read what is written above the entrance:

Large picture

Bob, Please put large pictures in "spoiler=" tags. Failing to do so makes the entire page hard to read for those on smaller screens. Thanks. --Bob

[BackInTex]

I am often dumbfounded when conservatives who get aghast whenever someone passes a law requiring businesses to pay an extra 25 cents an hour to employees or to stop polluting the air have no problem with that same government deciding the most fundamental decisions of their lives such as who they may and may not marry.

Really?

Who may I now marry? No one according to you because I am already married, and must first obtain a divorce from my current wife. It would be my decision if I wanted to marry another woman or person. Right? According to you, I can not marry more than one person because according to you "marriage is between one person and another person". But that IS NOT the definition of marriage. You have changed the definition, in your mind, but still limited that definition where in others' minds it includes more than one.

You have your definition.
I have mine.
They (polygamists) have theirs.

But you only think yours is correct. And it dumbfounds you that there are others who disagree. You are an absurd thinker.

[flockofseagulls104]

But he kept on arguing after that, so no concession yet.

Concession to what? While I have no objection to same sex marriage I am appalled by the methods used to implement it. The fact that 5 unelected judges who serve for life can make a decision that has so many unintended consequences is scary to me. This decision, coupled with the one yesterday shows that we are being ruled, not governing ourselves.

I am a Constitutionalist. I believe this country is best served by a Federal Judicial system that defers to the legislative and the executive branches, and does not supercede them. In my opinion, both situations, yesterday and today, required amendments to the Constitution, rather than a very loose interpretation of the existing text. Kennedy says the 1st amendment will protect those who object to this based on their religious beliefs. But as Scalia points out, that is a probably not going to work. The bullying nature of those who are passionate about this new 'right' will stifle and marginalize those who object to it both by their religious beliefs and by the methods used to achieve it.

I am happy for the same sex couples who will now be able to marry now that the legal definition of marriage has been changed by 5 people and their individual opinions coupled with a questionable interpretation of the 14th amendment. I am worried about the future and what 5 different people with different opinions will be able to do.

[Jeemie]

Flock- you haven't shown where the Supreme Court Justices violated the Constitution.

You haven't shown where "new laws were created".

A small cadre of justices expanded marriages to allow interracial marriage. Was that a horrific way to go about it too?

[silverscreenselect]

You have changed the definition, in your mind, but still limited that definition where in others' minds it includes more than one.

You have your definition.
I have mine.
They (polygamists) have theirs.

But you only think yours is correct. And it dumbfounds you that there are others who disagree. You are an absurd thinker.

No, you do not understand the fundamental principles of constitutional law that are taught in the first semester of law school. None of the rights guaranteed in the Constitution are absolute. When a law differentiates between people on the basis of a suspect criteria such as race or sex, there must be a compelling state reason to uphold the law. If a law differentiates on the basis of other criteria, the state can do so as long as there is a rational basis. Considering the large number of benefits that accrue to married people in terms of tax law, estate law, evidentiary law and other reasons, it makes sense to limit the right to marry to two people. Otherwise group marriages could circumvent estate taxes and allow any number of people to qualify as a "family" for insurance purposes.

There is no compelling state reason to limit marriage to just a man and woman any more than there was to limit marriage to only between white people or black people or only between people of the same religious faith (many churches will not perform a marriage unless both spouses are members of the faith).

What's more, this isn't something that I or the Bobs or five members of the Supreme Court invented. It was well settled constitutional law when I went to law school 40 years ago, something I learned in my first quarter.

You confuse marriage as a religious institution and marriage as a civil institution. A marriage that's valid according to a particular church carries with it whatever weight that church and its followers choose (there may be eternal consequences but we have no way of knowing that). No gay couple I know of are attempting, nor could they, to require the Catholic Church or the Baptist Church to recognize and bless their marriage. A marriage that's valid according to the United States or any of the states carries with it a wide variety of rights and obligations. It's those rights and obligations that a state can't arbitrarily restrict to members of the opposite sex.

[Bob78164]

You have changed the definition, in your mind, but still limited that definition where in others' minds it includes more than one.

You have your definition.
I have mine.
They (polygamists) have theirs.

But you only think yours is correct. And it dumbfounds you that there are others who disagree. You are an absurd thinker.

No, you do not understand the fundamental principles of constitutional law that are taught in the first semester of law school. None of the rights guaranteed in the Constitution are absolute. When a law differentiates between people on the basis of a suspect criteria such as race or sex, there must be a compelling state reason to uphold the law. If a law differentiates on the basis of other criteria, the state can do so as long as there is a rational basis. Considering the large number of benefits that accrue to married people in terms of tax law, estate law, evidentiary law and other reasons, it makes sense to limit the right to marry to two people. Otherwise group marriages could circumvent estate taxes and allow any number of people to qualify as a "family" for insurance purposes.

There is no compelling state reason to limit marriage to just a man and woman any more than there was to limit marriage to only between white people or black people or only between people of the same religious faith (many churches will not perform a marriage unless both spouses are members of the faith).

What's more, this isn't something that I or the Bobs or five members of the Supreme Court invented. It was well settled constitutional law when I went to law school 40 years ago, something I learned in my first quarter.

You confuse marriage as a religious institution and marriage as a civil institution. A marriage that's valid according to a particular church carries with it whatever weight that church and its followers choose (there may be eternal consequences but we have no way of knowing that). No gay couple I know of are attempting, nor could they, to require the Catholic Church or the Baptist Church to recognize and bless their marriage. A marriage that's valid according to the United States or any of the states carries with it a wide variety of rights and obligations. It's those rights and obligations that a state can't arbitrarily restrict to members of the opposite sex.

There are two potential bases for the Court's ruling. First, under the Due Process Clause, a law that restricts a fundamental right might be supported by a compelling reason. Second, under the Equal Protection Clause, a law based on a suspect classification is subject to enhanced scrutiny, sometimes (depending on the classification) ratcheting all the way up to compelling reason, and in any event the Equal Protection Clause requires all laws to pass a level of review known as "rational basis."

Unfortunately, the Court's opinion is less than pellucid about its doctrinal basis. I cannot tell whether the Court based its opinion on the conclusion that marriage restrictions fall because marriage is a fundamental right and the states have failed to demonstrate a compelling basis for depriving same-sex couples of that right, or on the conclusion that sexual orientation is a suspect classification triggering heightened scrutiny (of some level) which restrictions on same-sex marriage fail, or on the conclusion (reached by at least some of the lower courts) that restrictions on same-sex marriage fail rational basis review (the lowest possible level of scrutiny, which all laws must pass). --Bob

[flockofseagulls104]

Flock- you haven't shown where the Supreme Court Justices violated the Constitution.

You haven't shown where "new laws were created".

A small cadre of justices expanded marriages to allow interracial marriage. Was that a horrific way to go about it too?

Every state will have to re write it's laws to redefine what marriage is because of 5 people's opinions. Oh well, I agree with Scalia, Thomas, Alito and even Roberts, who are most probably aware of the Loving decision. Maybe I'm just pretentious and egotistic.

[SpacemanSpiff]

Going beyond the ruling, I see that my native state of Alabama is, well, being Alabama.

Despite the Governor saying that the ruling must be obeyed, some counties had instituted Massive Resistance - The Next Generation and just stopped issuing marriage licenses altogether:

http://www.al.com/news/index.ssf/2015/0 ... t-comments

And a state county commission association has advised the counties not to issue licenses until they've "had a chance to review the ruling."

http://www.al.com/news/anniston-gadsden ... recom.html

Sonny Brasfield, head of the association, said "We have to remember that the issue is complicated more in Alabama than almost anywhere else." More complicated? How so? The only thing complicated is that they can't figure out how to not comply; perhaps Judge Moore can figure it out.

[silverscreenselect]

Flock- you haven't shown where the Supreme Court Justices violated the Constitution.

You haven't shown where "new laws were created".

A small cadre of justices expanded marriages to allow interracial marriage. Was that a horrific way to go about it too?

Every state will have to re write it's laws to redefine what marriage is because of 5 people's opinions. Oh well, I agree with Scalia, Thomas, Alito and even Roberts, who are most probably aware of the Loving decision. Maybe I'm just pretentious and egotistic.

No, not every state had to rewrite its laws. Prior to the Supreme Court decision, 11 states plus DC allowed gay marriage either by statute or voter initiative. Another 26 states allowed it because of court decisions, some of which still had appeals pending at the time of the Supreme Court decision. I'm not sure how many of the decisions in those 24 states were issued by state as opposed to federal judges, or, for the state judges, whether they found independent state grounds to do so or not. Thirteen states, including Georgia, Arkansas, and Texas, still banned gay marriage.

In 1967, 16 states still had anti-miscegenation laws at the time of the Loving v. Virginia decision. Maryland had repealed its law while the Loving case was pending. Again, I don't know how many states never had such laws or how many repealed them. At least one state (California) overturned its anti-miscegenation law by a ruling by the State Supreme Court.

States don't have to rewrite their laws. The Georgia legislature wont' be back in session until January, but clerk's offices are already issuing same-sex wedding licenses and there was a mass wedding in Fulton County this afternoon.

[elwoodblues]

One of the more ridiculous arguments against gay marriage (and they were all ridiculous) was that gay people already had the same right as anyone else to marry someone of the opposite sex. Well now you have just as much right as a gay person to marry someone of the same sex. See how silly that sounds? That is how your argument sounded.

No new law was created here. It only means existing marriage laws now apply to anyone who wants to marry the person of their choice. It is not going to lead to polygamy or to people marrying animals or toasters or whatever. And to the people who think this goes against their religious beliefs, the US is not a theocracy.

[Beebs52]

Elwood, I think you nailed it.

[elwoodblues]

Elwood, I think you nailed it.

Thank you.

[flockofseagulls104]

Just for those of you who will take it in the wrong way. I am happy for all my gay friends and acquaintances and everyone else who now have the right to get legally married in every state. Congratulations to them!

I am, however, more concerned than ever about the trashing and redefinition of the Constitution, which is the only thing that shields us against tyranny. There are many of us pretentious and egotistic people that are concerned about that. The dissents discussed many of the unintended consequences of this decision, and no matter what you think of me and my and my opinions, these concerns are valid and we need to have a 'conversation' about these concerns, rather than ignoring them and labeling the people that have the concerns as hateful bigots. Or pretentious and egotistic.

[Bob Juch]

You have changed the definition, in your mind, but still limited that definition where in others' minds it includes more than one.

You have your definition.
I have mine.
They (polygamists) have theirs.

But you only think yours is correct. And it dumbfounds you that there are others who disagree. You are an absurd thinker.

No, you do not understand the fundamental principles of constitutional law that are taught in the first semester of law school. None of the rights guaranteed in the Constitution are absolute. When a law differentiates between people on the basis of a suspect criteria such as race or sex, there must be a compelling state reason to uphold the law. If a law differentiates on the basis of other criteria, the state can do so as long as there is a rational basis. Considering the large number of benefits that accrue to married people in terms of tax law, estate law, evidentiary law and other reasons, it makes sense to limit the right to marry to two people. Otherwise group marriages could circumvent estate taxes and allow any number of people to qualify as a "family" for insurance purposes.

There is no compelling state reason to limit marriage to just a man and woman any more than there was to limit marriage to only between white people or black people or only between people of the same religious faith (many churches will not perform a marriage unless both spouses are members of the faith).

What's more, this isn't something that I or the Bobs or five members of the Supreme Court invented. It was well settled constitutional law when I went to law school 40 years ago, something I learned in my first quarter.

You confuse marriage as a religious institution and marriage as a civil institution. A marriage that's valid according to a particular church carries with it whatever weight that church and its followers choose (there may be eternal consequences but we have no way of knowing that). No gay couple I know of are attempting, nor could they, to require the Catholic Church or the Baptist Church to recognize and bless their marriage. A marriage that's valid according to the United States or any of the states carries with it a wide variety of rights and obligations. It's those rights and obligations that a state can't arbitrarily restrict to members of the opposite sex.

Some legislature in some state (I don't have time to look it up) is trying to do an end-run by saying the only valid marriages are those performed by ministers. It's not law yet and probably won't be. Besides being unconstitutional it's stupid as a marriage performed by a minister of the Pastafararian Church would have to be considered valid thus nullifying the intent of that law.

[flockofseagulls104]

No gay couple I know of are attempting, nor could they, to require the Catholic Church or the Baptist Church to recognize and bless their marriage.

Will you be willing to bet that will never happen?

[SportsFan68]

No gay couple I know of are attempting, nor could they, to require the Catholic Church or the Baptist Church to recognize and bless their marriage.

Will you be willing to bet that will never happen?

I'll take that bet as it's written. They might ask, but they could not require the Catholic or Baptist Church to recognize or bless the marriage.