At last, though I predicted the vote would be 6-3 instead of the actual 5-4. Gay marriage is, by that close vote, the law of the land, and it’s about damn time! From the New York Times live feed (lots more information at that site):
Supreme Court Rules on Gay Marriage – Live Coverage
. . . A roar let out shortly after 10 a.m. at the foot of the court steps as the nation’s highest court ruled what many here said they’ve always known: marriage is a right.
Many waived flags, others thrust celebratory signs skyward. In the front of the crowd, Christopher Sargent and Scott Roewer, of Washington, D.C., shared a long kiss. They were present for history, they said.
“They acknowledged what is true: that we all have a right to the same things. This is a human right,” Mr. Sargent said.
From another Times story giving the details of the vote:
Justice Anthony M. Kennedy wrote the majority opinion in the 5 to 4 decision. He was joined by the court’s four more liberal justices.
Note the four conservatives, including Roberts (whose decision surprised me) fading into irrelevance. Roberts also said this:
“Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the constitution. It had nothing to do with it.”
Sour grapes, Roberts; you’re on the earlier downside of the moral arc. The Constitution is a living document, and the tide of sentiment is on the side of same-sex marriage.
Meanwhile, a nice tw**t:
My favorite tw**t so far:
http://i.imgur.com/WuyDKTR.png
My girlfriend will NOT be happy about this, but the law is the law….
The wife won’t like it, but law of the land ‘n all.
That’s a good one! 🙂
Apart from being a moral decision, the ruling is a step in preventing creeping theism.
Are there ANY even remotely reasonable arguments which AREN’T religious in nature? This is, in NO WAY, and abridgment of religious freedom, not matter how loudly the religious right whines that it is.
Plenty of reasons:
http://anotherpartofme.com/12-reasons-gays-shouldnt-be-allowed-to-marry/
Very good! 🙂
It boggles the mind that the right try to spin marriage equality as an infringement upon their religious liberty. How on earth is granting more rights to more people an infringement upon liberty? Would they agree that the religious rights of conservative Muslims in America are being curtailed because it’s legal for women to drive?
They are so very hard of thinking.
It may have more to do with just knowing that somebody, somewhere is having fun and enjoying life in the here and now. It just busts their chops. They crave the suffering deprivations religion is always exalting. That forms a platform from which to exercise there control. With equality who needs the right?
“They are so very hard of thinking.”
😀
It infringes on their right to discriminate–duh! Well, to be fair, I wouldn’t want to make a cake for fundies, either.
RWNJs (Right Wing Nut Jobs) seem to think that rights are some kind of limited resource and that granting them to an oppressed group diminishes the supply. It’s odd to think that some of the same people who think that rights are finite think that some natural resources, such as fossil fuels, are not (there’s at least one congresscritter who expressed the notion that oil somehow “renews itself). In fact the only thing that is diminished by the extension of rights is the loss of smugness and false superiority on the part of the formerly privileged.
I heard an oil company executive say, when reminded that the world will one day exhaust its retrievable oil supply, said that “God would never let that happen”. He’s right – it says so right in the Bible.
Well, in fact the fossil fuel supply does renew itself – but not on a timescale that will provide continuous supply. That congresscritter may have to park his Lincoln for sixty megayears or so before new fossil fuels become available….
I imagine the big concern for religious organizations is that they could lose their tax-exempt status (and/or other federal benefits) if they discriminate against same-sex couples — the way Bob Jones U. lost its tax-exempt status because of its ban on interracial dating.
Proof again that governments and the state are always behind the times. The state hinders progress and then takes credit for progress after the fact (much like slavery). If the state had not controlled marriage from the outset, this would never have been an issue.
Sorry but history just is not with you on the comment that this is much like slavery. Slavery was built into the Constitution from the beginning. Remember 3/5 a vote for each slave/property. Slavery required Constitutional Amendment to make illegal. \
The Constitution does, however, allow the states to control everything that has not been given specifically to the federal govt. In any case, I don’t think the fed would have been that much ahead of some states on this issue. It would have been an issue regardless and to think otherwise is wrong.
I think you fill find that the British navy had quite a role in ending slavery.
Yes, thank the RN!
OK, but those guys aren’t welcome in Europe! Perhaps the Moon or Mars or Pluto…
…Uranus…?
b&
Not mine by god!
They might be welcome in Russia or Iran.
I was going to invite them to join ISIS; I am pretty sure they share a congruous stance on gay marriage.
And they would probably relish the idea of beheading all them thar gays.
I don’t think decapitation for homosexuals is considered halal. At least, not unless they’ve taken up arms against Islam — and, even then, it might be questionable to give an hero’s death to a faggot.
Defenestration, on the other hand….
b&
Wait, are you say they *do* or do *not* do windows?
Shouldn’t that be exfenestration? de-fenestration seems the process of migrating away from Windows.
DAESH do not behead gays – they make them jump off the tallest building in town, and stone them to death if they survive that. Beheading is too good for “them”.
Saudi Arabia et al hang LGBT people – far more enlightened.
We live in a world where hundreds of millions of people think this is OK, because of religion. 🙁
I never did get the arguments against, anyway. I mean, I’d never want to marry an homophobic racist fundamentalist Christian, but I’ve never suggested that homophobic racist fundamentalist Christians shouldn’t be permitted to marry or that their marriage options be restricted to non-homophobic non-racist non-Christians.
b&
Wait until kids start falling in love with their phones and they want to establish AI marriage laws. That will never happen… 🙂
If the phones are legally recognized people who themselves wish to enter into marriage with a squishy flesh-and-blood person, why not? Different strokes and all that…
…but only after you get over that whole personhood hurdle, of course….
b&
I’m kind of already there on the falling in love with your phone front, but no way am I tying the knot with my iPhone w/o a pre-nup.
Good point. I wouldn’t mind splitting community property with Apple…
I had just seen the announcement on CNN, and was over-joyed. Woo-hoo! Suck it, conservatives!!
Well that is excellent news!
One of the rather weird aspects of America is that, out of 250 million American adults, only 9 of them get a vote on what the law of the land is!
And it’s not as though those 9 were elected, and nor can you vote them out at the next election if you don’t like them.
I fully support marriage equality, and I am glad that we in the UK passed gay marriage laws a couple of years back.
But I do have some sympathy with the logic of the dissent: in a democracy, laws should be made by the people by plebiscite, or through their elected representatives, not by unelected lawyers.
The idea of a constitution as a “living document” is great, but one under the control of lawyers, rather than under the control of “We the People”? Hmm.
Nope. In a democracy, you need a supreme court to prevent laws being passed by a majority to oppress a minority.
The verdict was 5-4. Had it been 4-5, would you have been as pleased with the process?
This is a conversation I hope we all had in high school civics classes. Of course there have been plenty of decisions I dislike (Citizens United heads a pretty hefty list of recent ones.) But you don’t have to live long in the US to see the wisdom of such mechanisms to protect against the tyranny of the majority.
For now, though, I’d like to put aside such high-mindedness and just gloat a little bit!
That’s a tough problem to solve, and one that we can see that the Court is too-often incapable of solving. See, for example, Dred Scott v Sanford.
While it’s certainly the intention of the Constitution to have the Court protect the minority from the tyranny of the majority, we know for a fact that it’s utterly powerless to do so.
I don’t necessarily have a better suggestion, and a part of me thinks that it may be logically impossible to structure a legal system that guarantees the minority the protection of the majority. After all, if you tip the balance too far in the direction of the minority, the minority could then wield a more traditional tyranny of the minority over the majority.
Rather, “equal protection under the law” seems to be the best hope. That’s what the Court decided today…but just by one vote.
b&
One thing that would take the sting out of this state of affairs will come when basing decisions on facts and reason will become the inviolable norm and basing your decisions on superstition and ideology will flag you us unfit to serve on this and any other court.
You propose a necessary but not sufficient solution. That is, we won’t get there until we embrace rationalism, but it’ll take more than merely embracing rationalism. Look at the godless liberal social justice warriors siding with the cartoonist killers, for example.
b&
Note sure they are “embracing rationalism”, even nominally.
They are atheists. Great. Also a-leprechaunists, presumably. Amen; a few specific irrationalities are avoided.
To be embracing rationalism would be a more active position of systematic self-improvement, to seek the best possible map for the territory and ferret out all irrationalities in the process.
The visible keywords of SJWs are justice and fairness etc; not map/territory or intellectual rigor. (Unless I got an unrepresentative sample)
I agree with Gamall below. The godless liberal SJW clearly have suspended the rationality that initially enabled their atheism. Siding with the cartoonist killers is an irrational purely ideological stance.
Though not all that much more irrational and ideological than the position that, say, the regular “lawn mowing” in Gaza and the West’s incessant meddling in the Mideast to the tune of trillions spent and thousands killed, contributes noooothing legitimate at all to Islamist crankiness.
Bottom line: “merely” embracing rationalism might just do the trick. But it has to remain switched on all the time
– the minute it goes off-line you get Scalia/Roberts/Alito/Thomas strength bulshyt.
While I am in agreement with the above, I think the solution also lies in the fact that the court composition changes over time, as do other branches of government. And that the constitution itself changes over time, and that it can be used flexibly, too. Originalists have a point that one shouldn’t change too drastically, but one shouldn’t be so inflexible that one snaps!
I don’t think that is their role. Isn’t it to ensure that laws passed do abide by the constitution?
Having a popular vote is very important, but not for the fundamental rights of a vulnerable minority.
Then how does one decide what people’s “fundamental rights” actually are, except by popular agreement?
The only alternative is unpopular agreement by a few!
It’s blatantly obvious that the US Supreme Court does not simply apply the law, it decides based on the political opinions of the judges. That’s obvious because most decisions split along lines of political opinion.
One person, the floating voter Kennedy, has more power to tell Americans what to do than King George ever did!
Legalizations don’t force anyone to do anything, they simply open the door to the choice.
Bans on the other hand are what’s authoritarian, because they do indeed force everyone to behave in the same way.
The perverted logic espoused by the homophobes in this case is that it forces the registrar to participate in the granting of state sanction to unrepenting sin.
And, yes. The exact same argument has been used against not only more traditional version of miscegenation but various medical procedures and services.
b&
Such is the horror of political manipulation.
The intention is that the Supreme Court interprets existing laws, primarily whether or not they are Constituional or not. Actually making laws is done by representative (supposedly) legislative bodies. To change the constitution requires much more than merely creating new laws.
So, legislatures make the laws, someone challanges the legality of the new law, and the SC decides whether or not the new law is legal. That is tremendous authority, but any usurpation of the will of the people happens before anything gets to the SC, in my opinion.
The SC is one of the three branches of government, SC (evaluates laws), Legislature (creates laws) & Executive (executes laws). The law makers are elected officials that are supposed to represent the will of the people. The SC can only rule on a law if someone with proper standing challenges the law. The intent was that the three would provide checks & balances against misuse of power by each other.
A pretty good plan, but over 200 years of liars, cheaters and stealers gaming the system for selfish reasons has taken its toll.
Sure, all of that is the *intention*, but de facto the nine judges are acting as politicians, voting based on their political opinions.
Why else would Americans care so much who will be President when it comes to making the next few nominations?
I was merely attempting to point out that in fact 9 people are not making the law of the land, even in current reality as opposed to what was intended.
That the judges are voting based on their political opinions is an entirely different claim that in no way requires or implies that the SC judges are the only people that get a vote on the law of the land. They are merely the last link in the chain. And only when a law is challenged by others.
Sure, why is obvious. Why does anyone anywhere care so much about the nature of the people that have authority over them?
“… in fact 9 people are not making the law of the land, …”
Well, yes they are. That’s what the phrase “living constitution” implies.
If the judges were not making up new law then the constitution would be static, and it would be up to The People to change the constitution as and when they wanted to.
Certainly, the originators of the constitution envisaged fairly regular Constitutional Conventions, at least once per generation, in which “We the People” would decide what sort of over-arching rules they wanted.
Now I, personally, fully support marriage equality, but the requirement for it is blatantly a new law that has been decided on, 5 to 4, by nine lawyers voting politically.
It is utterly preposterous to maintain that the requirement for marriage equality was actually decided upon back in 1788 and it’s just that no-one has realised it until now!
“…but the requirement for it is blatantly a new law that has been decided on, 5 to 4, by nine lawyers voting politically. ”
This is an odd spin. There is no reason to come to this conclusion. The SCOTUS did not create new law – they interpreted existing law in terms of the Constitution. Others have pointed out that the Constitution is *intended* to be interpreted. It was not intended to be nor has it ever been required that is be viewed strictly verbatim (that last is, I’ll agree, sometimes what certain jurists claim like Scalia claim, but in all cases I’m aware of insistence on strict interpretation is dependent on whether the the insister agrees with the decision or not). It even has written in it the very mechanism(s) that are required to change it over time as society changes and evolves, which has been done 27 times. You seem to equate the way SCOTUS applies the Constitution to existing law with creation of law. The logic simply escapes me.
It is often said that SCOTUS is activist when we dislike their decisions and upholding the Constitution when we like them. Not saying you’re doing that, but the right wing will be do exactly that in coming days and your argument sound a lot like it.
“… the Constitution is *intended* to be interpreted.”
Only in the narrow sense that any document needs interpretation.
“… It even has written in it the very mechanism(s) that are required to change it over time as society changes and evolves, …”
Exactly. *That* is the mechanism for updating the constitution as society evolves. Amendments are made by electors and their representatives, not by the lawyers. That is democratic.
What is not democratic is for the lawyers to re-interpret things and essentially make up new doctrines. You’ve just pointed to how that *should* be done.
You’re interpretation is incorrect. The SC cannot change the Constitution. There is a process for doing so and the SC is not the mechanism for doing so.
I agree. That is utterly preposterous. I am not sure why you wrote it.
“The SC cannot change the Constitution.”
They can (and do) reinterpret it to mean something different from what it previously meant, which is effectively changing it. (And that’s what PCC meant in the OP by calling it a “living document”.)
Are you arguing that people had the constitutional right to gay marriage back in the year 1870, it’s just that no-one realised it?
Are you arguing that the Constitution forbids gay marriage? Where does it say that?
“Are you arguing that the Constitution forbids gay marriage?”
No I’m not. In fact, I don’t see where the topic is mentioned at all in the constitution.
How about you, do you think that people had a constitutional right to gay marriage back in 1870?
It seems to me that you must agree either that, yes, people indeed did have that right back then, or accept that the SC lawyers have changed the constitution.
It doesn’t seem that way to me at all. The Constitution is not something that is supposed to include law to the degree of specificity you seem to think it must. Never was intended to because that would obviously be impractical. The Constitution codifies the core principles on which the legal system is based. It is not supposed to be an exhaustive listing of all possible laws.
The question is, do laws preventing same sex marriage conflict with any of the principle rights codified in the Constitution. Or, vice versa, do laws protecting the right to same sex marriage conflict with any of the principle rights codified in the Constitution.
In this case, the Constitution includes the principle right that law applies equally to all people. That principle, a general case, obviously applies to same sex marriage, a more specific case. The only interpretation is, does “all people” include gay people or not?
In that sense, then yes, the Constitution has included protection of the right to gay marriage since at least the 14th Amendment, in the same way that it included protection for marriages between any entities.
Interpretation of that nature, the meaning of “all people,” which may change as the general moral zeitgeist of society changes, is qualitatively different from creating a new law.
Not to mention, as mentioned before, that the people’s reps are the ones who made the law. Any usurpation of the will of the people, and oh yeah, I agree there sure is some, happened there. The people are also the ones who challenged the law, thus requiring that the SC make a judgement regarding its constitutionality.
The Congress can make a law allowing gay marriage, but the Court has the power to rule whether that law, or any law, obeys the Constitution. Remember, the Supreme Court didn’t make any laws here; it simply rule on the constitutionality of existing laws prohibiting gay marriage.
Like any human institution, it’s an imperfect system, but it has its reasons. As others have pointed out, the Supreme Court is supposed to rule on whether or not laws are constitutional. They don’t get to make laws themselves. So, saying they get to decide the law of the land, while partially true, is also a stretch. They can only discard bad laws.
There’s a reason they’re not voted to office, nor up for re-election. It’s supposed to keep them more impartial, so that they make their decisions on what they think is the law, rather than pandering to the people to improve their chances of being re-elected.
When marriage equality was put up for a vote by the people in my current home state, Texas, the people passed a state constitutional amendment to ban same-sex marriage. The will of the people had spoken, and it was for discrimination and violating people’s rights. If it wasn’t for an institution like the Supreme Court to test laws against the Constitution, that ban would have been allowed to stand.
Didn’t Roe v. Wade involve a bit more than just a ruling on constitutionality? I’m thinking of the specifications vis-à-vis trimester…
I typed up a response but it looks like it got lost. Anyway, while I was typing most of my points were made by others, but I still have one thing to add.
Here in my current home state, Texas, when marriage equality was put up to a popular vote by referendum, they passed a state constitutional amendment banning same-sex marriage. The will of the people had spoken, and it was for discrimination and violating people’s rights. If it wasn’t for an institution like the Supreme Court to judge whether or not that state law violated people’s rights guaranteed in the U.S. Constitution, the marriage ban would have been allowed to stand.
Okay, maybe I’m just an idiot who doesn’t know how to hit refresh.
Nah. It should refresh when you enter a comment. Sometimes it doesn’t, usually that is rare. For some reason, for the past couple of days it has been wonky and hardly ever refreshes when entering a comment.
Yes, it’s been very strange lately. Even refreshing doesn’t work most of the time. C’mon, WordPress, how long you been doin’ this, anyway? If you don’t have this bl*g stuff down by now…
“… an institution like the Supreme Court to judge whether or not that state law violated people’s rights guaranteed in the U.S. Constitution, …”
But they are not judging whether existing rights are violated, they are effectively *creating* *new* rights by interpreting broad phrases however they wish to, and doing it based on their own political opinions.
You might like them doing that, but it is still what they are doing.
The relevant phrase is: “… nor be deprived of life, liberty, or property, without due process of law” from the Fifth Amendment, which has now been interpreted to include a right to gay marriage.
Well, one could interpret it to entail a right to take heroin or any other drug, or all sorts of novel interpretations (and one might also regard that as a good thing).
But, you can be sure that none of the people who passed that amendment would have intended it that way.
Fine, so its a “living constitution” with the SC creating new rights by making new interpretations of old phrases. In so doing they are effectively making new law, not just enforcing existing law.
But, in a democracy, shouldn’t the creation of new law be in the hands of “we the people”, not in the hands of nine unelected lawyers?
See Michael’s comment above (Permalink).
For my two cents the idea of elected judges at any level is ridiculous. They should always be appointed. At least then you have a small hope that they know something about the law. I don’t want the Judge to be a popularity contest or a political contest either.
Their is no requirement that a supreme court justice be a lawyer or even have ever had anything to do with the law. Similarly, in a three judge panel for appeals, if one of the members is not a lawyer, but at least one is and can rule on the objections of those before the bar, you are covered.
Think of it this way, do you really think that in most of these cases that PCC would not make just as good a SCJ as Thomas despite his shortcomings as not trained formally in the law?
With the years of study, probably.
I personally want my judges and the like to be expert in the law.
Political sensibilities do sway them but they also proceed on precedent and comprehension of past arguments.
“But I do have some sympathy with the logic of the dissent: in a democracy, laws should be made by the people by plebiscite, or through their elected representatives, not by unelected lawyers.”
This is something people only say when their side loses.
The USA is a constitutional democracy. That means that individuals, including the minority, have rights that the majority cannot infringe upon. A constitutional democracy is different from some other forms of democracy, such as mob rule.
It’s also a Representative Democracy. We elect people to write laws for us. To vote for us, IOW. They are not obliged to vote for the wishes of any majority and often don’t. We don’t have a direct say in how our laws are written.
It’s also a Representative Democracy. We elect people to write laws for us. To vote for us, IOW. They are not obliged to vote for the wishes of any majority and often don’t. We don’t have a direct say in how our laws are written.
Oh dear. I don’t know what just happened.
Join the club.
The US is a republic not a democracy.
I am not in your country and absolutely support gay marriage but can easily see that
“But I do have some sympathy with the logic of the dissent: in a democracy, laws should be made by the people by plebiscite, or through their elected representatives, not by unelected lawyers.”
is a very reasonable position. It is not only said when losing. It is a fair observation.
Given these dissents,
Roberts et al would have hated Brown v Board of Education (1954).
I think granting the authority to make these kinds of decisions to a small group of demonstrably wise individuals is at least a step in the direction of optimization, a path we follow whether we intend to or not, to invoke a form of natural selection. Of course, we may only approach that optimum asymptotically. Certainly a problem right now is that some of those individuals are *not* demonstrably wise.
But leaving it to “the people” is farther back on the path, imo. I include myself in “the people”. There are important decisions to be made that require expertise I do not have. We may not have a perfect system currently, but if important decisions are left to “the people”, you’re guaranteed to have idiots making the decision.
The USA has a constitution which is the highest law of the nation. It trumps state and local laws. In this case SCOTUS is saying that there is a fundamental right to marry and that the 14th amendment to the constitution guarantees equal protecton of the laws (whether federal or state) to all persons in a jurisdiction. IOW a state may not discriminate against certain classes of people in application of the laws. A state may not allow only whites to marry or only protestants to marry (although there are some states where this would be the desire of the state government and many people). Laws restricting marriage, eg on age grounds, must apply to all persons. This all may work differently in the UK which, AFAIR, has no written constitution.
What is scary about the dissent here is that the constitution is clear on this matter yet we have four catholic justices toeing the vatican line in defiance of the highest law of the USA. What is more, Roberts says the decision has nothing to do with the constitution! I expect nothing from Scalia, Thomas and Alito whose heads are so far up their own asses that nothing gets through to them but I had expected better from Roberts. It’s a damn disgrace that this decision wasn’t 9-0 in favour.
The UK may not have the same kind of constitution but if you read the dissenting opinions there is mention of the root document, the Magna Carta, and John Lockes musings.
That is the major complaint of the dissenters. Did you read that too.
I read through it and it did make some sense. I am not American though.
I also believe in total equality but did wonder about the technical legal aspect too.
I have been scanning the dissents. From Roberts –
“As a result, the Court invalidates 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 most of history, the most common form of marriage has been a property contract between a father and future husband. Let’s go back to that. I think we need to get religion back in marriage, like Solomon who “…had seven hundred wives of royal birth and three hundred concubines…” Most (if not all) marriage laws did not specify one man and one woman until two people of the same sex asked to marry. It would be nice if Roberts got his history right.
I began to read Scalia but stopped after this sentence –
“I write separately to call attention to this Court’s threat to American democracy.”
Hey Nino – what about Citizen’s United and corporate personhood? Hypocrite.
I don;t think I can stomach Alito or Thomas.
Just to add –
Congratulations to the Wedding Industrial Complex.
Also, great news for all the divorce lawyers out there.
I do reserve the right to change my opinion on this subject if all these fabulous gay weddings force slovenly straight guys like me to develop a sense of style and class.
See, it’s whoppers like that that make me wonder how on Earth anybody can even pretend to take the Bible seriously.
How many kingdoms were there in the region at the time? How many children did the typical royal family produce?
I don’t think there’s ever in the entire history of humanity been seven hundred people of royal birth alive at the time, unless you stretch the distinction sufficiently that everybody is of royal birth.
What’s more, I can’t imagine anybody, even three thousand years ago, for a moment seriously considering the possibility that there could have been seven hundred princesses in all the world at that point in time and that one man could have married them all.
b&
Well, if he had seven hundred wives and a lot of stamina, he could have produced several hundred royal daughters. With a few like minded rulers in neighbouring kingdoms in the previous generations, it would be more possible than some of the stuff in the bible. Or did they have rules about not marrying sets of half sisters?
I wonder how many were in Europe just before WW1? Or around Napoleon’s time?
There are RATS in SCOTUS. They are:
Roberts
Alito
Thomas
Scalie
When you’re dealing with an infestation of RATS, the best thing to do is clear them out.
Roberts’s dissent is just an appeal to tradition, but a very cloistered one at that. He’s either ignorant or willfully setting aside all examples of marriage that don’t fit *his* personal preference. After all, child marriage has been common down the ages, but that doesn’t mean it’s *right*.
He says:
We think we are thinking human beings who are capable of drawing on our great (and not-so-great) history, assessing what’s good, and assessing what’s bad, and acting accordingly. What else should we do? That is surely everyone’s *duty*, not just right.
The “We” in that quote from Roberts is “we” the nine judges, not “we” the wider people who — in the logic of the Roberts dissent — are the ones who should decide the matter.
Your comment seems to agree with Roberts that the opinions of the wider “we” should decide the matter.
Roberts is being disingenuous. I am sure he understands the process well. The “wider we” were part of the process at several earlier steps. In one of those steps the “wider we” availed themselves of one of the options built in to the process. They challenged a law created by other members of the “wider we.”
At that point Roberts and the other SCJs got to do their thing. Lo and behold, the system just happens to be in sync with the “wider we” in this case. 60% of the population supports marriage equality after all, and so did the SC. Doesn’t always work that way, and isn’t necessarily supposed to. But Roberts argument that the “wider we” was abused or misrepresented in this case is not accurate, to be polite about it.
I’m no expert on SCOTUS or constitutional law so I make no comment on that, being incompetent to do so! As a general point it’s pretty commonplace (and proper) for judges to make law in Britain, but I’m not so familiar with the process in the States. I’m fairly happy with that (common law) so I don’t agree that the opinions of the ‘wider we’ *need* decide such matters, if that is what Roberts is suggesting. If one considers the second amendment, for example, it’s obvious, isn’t it, that judges *could* choose to interpret it more narrowly (maybe even more widely – is that possible?) than it’s been interpreted in the past and bring about a major change in US laws? Would that be that wrong legally? I’ve no idea; ask an American legal expert, I guess.
So I can grant he’s questioning the court’s right to judge, but by including reference to the Bushmen and the Aztecs (!) my point was that he is also sending a message to the ‘wider we’ that has nothing to do with any fine legal points. Maybe he’s not, and I’ve drawn an inference too far, but his language suggests otherwise to me.
And Scalia is wrong – more than half of Americans support marriage equality.
I almost see Roberts’ decision as a way to “even out” his vote for the ACA yesterday. Hell, if he went for marriage equality too, many Republican heads may have exploded.
Ever since Stonewall it’s gotten better.
This is one where I want to read the opinions.
Link to full text of decision here: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
One of my favorite parts of the dissenting opinions was (I believe Roberts, saying) “This is a court, not a legislature.”
Uh… yeah… and it is the job of that court to determine when legislation, such as those banning gay marriage, is unconstitutional.
I’m not even a Supreme Court justice and I understand how that worked…
Roberts is a colossal hypocrite. His Court has been the most activist Court in history. He has no problem overtuning laws he doesn’t like.
As far as Scalia is concerned, history will likely judge him as the ineffective, cry-baby, Catholic dinosaur he always has been.
You left out egotistic.
The Roberts dissent and the Scalia dissent are filled with repeated condemnation of judicial activism. They repeatedly note that the court is made up of lawyers, that the justices were not elected, etc. As if this didn’t apply to every other decision the court made as well. Scalia, in pure rant mode, goes so far as to whine the Californians are not genuine Westerners. All this and more in a dissent in which he criticizes the majority opinion for tone.
Perhaps Roberts and Scalia would like some cheese with their whine. We should send them some Swiss cheese as physical representations of their arguments.
Proud to be an American today! Nbcnews.com published a Gallup poll taken in 1996, 27% of polled Americans supported marriage equality. Latest poll taken last month, 60% approval. That’s more than doubling support in about 20 years. We Freethinkers have much to learn from the GLBT community…
Being out is invaluable.
True. Being known is the most powerful commodity. When people see that secular people are not demons they inevitably start to think, these people are pretty respectable members of society.
I agree. I play in a billiards league here in North Alabama. We have to play in various locations on various types of tables. Some tables require quarters. There is an etiquette to playing on the quarter eating “bar tables”. When you are the winner of the game, you are expected to feed the table the quarters while the loser of the game racks up the balls. I was unaware of this my first session. I won the first game, my opponent was waiting on me to feed the table quarters while I was busy talking to my teammates. after a few seconds, my team captain clued me in on the quarter procedure. I hurried back to the table to insert the quarters, apologizing to my opponent, I stated that I was a “bar table neophyte”. His response was “Well, at least you are not a humanist”.
When you say billiards, do you mean billiards, with just the 3 balls an canons and stuff?
I didn’t get the joke, if it was one?
+1
I think you make a very good point.
Yes, I believe secular people are the most well-adapted members of society.
There is a great image out there on the interwebs which reads “Being an atheist is like being the only sober person in the car, and no one will let you drive.”
scotusblog.com is the go-to site for in-depth analyses of Supreme Court rulings.
Since the marriageable age varies from state to state, a married couple who move to a state where they are too young to marry would still, under current law, have their marriage recognized. For example, in New Hampshire, it is legally possible for a 13-year-old boy to marry a 12-year-old girl*. If they move to a state where the lowest legal marriageable age is 16, their marriage would still be valid (and yes, their marriage would supersede age of consent laws). It should be the same for all couples who marry legally in any state under any circumstances (and now it looks like it will be).
*In order to do so, the couple must have permission from both sets of parents and the approval of a judge. Most states that allow marriage under the age of 18 require parental and/or judicial permission, though it varies widely from state to state. Seven states have no statutory minimum marriageable age.
Yes, and this was one of the issues that brought same sex marriage to the SC.
There are two issues, though the second moots the first: (1) does comity require that a state that does not itself permit same sex marriage nevertheless have to recognize a same sex marriage validly performed in another state?, and (2) is there a Federal right to same sex marriage?
Comity is the principle that acts valid in one state should be recognized as valid in a second state, even if the second state’s law is different. Your instance of a youthful New Hampshire marriage is an obvious one; another common one is wills: most states require only two witnesses, but some require three – nonetheless, if you validly execute a will in a two-witness state but die in a three-witness state, your will will be upheld in your state of death. A number of states had passed laws that banned recognition of same sex marriages performed validly out of state – “we hate gay marriage so much that not only will we not let you do it here, if you move here we won’t recognize you as married”, thereby challenging comity. Against that, the argument was that while the state might forbid same sex marriage within its own borders, it wasn’t free to “unmarry” those legally married elsewhere. You can imagine that this had could have international implications also: what happens to a married gay couple from the Netherlands when they move to Oklahoma? (though international comity is weaker than comity between US states).
But by holding that there is, in effect, a Federal right to same sex marriage, the SC gets around the comity question – states may neither prohibit same sex marriage within the state nor, incidentally, refuse to recognize same sex marriages validly performed elsewhere.
What a great week this has been! Apparently the four dissenters each wrote their own opinions, which is unusual. A commenter at NPR made the point that this is an indication that they could not agree in their disagreement, suggesting their opinions were personal, not legal.
Yes, superstition,ideology, non-reason based.
“…each unhappy family is unhappy in its own way.”
They did agree with each other but each wanted to say a bit more.
Some of the dissenters signed on to the opinions of others, with the exception of Roberts (presumably because he didn’t want to associate with their petty and unbecoming comments).
Congratulations USA!
Wow first the ACA now this. Tough end to the week for conservatives. Must be a drag being on the wrong side of history all the time.
The Washington Post is spinning it as a victory for Republicans. I kind of doubt they’ll buy it though.
There’s also a link to another article from a different author making the same claim about the Obamacare decision.
A cynical, but not unreasonable, analysis.
A Rick Sanctimonium can fulminate about how the country is going to h*ll in a handbasket because of this, but he’s unelectable anyway, even in the primary. A Jeb Bush (Jeb!, or for people like me, Jeb?), on the other hand, has to aim simultaneously at first getting the nomination and then winning the general election.
The lunatic fringe of the Republican party will denounce it, those hoping to win the general election would be wise not to.
Is the Post article tongue in cheek? Or foot in mouth?
A huge victory for equality!
I hope, that the German government will also come under pressure and change the outdated “Lebenspartnerschaftsgesetz” (registered life partnership) to a real marriage law.
Germany has a supreme court too, in Karlsruhe. Perhaps the judges there can enforce marriage equality too.
Well, the Federal Constitutional Court HAS made some decisions in support of gay/lesbian equality and, therefore, forced the political parties to amend the laws. But he has not decided yet, that the “Lebenspartnerschaftsgesetz” is unconstitutional and has to be replaced by a real marriage law.
A majority of Germans is pro-marriage, but especially the Bavarian CSU blocks any progress. And our other governing parties CDU and SPD back away from confrontations with the CSU. It’s called coalition discipline.
I love that image of the four justices fading into irrelevance.
Hip Hip Hooray!!! Finally SCOTUS has been on the side of progressives as of late.
From the Fox News website:
“Tony Perkins, head of the Family Research Council, said it puts the government on a ‘collision course with America’s cherished religious freedoms.'”
Say what??? That guy sounds about as rational as the character his namesake played in Psycho.
Say what??? That guy sounds about as rational as the character his namesake played in Psycho.
Who by the way was gay.
E.A. Blair wrote:
“a married couple who move to a state where they are too young to marry would still, under current law, have their marriage recognized.”
Is that true? Because it’s not true for first-cousin marriages. Not only are cousin marriages, though legally performed in one state, not recognized in some other states, in some states cousin cohabitation is a criminal act. Traditionally, states have always had the discretion to recognize or not recognize marriages from other states. Gay marriage, like interracial marriage, is a different case, since it involves a constitutional question, and therefore applies to all.
I think you’re wrong on this: comity requires the recognition of marriages validly performed in another state.
California, as an example:
Marriage and Family Code,
“308. A marriage contracted outside this state that would be valid
by laws of the jurisdiction in which the marriage was contracted is
valid in this state.”
One of the same sex marriage case arguments turned on comity, though that wasn’t how the case was decided. See my reply to EA Blair above.
Here’s a chart detailing cousin marriage law in the US. About 20 states ban first cousin marriage, and most of them declare such marriages performed in other states void. Traditionally, states have refused to recognize marriages from other states for a variety of reasons, such as age, too recently divorced, and others. It wasn’t until Loving that the Federal government stepped in, now followed by this case, and only because a Constitutional issue was involved. Otherwise, it was always left to the states.
Here’s an example from the County Clerks’ Guide To Kentucky Marriage Law:
“Marriage between first cousins is prohibited by KRS 402.010. There are no exceptions to
the prohibition and such a marriage is incestuous and void. Kentucky does not recognize such a marriage between first cousins even if it is consummated in another state.”
Consummated in what sense of the word?
Has anybody ever challenged KRS 402.010? If that happened, what are the odds that it might be found unconstitutional?
@ E.A. Blair
The Kentucky law was upheld by the Court of Appeals of Kentucky, in Ex parte BOWEN, but it was not a constitutional challenge. I don’t think a case would turn on the Constitutional issue, though, but on the scientific justification for such a law. The number of states banning cousin marriages is actually growing, with the most recent ban being Texas in 2005.
I only brought up cousin marriages because of the claim above, that, “comity requires the recognition of marriages validly performed in another state,” which is obviously false. For two hundred years, US courts, including the Supreme Court, have treated marriage laws differently than court orders and judgments, (which are subject to comity, as personified by the Full Faith and Credit Clause of the Constitution.) Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. Court judgments are entitled to full faith and credit but historically this has never extended to interstate recognition of marriage. Until Loving, of course, when miscegenation laws were found to be unconstitutional. And now for SSM, but these are the only two cases. Until a Constitutional issue arises over another marriage ban, cousins marrying or something else, states are still free to void such marriages.
Seems like both states have claims under this article. Who gets to rule?
Seems like historically … the receiving state, so to speak? Hard to imagine anyone’s marriage being challenged, in actual fact. Are there cases?
Oh, sure, there have been marriages from one state voided in another state. It’s uncommon but it happens.
The faith and credit issue came up in the oral arguments on question 2 in Obergefell, (whether states should have to recognize SSM from other states), when Justice Ginsburg replied to the state attorney, “You’re making a distinction between judgments — full faith and credit applies to judgments. You can’t reject a judgment from a sister State because you find it offensive to your policy, but full faith and credit has never been interpreted to apply to choice of law. [In this case, “choice of law” being laws on marriage.] Ginsburg also pointed out that a divorce is a judgment recognized in every state, so, to her mind, marriage should be also.
Keep in mind that support for marriage equality is higher among the general public than it is among supreme court justices.
Says Roberts:
“the Court invalidates 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 Carthaginians and the Aztecs. Just who do we think we are?”
Substitute “slavery” for “marriage” in that paragraph and (with the exception of Bushmen) you’ll see the depth of his reasoning.
A nice bit of cherry picking he does there. There is polygamy in Sudan among Christians.
Moslems have polygamy.
Best cartoon commentary on the internet today:
http://chrisblattman.com/files/2013/06/133776_600.jpg
Haha…that is awesome!
Thanks for posting that!
Very, very cool.
Not bad.
And from the esteemed Mike Huckabee:
“The Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the law of gravity. Under our Constitution, the court cannot write a law, even though some cowardly politicians will wave the white flag and accept it without realizing that they are failing their sworn duty to reject abuses from the court. If accepted by Congress and this President, this decision will be a serious blow to religious liberty, which is the heart of the First Amendment.”
Hey Mike, they just repealed your God’s law. Suck it!
Think of all the fundies just waiting for the next earthquake or tsunami so they can blame it on this ruling of the SCOTUS.
On another note–those two FOR Catholics are gonna be in trouble with their dioceses. (Of course all 3 Jews were on the FOR side.)
Where’s Pat Robertson when you need him?
You were spot on, Diane – the Chinese stock market just crashed as a result of the ruling. I mean, what other possible explanation is there?
I laughed!
God is diversifying. It used to be floods and locusts and the like, but now He’s messing with financial markets.
No flies on Him!
I was going to post some quotes by Mike Huckabee as well:
“The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do — redefine marriage,” said 2016 Republican candidate Mike Huckabee, siding immediately with evangelicals in the conservative base.
“I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” Huckabee said. “We must resist and reject judicial tyranny, not retreat.”
For all those “what harm does religious thinking do?” people like Huckabee provide perfect examples. Religious thinking drives a wedge into debates, and our ability to work issues out by reasoned argument.
In a secular view, we appeal only to our own reasons and arguments, and ought to remain open to being persuaded by another person. It’s only left to a discussion between us human beings; If you don’t have a better argument, there is no other recourse, and ought to modify your view.
But religious people like Mike Huckabee drive a wedge into this process, adding a third party: their Invisible Friend, the Creator Of The Universe. Look, we can go through this process of debating facts, evidence and logic, but I have to tell you that ultimately it doesn’t matter what YOU argue, because you are only a human being. To really decide on the issue, I’m going to appeal to the views of my Invisible Friend, The Creator Of The Universe. (Who just happens to either espouse the views of a 2,000 year old desert tribe, or He holds the views I imagine Him to have). He has the last say on this.
This appeal to inaccessible, invisible third parties is precisely what you don’t want if humans are to have a hope of coming to agreement. (Of course law, like science, has mostly recognized this, though lots of people seem late in catching up).
“what harm does religious thinking do?”
Excellent points. I’d like to reserve the right to send your comment to my friends and relative who often ask: “What harm does religious thinking do?”
“Religious thinking”? Oxymoron alert!
That’s just for sophisticated atheists.
Huckabee (and I always have to resist the urge to spell that with an ‘F’ instead of an ‘H’) also said that if he were elected president he would disregard any Supreme Court decision he thought was wrong. It seems to me that by promising to violate the oath he would have to take on becoming president, he has, essentially, invalidated his candidacy.
sub
If only for this reason -the composition of the SCOTUS- we have to vote. Even if we think we are voting for the lesser of two evils and that “nothing change” and that the real invisible power always remains untouched, we have to vote.
What kind of justice would have been appointed by McCain or Romney? In this case that was the difference between 5-4 and 4-5.
+1
Yes, indeed. As Frank Zappa used to say: Get yer butt out there and vote!
So now I have a fundamental right to marry and corporations are already people, can I marry Dominion Resources here in Virginia and claim half of everything they own? VA is a community property state after all!
Ha Ha!
That’s what I was trying to imply with my response way back under comment #5. Great minds…!
Yea! Everyone wins with equality for all. Except for the poor, poor “victims” who don’t get to push their bigotry on others. The Culture Wars continue…
Among others, the two candidates for the Republican presidential nomination most closely aligned with the Religious Right — Mike Huckabee and Rick Santorum — have made borderline-seditious statements challenging the validity of the Court’s SSM decision, in effect mirroring the reaction of politicians below the Mason-Dixon line to the landmark school-desegregation case Brown v. Board of Education, which led thereafter to the so-called “Southern Manifesto.”
Eventually the South backed down from Brown rather than risk another Civil War, and I wouldn’t expect there to be a constitutional crises over this case either. One distinction worth observing, however, is that Chief Justice Earl Warren (in his first term on the bench) worked sedulously in Brown, in anticipation of such Southern obstinacy, to ensure that the Court’s final vote would be 9-0, with every Justice personally signing on to Warren’s opinion for the Court, without dissent on any grounds — no mean feat given the fractious personalities then on the Court, including William O. Douglas, Hugo Black, Felix Frankfurter, and Robert Jackson.
Here, by contrast, the dissenting opinions — especially Scalia’s, with its mocking tone, though all four dissents to some extent — all but invite a defiant reaction by the Right by repeatedly questioning the legitimacy of the majority opinion, including the recurrent references to the fundamental law of the land being overturned by the vote of “five unelected lawyers,” and by raising the specter that the decision will lead to infringements on religious liberty.
Another instance where the Justices bound together unanimously to forestall a potential constitutional crises was the decision compelling Richard Nixon to turn over the Watergate tapes. As the Justices anticipated, Nixon’s initial reaction was to resist the Court’s decision, asking his chief-of-staff, Alexander Haig, what the Justices’ vote was and directing him to consult with Nixon’s lawyers to see if there was “anyway around” the decision. Supposedly, Haig (even then, a commissioned 4-star General) reported back to Nixon that there was no way to avoid turning over the tapes, short of his calling out the Army to cordon off the White House.
At that point even Nixon recognized the hopelessness of his situation, and slunk off to San Clemente, there to await a pardon from his buffoonish successor, Gerald Ford.
Late to the party here — I was in the UK the last few weeks. I went to Down House! Walked the Sand Walk!
We heard this from my gay English cousin, who didn’t understand it fully; but when I explained to him about it, he was thrilled.
In fact, at our urging/suggestion, he and his partner may even come to the New York City to marry — make a holiday of it. They have a UK civil partnership; but his entanglement with the Anglican Church means he can’t marry in the UK. Long story; but maybe a good ending. Once he retires, he can do as he pleases.
Hurray for the good ol’ USA! Doing the right thing.
I think, and hope, you are right. There are a huge number of bigots in the U.S. digging in their heals. But, in the long run…