Reason Writers Around Town: Scott Shackford in USA Today About the Supreme Court's Interest in Gay Marriage

On Friday the Supreme Court decided it will take up two cases connected to state and federal recognition of gay marriage. Though ultimately the cases may be decided on technicalities over who has standing to represent the dueling interests, Scott Shackford wrote an analysis for USA Today about what the two cases actually mean:

The case selected, Windsor v. United States, is about a woman unable to claim an estate tax deduction following the death of her female partner, with whom she was considered legally married in the State of New York. Technically the case could be reviewed without tackling the thorny issue of whether same-sex couples have a constitutional right to demand government recognition of their marriages.

Shackford takes note that even if the Supreme Court rules that ultimately states or the federal government can refuse to recognize same-sex marriages, it doesn't stop the gains already made in November's election in several states. (Hooray for federalism!)

Read the whole piece here.

Comments

[Mike M.]

I wonder if Bob Costas and other liberal idiots will lecture us about the need to ban alcohol and/or cars after the guy on the Cowboys killed his teammate.

[RBS]

You tell me

http://espn.go.com/nfl/story/_.....tic-issues

[StephT]

What's so bad about Federalism if the federal government bans state-imposed restrictions on individual liberties?

[Sy]

Nothing. The problem is the likely outcome of the justices banning state-endorsed same-sex marriage.

[Eduard van Haalen]

That's not even on the table.

[The Late P Brooks]

OFFICER SAFETY!

university police officers responded to a disturbance involving Williams at an off-campus housing complex, according to a statement released by the school.

"During the contact, Williams became aggressive and an altercation occurred," the statement said. "Officers, fearing for their safety, fired their weapon, striking Williams. Williams was pronounced deceased at the scene."

[Fist of Etiquette]

Safety became a concern, weapons became discharged and a suspect became deceased.

Alternately, "Authorities issued a citiation of death for a potential perp today..."

[juris imprudent]

My alma mater! Although I don't recall any campus cops back when I was there.

[16th amendment]

This needs to pass through the legislative process, not through an over-interpretation of the 14th amendment. This is because I think granting so much power to 9 people in robes bodes unwell for future liberty. I suspect that Roberts will agree with existing law, even though it may not be a good law, just as he did with Obamacare. Kennedy will go for civil rights and likely DOMA and prop 8 will be struck down.

[Another David]

Same-sex marriage in New York was enacted through the legislative process.

[Mickey Rat]

Yes, so?

If the Supreme Court rules the way supporters of SSM hope, no other state will enact it through the legislative process.

[Ted S.]

And the fucking Republicans primaried every one of the Team Red state senators who voted for it. On the bright side, it cost them their absolute majority.

[Terry Michael]

I suppose you would also argue that Brown v. Board of Education overturning Plessy should also have "gone through the legislative process." And just how many states in the South and many other areas of the country would have voted to end segregation? As a 65-year-old gay man, I am not enamored with holy matrimony, but I think we should have the right to be just as miserable as the rest of you (as Kinky Friedman said.) Here's my take on allowing gay marriage by "judicial decree," written here in 2008:
Legislating Freedom from the Bench
The case for legalizing gay marriage by "judicial decree"
http://reason.com/archives/200.....from-the-b

[Fist of Etiquette]

Even libertarians seem to fall for the idea that state recognition is the one thing that validates a couple's union.

[SIV]

Following a Terry Michael comment that is a non sequitur

IANACL, but IIRC, Brown vs Board... didn't "overturn" Plessy vs Ferguson it just defined "separate but equal" as producing psychological harm to children. Rather than say the earlier precedent was totally wrong and unconstitutional they re-affirmed it and offered up some psychological gobbledy-gook as the reason we needed integration.

[juris imprudent]

THIS!

BvB is an epic fail because it did NOT directly overturn Plessy. Harlan's Plessy dissent laid out the logic for doing that, but stare decisis had prevailed - several times.

Besides which, if you are going to argue this it should be based on P&I not due process. Due process has been followed in legislating for or against SSM in each state.

[mad libertarian guy]

There are those of us who also understand that there is NO WAY that government is going to get out of the marriage business (sld), and that being the case, we need to have state recognition of SSM.

[Mickey Rat]

Which presumes a couple of things: That having a romantic relationship formally recognized by the state is a right, and that homosexual relationships are equivalent to heterosexual ones.

"...I am not enamored with holy matrimony,..."

Which is good, because state recognition of a relationship has nothing, necessarily, to do with holy matrimony. But I find it interesting how many supporter of homosexual marriage are uninterested in the institution themselves. It seems that there is superficial offense without an understanding of what the purpose of marriage is society.

[darius404]

That having the government not discriminate in it's laws is a civil right.

Fixed.

[Mickey Rat]

Which is a question begging "fix", as marriage as a legal status in itself is discriminitory, i.e. it makes a legal distinction between married and unmarried couples.

[Calidissident]

I would agree that the government should not give out marriage licenses. If they are, I don't think they should grant them to straight couples while denying them to gay couples

[Mickey Rat]

Why?

How are homosexual relationships equivalent to heterosexual relationships?

[Calidissident]

All relationships have basic things in common. I don't really think I have to name them. Now of course, homosexuals can't reproduce by themselves. They can, through the use of sperm donors and surrogate moms, not to mention adoption, raise children. And there are plenty of heterosexual couples that don't have kids, either due to choice or infertility/sterility. I don't think the government should discriminate based on victimless lifestyle choices. So I oppose marriage licenses, but also think that if they are going to exist, they should be given out without regard to the sexuality of the couple.

[Mickey Rat]

"Now of course, homosexuals can't reproduce by themselves."

Which is a significant difference that should render equal protection arguments inapplicable. Which means that SSM can be enacted be legislative means but should not imposed by judicial means.

[Calidissident]

Mickey, if states only granted marriage licenses to non-sterile couples, and revoked them for those who chose not to have kids, you'd have a point. Also, my argument wasn't about what the Supreme Court should decide, just my views on SSM in general

[Mickey Rat]

"...if states only granted marriage licenses to non-sterile couples, and revoked them for those who chose not to have kids, you'd have a point."

For heterosexual couples who choose not to have children, circumstances often alter cases. Many people do not actively plan to have children. Furthermore, I don't require that government to have OCD in order to make general distinctions about these types of categories.

And my argument is that I find the equal protection argument an attempt at usurpation of state sovereignty by elite opinion.

[Calidissident]

I would agree that banning SSM is not unconstitutional, as I'm an originalist, and although as I've said I think (absent the government leaving marriage altogether, which I prefer) gay marriage should be legal, I don't think the framers of the 14th amendment intended for it to legalize gay marriage (obviously) and it would be hypocritical of me to embrace a "living Constitution" position on this issue. My argument was with regards to whether the distinction between gay and straight couples is a valid reason in general to give marriage licenses to one and not the other

[juris imprudent]

So, are you as supportive of poly-marriage as SSM? If not, why?

[Calidissident]

juris, is that question to me? And the answer is yes, I think polygamy should be legal

[Generic Stranger]

How are they not?

Even heterosexual couples can be infertile and be unable to produce kids, and that is the only significant difference between the two.

[Mickey Rat]

That is pretty significant difference and one that marriage is specifically purposed to address. Significant differences between situations render an equal protection argument absurd.

[Generic Stranger]

So should heterosexual couples who can't procreate get their marriage license revoked?

[Generic Stranger]

How about the ones that refuse to procreate? There are a significant number of those, as well.

[Mickey Rat]

If any state's marraige laws require that, sure.

[Mickey Rat]

Just to be clear, the judicial imposition of marriage is about what rules about marriage states are not allowed to make, not what rules they are allowed to make but choose not to.

[Draft Tulpa 2016]

So should heterosexual couples who can't procreate get their marriage license revoked?

That determination would require quite the invasion of privacy by the state.

Whereas determining whether tow men can procreate is pretty easy without any insider info.

[darius404]

The state shouldn't say anything at all about procreation. That you want to limit marriage licenses by something that not all marriages are about, nor is marriage even required for, is ridiculous and petty.

[darius404]

And yes, that WOULD require invasions of privacy. But all this is laughable because you don't really care about that here, it's just an excuse to discriminate in handing out marriage licenses.

Of course, if that was used as the legal reasoning, it would either be invalidated entirely, or used as justification to ACTUALLY issue licenses only to couples that can and will procreate.

[Draft Tulpa 2016]

The state issues drivers licenses to people without cars. But they don't issue them to blind people.

[darius404]

Except that's a matter of safety. How many gay couples have been able to kill people because the state recognized their marriage?

[Draft Tulpa 2016]

The same number as people who've been killed by blind people who the state gave drivers licenses to with knowledge of their blindness.

[Calidissident]

Tulpa your analogies are so bad

[Generic Stranger]

The same number as people who've been killed by blind people who the state gave drivers licenses to with knowledge of their blindness.

So are you contending that if we give gay people the right to marry, it will somehow end up with people being killed or injured? Please don't tell me you are that big a fucktard.

[mad libertarian guy]

[The ability to procreate] is pretty significant difference and one that marriage is specifically purposed to address.

Bullshit. Marriage is not an institution meant to facilitate children, but one to broker peace. Marriage was specifically proposed as a means to bargain.

[The Late P Brooks]

Technically the case could be reviewed without tackling the thorny issue of whether same-sex couples have a constitutional right to demand government recognition of their marriages.

Go for it.

[Syd Henderson]

My guess: Windsor wins. The Prop 8 case is decided on lack of standing.

[Mr N.]

Same Sex marriage is a Conservative principle

[Bardas Phocas]

All I can think of is to paraphrase Trotsky:

You might not be interested in Gay Marriage, but Gay Marriage is interested in you.

[Innocent Bystander]

Mui, mui, queeerrrrrioso!

[Episiarch]

51-0, Seahawks over the Cardinals. IT'S A MASSACRE.

[Archduke Pantsfan]

They need to stop scheduling II-A cupcake games.

[Hyperion]

Holy Bejeebus! The cardinals used to be a good team. I can't even keep track anymore in the NFL who sucks and who don't.

The Sea Chickens just suck period, sorry dude, they suck!

[Episiarch]

You mean the team that beat Green Bay, the Patriots, the Cowboys, and the Bears? If you say so.

[Hyperion]

It's all a fluke dude. They are the Sea Chickens, they suck!!! Watch them choke on it if they make the playoffs, choke!!!!

[Episiarch]

58-0. If you say so, dude. Enjoy. I know I am.

[Hyperion]

Obviously the Cardinals reallllly suck, man! Did they have an affirmative action moment and replace all of their players with wimins?

[Draft Tulpa 2016]

The Vikings beat the Bears too. And they didn't really beat Green Bay.

Cowboys suck.

[Ted S.]

Ahem. Lance Easley beat Green Bay.

[Ken Shultz]

"The cardinals used to be a good team."

That ended when Kurt Warner left.

[Hyperion]

I was trying to recall that last year they made it to the superbowl, I think it was against the Steelers? I remember Larry Fitzgerald, can't remember if Warner was still there.

[Draft Tulpa 2016]

Yes, and he was the year after as well, when they made the playoffs. Then came the Matt Leinart era.

[Calidissident]

Derek Anderson was their starting QB after Warner, not Leinart

[Hyperion]

Why is all this gay rights stuff such an important issue?

WTF? Are swat teams breaking down the doors of gays, shooting their pets, and hauling them off to prison for multiple felonies, for being gay?

I dunno, maybe it's just me, but it seems like there are other more important issues for liberty right now, like the WOD.

[Suthenboy]

...And the war on capitalism. And the war on technical progress.

[Hyperion]

We are poised to enter a new dark ages. The age of enlightenment is over. The age of idiocracy is upon us.

[Calidissident]

Does Reason not post about the WOD and other things besides gay marriage?

[Hyperion]

You missed my point. Reason was not the target of my post, it is todays society that I was targeting. Seems everyone thinks gay rights is sooooo critical, but no one thinks the WOD is a real issue.

My point is that no one is being hunted down for being gay, but if you want to make your own decision about what you can or cannot put into your own body, then you could have big problems.

I would say the same about prostitution. All of these women whining and howling about what a woman can or cannot do with her body, only means killing unborn babies. Get out on the street and ask a good sampling of them and see how many favor a woman being able to do what she wants with her own body when it comes to prostitution. I can already guarantee you that the numbers will be very low when it comes to that choice.

[Calidissident]

I would agree with that. I was mistaken in thinking you were taking a shot at Reason, although I think I wasn't unreasonably making that assumption

[Mickey Rat]

"The justices will weigh in on California's contentious Prop. 8, with which a slim majority of that state's voters sought to toss away any advantage on tolerance and civil liberties the Golden State might have to offset its hideous tax and regulatory environment." - J.D. Tucille

Apparently, being right on SSM earns you forgiveness in every other area of liberty Reason claims to be interested in.

[darius404]

Apparently, some people think misrepresenting someone else's words gives them license to be an asshole.

[Mickey Rat]

Apparently, to some, quoting someone accurately is being an asshole.

[Calidissident]

Did Tucille explicitly state that SSM completely offsets everything else? Cause I don't think he did. The word "might," for one thing, is significant in that sentence

[Mickey Rat]

That is a bit of hyperbole on my part, but it seems to me Reason writers tend to overvalue certain social issues, particularly SSM and are willing to put economic issues even when they have social issue consequences.

[darius404]

You'd be entirely wrong. Never once have I seen Reason sacrifice fiscal libertarianism over social issues. Quite the opposite. I suspect any attempt of yours to name an instance will just be a "conflict" that you've made up.

[Draft Tulpa 2016]

So what the hell was Tucille saying there?

Modus operandi for Reasonoids in 2012 -- make inflammatory statements and then try to claim you weren't really saying anything and anyone who disputes what you said is overreacting.

[darius404]

Modus operandi for Reasonoids in 2012 -- make inflammatory statements and then try to claim you weren't really saying anything and anyone who disputes what you said is overreacting.

Not really. It's pretty much your modus operandi to make false claims of hypocrisy and unfairness though. Concern trolling is your basic theme these days. This comment is just another example of that.

[Draft Tulpa 2016]

So what the hell was Tucille saying?

According to you guys he was just stringing together a meaningless bunch of words with no motivation.

[Calidissident]

No one is saying that Tulpa. All he said is social tolerance and civil liberties might offset the tax and regulatory environment. "Might" is a key word there, and he does not say "completely" offset it. Most people don't talk in absolutes all the time

[Draft Tulpa 2016]

To averr that it offsets encroachments on liberty is to imply liberty is increased by more people getting a piece of paper from the state endorsing their sex lives.

[Calidissident]

If the state is giving out marriage licenses, and is denying them to a specific group of people, I do think expanding them to that group expands liberty, although I would prefer that the state get out of marriage altogether. Would you say that legalizing interracial marriage didn't expand liberty in any way?

[R C Dean]

All he said is social tolerance and civil liberties might offset the tax and regulatory environment.

Remember, "might" means exactly the same thing as "might or might not".

And the idea that social tolerance etc. might offset more taxes and regulation is, well, abhorrent. What are we supposed to do, say "Well, the state confiscates more of my earnings and is all up in more and more of my business, but that's cool, because gay people can get married now?"

[darius404]

RC, he never said those things were ok. All he's saying is that the government ceasing to discriminate in marriage makes Cali more tolerable.

[darius404]

Did Tucille explicitly state that SSM completely offsets everything else?

The real reason Rat's comment is a misrepresentation is that Tucille never said Cali's excesses were "forgiven". Ratboy just made it up.

[darius404]

Apparently, to some, quoting someone accurately is being an asshole.

Making a false and inaccurate restatement of a position in order to criticize is being an asshole, yes.

[Mickey Rat]

My restatement was not false, nor especially inaccurate.

You geeting all huffy, insulting and defensive about this is utterly hilarious, however.

[darius404]

You claim he "forgives" California's political wrongs, which he never said. Pointing out you're a jackass isn't particularly "defensive" or "huffy", but it is offensive, yes.

[darius404]

*it is insulting

[Draft Tulpa 2016]

"offset" = "forgive"

and give up on the "might". He was saying what he was saying.

[Calidissident]

It's funny how you tell us to listen to the words, and then tell us to ignore one of the most crucial ones. It's pretty obvious that what Tucille is saying here is a) California has a terrible tax and regulatory environment and b) California is known for being socially tolerant, which can somewhat offset a) and that they failed to live up to that in this situation. Nowhere does he say that legal gay marriage totally offsets the tax and regulatory environment. You're putting words in his mouth, metaphorically speaking

[darius404]

Not to mention that "offset" in no way has the same meaning as "forgive", Tulpa's just making shit up again.

[Episiarch]

There are plenty of issues for liberty. reason doesn't have a "limit" on the number of things that they can care about. Treating people equally is, you know, kind of important. Why the fuck do you give a shit about them having an article about this?

[Hyperion]

See my post above. You missed my point, totally. It was not directed at Reason. I could give a fuck how many gay rights articles they have. I just don't know why that and abortion are the ONLY fucking real issues for a majority of Americans.

[Anonymous Coward]

KULTUR WAR is all. Nevermind the runaway spending, the thousand petty tyrants that comprise the civil service bureaucracy, the assassinations and violations of natural rights and due process carried out in the name of the United States of America at home and abroad.

Just argue about teh gheys and school prayer. And spend, spend, spend because the recession/depression has been over for two years.

[Draft Tulpa 2016]

That doesn't explain why Reason hamstrung the most ecomonically libertarian viable general election presidential candidate since Bob Dole.

[Calidissident]

This has to be parody

[Archduke Pantsfan]

Ikea Monkey!

[darius404]

Poor monkey. It does look good in that coat though.

[Suthenboy]

"that the monkey, of the rhesus macaque species, is in good health and is currently in the agency's care."

What do you want to bet that in the agencies care, the monkey's health and happiness declines. That is if they dont outright kill it.

[Rhywun]

I'm sure it'll wind up in a lab somewhere. What could possibly go wrong?

[Ken Shultz]

Hugo Chavez announced that his cancer has come back, and he named a successor for the first time.

http://professional.wsj.com/ar.....96560.html

LO f'n L

[Hyperion]

His successor has that commie thug look about him, sorta like a Latin version of Saddam Hussein. He should be perfect for the job.

[Draft Tulpa 2016]

Successor? I thought his was an elected position.

[waaminn]

The whole thing sounds pretty reasonable to me dude. Wow.

http://www.GotzAnon.tk

[Draft Tulpa 2016]

Bob Costas is going off about drinking and driving now. What the heck would he talk about if no one in the NFL killed someone during a week?

I hope one of the Bears kills someone this week because they REALLY need to beat the Pack to have a shot at the playoffs.

[Mickey Rat]

Most professional sports pundits have a slavering concern troll waiting to bust out of them for any excuse. Costas is at that point in his career when he can indulge those impulses with little shame.

[R C Dean]

Yeah, they suffer from an inferiority complex because they are "just" sports pundits, and the real kings of the office cocktail party are tne "news" pundits.

[AuH2O]

Bob Costas is a fucking asshole.

[Ted S.]

He'd probably talk about baseball. [puke]