Supreme Court

Gay Marriage Opponents Cite Dubious Left-Wing Legal Argument


On March 26, the Supreme Court will hear oral argument over whether California's Proposition 8, the voter initiative which banned gay marriage in that state, violates the Equal Protection Clause of the 14th Amendment.

In the brief they submitted to the Supreme Court yesterday, Prop. 8's supporters cloaked their case against gay marriage in the principles of states' rights, arguing that California should be permitted to ban same-sex unions without interference from the federal courts. "Our federal system of government is designed to permit a diversity of approaches to difficult and uncertain social issues," the brief states, "and the democratic process regarding marriage that is unfolding throughout the Nation shows the genius of that system at work."

At first glance, that argument appears tailor-made to appeal to conservative and libertarian advocates of federalism. Unfortunately, the Prop. 8 defenders also base their case on a dubious left-wing legal theory that cuts against the very idea of limited government. Immediately after the statement quoted above, the Prop. 8 supporter's brief quotes from Justice Louis Brandeis' famous dissent in New State Ice Co. v. Liebmann (1932), where Brandeis wrote, "it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Don't let these words fool you. Brandeis' goal was the expansion of state power at the expense of individual rights.

At issue in New State Ice Co. was a 1925 Oklahoma regulatory scheme that granted monopoly powers over the manufacture, sale, and distribution of ice to a select group of companies. The law effectively outlawed competition by requiring any would-be entrepreneur that wanted to enter the ice business to first provide "competent testimony and proof showing the necessity" of his business plan to state officials. Needless to say, there was no legitimate public health, welfare, or safety justification for this infringement on the right to earn a living. And predictably, the state regulators were working in cahoots with the state-sanctioned ice monopoly to eliminate would-be competitors.

What prompted Brandeis to spin this naked act of protectionism as a "courageous state…experiment?" Remember that Brandeis got his start in the Progressive movement of the 1890s, where he lobbied on behalf of vast regulatory powers and urged the courts to give second-class treatment to those constitutional rights he didn't believe to be worthy of respect. In fact, in a letter to Felix Frankfurter, Brandeis even privately advocated the wholesale repeal of the 14th Amendment due to the limits it placed on state power.

Supporters of limited government should be wary of any legal argument that cites Brandeis' dubious ode to untrammeled state authority.

Indeed, consider how Brandeis' words were utilized in another recent high-profile Supreme Court case. When Chicago went before the Court in 2010 to justify its handgun ban and other elements of its restrictive gun control regime in McDonald v. Chicago, city officials cited Brandeis in defense of their infringement on the right to keep and bear arms. "Firearms regulation is a quintessential issue on which state and local governments can 'serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country,'" the city argued. Chicago officials should therefore be permitted "the greatest flexibility to create and enforce firearms policy."

The Supreme Court thankfully rejected this sweeping assertion of regulatory power.

Federalism is a bedrock American principle, but that does not mean that state governments enjoy free rein to "experiment" on their citizens in violation of the Bill of Rights and the 14th Amendment. It's time to stop invoking Brandeis and instead start reviving the eloquent words of Justice George Sutherland, who penned the majority opinion striking down the Oklahoma monopoly in New State Ice Co. "In our constitutional system," Sutherland wrote, "there are certain essentials of liberty with which the state is not entitled to dispense in the interests of experiments."

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  1. Supporters of limited government should be wary of any legal argument that cites Brandeis’ dubious ode to untrammeled state authority.

    So the gun rights proponents who quote Justice Taney’s speculation that the second amendment would give negroes “the right to carry arms wherever they went” in the Dred Scott decision are similarly to be rejected by supporters of limited govt?

  2. The lefties should beware. Federalism is a slippery slope. You give states the right to experiment with marriage licenses and next thing you know, SLAVERY. Or, abortion prohibition. Or, I don’t know, provincial energy regulations. Some damn thing.

  3. Just to drive home how depraved the progressives were: here’s a tool used to “educate” Indian children.

    The Sad History of the Kid-Sized Handcuffs

    In the late 19th century and the first half of the 20th, Native American children often attended government-run boarding schools where the objective was assimilation. Army officer Richard Pratt, who founded one such school in Pennsylvania, famously said that his mission was to “kill the Indian … and save the man.”

    To that end, the schools forbade children from speaking their tribes’ languages; enforced strict rules around food, sleep, and dress; and taught simple trades in the hope of transforming a “problem” group into tractable citizens.

    Families sometimes sent children to the schools willingly, but there are also many tales of children being taken away from their parents by force.

    According to their donor, these handcuffs were used to restrain children who refused to go quietly. We have no definite documentation of their use, but given the many stories of harsh discipline used on students in these schools?Haskell, which was a boarding school in its early years, had an on-campus jail to confine children who stepped out of line?this history seems plausible.

    1. In the late 19th century and the first half of the 20th, Native American children often attended government-run boarding schools where the objective was assimilation.

      “We are American. Resistance is futile. You will be assimilated. You will never be proficient in change-making at the cash register, ever again.”

    2. Progressives were bad enough without presenting fake artifacts with bad provenance to bolster your case.
      From the comments “Guest” saved me the trouble:

      These look like toy handcuffs. Real handcuffs have the keyhole by the chain for obvious reasons, toy handcuffs are backwards so kids can get out of them. The stamped and riveted construction is common in toys too. Looks like something from the 1950s. Keep this in mind as you evaluate the story, especially the original ones.

      The Canucks were far, far worse than the US in forced acculturation. Our progressive Indian schools were voluntary for the most part.

    3. Of course none of them realize that those schools are in reality little different from the public schools they so admire. The problem with those Indian Schools was the Wrong People obviously.

  4. I mean, if this is the best rip you have on the brief, it must be pretty good brief.

  5. Off topic: I love Drudge.

    Just below it: JARRETT: ‘If There’s One Thing We Should All Agree On, It’s Protecting Women From Violence’…

    1. Don’t worry, those women will have guns to protect themselves against violence.

  6. Don’t let these words fool you. Brandeis’ goal was the expansion of state power at the expense of individual rights.

    That has been the goal of Statists of every ilk and stripe. Wheras you may have leftist or rightist flavors, they’re both from the same pile of shit.

  7. This is a disingenuous argument, I am quite sure. I have not read the brief, but I happen to have just read an amicus brief by a group in favor of “traditional” marriage. They also cite Brandeis. This is just one of several arguments made regarding federalism. I am quite sure no one is arguing from Brandeis alone. Surely Mr. Root is aware that strategically it is best to hit the justices in their particular sweet spots. Brandeis is respected, therefore cited. That’s all it means. Besides, the invocation of Brandeis/federalism is made PRECISELY in the context that there is no fundamental constitutional right implicated in the same-sex marriage controversy.

  8. Scientist Says He May Have Proof of Alien Life

    “It’s right here, in me garage! Lookie! Look! See?

    1. “We have to find those missing aliens, Otto! Before they turn to mush!”

  9. Libertarianism is, theoretically, possible without federalism, but its damn handy.

    And as I see nothing immoral about federalism, its a pragmatic tool to use.

    Subsidiarity is just generally a good idea.

    1. Federalism can be used in an anti-libertarian manner, too. See Chicago’s gun laws and Jim Crow.

  10. kinda of OT but why do people not want gays to marry?

    1. Ask that of people who genuinely hate the idea of gay marriage, RBot.

      Some of us, however, just see the futility and humiliation of groveling before a bureaucrat to get a marriage license, to be beneath human dignity.

      1. What sorts of licenses exist that don’t involve government bureaucrats? If merely declaring yourself married, with no concern to legal rights, is sufficient, why did you bother with the humiliation and groveling?

        1. No such licensed exist.

          …that’s one of many reasons libertarians oppose govt. licensure.

          Perhaps you should pay attention.

        2. I didn’t, and never will.

          If you missed it, a while back I announced that my GF and I are going the non-permission-slip route, later this year. I have a good friend at a Unitarian church who will gladly perform the ceremony… she’s a Wiccan.

          Since both of us have grown children, and will not make any more of same [which should please your anti-breeder bigotry requirements], we only have to do some legal paperwork like wills and so forth. And, since Social Security will fold up like a cheap briefcase full of umbrellas, there’s no need to fret there, either – neither of us will get a dime if the other dies, because the system will collapse by then.

          Don’t you have some Team Blue shilling to do? Get busy!

          1. Wow… I’m kinda hoping either that shut him up, or he just died in a fire.

            Meh… either way, the peace and quiet is refreshing.

          2. Sorry I must have been thinking of someone else.

            I’m glad that you only need a personal commitment. Marriage, to me, does seem like an enormous hassle, especially given that divorce is almost inevitable in this day and age. I think the institution is a relic of patriarchy and, as it affects my life, mostly a constant source of annoyance what with the straight women at my office and in my social circle constantly obsessing over its trappings.

            Nevertheless I’m not so arrogant to think my opinion should be everyone’s opinion, and that the only real, practical, and just step available to us at this time is legal equality.

            1. That IS the only “real, practical, and just step”.

              Why do you want “the trappings”, though?

              1. I want nothing to do with it. I just think people should be treated equally under the law as the 14th Amendment requires.

                1. Is that the same 14th Amendment Obama wants to use to bolster his Fuck You, That’s Why style of governance?

                  But I will agree… people should be treated equally. For instance, the children of mere citizens should be just as safe as any spoiled fuckin’ brat spawn of any politician.

                  1. Oh so you want to raise the taxes necessary to pay for secret service protection of every child in the country? Godspeed.

                    You’re being obnoxious so I’ll go away, aren’t you?

                    1. No, I’m serious.

                      And I’m not using your example – I’m saying those fucking children of politicians should have the same level of protection my nephew gets when he’s at public school.

                      But you do raise an interesting question: Are the children of politicians really that much more precious than those of, say, factory workers or convenience-store employees?

                    2. But, yeah, you’re right… I do wish you’d go away.


        3. Re: Tony,

          What sorts of licenses exist that don’t involve government bureaucrats? If merely declaring yourself married, with no concern to legal rights,

          The resident question-begging village idiot thinks only government gets to say what is and what is not.

          Before there was government licensing, people were marrying hither and thither and had their marriages accepted by society and courts.

        4. Wow, someone really mistreated you at some point. Sorry to hear that, but you obviously don’t understand the ABC model.

          As far as relationships, ideally, you present something worth wanting and eventually, someone presents you something worth wanting and a solid relationship is formed. After that, limiting pride, mutual respect, and communication limit other pains and anguish. It really isn’t that hard, if you just maintain humility. Marriage (relationships) aren’t about finding the right person, they are about being the right person.

    2. Because some view marriage as a religious institution, and don’t like the government deciding it’s okay, even though their religion say it isn’t.

      Some view marriage as being meant to produce children in a stable environment. Since gays can’t exactly have children, not by themselves, they shouldn’t get married. Of course, with things like in vitro fertilization and adoption, it’s not so cut and dry.

      Others don’t mind gay marriage, but worry that by changing the traditional definition of marriage, it means that everything is going to be legal eventually – incest, polygamy, bestiality, and so forth.

      That partly is one of the reasons the Mormon church is so against it. They had a big, big problem with polygamy. They don’t want that can of worms opening again and they are afraid gay marriage will open the door.

      Personally, I think polygamy is one of the big reasons the Islamic world is so screwed up. When you have 1 guy with 4 wives, it basically means you have 3 guys with none. So you have a lot of angry, sexually frustrated young men,

      And at least if you read Zane Grey, a lot of the Mormon polygamy back in the day was little more than sex slavery.

      If you want to conquer places, like Islam’s original goal, it’s great, you have all these excess young men you can send off to fight. But for a stable society? Not so much.

      1. Others view it a sign of cultural decadence, that we are in the later stages of the Roman empire. First gay marriage, then next thing you know, you have a horse as a senator.

        And of course, some people, especially older ones, view gays as being somewhat sinister. Watch the old Frank Sinatra movie The Detective (which strangely, Die Hard is a sequel of) to see what views of gays were like in the 60s.

        My father, even though he has friends that turned out to be gay, absolutely hates them because he thinks they are all out to do bad things.

    3. I don’t give a whit about gay marriage. It’s not a libertarian issue either way as there’s no coercion involved.

      I am concerned about the bedfellows that pro-GM libertarians are snuggling in with, and the many actually statist warts they’re willing to forgive of GM supporters. When you have CATO making ridiculous statements like “gay marriage is the #1 liberty issue of our times” it’s no surprise that we’re losing ground on all the actual liberty issues.

  11. Stated reason is impact on Christian marriage.

    Look, I am a Christian and same sex marriage has zero impact on me. Doesn’t impact me, I am not forced to enter into one…

    The church isn’t run by fiat of the government and vice versa and I dang sure don’t want it to be any other way. I will tell you that since it isn’t part of my experience I don’t really understand, and that is ok too. The trick is, treating people who differ from you with the same respect that you would treat a church member.

    I also view those that seek to impose religion thru the state, as engaging in a sort of short cut proselytizing, that way they don’t have to reach out, treat people with love, and serve others. I will be the first to tell you, I am not great at the last part, but I am also not attempting to coerce anyone into accepting my beliefs.

    Free will, and non cercion are the most important principles to me. I live by them, and I expect others to as well.

    1. Re: Hopfiend,

      Look, I am a Christian and same sex marriage has zero impact on me. Doesn’t impact me, I am not forced to enter into one…

      That should be the driving principle ofr pretty much everything.

      One of the arguments for Prop 8, which I heard when I was living in California (may God let it slide into the waves) was that the proponents wanted a protection against the notion of marriage as a right, to be more specific: having a religious marriage as a right, and not merely part of a voluntary contract between a church and a couple.

      I understood that argument especially after seeing Pussy Riot-like disruptions in some Catholic churches by gay-rights activists. However, as I told my wife back whe Prop 8 was being offered in the ballot, the problem was really government intervention in marriage and marriage contracts, which ipso facto turned a marriage into a government-granted privilege and not a contract between those that wanted to be married and the church. That’s the reason why gay people are so emotional about having their marriages accepted by government. They are aiming at the wrong target, unfortunatelly.

      1. I agree, aside from the license fee, what is the “compelling state interest?” Just like contract law, two competent parties, willing to make a contract (sacred to them for sure, but a contract). It is really a private thing.

    2. I have to wonder if the clergy will be coerced to perform gay marriages. Obamacare is already causing such an outcry over attempting to force coverage of birth control and talk of requiring all docs to perform abortions when tasked. There’s nothing here that makes me think this wouldn’t be a logical progression.

      1. I am not in favor of that, think it is in complete violation of 1st amendment and my own principles against non-coercion. However, there will be “freedom of navigation exercises” I am certain. Certain clergy don’t have a problem at all, others see it as sin. I don’t know what to think, so I just try to treat all individuals with love and respsect (very imperfectly).

  12. “novel social and economic experiments”

    Novel? To define marriage as the union of a man and a woman?

    I would think the “experiment” would be to rewrite the definition of marriage and force private employers and businesses to accept that definition. Which is what this particular dispute is about.

    It’s SSM, not the traditional definition, which should worry people who don’t want to be experimented on.

    1. That my father can’t sell me to the man down the street for two goats and a camel shows that “traditional marriage” has changed quite a bit.

  13. Sounds liek a pretty solid plan to me dude. Wow

  14. Excellent article.

  15. Same-sex marriage is not illegal. No one is going to be thrown in jail for getting a priest to perform a marriage ceremony between one’s self and another of the same gender. A marriage can be legally valid by simply signing a contract.

    From the linked article: “When I marry a couple, I always buy them a Family Bible which contains birth and death records, and a marriage certificate. We record the marriage in the Family Bible. What’s recorded in a Family Bible will stand up as legal evidence in any court of law in America. Early Americans were married without a marriage license. They simply recorded their marriages in their Family Bibles. So should we.”

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