Gay Marriage

Liberal Pundit Fears 'Libertarian' Fallout from Pro-Gay Marriage Ruling by SCOTUS

The same individualistic jurisprudence that advances gay rights could also imperil "progressive" economic reforms.

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Last week the U.S. Supreme Court heard oral arguments in the gay marriage case Obergefell v. Hodges. At issue is whether state laws which prohibit same-sex unions violate the 14th Amendment, which forbids state governments from denying the equal protection of the laws to any person within their respective jurisdictions.

Standing before the Court, John Bursch, special assistant attorney general for the state of Michigan, argued that "this case isn't about how to define marriage. It's about who gets to decide that question. Is it the people acting through the democratic process, or is it the Federal courts?" In Bursch's view, such regulatory decisions should be left in the hands of democratically accountable state lawmakers. The federal courts should butt out.

Mary Bonauto, the lawyer challenging those state bans on behalf of several gay couples, framed the case quite differently. "In terms of the question of who decides," she told the justices, "it's not about the Court versus the States. It's about the individual making the choice to marry and with whom to marry, or the government."

Judging by the outpouring of punditry, most liberals appear to agree with Bonauto. But there is at least one notable exception to that seeming liberal consensus. Writing at The Atlantic, the liberal legal analyst Jeffrey Rosen worries that the American left could suffer a Pyrrhic victory if gay marriage prevails in Obergefell. Why? Because "the right to dignity—now celebrated by liberals for what it means to gay rights—could ultimately produce other decisions in unrelated cases that they would not be so quick to celebrate." For example, Rosen notes, "in the McDonald case, striking down gun possession laws under the Second Amendment," legal conservatives "recognized a dignitary interest attached to the right to bear arms." Similarly, Rosen says, "libertarian groups" argued "that the Obamacare healthcare mandate unconstitutionally violated the dignity and autonomy of Americans by forcing them to buy health insurance." In short, Rosen fears, if the Supreme Court places individual dignity and autonomy above government power in this case, "progressive legislation" could be similarly imperiled in future cases. Perhaps, Rosen implies, the fate of gay marriage is better left to the democratic process after all.

Credit: C-SPAN

Ironically, conservative Justice Antonin Scalia employed a very similar argument back in 2003 when he dissented from the Supreme Court's landmark gay rights ruling in Lawrence v. Texas, in which the Court struck down that state's ban on gay sex. According to Scalia, Texas' Homosexual Conduct Law "undoubtedly imposes constraints on liberty." But so do state laws which prohibit "working more than 60 hours a week in a bakery." In both instances, Scalia said, democratically accountable lawmakers should have the final say on whether or not the regulation gets to remain on the books. The federal courts should butt out.

Scalia's reference to bakeries in Lawrence was a subtle nod to the Supreme Court's 1905 decision in Lochner v. New York, the famous Progressive era case in which the justices invalidated the maximum working hours provision of that state's Bakeshop Act on the grounds that it violated the individual liberty secured by the 14th Amendment. If you ask most modern legal liberals, they'll tell you that Lochner was wrongly decided and in fact symbolizes the dangers of libertarian judicial activism. Scalia agrees. By invoking Lochner in a gay rights case, Scalia was trying to get his liberal colleagues to connect the dots and realize that government regulatory power is undermined whenever a federal judge invalidates a state law based on a libertarian reading of the 14th Amendment.

Rosen connected the dots. "If the Court strikes down same-sex marriage bans on the grounds that they violate a right to dignity," he writes about last week's Obergefell oral arguments, "liberals may have second thoughts about empowering judges to decide whose dignity trumps when the interests of citizens with very different conceptions of dignity clash."

In other words, according to both Scalia and Rosen, strict judicial enforcement of the 14th Amendment could serve the twin ends of advancing gay rights and imperiling certain "progressive" economic regulations. Let's hope they're right.

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  1. The only “Libertarian fallout” that can come from this is having the supreme court, and the public at large, decide that the government has no place in the marriage business at all.

    Again, the issue shouldn’t be how government defines marriage, but that it defines marriage.

    1. Unfortunately that problem seems to lie somewhat with the Libertarian Party and other libertarians who like to emphasize their support of gay marriage only

      1. Yes, the Libertarian Party is at fault here. They’re utterly powerless, except when it comes to state licensing of gay marriage.

        1. They’re utterly powerless, except when it comes to state licensing of gay marriage.

          I think when he says Libertarian Party, he means “Libertarian Party”, cosmotarians, and other linocrats.

          The kind of people that are don’t want to force bakers to bake cakes, but will look the other way if that’s what it takes to get poor homosexuals some measure of equality/dignity.

          1. Just get government out, or cure it.

          2. On the flip side, you’ve got libertards who make the argument that government policies that disrupt one’s basic ability to make and form a family unit are no worse than a silly bureaucratic rule forcing a business to make a cake for a paying customer.

            While both are obviously unlibertarian, the insistence by conservatarians that laws that prevent people from making medical decisions for their dying spouses are no worse than laws that force a baker to sell a cake to someone shows a profound lack of understanding around the impact to individual rights.

            One is a profound disruption of the basic existence of a human being — the other is a stupid business regulation.

            1. I’ve never heard anyone support that position (deny gays medical decisions for partners).
              This might be a strawman your side has conned you into believing.

              1. “I’ve never heard anyone support that position (deny gays medical decisions for partners).
                This might be a strawman your side has conned you into believing.”

                I agree, this is a strawman that is saying “These are the rights given to you by the government, and by not giving us a government recognized marriage you are not giving us our rights”

                That is backwards, your rights are yours, not the governments. The law should recognize whomever you designate.

              2. You’ve got two problems here:

                1) Ignorance of the situation — anti-gay laws in a large number of states denied access to hospitals and other various key decisions, declaring them “substantially equivalent to marriage”;

                2) Describing the cause of liberty as a “side.”

              3. this is probably the biggest issue with marriage equality, i would think. Of course you should be able to choose who decides to keep you on life support or not when you’re incapable of doing so. that argument shouldnt have anything to do with “the sanctity of marriage” at all. why can’t you just appoint someone to make those decisions if you’re unable to?

            2. Only different in degree.

    2. Then should courts refuse to hear anyone’s case about whether someone is someone else’s spouse or not?

      1. Eventually after they acknowledge that they should not decide.

        Of course they will remain to have a say over appropriate age and also stuff that may be considered coercive. In the case of children, they are not considered to have full rights without at least the permission of the parent (MAYBE).

        It will become more of a contract IMHO.

        1. And I could imagine that contract, as it pertains to the financial ramifications of any union, may more times than not manifest itself in joint financial accounts, such as checking, savings, mortgage, etc.

        2. It already IS a contract.

          1. LOL, OK. A free market contract. ( “regular” contract” )

          2. I understand that. I was trying to make the point that the marriage contract can already be replaced by other contracts that are typically in place.

            Does the biggest benefit to the marriage contract lie with the IRS? Well, the IRS is its own problem.

          3. BS. Try negotiating fault terms and see if they hold up in court.

          4. It already IS a contract.

            It is a contract of adhesion between the state and two lesser parties. You get to decide whether to enter it or not (spoiler alert: if you don’t have kids or if you have any doubts about raising them with your spouse-to-be, DON’T), but otherwise the terms are entirely set (and frequently changed!) by the state. Any freedom enjoyed by married people in determining how they relate to each other vanishes entirely the day one or both of them decide to have the courts resolve a dispute.

            In other words, it is a contract in the loosest sense of the word; nobody forced you (shotguns aside) to sign it, but once signed, you are bound to uphold the government’s terms, at the end of a gun. Divorce offers only partial remedy, even less if you have children.

            1. And, as you point out, you can ‘agree’ to the terms when you get married, but new legislation changes those terms for you, and you might not then agree, but too bad. You have no choice.

              1. Which is why the government is particularly ill-suited to have a near monopoly of contract enforcement and jurisprudence. The sudden impulse of a dimwitted legislator is enough to override a millennium of common law jurisprudence. I believe the legal term for that practice is “retarded”.

                1. Nominally, there will always be a “court of last resort” or “person who has the final say”. No truly pluralistic system survives for very long since fiefdoms are loathe to respect each other.

      2. Once they first rule against marriage licensing, yes.

      3. The courts can adjudicate disputes over marriage contracts, just as they currently do with other types of contracts. This isn’t that difficult.

    3. Still, having a liberal lawyer state

      it’s not about the Court versus the States. It’s about the individual making the choice to marry and with whom to marry, or the government.

      is a pretty big deal. Replace “marry” with pretty much any word that doesn’t involve force or fraud, and you likely have the libertarian position.

      From a liberal perspective, Jeffrey Rosen has reason to be concerned.

      1. Replace “marry” with pretty much any word that doesn’t involve force or fraud, and you likely have the libertarian position.

        Unfortunately I doubt a liberal (or conservative) lawyer would ever actually do that. Consistency is not their strong suit.

        1. They’ve got cognitive dissonance down pat, though.

    4. Under the “equal protection” argument, a definition of marriage that has a constitutional imperative to include homosexual couples, no longer serves any social purpose as a legal institution. At least not any purpose a state government is allowed to admit to. What social purpose is served for the states to regulate romantic relationships?

      1. The only purpose of marriage in the eyes of the law is to establish legal kinship where none existed previously. Everything else is personal.

        And, it is from that kinship that come the “effects that flow from marriage”. Those are the legal “effects” pertaining to the legal contract that is marriage, and those effects are governed by the civil law. It is the job of the State to establish and administer the civil law.

        1. What social purpose is served by the states having this procedure to establish kinship?

          1. What social purpose is served by the states having this procedure to establish kinship?

            I thought the same thing. Didn’t we divest from the whole ‘kinship’ notion when we sent the fiery King his walking papers?

            Isn’t that the whole point of this little experiment?

      2. What social purpose is served for the states to regulate romantic relationships?

        None, which is why they should butt out.

        1. The promotion of family, the argument goes. Had a debate with my folks over this issue over several days (my position was choice with government out of it.) They did make compelling points pointing to the aggregate of data showing kids coming from a traditional, whole family are much more likely to be self sufficient, avoiding jail and poverty- family being the building block of civilization and all that.

          1. That’s parenthood. This is about marriage.

            1. That they are separaye considerations is the dishonesty the equsl protection argument depends on.

              1. They are separate considerations. Or are you trying to say that two adults without children and two adults with children are identical situations?

                1. While I buy into the important implications of a kid having a role model from each sex, I still argue that its implementation is the result of individual choice and it isn’t governments job to try and influence those values one way or another

      3. To buy into this, you have to find a “social purpose” (whatever that is) for a “definition of marriage that excludes homosexual couples.” What would that “purpose” be?

        (Oh and please don’t say “children” — marriage law has absolutely no significant connection to maternity/paternity law at all).

        1. No, the courts never get involved in custody, visitation, material support of children.
          Yeah, right!
          Plus, a government that doesn’t work towards a continuation of the species – i.e. encourage people to have children and raise them properly – is condemning itself to extinction.
          But, who cares about that because: Our lifestyle is so wonderful that we must force you to accept it.

          1. Of course courts get involved in custody, visitation, and support of children. But marriage law has literally zero to do with any of those — maternity, paternity and adoption laws govern those areas.

            It’s also hilarious to meet outspoken statists who insist that, without a government program, straight people would no longer have children.

            And nobody’s forcing you to “accept” a “lifestyle.” I honestly couldn’t care less about what rednecks think. I draw the line at them using state power to force those thoughts on others.

    5. The government is involved because civil marriage is a legal contract that renders 1,148 legal effects. And it is the very job of government to establish and administer the secular, civil law.

      What other body should be in charge of the law? Surely not ‘the church’.

      1. Those 1,148 legal effects largely came about because government was involved in civil marriage, not the other way around. It would not be that difficult to draw up a fairly standard marriage contract that covers what current civil marriage laws cover. As for the special handouts for married couples, those shouldn’t exist in the first place.

        1. This statement is often advanced, but starts to get fuzzy pretty quickly. For example, power of attorney — who gets it when the other is incapacitated?

          If one spouse is a foreign national, how does one get a visa for that foreign spouse without the government’s paperwork?

          And so on.

          Libertarian marriage reform requires a HUGE overhaul of federal, state and local procedures, not just a simple tweak to a “contract,” as some would like to believe. The state has a much deeper reach into the lives of individuals and families than even many libs would like to admit.

      2. What other body should be in charge of the law? Surely not ‘the church’.

        God damn this shit gets tired. “If you’re not in favor of government, you must be in favor of anarchy/the third reich/the inquisition.”

        If 40% of the population that opposes gay marriage is homophobes and the 5% is outright gay then the number of homophobes who interact with homosexuals on a daily basis is well into the tens and probably hundreds of thousands. Somehow, they all manage not drag each other to death behind pickup trucks, beat each other up outside clubs, or burn down businesses and churches. Moreover, If you asked the average person, homo- or heterophyllic, they could probably only come up with 50-100 of the 1148 (the number always increases) effects altogether, probably only ~500 of which only apply to them (I’m pretty sure the vast majority of people don’t need to worry about deeding grazing rights to federal land to their spouses or need to invoke legally protected marriage rights to enact a name change, gay or straight).

        No, it is not the job of the government to establish and administer secular, civil law. If the history of the country and the founding documents weren’t clear about government not doing shit, the first item in the BoR pretty clearly states that it’s job is to butt out of people getting together and interacting freely, not butt in. It is the job of the government to prevent common law or simply culture/habit from descending into cruel and violent anarchy.

        1. “the first item in the BoR pretty clearly states that it’s job is to butt out of people getting together and interacting freely”

          Unless you were, you know, some slave owner’s property or have XX chromosomes (making you your father or husband’s property under the popular law of the time).

          That’s the problem with fetishizing documents written by 18th century white guys — the very premises they deeply believed in at the time have long since been abandoned by social changes, and so many modern white guys don’t seem to understand that.

          1. Maybe you need to read that “18th century white-guy written” document. It might be very illuminating.
            For example, neither slaves, or women not being able to vote is in there. In fact it doesn’t prevent, or allow anyone to, or not to vote. It leaves it up to the states, as it did for almost all legislation, with the exception of, as near as I can count, 29 specific powers, almost none of which get even close to what we look to FEDGOV to decide upon, today.

            1. “For example, neither slaves, or women not being able to vote is in there.”

              Precisely my point. Those Perfect Idolized Human Beings lived in a time when the rights of a majority of the population were being violated, and did not take any steps to protect and defend those rights.

              In fact, a large number of states launched an illegal rebellion in an effort to avoid having those rights upheld by the feds in opposition to the economic interests of their power elites — an early example of regulatory capture.

              It leaves it up to the states<<br /
              Until that whole 14th amendment thing, which started turning the high-minded nonsense into more practicable defense of the rights of everyday individuals.

              I never understood this fetishizing of the constitution. It’s just another bureaucratic rulebook, and the insistence that the bureaucrats who incorporated the FedGov were somehow infallible gods is irrational at best.

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    7. Exactly. One can also argue that a same sex marriage doesn’t even qualifty as a marriage, since al the marritals were written to protect the weaker sex, which doesn’t exist in a same sex marriage. There is also the fact that if same-sex marriage is considered legal, how can you
      not make also legal marriages between mand a dog or woman and cat? I mean, you are claiming that a person can decide who his spouse will be, then that spouse can be whoever the person wants.
      Govt has no business getting involved in marriage, period.

  2. But…Muh LAWZ !

  3. Perhaps, Rosen implies, the fate of gay marriage is better left to the democratic process after all.

    I wonder how many other central planners are also social liberals just as a matter of convenience.

    1. The whole progressive thought process seems to be a matter of convenience.

      1. No, not convenience. Progressives are willing to go to considerable trouble to assure that everybody does what they are told to by Progressives. Would that they were lazy enough to long for convenience.

        1. True, they go to a lot of trouble to ensure group control of society while also parroting noises about freedom, but I was referring to the fact that they will latch on almost any reasoning to make their case at the time.

  4. While they are at it, I hope they can skewer administrative law as well. Would be a great comeuppance to Ginsberg and the rest of the statists.

  5. Gasp! The Supreme Court acting consistently? We can’t have that! Consistency is a tool of the patriarchal 1% oppressive corporate cis-shitlord climate-change-denialist meanies!

    1. Sir, it is my duty to inform you that you have neglected to include a *TRIGGER WARNING* in your post. Please report to the Rehabilitation Administration for thought cleansing

      1. We have combined that state function with the FCC who already controls communication 😀

  6. Another SJW makes the bunny hop to fascism.

    1. I suspect Rosen was already a fascist long before now.

  7. Yeah, cuz if there’s one thing the SC is known for, its being consistent on principles. And totally not deciding which side they want to win and rationalizing their ruling any way they can.

  8. Scalia was trying to get his liberal colleagues to connect the dots and realize that government regulatory power is undermined whenever a federal judge invalidates a state law based on a libertarian reading of the 14th Amendment.

    Whatever you do, don’t put the interests of the individual above the interests of the collective. That way madness lies.

    1. Or, at least, a whole bunch of people telling Liberal/Progressive buttinskis to go climb a tree.

    2. To go by the 14th’s desire for “equality” is putting the interests of the collective above the interests of the individual.
      Equality is a uniquely collectivist concept.

  9. Liberals don’t fear this for the simple reason that they intend to get judges to rule inconsistently, applying the 14th Amendment when they want it applied, and forgetting about it when they want it forgotten.

    It’s a little late in the day to try to scare them with the boogeyman of consistency. They’ll just use ad hoc justifications for whatever they want at any moment in time, and will not give a shit if justification A contradicts justification B.

    1. This. And the courts are all too happy to accommodate such inconsistency.

    2. Yep. I just ran this past my wife and her response was basically, “gay marriage === non-segregated schools, gun control === only crazy people wouldn’t want restrictions on guns.” She has some embarrassing Progressive tendencies that stubbornly survived contact with public school systems, our city council, bastard neighbors, AND the academia, so she’s a pretty good bellwether for how your garden-variety disinterested Democrat-lite will see things.

      My guess is that Progs who actually fear the possibility of the Nazghul making consistent rulings are those who are really True Believers. They really, honestly believe deep in their bones that government is the highest, noblest calling, is peopled by altruistic philosopher-monks, and is systemically-predisposed to repeated, good outcomes. Your garden-variety Clintonian is not losing any sleep over this.

      1. Progs don’e seem to realize government is run by human beings. It is not a separate entity with superior moral insight and wisdom.

    3. Not surprising since most of their “thinking” is based on FEELZ as opposed to logic and reason.

  10. A light bulb turn on above this progressive’s head. “if the Supreme Court places individual dignity and autonomy above government power in this case, “progressive legislation” could be similarly imperiled in future cases.”

    He finally admits that progressives don’t give a crap about individual dignity or autonomy, only that their “progressive legislation” gets passed into law. They want their vision of the future. You can fuck off with your own individual aspirations.

    1. That’s pretty much the epitome of statism — progressive and conservative alike.

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  12. “Gay marriage” isn’t about human dignity or the sanctity of love. It’s about getting your hand into somebody else’s pocket.

    1. No more so than “straight marriage”.

  13. This whole thing is silly. Just as in the case with Sotamayor calling out the state’s attorney for lying, the principle at play isn’t the law. These guys clearly decide the cases on personal ideological grounds and then go out and seek out a way to backfill their decision with legal precedents and maybe even some actual law.

    There is no fallout from siding with individual liberty in this case. The court not only ruled that the feds can require us to buy insurance, Justice Sotamayor opined in her confirmation hearings that the government certainly had the authority to require you to buy and eat broccoli.

    Any limits on government power are due to ideological constraints or personal preference of the justices. Nobody is bending their knee to the constitution.

    1. Nobody is bending their knee to the constitution.

      I think Scalia visits it’s grave sometimes. Occasionally, he leaves a love letter.

    2. ^This

  14. the right to dignity?now celebrated by liberals for what it means to gay rights?could ultimately produce other decisions in unrelated cases that they would not be so quick to celebrate

    Principles can be a such a burden to the unprincipled.

    1. I’m kinda surprised that they’re actually laying claim to ‘the right to dignity’. I guess it was time for a name change, but dignity is surprising. I mean, if there were ever a more unjustified Sisyphean task, it would be delivering dignity to the perpetually indignant.

      They did a pretty good job of finding a more pointless, abstract, and pointless notion than something like ‘marriage’.

      1. the right to dignity

        That’ll backfire really quick, if they go that route with the linguistics. Isn’t the pro-life movement based on “basic human dignity?”

        I think the “right to dignity” will hurt the progs on the abortion front more than it helps them on the marriage front (which they don’t really care about, anyway, but that’s a story for another day).

        1. I think the “right to dignity” will hurt the progs on the abortion front more than it helps them on the marriage front (which they don’t really care about, anyway, but that’s a story for another day).

          Considering how we, as a society, skipped right past any question of ‘Should we really throw polygamists out of public offices and/or in jail?’ and got right to work on righting the social wrongs of ‘persecuting’ homosexuals… I’d prefer to overestimate their ability to sing and dance.

  15. Lochner was rightly decided. How could a decision recognizing the right to voluntarily contract working hours be activism?

  16. Maybe it depends on how they rule.

    If it’s about “dignity”, it gets murky pretty fast. If it’s a straight “contract” matter – a State cannot reasonably deny gay couples access to contractual relationships (marriage) without violating the Equal Protection clause – maybe it’s simpler and has fewer ramifications for future cases.

    I’m not sure for which of these possibilities Libertarians should wish.

  17. Shorter Rosen: “Suck it up and take one for the TEAM, fags!”

    I’m a little surprised at how quickly this particular progtard is willing to throw gays under the bus for the sake of the rest of the Progressive/ Democrat agenda. I figured it would happen eventually, but damn, that didn’t take long at all.

    1. Consider how the feminist left contorted their position to accommodate Bill Clinton when he was busy objectifying women/rape light. Consider the crickets from the Prog gallery when is became known that JFK basically gave his teenage interns to his buddies at parties.

    2. Why are you surprised? Progressive Democrats have long had antipathy towards LGBTs.

      I’m good friends with one of the couples who filed the Goodridge lawsuit that led to marriage equality in Massachusetts. Both of them received dire calls from Bawney Fwank warning that they were “opening a can of worms” and that “there’d be backlash” and that he “wouldn’t be able to protect them if things got ugly.” Top proggies in LGBT rights organizations were screaming for LGBTs to drop court cases, warning about how it hurt Democrats in the polls.

      Hillary Clinton, Harry Reid, Barry Obama, and numerous other high-profile Democrats couldn’t wait to rush to the podium to proclaim their belief that marriage is the eternally unchanging union of one man and one woman. DiFi complained that “gays want too much, too fast.”

      They even resisted desegregating the military by ending the DADT law until the Log Freakin’ Cabin Republicans forced the Obama administration — in court — to compare queer servicepeople to murderers and rapists. That resulted in plummeting donations and gay voters stayed home, and the ‘Crats lost the house in the midterms. Plus, it was increasingly clear that DADT wouldn’t survive the legal challenge, so they repealed it (reluctantly).

  18. No more so than “straight marriage”.

    True.

  19. What social purpose is served for the states to regulate romantic relationships?

    Perpetuation of the tax paying herd.

    1. And here I thought one could have kids without any sort of romantic relationship.

  20. Marriage isn’t a right.
    It is an institution in which participation has certain criteria.
    Water down the criteria enough, and the institution becomes meaningless.

    Each state should stop recognizing and licensing any marriage, and let the private sector do as they will.

    1. Marriage is a subset of free association. It’s a right that the government can only protect by not fucking with it, instead of affirmative legislation and regulation.

    2. “It is an institution in which participation has certain criteria.”

      And what governs the “criteria” of that “institution?”

      I’d have a lot more respect for the right-wing social conservatives if they raged against no-fault divorce (or indeed, divorce at all), and scrambled to make procreation a mandatory part of marriage. It would make their claim that they’re “concerned about the definition” a lot more believable and the obvious hostility to LGBTs in their phony “concern” a lot less believable.

      Few things are more amusing than a thrice-divorced Republican politician, in arrears on his child and spousal support, holding forth on the “ancient and unchanging institution” whose thoroughly postmodern no-fault-divorce no-jail-for-adultery incarnation he enjoys on a regular basis.

  21. In short, Rosen fears, if the Supreme Court places individual dignity and autonomy above government power in this case, “progressive legislation” could be similarly imperiled in future cases.

    Of course Rosen fears that. Or said in a different way, the Progressive mantra

    All within the state, nothing outside the state, nothing against the state.

  22. If this happens, it will be justice because of the chaos and polarization the progressive movement has caused in this country. No group has done more to erode our freedom than Progressives. They attack Bill of Rights daily and work to stop anyone from talking or thinking anything they do not approve. Progressives are the greatest threat to the US at this time.

  23. If the Court were concerned about consistently applying some kind of human dignity principle, it would do stuff that would make progs wake up in the middle of the night screaming.

    However, I don’t think that principled behavior on the part of the Court is something we need to fear too much.

    Meanwhile, the U.S. Solicitor General acknowledges that a pro-SSM decision would open up the issue of whether religious schools could keep their tax exemptions if they insist on the traditional marriage definition:

    http://www.washingtonpost.com/…..iage-case/

    1. So basically the religious schools would be treated the way secular private schools always have been.

      The bleating of the religious corporations over losing their special rights is pretty funny — they made their own bed by embracing statism and majoritarianism for so long. Now they’re the minority and it’s “time for them to pay their fair share, the PEOPLE have SPOKEN.” And we can’t have unelected courts deciding against what the PEOPLE want, right?

      Oops. Sucks to be religious! Maybe they should not have used state authoritarianism against other people THEY didn’t like, and created the legal precedents that will make them the new targets, eh?

  24. So a baker wouldn’t have to bake a cake for a gay wedding if it violates the baker’s right to individual dignity.

    1. Yes, or even better, for any reason they wish.

      “Hey will you bake me a cake?”
      “No”
      “Why?”
      “Because I don’t fucking want to.”

      That answer should be perfectly acceptable to any sane, non-tyrannical human being. Anything else is servitude and it should be frowned upon. That is unless you’re a proggie, piece of shit, but I repeat myself.

    2. Obviously the “forced to bake a cake” regulation is stupid.

      But stupider still are conservatives who insist that a business being forced to bake a cake is some sort of world-ending oppression without equal… while watching your spouse die without any legal authority in the hospital, or losing the home you had together, or not being able to maintain immigration status for your partner is just no real big deal.

      1. Proving yet again that you can ignore anything which precedes the word “but”.

        1. Only for the feeble-minded.

          Anybody with half a brain cell can see that an annoying regulation on businesses is nowhere near as oppressive as state apparatus being used to disrupt the basic human existence of a segment of the population.

  25. I have never understood the supposed 14th Amendment argument for same sex marriage. The Constitution is strictly about individual rights. No one is denying the right of a gay person to marry according to the rules in place. They must marry someone of the opposite sex.”Married Couple” is state defined entity in the same way that a corporation is. Want to incorporate? Follow the rules to get the privileges. Likewise with marriage.

    1. No one is denying the right of a gay person to marry according to the rules in place. They must marry someone of the opposite sex.

      The exact question is: are “the rules in place” constitutionally valid?

      Otherwise:

      No one is denying the right of any person to free speech according to the rules in place. They must say those things which are approved by the state.

      No one is denying the right of property owners to use and dispose of their property according to the rules in place. They must grow and/or build those things which are approved by the state.

      No one is denying the right of citizens to keep and bear arms according to the rules in place. They must possess and carry such arms in such a manner as approved by the state.

      1. Thanks for the response.
        No the exact question is shall we change the rules and expand marriage to include same sex couples. The Bill of Rights and the fourteenth are about individual rights and specifically not about collectives like corporations, unions and married couples. Your supposed counter examples prove nothing. These rights are negative and for individuals, and just encoded in the constitution. The marriage privilege is a positive right used to gain benefits from the state like social security, immigration rights and many others.

      2. No one is denying the right of any person to free speech according to the rules in place

        Fundamental Right.

        No one is denying the right of property owners to use and dispose of their property according to the rules in place

        Fundamental Right.

        No one is denying the right of citizens to keep and bear arms according to the rules in place

        Fundamental Right.

        No one is denying the right of a gay person to marry according to the rules in place

        State sponsored privilege.

        One of these things is not like the other.

        1. Nope, marriage is a human right. See “Loving versus Virginia.” The argument that marriage was a state-sponsored privilege that could be extended (or denied) based on arbitrary criteria was rather decisively struck down in that case.

          1. You are taking warren out of context. Marriage has been coopted by the state. Now we need the state’s permission to call ourselves married. Marriage is now equivalent to Government Marriage. And since government can only grant privileges not negative rights, marriage is no longer a negative civil right in the sense the Warren court meant it, if it ever was.

            1. “Marriage has been coopted by the state”

              Sure it has, just like business licensing, and education, and a whole host of other things.

              Point is, I don’t see libertarians responding to racial segregation in schools with “how unfortunate, the segregation, but let’s not worry about it and instead government out of schooling.”

              You get to liberty the same way we got away from it — steady progress in rolling back what’s bad.

    2. Hilarious. It’s either deadpan sarcasm par excellence or a downright clinical case of cognitive dissonance. TO, can you let on to which? Thanks,

      1. Nice word salad as usual

      2. Thanks for the response. It is neither cognitive dissonance nor sarcasm. It is a serious question about the scope of the Fourteenth Amendment. I believe the answer is that SSM is out of its scope. Because government marriage is a positive right that confers privileges, not a negative right bestowed to individuals at birth.

        The 14th clearly covers Loving, because individuals seeking marriage are entitled to equal treatment regardless of race. Likewise the state could not prevent a gay man from marrying the woman of his choice simply because he was white, or gay, or short or ethnically Chinese or Unitarian. the “married couple” collective status in my state requires hetero pairings to attain the privileges of that status.

        It is up to each state to change the rules to expand government marriage to include SS couples or leave things as is. The Fourteenth is not a valid basis for the national government to redefine marriage across the board.

        1. Why would the 14th amendment prohibit anti-miscegenation laws and not SSM. Doesn’t equal protection mean what it says? States had plenty of laws and tradition and public support on their side when they prohibited a black person from marrying a white person, but the SC struck that down. Why wouldn’t the same reasoning apply now?

          I’m trying to figure out where this is coming from. Let’s say the happy and magical day does not come when the government gets out of conferring benefits on married couples. Would you be for or against the ability of SS couples to get married?

          1. Why would the 14th amendment prohibit anti-miscegenation laws and not SSM. Doesn’t equal protection mean what it says?

            I can drive a screw through two boards with a hammer. As long as a piece of metal that I mashed into place with a hammer holds two boards together, what difference does it make if I used the right metal or the right tools to put it in place? Hammer… screwdriver… screws… nails… whatever, the point is to hold any two boards together as equals, right?

            We, homophobes and homophiles, actually persecute Mormons in this country and around the world. Deface their buildings and deny them their marriages which, outside Mormonism, are just as ancient as any other. Saying we are tolerant not because we respect other people’s beliefs or their right to speak and associate freely and differently but because we think the government will, does, or should make people equal doesn’t achieve anything but the most broken and tacit measure of equality and rather actively disservices the right ways in which we do interact with each other equitably.

            1. I know, I know… The ability of gay people to get married is an imperfect solution to the idea of magically getting the government out of people getting married. We ‘ll all be glad when the fucking Feds get out of way and let the droves of people that want to marry their dog, sheep, teddy bear, pet iguana, 12 year old cousin do as they wish. Until that happy day though, would you be in favor of having the law treat a homosexual couple the same way it treats a heterosexual couple. It’s really a simple yes or no question.

              1. Except, of course, that the Feds are not in the way of letting “droves of people that want to marry their dog, sheep, teddy bear, pet iguana, 12 year old cousin do as they wish”. It is the Sates, or the people – you know, the ones the Constitution said should decide most things for their citizens – that are in the way of that.
                And that’s the point. Absent the Constitution weighing in on marriage’s definition, or availability, it is up to the States to decide, according to the Bill of Rights, not some emotionally enacted punishment, intended for confederate supporters, amendment that, really, turns the concept of individual liberty on its head.

            2. So we should stop pushing for tax cuts, because we need to get the government out of the taxing business altogether, right?

              So no incremental movement towards liberty — all or nothing, bro!

          2. Every individual is allowed to marry anyone else of the opposite sex they like. That is the rule and it as a positive right, A privilege. Race is a specifically protected condition for those individuals. That is why miscegenation laws were correctly overturned by the 14th amendment. The positive right or privilege allowed by the state could not use racial discrimination against given INDIVIDUAL who wished to enjoy the specially defined collective entity of two persons if they followed all the other rules. Same-sex marriage proponents on the other hand are creating an expanded definition of marriage which is in essence a new form of collective. They are attempting to redefine the collective itself. This is totally different than the situation in Loving.

            1. People arguing against miscegenation laws were changing the definition of marriage too. And people who argued against changing those laws used the same language as opponents of SSM are doing now. But, nah, those people who didn’t want a Black man marrying a poor defenseless White women weren’t racist. They were just defending the meaning of marriage which meant one man and women of the same sex. You know, how it was for thousands of years.

              Where in the 14th amendment does it say equal protection exclusively applies to race? It says “person”

              You didn’t answer my question. Do you think people of the same sex should be allowed to get married? Yes or no will do, really.

            2. Again, the idea of marriage as a “positive right” or “privilege” with arbitrary criteria was pretty decisively demolished by SCOTUS in Loving v. Virginia. Your argument is identical to the argument used by the defense in that case, unsuccessfully, even down to the idea that removing arbitrary criteria is “creating an expanded definition of marriage.”

              1. we obviously disagree here . please see my earlier comment about government marriage versus civil marriage .

    3. Well, corporations are gaining freedom of speech and religion, so it’s not necessarily true that the constitution is only about individuals.

      But supposing the 14th could not be applied to groups, think of it this way: straight people have a right to marry the sex they are attracted to, and gay people do not. Not equal.

      1. Individuals in the collectives have rights. The corporations and unions and married couples do not enjoy rights, that is natural rights, for themselves because they are in those collectives. Instead, They only hold natural rights as individuals.

        The 14th cannot be applied to groups. Think of the 14th this way: it does not establish the positive right to marry. Instead the 14th ensures equal consideration under the laws, both those that encode natural rights and those that confer positive rights / privileges. That is all. Voting is an example of a positive right. Imagine if a 14-year-old or a convicted felon or an illegal alien decided they were entitled to vote because of the 14th. That is the same uninformed logic. There are rules established by each state to ensure the positive right of voting the privilege is awarded correctly according to the law.

        1. The right to marry is established in case law. The 14th applies (in my opinion) because the states are not allowed, without a rational basis, to deny equal protection of the laws. Straight people can get married and gay people can’t (in some jurisdictions, to the people they by definition are interested in marrying). Not equal.

          1. Geez, you finally said something I agree with.

            I need a drink.

          2. 14 year-old, felon, illegal alien can’t vote, anyone, not in those categories can – not equal.
            It is easy to do, but is meaningless.

        2. The right to marriage is an individual right. If you tell me that I may or may not marry someone else who is an adult based upon arbitrary criteria, you’re violating my 14th amendment rights.

          It’s interesting that you’re chasing the voting angle, because racists insisted that voting is also an arbitrary privilege that should be extended to — or denied — people based on criteria like their race. And if you can prevent a 14 year old or felon from voting, why not prevent a black man from voting too, right? After all, voting rights for hundreds of years in the USA and its predecessors were restricted and never included that class.

          SCOTUS rejected that argument, and they’re gonna reject yours too.

      2. They already had those rights, shit head. How you fuckheads in government realize unalienable rights (or fail to) is why you are a fuckhead

      3. Did you read the Citizens United opinion? If so, please explain how Harvard (a corporation), the NY Times (a corporation) and many abolitionist and suffragist corporations throughout history do not have speech rights.

        But I do agree with you on the gay marriage thing.

    4. And back in the 40’s, no one was denying the right of a black person to marry according to the rules in place. They had to marry someone of the same race.

      But the courts changed that and I think most of us outside some Klan members agree with that decision.

  26. Will Marriage Get and Honest Funderal?
    http://rogerscommentaries.blog…..neral.html

    1. You haven’t been paying attention. Your archaic and “religious” definition of marriage is already dead. Most people under 40 rejected it long ago.

      You can either keep up with the times, or continue insisting that your telegraph institution is perfect for a 4G LTE world.

      What you guys have been doing is trying to get the government to FORCE the telegraph definition on others, because your view is both unpopular and increasingly irrelevant. And like so many other dramatic articles written by conservatives about how marriage would die when women got the vote or blacks could marry whites, life will go on.

  27. My sister makes $75 every hour on the laptop . She has been laid off for seven months but last month her pay check was $18875 just working on the laptop for a few hours.
    Look At This. ????????? http://www.jobsfish.com

  28. Damon,

    I stubbornly cling to the notion that choosing who you are going to fuck is different than locating a lead smelter in a residential neighborhood.

    1. Why would you build a smelter in a neighborhood? Nobody would insure you and you’d go bankrupt from the class action lawsuits.

      1. What makes you think that I would submit to paying a civil fine, you fascist? Is libertarianism just about shifting political power from the 1st branch of government to the 3rd? That’s your revolution? Call me unimpressed.

        1. So clearly you think bureaucracies are not just superduper good protectors of property and environments, but the only possibility. It’s everyone else whose unimpressed, I promise.

        2. Yes, it’s far better to lock people in cages for failing to heed the diktats of their betters than to impose fines for negligent and harmful behavior.

        3. Also, what fucking revolution? That’s the world we live in now, you fucking Stalinist moron.

        4. Okay, unimpressed. Go fuck yourself now.

          Your little feet are all the proof I need to see how unimpressive you truly are.

        5. american socialist|5.5.15 @ 1:02PM|#
          “[…]Call me unimpressed.”

          No, shitstain, we’ll call you stupid for your imbecilic ‘satires’ on what you presume freedom means.

  29. In other words, according to both Scalia and Rosen, strict judicial enforcement of the 14th Amendment could serve the twin ends of advancing gay rights and imperiling certain “progressive” economic regulations. Let’s hope they’re right.

    – Damon ‘Pollyanna’ Root

    1. Yeah, that was a really optimistic interpretation of Scalia’s dissents. Unless progressive economic regulation is synonymous with divestment from pre-existing constitutional protections, I don’t think he understands Scalia’s dissent(s) at all.

      I don’t consider corrosion of free speech, association, and security in privacy and possessions in favor of equality, with our without the ACA, a win.

  30. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ?????? http://www.netjob80.com

  31. We can only dream this is the case. Ideally it would be…. except Progressives want their cake and eat it too. The activist bench will do exactly what it always does… go where the wind carries them. Principles and consistency… be damned.

  32. Because you wouldn’t want the serfs to get the crazy idea that their lives and property belong to themselves and not the State. I mean, real freedom could break out!

  33. As long as we remove all restrictions from marriage limiting any consensual adults from participating in any conceivable combination of marriage, I am ok with changing the legal definition of marriage. Anything less would be discrimination of another form once we alter the traditional meaning of marriage to accommodate only some people and some relationship arrangements. If we leave marriage alone we discriminate against no one. Marriage is what it always has been. Nothing more and nothing less. If we change it, thus altering what marriage is, and exclude anyone, then this new creation becomes discriminatory to anyone who has been excluded from it.

    1. You’re assuming history is some kind of shield for bad behavior. It isn’t.

    2. “Marriage is what it always has been”

      No, no. It really isn’t.

      The no-fault-divorce, easily-remarry postmodern heterosexual marriages that conservatives are struggling to promote as “traditional” today are not anywhere near “traditional.” Which is why their entire legal argument falls on deaf ears.

      In many cases they’ve lost on gay marriage, jurists have asked the defense why they’re insistent that same-sex marriages are a “bridge too far,” but didn’t oppose far more radical revisions like no-fault divorce, the equalization of spouses (replacing the legal principle of male supremacy in the marriage arrangement), and elimination of criminal imprisonment for adultery.

      When they couldn’t do that, it became clear that their objection wasn’t against “changing the institution” — they do that all the time — it was about animus towards gay folks.

  34. i don’t see why a liberal would be worried about where this decision might lead. They know perfectly well that the 4 liberal “justices” would never let a precedent or logical consistency get in the way of their liberal agenda. So, as usual, all the need is one more eager to “stand tall in Georgetown” by heeding the synoptic media rather than the Constitution.

  35. I think Roberts wants to rule on sex discrimination grounds, leaving gay people’s lack of legal dignity well in place.

    1. OMG, another good comment by Tony. A sign of the apocalypse. I need a refill.

    2. The “sex discrimination” is a vacuous argument.
      How can laws, which impact the sexes, equally – homosexual men and women face the same restriction – be called sex discrimination.
      I had hoped we had a more intelligent Chief Justice than that.

  36. I know – it is great

  37. Marriage was around long before the US Government “legalized” it. Getting the government out of marriage is just going back to getting the government out of religion. Some Libertarians would prefer the government to redefine marriage to further eliminate Judeo/Christian culture in the US. The argument that the individual rights of the gay have higher value than the religious rights of others is the core of the problem. From a conservative perspective there are more Libertarians with a Free Thinking agenda than Libertarians only wanting to get government out of the marriage business.

    1. “redefine marriage to further eliminate Judeo/Christian culture”

      As a Jew, I’d like to ask you to kindly refrain from using this terrible phrase that you conservatives throw around all the time.

      Let’s get one thing (ehrm) straight — there is no “Judeo Christian” anything. In fact, Christianity is a lie, a fraud, its central tenet is that Christ is the Messiah — absolute breathtaking blasphemy for any Jew.

      In addition, Jewish law applies only to Jews. We have absolutely no interest in forcing the Tanach or Talmud on Gentiles, whereas so many of you Christian blasphemers demand that EVERYONE live under your bastardization of our holy scripture.

      Enough already.

      1. Ahhh, but according to Islam, Abraham was a muslim! You’re all a bunch of dirty blasphemers!

  38. The 14th was the worst thought out and most mis-interpreted addition to our founding document.
    It turned freedom on its head, instead chasing an illusory “equality” and requiring a “compelling interest” to be able to return freedom to the individual, on each, and every, case.
    Reading the entire amendment, it is clear it was a stick-in-the-eye to those who had the temerity to think they could implement their own “declaration of independence” and enshrined punishment far beyond what would have been allowed, but only for that generation.
    A hundred years after its ratification, in the face of civil unrest, it was dredged up and has cause much of the turmoil we see today.

  39. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ?????? http://www.netjob80.com

  40. “Last week the U.S. Supreme Court heard oral arguments in the gay marriage”

    Was I the only one juvenile enough to find that phrasing funny?

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