Gay Marriage

Scalia's Angry, Incoherent Gay Marriage Dissent

An uncertain friend to libertarians.

|

Scalia
Public Domain

Yesterday, Associate Supreme Court Justice Antonin Scalia was a hero to libertarians and conservatives for his terrific dissent in King v. Burwell. Today, his dissent in Obergefell v. Hodges—the landmark case legalizing gay marriage in all 50 states—should remind libertarians that he is an inconsistent friend.

In his gay marriage dissent, Scalia laments that the majority decision gives the Supreme Court legislative super powers that subjugates the democratic system to the will of the nine justices:

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' "reasoned judgment." A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

But "the people"—as represented by their legislatures, I suppose—are subordinate to a committee of nine unelected lawyers when they pass laws that strip individuals of their right to equal treatment under the law. Just yesterday, Scalia argued that the Court was perfectly entitled to tell U.S. Congress that its democratically-enacted healthcare law was nonsensical. But today, the Court must defer to the democratic process?

The greater inconsistency, of course, belongs to Chief Justice John Roberts, who wrote the majority decision in King but dissented in Obergefell. For Roberts, the Court is expected to meekly submit to the stated will of Congress when it comes to Obamacare, but must stand athwart history, in opposition to equal rights, when it comes to gay marriage. [Update: Reason's Damon Root tells me that this isn't a contradiction of his judicial philosophy: He consistently favors the Court deferring to democratically-accountable state legislatures.]

Scalia makes clear that he does not see marriage as a right or a freedom, in mean-spirited and incoherent fashion:

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 Of course the opinion's showy profundities are often profoundly incoherent. "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality."23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can "rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?)

Wait: Scalia thinks intimacy and spirituality are not freedoms? Does that mean he would deem it constitutional for legislatures to strip Americans of these things, and for the Court to do nothing to stop them? Holy judicial restraint, Batman!

The majority decision is "hubris," he concludes:

Hubris is sometimes defined as o'erweening pride; and pride, we know, goeth before a fall. The Judiciary is the "least dangerous" of the federal branches because it has "neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm" and the States, "even for the efficacy of its judgments."26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the "reasoned judgment" of a bare majority of this Court—we move one step closer to being reminded of our impotence.

Full decision here.

Stay tuned for further analysis of Obergefell.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

314 responses to “Scalia's Angry, Incoherent Gay Marriage Dissent

  1. So how does the SCOTUS’s legislating the legality of SSM affect polygamy?

    Those people all love each other after all. Did it eliminate prohibitions on family members marrying each other? My momma’s going to pass soon and I want to marry her so that I can get the spousal inheritance tax exemption. IS that legal now? I mean we love each other so why the fuck not.

    1. It should be. And of course there shouldn’t be an inheritance tax at all.

      1. Yes but there is, so can I marry my momma on her death bed to game the tax code?, Or my poppa if he were the surviving spouse?

        1. Yes, but the IRS Code requires you to consummate the marriage before you get the exemption.

          1. Which, ironically, same-sex couples cannot do. Unless, of course we have changed the definition of “sexual intercourse”, which we might have done.

            1. Wasn’t that done in Lawrence v. Texas?

          2. What evidence does the IRS require? A video?

        2. I support people using any loophole they can find to avoid government theft, so go right ahead.

          1. Such actions are not likely to succeed, however.

            1. Well until some midlevel civil servant realizes that they can seize VG Z’s assets to repay Medicare if the marriage is allowed.

        3. While you’re at it, you Neanderthal, how about you inquire as to whether or not you can self-wed, thus enable you to go Rick yourself.

          1. Funniest autocorrect ever!

    2. Certainly there is no compelling reason for the law to deny marriage access to poly couples. The only argument against it is “eww, it’s icky” which obviously doesn’t fly.

      Same goes for incestuous relationships. The moral grandstanding is so easy to turn against them but don’t expect the inconsistencies to bother them.

      1. Certainly there is no compelling reason for the law to deny marriage access to poly couples fews

        FIFY

        1. fews

          I like. It avoids the numbering problem of thruples and plays nicely off of “couples”

          Bravo.

          1. I have a gift for polyamory. Except I failed kindergarten so I’m never the one that shares.

          2. or ‘fewples’

      2. When will polygamists be free to love?!!!!11111!!!!

    3. Polygamists are icky and anti-feminist. Gays are to be celebrated and are oppressed!

      Therefore polygamy stays outside the law and homosexuality becomes a protected class.

      Teh Feelz prevail over rationality.

      1. what about gay group marriage? (asking for a friend)

        1. As long as there’s more than one guy, it’s ok. One guy and a bunch of women is evil because obviously the women are being oppressed, no matter what they say.

          /Actual argument made to me by a pro-gay, anti-poly person.

          1. Wait, what?

            The anti-polygamy thing does seem to be driven primarily by progressive dislike for FLDS though. A friend of mine (straight) vacillates between thinking it’d be OK, and not wanting to let FLDS folks have anything on a regular basis. I don’t think he’s ever argued that certain arrangements of poly would be ok though…

            1. It was a little more nuanced like that, but it was an argument based on pragmatism. Effectively, she wanted the burden to be on the poly family to affirmatively prove that nobody is being oppressed, because “in reality, it’s one man and a bunch of women.”

              1. than* that

              2. shouldve refreshed

              3. Effectively, she wanted the burden to be on the poly family to affirmatively prove that nobody is being oppressed, because “in reality, it’s one man and a bunch of women.”

                That poor bastard, he’ll never be able to affirmatively prove his oppression.

                1. Who the fuck would voluntarily subject himself to the potential of multiple pissed off women?

              4. What is the compelling drive for polygamy beyond endless new handouts?

            2. I am guessing this was a feminist

              1. I am guessing this was a feminist

                Ding Ding Ding! We have a winner! One of the presentations in my Religion and Law class was on how the growing support for gay marriage necessitated legalization of polygamy. The feminist fainting chairs were in full use that day.

                1. Polygamy can be a “good deal” for men. From what I’ve heard, instead of getting a bunch of nagging wives, they actually just fight with each other and compete for your affection like divorced parents.

              2. File that away in the “I like feminism but for the feminists” drawer.

                1. You mean the circular one, right next to the overflowing “I don’t mind homosexuals but hate homosexualism.” filing cabinet?

                  1. Sometimes it works. I love every Marine on this planet but I hate the Marine Corps with the burning white hot passion of a thousand suns.

            3. I’m creeped out by the FLDS too, but I’m more creeped out by the complete control that the leaders of the religion has over the people, which really has nothing to do with polygamy. Of course, there are two things about that complete control: first, the individuals practicing the religion allow it, and so there’s not much that the Law can do to stop it, and second, the leaders have been abusing their control to the point that individuals begin to see that something is wrong, and they take steps to stop it (which sometimes includes bringing in the Law from outside).

        2. Not okay — but strictly for practical reasons.

          You see, it would lead to too many domestic violence cases when the discussions over how to decorate escalate into fist fights.

          /just kidding/

      2. What about polyandry? Say a menage a trois with one women and two dudes. Feminists would probably be okay with that.

        1. Say a menage a trois with one women and two dudes.

          You mean a simultaneous double-rape?

          /feminist mind

          1. What if it’s consensual rape?

      3. What about Muslim polygamists?

        There oppressed and brown, and kewl.

        1. Muslim is at the bottom of the “protected class” list. The amount of garment rending i’ve seen from leftists about the “plight of the Muslim woman” is amazing. They see Muslims as savages (in the 19th century way) and can’t decide whether to reform them into civilized folk or protect them like an endangered animal.

          1. It depends on whether or not an election is coming. They only pander when they need Muslim votes. Every other month of the year, they are woman hating bastards.

    4. Feel free. No one except you gives a shit.

      1. Frankie,

        The question isn’t whether you give a shit or not.

        The question is whether the government is going to sanctify our marriage with bennies.

        1. Fine, argue against bennies for anyone. It’s a completely different subject.

          One is about equal protection under the law and the other is about government subsidies.

          Or do you like government subsidies and want to save them for your preferred voters?

          1. Swing and a miss. You keep saying that and the bennies keep expanding. Explain how protection involves stealing from me to pay you. Well the neighbor on my left robbed my house, so I guess I have to let the neighbor on my right do the same.

            1. Should interracial couples have remained barred from legal marriage in order to stop them from stealing from you?

              1. Yours is an emotional appeal but yes. Nothing prevents anyone from living together or having a ceremony. I’m going to die alone because the government didn’t give me a marriage license? Seriously? This whole cause was really about three things. One, getting government benefits which impose burdens on everyone else. Two, getting protected class status to impose their will through public accommodation laws. Three, imposing acceptance on everyone else.

                The vast majority of rights that this confers are positive rights. Why would a libertarian be crowing about an expansion of positive rights? The only way out is to advocate for eliminating it altogether.

                1. I agree for eliminating it altogether too. However, if somebody proposed eliminating legal marriage and the benefits for interracial couples only, I don’t know if I could support that. It would indeed mean reducing burdens imposed on everyone else and would be a step in the direction of getting rid of government benefits tied to marriage. I suppose it would be too tied with racism for me.

                  Like with gay couples, being against including them under the government “marriage” definition is almost always closely related to thinking gay couples are inferior to heterosexual couples or that they are intrinsically immoral and evil.

                  I suppose it isn’t rational and is emotional if the goal is to move in the direction of getting the government out of marriage, but I don’t like gay couples being denied something because they are gay just as I wouldn’t like interracial couples being denied something because of their races, since that opposition would be grounded in homophobia or racism.

                  Interestingly with speech and property rights, I think should be able to discriminate. With government benefits being doled out, taxpayers are in a way having their property rights violated although much, much less so than a business being forced to make a cake for a gay wedding. I’m not sure what to make of everything.

                  1. Well duh.
                    Shorter version: Marriage should not confer special rights, but if it does, them gay marriage should qualify for those same, morally objectionable privledges.

            2. You keep saying that and the bennies keep expanding.

              Maybe it’s because people like you are too busy fighting teh gheyz instead of fighting against entitlements?

        2. Don’t justify one government intrusion with another. Tackle entitlements separately.

          1. But that’s precisely what you’re doing. Entitlements ARE the intrusion. The tax code IS the intrusion. Public accommodation IS the intrusion. Remove those three and tell me just what parts of marriage any two (or fifteen) people can’t have today, er, yesterday.

    5. I don’t see why family members shouldn’t be allowed to married. I don’t need a law to keep me from marrying my sister. But if someone wants to, why the hell should anyone else care?

      1. Does your sister know you feel this way?

      2. Originally, the case against marrying your sister had to do with the increased probability of deformed offspring. This is scientifically sound theory: Look at dog breeds such as the schnauzer or the Royal House of England.

    6. I’m a Fundamentalist Christian libertarian.

      Now that that has sunk in, I just realized something:

      I knew this was coming, as it should have (government has no authority over marriage). Next it’s polygamy, and it will go down in a similar way.

      However, much of the institutions in America (the tax code and insurance spring immediately to mind), that would be absolutely useless if polygamy were legally recognized. All of a sudden everyone is married to everyone else because you can be on everyone’s insurance and a deductible on their taxes.

      Now, the logical thing to do is simply to let the tax code say, “Hey, you can marry whomever you want, but you only get one adult dependent” and let the insurers do the same. However, I have no confidence in government doing the logical thing.

      So, insurance skyrockets in price and taxes go through the roof so that everyone HAS TO “marry” a bunch of people or they can’t afford them. While messy, it is doable…

      Except for me. I’m not going to go against my Lord because the government is made up of morons (I’m not going to “marry” a bunch of people because I know that’s wrong). So I’m in poverty or simply unable to pay my taxes (an outlaw).

      Thoughts?

      1. You get one benefit, you divide it amongst all your spouses. If there is a widow’s benefit, and there are six widows, each gets 1/6 of that benefit. Not all that tricky.

        I don’t get your opposition to polygamy or polyamory. If you’re a fundamentalist. It is clearly okay in the Bible to marry more than one spouse.

        1. Permitted? Yes, once upon a time (so was slavery of certain kinds). Correct? Another question entirely (Matthew 19:5).

        2. The idea is that God said nothing against polygamy and slavery for thousands of years and explicitly authorized it. Then, after a couple thousand years some things written down by other people (through God or reporting Jesus) and are interpreted (some would say tenuously) to disapprove of slavery and polygamy. Unfortunately for the slavery question, Christians vehemently disagreed among themselves for almost 2000 years about it. And there are Christians today who think polygamy is not an immoral practice.

          1. The idea is that God said nothing against polygamy and slavery for thousands of years and explicitly authorized it.

            Allowed it is closer to the truth. If he did, he also “authorized” divorce by allowing it to exist, though that seems to be taken out by Matthew 19:8 (Mark 10:5). He seems to allowed it because “your hearts were hard”. God told the Israelites to do a lot of things they refused to do, like allow the soil to rest every 7 years. Where Christ spoke on divorce, it is also clear that God originally didn’t tell them not to do things that he knew they would refuse.

            Yes, lots of “Christians” (a self-reported group) argued about slavery. That means little as many of them had monetary benefits from it. People love to give up principles for money…

            Actually, those who practice polygamy have more of Scripture to back them up, even 2 Samuel 12:8. But Christ did define the institution and as he invented it, I will not argue with him. The Bible is rife with, shall we call it, “incomplete revelation”? God didn’t give humans all his law or his plan for salvation at once. My opinion is that he allowed those to continue in their ways and told them the right thing to do as he saw fit. For example, the doctrine of individual punishment isn’t given until Ezekiel 18!

            1. I have a different explanation. The people who wrote the things that were eventually compiled into the Bible had different conceptions of a non-existent deity which was often exacerbated by separation by hundreds of years and vastly different cultures. Therefore, their writings about their conceptions of their deity naturally have inconsistencies with each other. These inconistencies are harmonized usually ad hoc as best as possible by Christian apologists just as apologists for Mormonism and Islam also harmonize their supposedly holy texts. However, because the Bible is, as a whole, poorly written and ambiguous, there unsurprisingly are literally thousands of differing interpretations and harmonizations leading to countless disagreements about even the most fundamental aspects of what it’s supposed to mean.

              1. Or, as might be the case, the “ant” ( representing the human) might not really understand what the true “person” (representing God) is and needs some time, even generations, to understand him.

                While I understand quite a bit in this world, I don’t presume to know how a truly Almighty Divine being would make himself know to us. I’m not that smart… Are you? If he acts in a way that confuses me, then why should I be terribly surprised? If people misunderstand what he says (and then he comes down to set them straight), why should I be surprised by that either?

                1. Imagine that a Muslim or a Mormon responded to a befuddling element of his beliefs with “How can you question God? You’re not as smart as Him.” It has absolutely zero explanatory power and is a complete non-resolution to the problem. That Christianity as a whole is incoherent and contradictory with itself is not a strength–it’s a weakness, just as it is for other religions.

                  I think my explanation explains the situation perfectly well and can even be applied to other religions, whereas the response of “Are you as smart as Deity X?” explains and accounts for nothing in the problem; it only seeks to stop debate and any criticism in its tracks. Such a retort could also be given by members of religions other than Christianity.

                  Even if a Christian, Mormon, Muslim, Jew, etc. has a perfectly coherent view of his religion,he still has the burden of proof to indicate the existence of his deity.

                  1. As a guy who was raised, nay, indoctrinated in a fundamentalist cult, lemme say this:
                    Christ’s message is the best one ever. Turn the other cheek.
                    The greatest law is this: That you do unto others as you would have them do unto you.
                    Best fucking religion to indoctrinate the sheeople into I can think of.
                    Sure, the skeptic can find proof that the religion is made up BS.
                    But I’d still rather have a fundy as a neighbor rather than a statist.

      2. “All of a sudden everyone is married to everyone else…”

        This is a stretch. Many people would have objections to polygamous marriage just like you do, either for religious, moral, romantic or other personal reasons. You’re implying that the vast majority of people in this country view marriage so pragmatically that they’d be willing to utilize the institution solely for tax strategizing. That’s clearly not the case.

        Right now we have a child tax credit that technically doesn’t put any limit on how many children you can claim (although AMT might become an issue), but we don’t see people cynically procreating just to take advantage of the tax benefits.

        While it’s true that we do structure our choices around taxes sometimes (especially corporations), it’s doom-and-gloom to argue that legalization of polygamous marriage would make the arrangement so popular that the good, upstanding Christians who refused to practice it would be unfairly burdened. I just don’t see that happening.

        1. That’s clearly not the case.

          Not so clear to me. Lots of money makes people throw off their principles pretty quickly.

          but we don’t see people cynically procreating just to take advantage of the tax benefits.

          That’s because new children add to costs. Adults don’t need to be raised and are already there.

          it’s doom-and-gloom to argue that legalization of polygamous marriage would make the arrangement so popular that the good, upstanding Christians who refused to practice it would be unfairly burdened.

          Oh, I’m not arguing that at all. I’m simply bringing it all to its logical (or illogical) conclusion. Marriage isn’t government’s business and transfer payments are evil in more than one way.

          Maybe the result would be good? Maybe the gosh-darned Huckabees of this world would suffer enough and recognize how evil government controlling marriage is and call for an end to it. Who knows?

          1. What tax benefit for multiple spouses are you referring to? I’m not clear how you think this will help on anyone’s taxes.

            And I don’t see why you think Congress wouldn’t change the rules in reaction. They’re losing billions to some mysterious polygamy loophole you’ve discovered, but somehow fail to make a simple change (say, eliminating marriage penalties or bonuses from the tax code) to stop the gap?

            1. And I don’t see why you think Congress wouldn’t change the rules in reaction.

              Fair point, though I would say that the GOP don’t like raising taxes (that’s their only reason for existing), and the Dems love to pander to any new “oppressed minorities” they think they’ve discovered.

              I’m not saying it surely would happen, but that it’s very likely. Let’s say, the Dems take the Congress and the Presidency and decide to pander to polygamists (or whatever they’d call them) and decide to simply raise tax rates on everyone instead.

              Lastly, since when did politicians care about deficits? Perhaps they’d just inflate all non-polygamists to death.

        2. I don’t want to believe something rational would happen and therefore it won’t. Sound argumentation. People make strategic marriage decisions for taxation all the fucking time. My wife and I seriously considered getting divorced last year because we would have saved more than Tony’s annual entitlement check. Some people actually time their marriages and divorces around the tax year.

          Look at the structuring that goes on in trusts just to avoid inheritance taxes. Tell me that going down to the courthouse and getting a marriage license for $50 (or whatever, it’s been a while) wouldn’t be incredibly appealing versus paying accountants and lawyers $250/hr to avoid the taxman.

          1. Yes, there’s a lot of structuring of behavior around taxes. It just so happens that there’s no clear tax benefit to having more than one spouse, particularly non-cohabitating spouses, so it’s pretty unlikely anybody would pursue this strategy successfully.

      3. TANSTAAFL. Why would companies pay for insurance for your 300 wives and 500 husbands? They’d probably make you pay full freight after a certain number of adult dependents, such that they were cost-neutral and you got little benefit from the extra cost. It doesn’t make sense that companies would let everybody in the country on their insurance.

        Most big company plans are self-funded, so they are not a conduit to third party insurance, they ARE insurance. Even if you think you have AETNA or CIGNA, they might just be the administrator, while the actual costs are borne by your employer. If you have an ERISA health plan, it is self-funded by your employer.

        They subsidize the cost of premiums to their employees as a benefit. Why would they allow unlimited benefits like that? TANSTAAFL.

        1. I realize the irony of saying TANSTAAFL when disputing that polygamy is financially mandatory, given the marital status of Heinlein’s protagonist.

        2. Perhaps you are right, but I would wager a guess that most states have laws requiring any insurance in their states to cover spouses, and likely cap charges they can demand for a spouse verses an individual plan.

          Because government is stupid/evil.

      4. Your tax thinking suggests you don’t really complete your own 1040, or maybe that you only do TurboTax.

        Why would you give away your deduction? Only one person can use it; there’s no rule that lets you use your standard deduction and also let your spouse reduce a copy. The Married Filing Jointly (MFJ) filing status lets you have a double sized deduction, but that’s just addition (not duplication).

        But there’s only one MFJ bracket system. There’s no provision in the tax code to get a third spouse’s deduction or to get a different, triple-sized MFJ bracket. So even if somehow three or more people could file under MFJ, you’d still have income brackets that were based on calculations for TWO people. So by the time you pile five incomes into a bracket system based on at most two incomes, you’ve given yourself a tax hike.

        MFJ is the best filing status for two people, but Married Filing Separately (MFS) is the worst status. So it wouldn’t save your theory to say people would pile into MFS but stay married for other reasons (e.g. two people file MFJ and the rest file MFS). So if anything, the government is punishing polygamy because of how MFJ and MFS are currently structured. Of course, the rules are written presuming two spouses, and they require things like residency to file MFJ. So your hundred-person marriages would need to rent out a dorm building to stay together.

        It’s not a tax savings unless they change the law.

        1. Also, I have trouble imagining a world where the tax code is rewritten by Congress or by regulation to allow tens or hundreds of billions in tax losses so that people can have sham hundred-person polygamous couples. They’d change the law, because progressives want tax money and conservatives wouldn’t want to favor fake polygamous marriages.

          But even if they did allow that, I have trouble seeing them RAISE taxes on other people. The brackets set now are set for inflation. They don’t hike up based on missed revenue targets for the previous year. If Congress doesn’t change the rates, brackets, credits or deductions, then you won’t see your taxes skyrocket unless you drastically change something about your income or tax planning.

          You make it sound like one change would set off a chain reaction that results in a choice between sham polygamy or poverty. But it would take a lot of weird assumptions and some law changes to go down the way you describe.

        2. I’m no expert on doing taxes, no, but I note you are assuming all spouses work.

          Perhaps you are right, at least on the tax law, but I’m not going to waste valuable brain power trying to figure out how income taxes are calculated. I could do so many better things with my brain…

      5. It takes a village to marry a state

      6. Now, the logical thing to do is simply to let the tax code say, “Hey, you can marry whomever you want, but you only get one adult dependent”

        Why one adult dependent?

        I say no dependents at all- every individual files their own tax return on their income- and you don’t get extra freebies for your crotchfruit, either…

    7. Not sure about that, actually I don’t think anyone can be sure of anything now, but it seems to me that SCOTUS has just repealed the 10th amendment all by themselves. Our guaranteed constitutional rights have become privileges while privileges just became rights.

  2. I didn’t RTFR. Does this ruling apply to occupational licenses as well?

    1. I’m pretty sure they were already giving occupational licenses to gays.

  3. These are the rulings of men of opinion who will contort the meaning of words to achieve their desired result. As SCJ’s are appointed by politicians who are looking for help in cementing their own power, it will always be this way. Some are better than others but all are awful in their own way.

  4. At least he admitted that America is run by nine unelected attorneys…. So, there is that!

    I think that since we have no definition of marriage that I am going to take 8 more wives, 2 of which will be goats, one of which might be a cousin…. Or, possibly my mother or father.

    1. The goats have no agency to make contracts. The rest certainly do have agency, though the ethical competency of the mother and father are suspect.

      1. Can someone marry an incoporated entity? Their business, or church or union for instance.

        If not, why not.

        1. corporashunz arent people!!!!111

        2. A legal person is functionally, empirically and ethically difference from an individual person. Though if you like semantic games (and I suspect that you do); two legal persons can “marry one another” through merger or acquisition or contract. An individual may similarly “marry” such an entity through acquisition and contract.

          1. Initiates hostile takeover of FWS wife

            1. Yet another example of hostile takeover culture in America.

      2. Do you know how an animal consents?

        It didn’t turn around and chew your balls off…

    2. The country is run by lots of elected attorneys who aren’t doing a much better job than the unelected ones.

  5. Expect the Supreme Court to begin overtly advocating the definition of governmental benefits as freedoms.

  6. “THIS WHOLE COURT IS TEH GAYZ!!!” – A. Scalia

  7. Looking out my window, I can see the John signal lighting up the night sky.

  8. Doesn’t Scalia’s scathing indictment yesterday compared to his illogical rant today show a primary distinction between libertarians and conservatives !

    1. Contrary to the author’s statement: “Scalia argued that the Court was perfectly entitled to tell U.S. Congress that its democratically-enacted healthcare law was nonsensical. But today, the Court must defer to the democratic process?” Scalia is entirely consistent; it is the author that’s muddled.

      Scalia upheld the Obamacare statute — as written by Congress. He told the EXECUTIVE, not Congress, that it was not free to change the democratically enacted law.

      In both cases, Scalia comes down on the side of the People’s representatives.

      1. This is a good catch.

        Hah! Rico! PWND!

    2. No, Scalia’s “rant” is not incoherent or illogical. It is, however, inconsistent with his own rulings in the past (drugs, police, etc.). That history far more accurately illustrates the difference between conservatives and libertarians.

      1. Hmm, in retrospect I would say the scare quotes around “rant” are unwarranted. Scalia has a lot of parenthetical asides in his opinion that definitely qualify as rants themselves. The opinion as a whole is ranting in nature, but there is solid argumentation in there as well.

    1. Gotta save prime material for when Salon finally picks him up.

  9. I think Thomas was off too in his dissent in regards Loving. The case was decided not just on his version of denail of liberty (it was a jailable offense) but that of equal protection. Based on what he wrote, I guess he would be fine if a state enacted a law that said marriage is granted but only for parties of the same race.

    1. That does change the context a bit, I think. In the age of Loving, violations of marriage law were jailable offenses, whereas nowadays they are not (by and large; don’t stop paying child support!). However, the decision in Loving makes no distinction between marriage as civil and criminal affairs. Stewart wrote an opinion that seems to keep the matter limited to the criminal aspect, but it was filed as a concurrence and not a dissent.

  10. In other words, the Court is so intellectually dishonest, that we shouldn’t bother listening to a single fucking word it writes. It’a all just ideological jerking off.

    1. I made this point to my con law professor in law school. She did not care for it.

  11. But “the people”?as represented by their legislatures, I suppose?are subordinate to a committee of nine unelected lawyers when they pass laws that strip individuals of their right to equal treatment under the law. Just yesterday, Scalia argued that the Court was perfectly entitled to tell U.S. Congress that its democratically-enacted healthcare law was nonsensical. But today, the Court must defer to the democratic process?

    Actually, in both cases, Scalia was saying that the courts must defer to the democratic process. In the King case, he was saying that the democratic process had yielded a statute that provided for no federal subsidies in states that hadn’t set up exchanges. (That’s the way Congress wrote the law, and it’s reasonable to think that it was written that way to exert pressure on states to set up exchanges. When it turned out that the drafters had miscalculated, Scalia and others held that it wasn’t the Court’s job to fix Congress’s miscalculation and rewrite the statute.)

    And Scalia didn’t propose that the Court “pass laws that strip individuals of their right to equal treatment under the law.” If states pass laws recognizing same-sex unions as marriages for purposes of state law, Scalia would be perfectly willing to defer to them.

    1. Yep.

      Scalia most certainly did NOT “tell U.S. Congress that its democratically-enacted healthcare law was nonsensical.”

      He told the EXECUTIVE, not Congress, that it was not free to change the democratically enacted law.

      In both cases, Scalia comes down on the side of the People’s representatives.

    2. He said the Federal government does not have supremacy in certain areas. I don’t see anything inconsistent in his approach. He said the Constitution says the States can do what they want. He said nowhere is it written that nine can overrule something allowed to be controlled by the States. States, plural.

  12. Seems pretty coherent to me.

  13. Once again, where was Scalia to apply this pro-Democracy, states’ right’s argument when the feds were arresting people in states where marijuana is legal on the grounds that it was somehow interstate commerce?

    Scalia’s absolutely right about the grandstanding, nonsensical prose of the majority decision, which seems to exist largely so that Anthony Kennedy can get extraordinarily florid while getting applauded by progressives for the fact that he apparently doesn’t know how to write a clear sentence. Half the majority decision is ludicrous emoting when the real issue is just one of equal protection and should have been decided by judicial legal reasoning rather than bloviating about ‘spirituality.’

    1. Once again, where was Scalia to apply this pro-Democracy, states’ right’s argument when the feds were arresting people in states where marijuana is legal on the grounds that it was somehow interstate commerce?

      “Ask the nearest hippie.”

    2. Chief Justice Roberts:

      But this Court is not a legislature. Whether same-sex
      marriage is a good idea should be of no concern to us.
      Under the Constitution, judges have power to say what
      the law is, not what it should be.

      Lulz. Looks like Roberts came to that realization one day too late.

      1. Oops, don’t know how that got threaded.

      2. Poor John Roberts, all he wanted was for everybody to like him,

        and instead he’s gonna wind up hated by all sides.

      3. See, I knew Roberts was going to contradict yesterday’s opinion with today’s. I just knew it.

    3. Half the majority decision is ludicrous emoting when the real issue is just one of equal protection

      No, it’s not. There is no valid equal protection claim on the basis of sexual orientation because a gay man is as free to marry a woman as I and I, a heterosexual man, am similarly subject to SSM bans.

      The valid rationale is a 1st amendment free association and a 9th amendment right to contract, i.e. Lochner. Roberts’ entire dissent was raging against Lochner which I found humorous considering the majority never once bothered giving the only reliable legal rationale to strike down SSM bans.

      1. “There is no valid equal protection claim on the basis of sexual orientation because a gay man is as free to marry a woman as I and I, a heterosexual man, am similarly subject to SSM bans.”

        So your argument is that gay people can marry people they have no sexual attraction to, therefore there’s no equal protection issue when heterosexual couples are given benefits denied to gay couples?

        1. In terms of an equal protection case on the basis of sexual orientation: yes. It may seem like a technicality, but it is nevertheless true that I am subject to the exact same law as a gay man is (and there are sundry reasons a heterosexual male may choose to marry another heterosexual male).

          There is however one equal protection case that would be defensible: that SSM bans violate the equal protection of men/women; i.e. if a woman can marry a man, a man should be afforded a similar liberty.

          1. First thanks for recognizing that this is NOT about equal protection . So if we disallow laws that ban marriage expansion (unnecessary imho) but do not rewrite existing state laws, some states will expand marriage and some won’t. That’s how federalism is supposed to work

      2. a gay man is as free to marry a woman as I and I, a heterosexual man, am similarly subject to SSM bans.

        I’m sure this retarded argument will work the millionth time it is trotted out, so everybody keep repeating it, we’ll get there some day.

        1. It is not retarded, it is just inconsistent with Loving. Either the state can determine what constitutes a marriage, or it cannot. The court has previously ruled that it cannot.

          1. It’s not inconsistent with Loving whatsoever. If a white woman can marry a white man then there is no reason that a black woman should be denied the same benefit and the only basis for that denial is equal protection on the basis of race. As I stated, the only valid EP argument is sex, not sex orientation. But that wouldn’t pacify the perpetually aggrieved classes.

            FFS, it’s not like I’m against SSM either. I believe it absolutely should be legal under the first and ninth amendments. The only point the court has entirely accurate in using the 14th was in extending marriages granted in one state to another.

            1. “Marriage is a fundamental right” is not just some liberal’s tortured reading of Loving, it is pretty much taken verbatim from the Court’s opinion.

              “If a woman can marry a man, why can’t a man?” is no different a formulation than what you posited. It doesn’t even have anything to do with “sexual orientation”, it just relates to the persons involved.

              I don’t really care whether you are pro- or anti-, I am addressing your argument not critiquing you.

              1. My point is that if you are viewing the case from an EP/14th claim, then there is no discrimination on the basis of sexual orientation. It can be argued that there is indeed discrimination on the case of sex, though one could surmise that a man and a woman are both equally barred from marrying a same sex partner and there therefore exists no sex discrimination either. As I stated, these appear to laypersons as technicalities, but it fucking law: its very foundation is technicalities.

                And one need not even get all the way down to the fourteenth amendment to credibly make the case that the govt has no business denying enforcement or a freely agreed upon contract between informed and consenting parties: the 1st and 9th amendments give more substantial, historical, reasoned, and fundamental claims to that.

                1. though one could surmise that a man black person and a woman white person are both equally barred from marrying a same sex partner an opposite-race partner and there therefore exists no sex racial discrimination either.

                  In fact, the opinion in Loving more or less addresses exactly this argument and rejects it (see page 10 of the court’s decision).

                  I am not trying to take a side in the greater debate here, I’m just arguing about what you said in the context of Loving.

                  1. And a fair point. Worth noting that that is the reason I said I believe there is an EP case under sex, but not sexual orientation.

                    But it’s all superfluous anyhow. The ruling should be under 1st and 9th amendment jurisprudence and would expand freedoms in a much more broad sense had it been.

    4. This is a stupid question. He was taking the pro-democracy position that laws enacted by Congress, elected by the people of the entire nation, in a matter committed to Congress by the constitution, trump laws enacted by a state legislature. He happened to be wrong about whether the Commerce Clause really committed that matter to Congress, but his opinion shouldn’t be faulted an anti-democratic.

  14. I couldn’t disagree more with this assessment. Scalia said in his dissent of King v. Burwell that the ACA says what it says — that “established by the State” means “established by the State” and not something else. That’s not a libertarian finding or a conservative finding: it’s the natural reading of the text of the law, as even Roberts admitted in his majority opinion. In his Obergefell v. Hodges dissent he states what I think is self-evident: that marriage laws aren’t made at the federal level, that states are free to do whatever they want, that to create a right of same-sex marriage at the federal level when there isn’t even a right of opposite-sex marriage is just pointless. There’s no inconsistency with Scalia, unless you read him through a philosophical lens. He’s an originalist — nothing more, nothing less.

    1. Except he isn’t an originalist because in multiple instances regarding police or the War on Drugs he suddenly jettisons his originalist principles. He once found that someone growing pot for his own use can be considered interstate commerce. Not so ‘originalist’ there, was he?

      Moreover, the issue isn’t about the right to same-sex marriage, the issue is about equal protection. There may be no right to any sort of marriage at the federal level, but there is a section of the constitution through the 14th amendment which explicitly states that all citizens must have equal protection under the law. As such, if you have privileges granted through marriage, all people are entitled to them. So this wasn’t actually enshrining gay marriage as a right, it was saying that SO LONG AS YOU HAVE STRAIGHT MARRIAGE, you cannot deny equal opportunities to marry to gay people.

      1. “So this wasn’t actually enshrining gay marriage as a right, it was saying that SO LONG AS YOU HAVE STRAIGHT MARRIAGE, you cannot deny equal opportunities to marry to gay people.”

        But is that what they actually said in the opinion( I haven’t read it)? See my example in the earlier thread about VA public schools.

        1. No, I don’t think that’s what they said (I haven’t finished reading though). There’s quite a bit of case law that establishes “marriage” as a “fundamental right” though. So I’m happy that this means gays won’t be discriminated against by the state. I’m not so happy about the whole “positive rights” undertone going on.

          1. And if that’s the case then what we’ve just witnessed is the door slamming shut on the actual libertarian outcome.

            1. Yup

            2. Can you slam a door that was already shut?

              1. There was a little “libertarian moment” toenail sticking through the crack in the door. Not anymore.

                1. Did any of the nine justices issue an opinion that even hinted at a libertarian reading of the situation? Scalia’s dissent is correct on the matter of law, but that only tangentially intersects with libertarianism in this particular case. He wanted to uphold sodomy laws, he has upheld drug laws, and he gives great deference to police. Whose toe had this nail?

                  1. To answer myself, it seems to be Thomas’s toenail. Still, him writing the majority opinion on a 5-4 case seems unlikely.

          2. There’s quite a bit of case law that establishes “marriage” as a “fundamental right” though.

            Which is great.

            The argument isn’t over whether marriage is a fundamental right.

            Its over what marriage really is.

    2. He had a FEDERALIST opinion in both cases. I’ll take consistent deference to the states and the actual wording of laws and the Constitution over the political hackery of the majority in the last 2 decisions.

    3. Yep. There’s no inconsistency in Scalia’s opinions.

  15. Genius one day, idiot the next.

    Hey, Scalia, you wouldn’t have these problems if you grew a set of principles rather than ruling based on your list of Republican talking points.

    1. And lose the ability to decide cases on the SCOTUS bar dartboard?

    2. How was he inconsistent? Seriously?

      He seems to be the only on not doing creative interpretations to fit a pre-ordained political conclusion.

      We would be much better off with legislative solutions than a bizarre Court ruling.

      1. Scalia is dissenting with his dick.

        Equal Protection is a big, fucking no-brainer here.

        1. Equal Protection is a big, fucking no-brainer here.

          Actually, its not a no-brainer at all. In fact, I think its cover for an intellectually dishonest sleight of hand.

          Take it as read that everyone has an equal right to get married.

          That begs the question of what “marriage”actually means, and who gets to define it for legal purposes.

          Until a very short time ago, there was no question that married meant “two people of the opposite sex.” If that’s what it means, then not recognizing gay marriage isn’t a denial of Equal Protection.

          By contrast, marriage never meant “two people of the opposite sex and the same race”. Not really. The anti-miscegenation cases went off on how the government was adding the “and the same race” to the definition of marriage, and wasn’t allowed to under Equal Protection.

          Now, if marriage really means “any two people, who cares what sex”, denial of gay marriage is a denial of EP.

          Many states were very clear that they were sticking with the historical definition, which raises the issue of who gets to say what marriage really means.

          Apparently, its the Supreme Court, not the state legislatures. Where they got the authority to impose a new definition of marriage is an exercise for the reader.

          1. agreed… it’s a circular argument in that scope. However, I think that the better pro-SSM argument is that the government has licensed and subsidized a specific type of interpersonal relationship (straight marriage), and has relegated other interpersonal relationships (SSM) of a similar character to illicit and second-class status. Therefore the 14th comes into play because those who participate in SSM are being treated unequally.

          2. Mr. Dean, always love reading your comments.

          3. Take it as read that everyone has an equal right to get married.

            Bingo.

            That begs the question of what “marriage”actually means, and who gets to define it for legal purposes.

            Does it?

            If that’s what it means, then not recognizing gay marriage isn’t a denial of Equal Protection.

            Don’t pull a muscle with those gymnastics. I could give 2 fucks about tradition. Many horrible things outside of this matter can be justified under that rubric.

            If the states insist that they’re required to bless marriages, and If the 14th is already incorporated, then it follows that all laws, including marriage laws, are subject to this test.

            You don’t want this test? Get out of the marriage bidness. QED.

            1. It’s not gymnastics at all. What is marriage? Man-Woman or Person-Person? If it’s Man-Woman, then denying gay marriage is no different than denying a driver’s license to an epileptic. If it’s Person-Person, then the 14th comes into play.

              1. I don’t recall in the Constitution that fags only count for 3/5 of a person.

              2. What is marriage?

                It can be whatever the hell I want it to be. It’s nobody else’s business. This*is* a libertarian site, right? RIGHT?

                If I want to marry my tractor, I’ll ask you to not ride on it.

                1. We’re talking in the context of EP. Evidently I forgot my standard libertarian disclaimers that government shouldn’t be in the family-making business.

                  In the context of EP, the state definition of marriage matters.

                  1. Evidently I forgot my standard libertarian disclaimers that government shouldn’t be in the family-making business.

                    A lot of that going around.

                    In the context of EP, the state definition of marriage matters.

                    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

                    I don’t see anything in there about how a state defines a slave. Maybe if I look between the lines or behind the consonants.

            2. I could give 2 fucks about tradition.

              Do you also give two fucks about the meanings of words?

              Like, say, the meaning of “State” in ObamaCare?

              If Roberts shouldn’t redefine “State” to mean “State or national”, why should he redefine “marriage” to mean “any two persons”?

              1. If Roberts shouldn’t redefine “State” to mean “State or national”, why should he redefine “marriage” to mean “any two persons”?

                Oh my. Shades of Plessy? Why should we redefine who is a 1st class citizen?

                Your argument is little more than linguistic calisthenics. You do realize that one is an Equal Protection claim and the other isn’t? Why should you apply the same standard?

                I’ll direct you to Harlan’s dissent in Plessy:

                [I]n view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

          4. Apparently, its the Supreme Court, not the state legislatures. Where they got the authority to impose a new definition of marriage is an exercise for the reader.

            The same place that ‘incorporation’ via the 14th Amendment makes the 1st Amendment, which specifically and explicitly names its constraints as applying to “Congress”, apply to States and Counties and Cities: Magic!

      2. How was he inconsistent? Seriously?

        Well, let’s see…yesterday he was rightfully ranting about not applying the law as written and today he’s wrongly ranting about interpreting 14A as written.

        So I guess you’re right…he’s ranting about both…

        …consistency.

        1. Well, let’s see…yesterday he was rightfully ranting about not applying the law as written and today he’s wrongly ranting about interpreting 14A as written.

          Ah, so the 14th makes specific mention of homosexuals and we aren’t just extrapolating the spirit of the law?

          1. Yep – that the part I miss every time I read it.

            I could see forcing a state to recognize a marriage contract from another state. But requiring them to perform the marriage? Now they are just writing legislation, for the second day in a row.

              1. Please point it out to me smart guy, I assume you are torturing Section to fit:

                Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws…

          2. Well, let’s look, shall we?

            1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

            [emphasis mine]

            So, are homosexuals people?

            Oh, my goodness *places hands on both sides of face and makes on “O” with mouth* they are. I guess they are specifically mentioned, aren’t they?

            1. It is an Amendment passed during Reconstruction as a reaction against Black Codes to prevent States from stripping Blacks of their citizenship and rights.

              Now you want to construe it to force states to redefine marriage based on the arbitrary opinion of 5 Justices. I’ll go with what Thomas said:

              I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here?”‘roa[m] at large in the constitutional field’ guided only by their personal views” as to the “‘fundamental rights'” protected by that document.

              1. If they only wanted 14A to apply to blacks, they would have said blacks.

                Instead, they said citizens and person.

                1. And if they wanted it to apply to government benefits, not just criminal and civil law they would have said so.

            2. So, are homosexuals people?

              Ah, I forgot the issue was people! People licenses issued equally by the various states and the various other states freely (or not) recognize other states people licenses.

              It’s almost like when a violation of personal sovereignty happened in Lawrence v. Texas SCOTUS, rather than referring to other, more Constitutionally-specified rights, invented a new way to interpret ‘any’, ‘person’, and ‘equal’ and open it up to apply it to virtually anything.

              I mean, any person gets subsidized (and to subsidize) healthcare equally right? It’s about the people and their right to healthcare!

  16. He was never a libertarian nor a friend to libertarians. He’s simply a conservative Christian business-friendly Republican. At times, he’ll seem libertarian; other times, he won’t. It’s fairly predictably these days how he’ll rule just based on the issue.

  17. There’s marriage and there’s marriage recognition. We (Scalia included) need to divorce the two terms from one another in our discussions. One of them means cake makers and wedding photographers had better straighten up and fly right.

  18. I think the Roberts dissent is more controversial than Scalia’s. Scalia brings up some interesting points about federalism and where public controversy should be solved.

    Despite Robby’s insistence that Scalia was being mean, Scalia himself wrote

    The substance of today’s decree is not of immense personal
    importance to me. The law can recognize as marriage
    whatever sexual attachments and living arrangements
    it wishes, and can accord them favorable civil
    consequences, from tax treatment to rights of inheritance.
    Those civil consequences?and the public approval that
    conferring the name of marriage evidences?can perhaps
    have adverse social effects, but no more adverse than the
    effects of many other controversial laws. So it is not of
    special importance to me what the law says about marriage.
    It is of overwhelming importance, however, who it
    is that rules me.

  19. But “the people”?as represented by their legislatures, I suppose?are subordinate to a committee of nine unelected lawyers when they pass laws that strip individuals of their right to equal treatment under the law.

    Way to beg the question there Robby. If we just assume you are right, then Scalia sounds incoherent. Sure.

    The point of Scalia’s dissent is that none of this shit has anything to do with freedom. You can be as intimate and loving as you want. Being so doesn’t require government sanction. Indeed, the big argument that gay marriage proponents always make is how fabulous and intimate and loving gay relationships are. Okay, they are that way without government sanction. So this case has nothing to do with those things.

  20. We spent 240 years in this country and never had gay marriage. Whether we should have it or not is a point of pretty serious political disagreement. Today the court said we will have it. And the reason we will have it is because five justices like gay marriage and think it is proper that it be considered a “right”. Of course we don’t have polygamy or inter family marriage or other alternative forms of marriage because the majority of the justices have not as of yet decided they like those things.

    That is not Democracy. And it is not the rule of law. It is a few empowered justices arbitrarily deciding how marriage should be defined. Of course in one sense all law is arbitrary. Why do contracts for real estate have to be in writing but others can be oral? Because someone decided they should be. And arbitrariness is fine if you also have the legitimacy of the Democratic process. If the states want to say gays get to be married but polygamists don’t that is an arbitrary line but one that can be made because of the democratic process. Here, the courts are saying that without that legitimacy. Why has marriage been redefined? Because five judges liked it that way. That is all that is going on here. It is sad Libertarians are so enthralled with getting their pony and so intent on social signalling how much they love gay marriage not to understand that.

    1. Whatever happened to the political question doctrine? This case seemed ripe for a “Not within the jurisdiction of the court… should be solved by the political branches” response.

      1. It is gone. And this is not going to work out well for Libertarians. This decision is right in line with the Obamacare decision yesterday. In both cases the court looked at what it thought should be the proper result and wrote an opinion making it happen. Anyone who thinks these cases are going to be limited to their facts is kidding themselves. The precedent is now set that courts are free to read the Constitution and federal statutes in whatever way achieves what the judges feel is the proper end.

        How anyone thinks that will end well for liberty is beyond me.

        1. This.

          Dance around and celebrate “libertarians”. The whole apparatus created to prevent government overreach and tyranny is being dismantled, but now States have to marry gays.

        2. Re: John,

          This decision is right in line with the Obamacare decision yesterday.

          Come on, John. These two decisions are miles apart. Whereas the King v. Burwell decision is not based on an elegant rationale, it was still based on a deference towards individual rights and the Equal Protection clause in the 14th Amendment of the Constitution.

          Instead, the Obamacare decision was entirely based on making shit up.

          How anyone thinks that will end well for liberty is beyond me.

          This isn’t the first time the SCOUTS has decided against the right of legislatures to trample on individual rights. Besides, in the past, it has decided horribly against individual rights in deference towards State power. Remember the Mann Act?

    2. The constitution does not make Christian bigotry the law of the land, but does require equal protection of the law. Sorry.

      1. Re: Tony,

        The constitution does not make Christian bigotry the law of the land

        You’re an idiot, Tony. You start your retort with an unnecessary insult. You’re the scum of the earth – a Marxian. Ew!

        1. Tony is an angry retard. There is no point in responding to him on these issues. His position boils down to “I want” and nothing more.

        2. So we’re pretending that there’s something other than Christian bigotry motivating the anti-equality position?

          1. The same way we’re pretending that there is any separation in the average Prog’s mind between this ruling and the inevitable anti-discrimination statutes.

            1. Perhaps we should never have made any law. Slippery slopes are slippery.

          2. Re: Tony,

            So we’re pretending that there’s something other than Christian bigotry motivating the anti-equality position?

            We’re pretending you exist, for a few seconds. And only because some of us here are bored.

            From the part of Christians and other religious groups, the worry is that government will then turn around and mandate certain privileges towards these married individuals from private parties, in essence creating yet another assault on Private Property rights. For instance: Requiring churches to marry gays despite their doctrinal limitations, or businesses to cater to gay weddings. You can say this is bigotry or whatever, it is irrelevant. People have the right to be bigots. What people don’t have a right to is someone else’s Property.

            It is one thing to ask the government to apply its laws and grant the privileges it grants equally, which is what this SCOTUS decision amounts to. And I celebrate that. But I am not fooled by Marxians ?like you? who believe marriage is a positive right for which everybody now must provide despite their wishes.

            1. Churches have a 1st amendment right not to be compelled to perform gay weddings. Praise be to freedom, idiots who believe in Santa Claus can continue believing unimpeded and untaxed. People do indeed have a right to be bigots. What they don’t have a right to is governments that discriminate against gay Americans.

              Any decent human being should favor a society that does not treat gay people as second-class citizens. If you want to make it a personal mission to ensure that people have the right to think that way, fine, but I simply don’t have the time for such frivolity.

              1. Re: Tony,

                Churches have a 1st amendment right not to be compelled to perform gay weddings. Praise be to freedom, idiots who believe in Santa Claus can continue believing unimpeded and untaxed.

                Once again you continue to undermine your own arguments by resorting to irrelevant commentary or red herrings.

                What they don’t have a right to is governments that discriminate against gay Americans.

                Absolutely correct ?governments. Gays, however, do not have a right to a virtuous and accommodating population. They have to deal with each individual in his or her own terms.

                Any decent human being should favor a society that does not treat gay people as second-class citizens.

                Preach that. Convince. Persuade.

                You can’t make people be virtuous at the point of the bayonet. People should not be burdened with your preferences only because you’re a lazy Marxian. If there is one thing people resist vehemently, is efforts from self-righteous assholes to turn them into perfect beings. The ground is filled with the bodies of the victims of such arrogance.

      2. There’s Tony, cutting right through the heart of the matter and way, way out into left field.

        You’re a useful bellwether, you know. You point out the direction progressives are taking an issue. You might be more useful as a barometer, but then the weight of progressive thinking is never impressive anyway.

        1. Progressives always win in the end. You wouldn’t have it any other way. Conservative politics is nothing but fearful reaction to progress.

          1. Re: Tony,

            Progressives always win in the end. […] Conservative politics is nothing but fearful reaction to progress.

            The lack of self-awareness is strong with this one. Progressive attacks on consumption and energy production is but one of the many reactionary positions against human progress.

            1. A statement predicated on the sentiment that people should have the right to destroy their neighbor’s property, nay, the habitat of the human species, if they so desire.

              1. You don’t own my property. I can do with it as I wish, as long as I don’t harm you with it.

                You don’t get to tell me what to do with my property just because I turned a fossil fuel back into CO2. You get to tell me to stop dumping waste into my water if (and only if) it runs into your property,

                1. If your political sentiments permit the destruction of the global human habitat, then your politics are flawed ipso facto.

                  1. You don’t own the globe. You have not improved it (Lockean property rights).

                    If I act so poorly on my property that I make the entire Earth uninhabitable, then I violated NAP a long time ago.

                  2. I keep waiting for governments to fix the environment.

                    And I keep waitng and waiting and waiting.

                    Their politics are just too libertarian.

                    When does the “save the world” aspect of their politics “turn on”?

              2. Re: Tony,

                A statement predicated on the sentiment that people should have the right to destroy their neighbor’s property, nay, the habitat of the human species, if they so desire.

                Non Sequitur. It is not predicated on such sentiment. You’re making shit up.

    3. Re: John,

      We spent 240 years in this country and never had gay marriage.

      What happened today is the reason why people should never let the government interfere in the mutual agreements made by individuals.

      Be that as it may, this decision did settle a problem of inconsistency in the way the government (whether state of federal) applied the law, which is supposed to be applied equally. If the State imposes itself on the institution of marriage (and an institution it is) then it cannot simply apply the protections granted by the law or the privileges granted to the institution in a different matter.

      In other words, either a thing IS, or it is NOT. Is gay marriage a marriage? Defined as the agreement between two consenting individuals, then it is. If you define marriage as the union of a man and a woman, then ipso facto the State is granting a privilege to only a part of the population. That is an inconsistency on how the law is supposed to be applied.

      (And that, Tony The Marxian, is how you argue.)

      1. “Manner”, not matter. Sorry.

        Whatever happened to that “Edit” button I asked for? That work order I put is getting old! Do you want to bust your SLA metrics or something, buds?

      2. You miss the point completely. There is nothing about either of those definitions that requires it to be adopted over the other. You can define “marriage” however you want. The issue is who gets to decide that, the state legislatures or the Supreme Court. This decision says the Supreme Court gets to make the decision. They decide if marriage means gays or polygamists or whatever. Today they like gays and gays get to marry. That is all that is going on here. The rest is just rationalization and bullshit.

        1. the majority opinion is a circular argument. They start from the conclusion that marriage means “two people” and argue back to the 14th amendment, therefore creating the definition that marriage means “two people.”

          The philosophical underpinnings of the majority argument are pretty weak. There were much better ways to go with that one.

        2. Re: John,

          The issue is who gets to decide that, the state legislatures or the Supreme Court.

          Imagine for a minute that the decision to be made was about defining a marriage as the union of a man and a woman of the same COUNTY, and that some states defined it as the union of a man and a woman regardless of which county they live. The decision of the SCOTUS simply gave a sense of consistency on how laws that affect all individuals are applied throughout the nation. The SCOTUS decided for the least restrictive application of the law, deferring to individual freedom, rather than the more restrictive application of the law, as it would not solve the inconsistency problem.

          We have to realize this is not Roe v. Wade where the SCOTUS made up a right (to abortion). The right to marry has always existed since Man was endowed with a Mind.

          1. That doesn’t even make any sense Mexican. You are just telling me you like the result. Good for you. The SCOTUS said today “marriage means gay marriage and the states don’t get to say different”. They not the people or the voters now have the final say on what marriage means. There will be no polygamy, no return to traditional marriage or no change in what marriage means until they decide they want to do it.

            Jesus tap dancing Christ you guys are cheap dates./

            1. Re: John,

              That doesn’t even make any sense Mexican. You are just telling me you like the result. Good for you.

              Of course I do. The application of law was inconsistent and unfair.

              They [SCOTUS] not the people or the voters now have the final say on what marriage means.

              Democracy is the God that failed.

              You’re confusing me with Tony the Bloviating Marxian. I do not believe people get to decide for others as a matter of law what a thing is or it is not. Logic, reason and the Non Aggression Principle serve as foundations to make those determinations, not some popularity contest.

              I understand your outrage at the way the SCOTUS made their determination because it really sucks. It was clumsy, facile and barely cogent. But as long as the decision results in an advancement of individual freedom, I don’t care if they justify their decision by saying green men from Mars told them to.

              1. So Mexican, you would be happy with someone declaring themselves dictator as long as when they did so they advanced freedom? That is retarded. What makes you think they are not going to abuse that power?

                You don’t believe in limited government. You believe in getting your fucking pony.

              2. Did you really just finish with “the ends justifies the means?”

          2. Imagine for a minute that the decision to be made was about defining a marriage as the union of a man and a woman of the same COUNTY,

            If SCOTUS were to define it that way, would that be OK?

            Or is it only bad when local/elected governments set the definitions?

            That’s the problem, here, IMO. People are conflating the outcome they want, with the process to reach the outcome. Because going to SCOTUS got them the outcome they want this time, they are fine with SCOTUS doing it this time, and overlooking that they have created a new and permanent process.

            Never forget:

            Me today, you tomorrow.

            1. +1000

            2. Word.

      3. But that doesn’t answer the question of who decides. Obviously individuals can use whatever definition they want, but who decides the government’s definition of the word, and at what level of government should the choice be made?

        1. Note to self, refresh more often.

  21. What crisis that nobody even fucking cared about yesterday is going to be at the forefront now? Gay marriage is settled; the confederate flag has been banished; obamacare is here to stay… I’ve got to have something to be holier than thou about, somebody tell me how to think!

    1. You’re not supposed to think.

    2. Tranny rights have already been cued up, Doc.

  22. Does this surprise anyone? Scalias views on the matter were already pretty well known. It would have been news if they had changed.

    1. What, you mean his incoherent tirade in Lawrence where he claimed that legalizing sodomy would inevitably result in rampant incest and bestiality?

      Ah, 2003. Good times.

      1. Popehat ?@Popehat 2h2 hours ago

        Notably, though Scalia’s dissent is angry and anti-elitist, it lacks the “gay fascists” rhetoric of his Lawrence dissent.

      2. Exactly

      3. What, you mean his incoherent tirade in Lawrence where he claimed that legalizing sodomy would inevitably result in rampant incest and bestiality?

        Ah, 2003. Good times.

        Ah right, when he incoherently predicted that anyone opposed to gay marriage would be irrationally portrayed as enemies of humanity and that States’ abilities to craft their own legislation would be called into question.

        Yeah, he really is a kook, the world he lives in must be truly insane.

  23. There’s no inconsistency by Scalia between Obergefell and King insofar as it pertains to the proper role of the judiciary (judge, don’t legislate). And he’s certainly correct that the majority opinion appears at times to have pilfered language straight from an episode of Dawson’s Creek. My problem with Scalia’s dissent is it flies in the face of the incorporation doctrine, in which “federalism” isn’t any acceptable defense of any level of government abridging an individual’s civil rights or treating them unequally under the law.

    1. I thought his argument, though, was that it wasn’t abridging any rights. He stated that:

      The law can recognize as marriage
      whatever sexual attachments and living arrangements
      it wishes, and can accord them favorable civil
      consequences, from tax treatment to rights of inheritance.

      which makes me think he recognizes the state-sanctioned marriage as a privilege bestowed by the State.

      1. Well, I’m definitely not a fan of the positive rights argument either. My point was more that, since incorporation, it is clear that federal review of state laws that abridge personal freedoms is entirely appropriate. I guess you’re right that he can technically dodge that issue by saying that marriage isn’t a personal freedom but a privilege granted by the state. What he can’t dodge in my opinion is that, once “marriage” is granted to one it must be granted to all or it runs afoul of the EPC.

        1. What he can’t dodge in my opinion is that, once “marriage” is granted to one it must be granted to all or it runs afoul of the EPC.

          I think that’s entirely definitional. If marriage is between one man and one woman, then i don’t think it does. Just because you don’t use a privilege bestowed to you by the state doesn’t mean that they’re running afoul of 14A. I don’t own a boat, but other people take advantage of the boat licensing scheme in my state… does that mean that the state is not equally protecting me?

          1. +1 license to kill

  24. If you demand that federal power be utilized to force a social construct like man/woman marriage on an entire country what the fuck makes you think that same power cannot be utilized to expand your avowed traditional social construct to include variation?

    1. Where is he demanding that? Maybe I missed it but Scalia isn’t arguing that the court should invalidate state laws that recognize gay marriage. The issue is should we use federal power to force states to define marriage to include gays. And his question is where does the court get the power to do that? This case is nothing but raw judicial power enforcing the five majority justice’s view of marriage on the country.

      1. “This case is nothing but raw judicial power enforcing the five majority justice’s view of marriage on the country.”

        If the federal government was never utilized in the first place to legalize a certain form of marriage over another this post wouldn’t exist. The high court has been uses for decades to push constitutional boundaries with impunity. Is this a case of ‘raw judicial power’? Absolutely- but I’d wager the Christians would have been thrilled being fucking belief if this ‘raw judicial power’ ruled against gay marriage.

        Too many social interests are ending up in the matrix of federal jurisdiction and this is the real shame in my view.

        1. …thrilled ‘beyond’ fucking belief…

          Fuck me.

        2. Maybe they would be. But saying “the Christians are bad people and would ban gay marriage the same way” doesn’t make this anything other than what it is. Just because you like what the tyranny does, doesn’t make it not tyranny.

        3. The high court has been uses for decades to push constitutional boundaries with impunity.

          I disagree; the Constitution is about imposing limits on government — taken in that light, the Court has been about erasing Constitutional boundaries.

  25. To be somewhat serious the polygamy question is real. One of the conditions Utah had meet for statehood was the outright banishment of polygamy.

    1. So the conditions for statehood were unconstitutional and therefore Utah is not a state? I like it.

  26. Just yesterday, Scalia argued that the Court was perfectly entitled to tell U.S. Congress that its democratically-enacted healthcare law was nonsensical.

    No, that is actually the opposite of what he did yesterday. Yesterday, he showed judicial restraint by not interpreting a law beyond what was written in the law (the way Roberts did in his majority opinion). He’s consistent on judicial restraint here, albeit I think judicial restraint/activisim is a bullshit divide.

    1. Yesterday Roberts said the job of the court is to uphold whatever the legislature does.

      That was yesterday though. Today the rules changed.

      1. The irony is that he did not uphold what the legislature did. He upheld what the executive sought to do to cover for the legislature’s ineptitude and he rewrote what the legislature did in an effort to bring that about.

  27. “With each decision of ours that takes from the People a question properly left to them?with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court?we move one step closer to being reminded of our impotence.”

    This highlights the significant gap separating libertarians and standard lawn order conservatives. That the question of marriage is properly left to “the people” is ridiculous in any society with a social basis in contract and voluntary relationships. It’s been clear since Kirk took us on that conservatives view individual choice as an important, but not all-important, value, and stuff like this calls that philosophical distance to mind.

    And it continues to be both sad and hilarious that both sides presume that a decision to mate for life doesn’t become “real” until it’s recognized by the king, as presumably marriage didn’t exist until some potentate dreamed it up a few thousand years ago.

    1. If it is not left the legislatures then whom? How are the courts any better? You think this is great because gays get to marry. Okay, polygamists don’t get to marry. Why? Because the supreme court doesn’t like them and do like gays. How is that a good answer? There is nothing in the Constitution that defines marriage. And there is no one indisputable definition of marriage. So any marriage law is necessarily going to have to arbitrarily define what marriage is. Gays get hte marry but polygamists and brothers and Sisters don’t. Or straights get to marry but gays don’t. It is all a question of taste really or personal values. It isn’t a question of law or the Constitution. So having the courts do it by saying gay marriage is a right but other forms of marriage are not (or won’t be until the justices decide they like those things) is an example of judicial restraint? Really? Looks like an example of judicial tyranny to me. You just can’t see it because the tyranny is giving you what you want.

      1. If the meaning of the word “mayonnaise” is not left to the legislature, then to whom?

        Social conventions are emergent, not dictated. The idea that a central authority is needed to tell us what marriage “really” is is as silly as the idea that we need a central linguistic authority to tell us whether we should say coke, pop, or soda. It’s idiotic. Marriage, like every other fundamental aspect of human social life, emerged long before the state.

        And the ruling didn’t give me what I want at all. I want state recognition of marriage to disappear entirely. The ruling made the statist definition of marriage marginally less arbitrary (polygamists are still out in the cold along with advocates of line marriage), but it also beat the dead horse of federalism and reminded everyone that we’re subjects of America rather than citizens of our individual states.

        1. The idea that a central authority is needed to tell us what marriage “really” is is as silly

          Sure it is. So tell me why you want the Supreme Court to do it?

          Marriage, like every other fundamental aspect of human social life, emerged long before the state.

          Sure it did. But we are talking about state sanction of it. So to have state sanction you have to define it. If you want to define it differently, have fun. You just won’t get state sanction.

          And the ruling didn’t give me what I want at all. I want state recognition of marriage to disappear entirely. The ruling made the statist definition of marriage marginally less arbitrary

          No. It is every bit as arbitrary. It just moved the line. Moreover, it moved the line in the wrong direction. If your goal is to get rid of government marriage, then you want the government recognizing fewer relationships not more. If you think government marriage is bad, then having more relationships subject to its rules and such is further from your goal not closer.

          This decision gave you exactly the opposite of what you claim to want. It just gave gays what they want and you let your desire to appear tolerant of gays cloud your thinking.

          1. “So tell me why you want the Supreme Court to do it?”

            As I said, I don’t want the Supreme Court to do it. I don’t want the SC to exist. If they do, I want them to strike down incorporation, burn the Constitution, then turn out the lights on their way out of Swamp City USA.

            “But we are talking about state sanction of it.”

            I’m talking about social conventions and where they originate. The state can insist that baptism is immersion only, but that means precisely nothing to anyone who understands the difference between the state and society. Polygamist marriages exist today, whether the DC mafia recognizes them or not and whether they screw them harder than everyone else or not.

            “No. It is every bit as arbitrary. It just moved the line.”

            Of course it’s moving the line; that’s what less arbitrary means. Expanding subsidies from x out of z married couples to x+y out of z married couples constitutes a less arbitrary treatment of married couples.

            1. “If you think government marriage is bad, then having more relationships subject to its rules and such is further from your goal not closer.”

              That’s a hardcore Rothbardian argument re: vouchers, and one I agree with. I knew we’d get to you eventually. Handouts must not exist; if they do (like spousal benefits or exemptions do today, no matter whether I like it or not), they must be doled out unarbitrarily to prevent the special interest state from being more dangerous to society than it already is (Hayek’s argument). If you’re going to have cancer, it should be thyroid, not lung.

              The whole debate is academic, of course, because the entire nature of state benefits is arbitrary by design. No politician gets elected by promising everyone equal access to favors.

              1. Basically, you think government marraige is bad, but if we are going to have it lets have more of it. And you think the line defining marriage is arbitrary but if we are going have it, lets let the courts not the voters decide. That is all you are saying.

                It is all just bullshit to cover the fact that you want gay marriage and happy you got it and really don’t care about the means. As I said above, good luck with that.

                And understand Libertarian no longer have any moral standing to object to judicial overreach. They fucking love judicial mandates just so long as it gives them what they want.

                1. “And you think the line defining marriage is arbitrary but if we are going have it, lets let the courts not the voters decide. That is all you are saying.”

                  Arbitrary refers to the government’s treatment of particular citizens who declare themselves married vs. other particular citizens who declare themselves married. If you’re going to give a $1,000 tax credit to Baptist couples, you should give it to Methodist couples as well to prevent further growth of special interests. Morally, no one should pay taxes or get a tax credit.

                  “It is all just bullshit to cover the fact that you want gay marriage and happy you got it and really don’t care about the means. As I said above, good luck with that.”

                  Sputtering with rage suits you.

                  We already had gay marriage. Now we have recognized gay marriage and an attack on federalism. Neither is particularly important now, as federalism has been dead for 150 years thanks to Lincoln lovers and state recognition of gay marriage is a goofy thing to get excited about.

                  “And understand Libertarian no longer have any moral standing to object to judicial overreach. They fucking love judicial mandates just so long as it gives them what they want.”

                  That’s an interesting perspective given that we’ve spent so much time through the years explaining why we don’t love judicial mandates.

          2. John, you complete me. Or my thoughts at least.

        2. And the ruling didn’t give me what I want at all. I want state recognition of marriage to disappear entirely. The ruling made the statist definition of marriage marginally less arbitrary (polygamists are still out in the cold along with advocates of line marriage), but it also beat the dead horse of federalism and reminded everyone that we’re subjects of America rather than citizens of our individual states.

          *rousing round of applause*

  28. Scalia is a conservative first and foremost. He’s done some good things, like making Originalism a mainstream method of constitutional interpretation, reviving the Confrontation Clause and, in recent years, scaling back the complete abdication of the Fourth Amendment (for which he was in no small part responsible), but he thinks homos are icky and drugs are bad, m’kay. He’s a sometimes ally in the fight for liberty.

    1. His dissent has nothing to do with his opinion of gays. The dissent is about what the proper role of the courts are. It is funny to hear you claim he just doesn’t like gays. That is nothing but you projecting. You like this opinion because you like gays and not because you would agree with the reasoning in any other context. You like gays and want gay marriage and are happy to see the court throw out the Constitution and use its power to give it to you. That is it.

      1. Um, no. I think the decision today is correct when it relies on Equal Protection and Full Faith & Credit, but utter nonsense when it delves into talk about fundamental rights because there’s not textual basis for that.

        What I’m referring to is (1) Justice Scalia’s willingness to throw out his judicial philosophy when it goes collides with the drug war (See, e.g., Gonzalez v. Raich) and (2) his tirade in the Lawrence dissent when he prophesizes that the legalization of sodomy will lead to rampant incest and bestiality.

        I was, perhaps, being a bit glib in my talk about Justice Scalia, but I think my concerns about his role as a sometimes ally of liberty are well placed. There’s no need to resort to personal attacks.

        1. I agree with you about his opinions on the drug war. He is not perfect by any means. But he is right here.

  29. The freedom to not support gay marriage is not to be respected by Libertarians? What?

  30. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”

    Throughout this whole entertaining episode, the best part has been the mental gymnastics by many trying to define what marriage is (besides a contract between two consenting individuals) and I have to say the point has not been reached when people will stop being surprised by the weird lucubrations from some, like justice Scalia’s, for instance.

    I married my wife because I was already free to do so and so was she. I didn’t discover any extra freedoms after that besides the freedom to make love to a woman. Besides, assuming for the sake of argument that marriage can be defined by the terms used by Scalia. What in the world would preclude two people of the same sex to reach the same goals listed by Scalia?

    1. Mexican you miss the point. You don’t find any “new freedoms” via marriage. That is Scalia’s entire point. The majority pretends you do and thus gays must be given the right to marry.

      1. Re: John,

        Mexican you miss the point. You don’t find any “new freedoms” via marriage.

        What? But that is what he said! Or did I misread his proposition?

        The majority pretends you do and thus gays must be given the right to marry.

        But they have the right to marry. They always had it. It is corollary to Freedom of Association that the Marxians like Tony love to conflate with racism or something (because they’re stupid), but it means people are free to marry, e.g. enter into an agreement.

        The problem with this issue is that people tend to confuse marriage with the CEREMONY. I do agree that gays (and anybody else for that matter) do NOT have a fundamental right to a CEREMONY. But if the State is going to be in the business of marrying people, then it cannot apply the law capriciously based on a Christian (or Traditional or whatever) definition of marriage.

        1. Oh yes it can Mexican and it still is after this decision. Why can’t polygamist get their marriages recognized? Because now the Supreme Court doesn’t think they should. It is totally arbitrary to say one couple is “married” but another isn’t. It depends on what your values and preferences are. That is it.

          You say are being arbitrary denying gays but they are being no more arbitrary than they are when they deny it to incest relationships or polygamy. You see it as “arbitrary” because you like gays and like this result. The question is who gets to decide this issue, the voters or five justices of the Supreme court? Who gets to decide what the line is? The court is saying they do, why? Because they like gays and want this result. Good luck with giving them that power.

          1. Re: John,

            Why can’t polygamist get their marriages recognized?

            Why can’t they? They should. The fact that the government decided to impose itself on these agreements does not mean ipso facto the government has the right to decide what a marriage is and is not. Marriage is an agreement between individuals, and individuals are endowed with the Right to Free Association. The fact that government assaults that right every time it throws its weight around does not mean the right disappears ? that conclusion can only be brought through positivist ethics, which are invalid.

            1. Why can’t they? They should.

              That is great. Good of you to think that way. Before today, you could go to your local legislature and take up that issue and launch a political campaign to try an change it. Today, the Court told you to go fuck yourself. You no longer get a say in that issue. They decide it. So instead of trying to win hearts and minds and decide the issue politically, I advise you to go to law school or find someway to start changing judges minds because they are our rulers now, not you or I or the voters.

    2. weird lucubrations

      “Well, you’re *married* now. Whatever goes on in your bedroom is no longer the government’s business.”

    1. At least he didn’t say that it came in like a wrecking ball.

      1. It came in through the bathroom window…

  31. Was Scalia’s dissent transcribed from a 3rd rate comedian bellyaching about marriage?

    Though as with yesterday’s opinion, it is a fun polemic.

    1. Scalia is an ass, but at least he’s entertaining.

      Kennedy’s poetic rhetoric is just embarrassing. Presumably he polished off a few bottles with Ginsburg while drafting that abomination about rights emerging from a “better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”

      I’ve tried parsing that a half dozen times, and my editorial opinion is that it’s complete gobbledygook that’s disguising a junior-high error. Constitutional imperatives do not define a liberty. The Constitution is not in the business of defining liberties–which was Madison’s beef with the Bill of Rights, as he correctly understood that the state would immediately get into the business of lawyering the language of every amendment until the actual political freedoms were nonexistent–but of delineating the limited powers of the federal government.

      No amount of progressive creep or jargon-heavy nonsense that presumes incorporation is going to change that.

      1. Presumably he polished off a few bottles of Ginsburg

        /How I read it

        My mind went to a very dark place. I need one of those MIB neuralyzers.

  32. I think I’ll be waiting quite a while for analysis of Obergefell, if your unwarranted and unhinged attack on Scalia’s dissent is evidence of what passes for analysis in your quarter.

    Scalia is correct across the board, and perfectly coherent.

    More to the point, he is on the side of preceding great minds on the Question Presented: Whether the Constitution makes the Supreme Court a superlegislature to create rights and remedies out of whole cloth.

  33. Justice Thomas’ dissent is the only one that even circles around any actual libertarian argument that the state has no business getting involved in marriage. And the constitutional/legal/historical argument for that position is grounded in the 1st Amendment. It is quite clear to me that not one single fucking ‘libertarian’ legal group actually filed any amicus curiae brief outlining the case for getting the state out of marriage.

    Because he and everyone else on the court is either Catholic or Jewish – neither of which have any legal tradition that can understand the basis of keeping the state out of the private so the private can be free – he couldn’t get there on his own.

    Nothing about this decision surprised me at all since that all flowed from the particular challenges that plaintiffs made (and none of them had any libertarian intentions). Nothing about the reasoning in the dissents/opinion surprised. But it has become very transparent to me that so-called ‘libertarian’ legal/advocacy groups are hot steaming garbage. Not a one of them has any intention of or desire to actually turn the train to Statism around. They are perfectly content merely to regulate its speed.

    1. You are dead on correct. This decision is about how much the court likes gays and gay marriage. It is not rooted in any commitment to freedom or equal rights. It is a sorry fucking shame that Libertarians have been so bullied and corrupted by the cultural left that they can’t see that.

      1. You are dead on correct. This decision is about how much the court likes gays and gay marriage. It is not rooted in any commitment to freedom or equal rights

        Isn’t that normally how the court rules on things? No commitment to freedom, equal rights or the constitution. They rule on likes/dislikes, and contort themselves to come up with reasoning [not really] to support those decisions.

        1. Pretty much. The only thing unusual is that normally Libertiarns understand that and don’t like it. Today they think it is fucking awesome because gays!!

      2. I can’t speak for other ancaps, but I’m just watching the wheel go round and round.

        There’s nothing we can do to stop the state, so we’re stuck being the remnant in a European-style social democracy with a high standard of living and obnoxious politicians until a better option comes along.

        If you freak out every time SCOTUS does something stupid, incoherent, or immoral, you’ll spend the rest of your life freaking out.

        1. I can’t speak for other ancaps,

          Bo can.

      3. Hey at least libertarians can claim an accomplishment – The train to Statism no longer discriminates on the basis of sexual orientation

        1. All Aboard!!

  34. I read the article, but not Justice Scalia’s full comments, so those might change my mind. But, this was not a mean-spirited attack on gay marriage. This was a full frontal assault on judicial activism. I think Robby Soave and/or Reason attack on Justice Scalia is what is mean-spirited here.

    1. Don’t forget ignorant, short-sighted, unprincipled, and hypocritical.

  35. So…. exactly what makes gay marriage a libertarian issue anyway? The last I heard, all libertarianism demands is that government not interfere in your personal business. Demanding that it gives it an official stamp of approval or provide legal infrastructure to enable it seems to be a bit of a stretch.

    1. Re: Napoleon Bonoparte,

      So…. exactly what makes gay marriage a libertarian issue anyway?

      Freedom of Association, Freedom to Contract. No government has the right to impose itself on people’s agreements.

      all libertarianism demands is that government not interfere in your personal business.

      The government decided to get into the business of marrying people and deciding who could get married and who could not, an abject violation of the Freedom of Association right. Through its capricious application of the law, the government could also interfere with how these societies (marriages) should manage their property, which is in direct violation of The Right to Property.

      The SCOTUS set itself to resolve that situation, deferring to individual liberties rather than the right of the states’ legislatures.

      Of course, Marxians will take this as a victory for positive rights and try to use it to demand be provided with ceremonies and catering from unwilling participants. As a libertarian, I will abhor that position and will defend a person’s right to tell gays to go fuck themselves.

      1. Like every other libertarian, you conflate ‘freedom’ and ‘right’ – and end up in a place with neither

        1. Why don’t you explain the difference?

            1. I’m assuming you meant to link this comment of yours. I think most libertarians understand the difference between freedom and rights, as you so define the terms, but also accept the practical reality that the government makes the rules.

              1. Put less charitably, we beg for scraps from their table because otherwise we would get nothing.

                1. As long as we accept/encourage the replacement of common law by civil law; then yeah that’s inevitable. But common law itself is structured to protect freedom since it mostly only involves disputes. Common law may be constrained by precedent and thus move slowly – but the reality is that when it does move, it moves fast and it provides a slew of options for reducing the impact of state/govt/legislatures/etc. And that is where usage of the terms freedom and rights makes a huge difference because the words are calling for a move in different directions.

                  Even on this issue of ‘gay marriage’. Nature/God does not give me the freedom to walk on water – even if Jesus could. Nature/God does give me the freedom to say ‘I am married’ to anyone of any sex or species. It all gives me the freedom to say “I am ten feet tall’. The difference is that differing definitions of the latter term are gonna result in a whole slew of fraud disputes in common law court – so common law does end up requiring a statutory ‘definition of feet’ to be included in ‘weights and measures’. Differing definitions of marriage OTOH don’t lead to any extra disputes in court — unless we have given up common law marriage and substituted civil law marriage with its benefits/perqs/responsibilities/etc appended to that definition.

      2. Freedom of Association, Freedom to Contract.

        To the best of my knowledge, gays were associating with whomever they pleased without marriage for a long, long time. I know of no law that ever prevented that.

        I also fail to see how freedom to contract is operative. I know of nothing that prevented gays from drawing up a contract between themselves as they see fit. The only distinction between a private contract and a marriage is that the government is not a party (other than enforcement) to the private contract.

    2. Demanding that it gives it an official stamp of approval or provide legal infrastructure to enable it seems to be a bit of a stretch.

      While the former is not a libertarian thing, the latter is. The positive right to have the government via the courts enforce contract terms and arbitrate contract disputes is generally upheld as a libertarian (vs anarchist) principle. The Constitution specifically forbids the States from interfering with contracts (Article I, Section 10).

      There’s also a secondary issue, that of legal declarations like deeds, trusts, living wills, powers of attorney, etc. These matters are not strictly contractual (the people who must honor them are not necessarily parties to them), but still fall under the framework of libertarianism.

      However, the obligation of contracts and legal declarations was not upheld by this decision per se, and the issue is one that few people outside of libertarianism (and not too many within it, either) seem concerned with.

  36. From Thomas’s dissent:

    The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our
    Constitution to preserve that understanding of liberty.

    Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea?captured in our Declaration of Independence?that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it. . . .

    I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here?”‘roa[m] at large in the constitutional
    field’ guided only by their personal views” as to the “‘fundamental rights'” protected by that document.

    1. Well said. I like this guy. No wonder the Democrats tried so hard to smear him.

  37. You should not compare the two rulings. One was a disagreement about the text of a law. However SCOTUS ruled, it remained within Congressional authority to change the text and change the result.

    This one is a mandate from SCOTUS demanding a particular result. Very different.

    1. It wasn’t a disagreement, it was a wholesale re-writing of the meaning of a law – based on nothing but feelings and desired outcome. This was a re-writing of the 14th Amendment based on feelings and desired outcome.

  38. You can’t have a right to marry any more than you can have a right to healthcare.

    Both involve the actions of a second party.

    You have the right to try to aquire a mate.

    State sanctioned marriage is a privilege–one that you purchase a license for. As such, the state can set the guidelines for what it will sanction. Since they have preset a requirement that they can’t discriminate, the fact is that SSM was inevitable.

    But the path taken to this leads to a host of ‘rights’ like that so called ‘right’ to marriage. The damage caused by this decision to SSM is yet to be seen.

    1. You can’t have a right to marry any more than you can have a right to healthcare.

      I take issue with this. Under that rationale, the second amendment right to keep and bear arms would not be a right. But it indeed is and should be. Recognizing a right to have something or engage in something does not mean that the provision of that something must be made in order for it to be a right. You have a right to free speech, you don’t have the ability to compel another free party to promote that speech. You have a right to possess a firearm, you don’t have the right to force another to pay for your firearm. You have the right to healthcare, you don’t have the right to force someone else to pay for your healthcare.

      Ironically, the only countries I’m aware of that actually hamper the right to healthcare (i.e., the ability to freely purchase on the market health procedures a patient deems appropriate and required) are those that define healthcare as a right to be meted out only by the State.

    2. You can’t have a right to marry

      Yes you can… Rights are actions or forebearances undertaken by an individual and other consenting parties.

      Speech is pointless without an audience. If freedom of speech were curtailed to the point that you could only talk in soundproof rooms with no audience, then speech is no longer a right.

    3. Because the court is granting group rights. Individual rights are irrelevant.

  39. Scalia just doesn’t agree with the ruling because of how it tramples over states rights. Reason magazines editors and authors are interesting when it comes to Scotus rulings. They love the justices decisions when it goes their way but hate them when it doesn’t. How about the Feds, and the states for that matter, just stay out of everyone’s personal lives and just get rid of recognizing marriages for everyone. Just label it as a business contract and exclude the word marriage. Problem solved and religious institutions of all kinds can’t argue.

  40. 1) Government out of marriage completely.
    2) Repeal the public accommodations sections of the CRA.
    3) Enjoy!

  41. I’m not sure why the left is for this marriage thing since in reality marriage is really just ownership of a woman why would they want someone to own someone isn’t that slavery which is why they want to abolish a flag now. it all makes no sense they should have gone for eliminating marriage from the government and gone for consentual contracts.

  42. ku ku kulture wars…wish threads for less government interference were this long.

  43. Robby, you turd – Scalia is right on the fallacy of how the decision was made.

    Individuals have unalienable rights – not classes or groups do not. Gay people are “a class” and hence, have no rights. A gay person, however, is an individual, with unalienable rights to free association.

    This should have been argued from a 1st amendment perspective. Using the 14th amendment is weak.

  44. Individuals have unalienable rights. Not groups, not classes.

    Why have the libertarians at Reason become brain-dead progtrolls?

  45. “are subordinate to a committee of nine unelected lawyers when they pass laws that strip individuals of their right to equal treatment under the law. Just yesterday, Scalia argued that the Court was perfectly entitled to tell U.S. Congress that its democratically-enacted healthcare law was nonsensical. But today, the Court must defer to the democratic process?”

    This is nonsense and supports the fallacies that Reason often falls into. The gays had rights exactly equal to heterosexuals. They just wanted something different. Instead of the right of a man to marry an ywoman who would have him, they wanted to marry another man. This was not lack of equal treatment. This was a lack of what they wanted.

    Since gay men are know to be quite promiscuous, I am making popcorn and awaiting the nasty gay divorces that will turn most gay men off toward marriage.

  46. “they pass laws that strip individuals of their right equal treatment under the law”??? What the hell are you talking about?

  47. Scalia’s desent simply makes the point that the majority has found the 14th ammendment trumps the 10th amendments states rights and the 1st ammendmentso religious liberties.

    Whether you agree that there should be an allowance for same sec marriage or not it is plain that the decision is horrible constitutional law and constitutional interpretation.

    1. ThomasJeffersonBigot
      Scalia’s desent simply makes the point that the majority has found the 14th ammendment trumps the 10th amendments states rights and the 1st ammendmentso religious liberties.

      What a disgrace to the real Jefferson. Dumbass libertarians, brought here by Ron Paul, say that the 10th amendment trumps the 9th amendment — that powers are superior to rights — that ours is NOT a government of delegated powers — like the Stalinists they all are.

      Hmmm, even if true, the claim that the 14th amendment cannot trump the 10th — or the first 13 — or even the core constitution (AS IT DID!) — proves the cult’s constitutional ignorance!

      The only damage to religious liberty is if churches are forced to perform marriages. THAT is where we should be fighting, instead of whining and defending the Christian Taliban.

      Where has ANY level of government EVER been granted ANY power to be involved in marriage in any way at all? THAT is the only “constitutional conservative” (and libertarian) argument … so lied and distorted by the Paulista Cultists.

      At least Rand will continue destroying his own campaign.

  48. Start making cash right now… Get more time with your family by doing jobs that only require for you to have a computer and an internet access and you can have that at your home. Start bringing up to $8596 a month. I’ve started this job and I’ve never been happier and now I am sharing it with you, so you can try it too. You can check it out here…
    http://www.jobnet10.com

  49. Too late to the party…

    Ironically, this is what happens when we use this kind of government. We end up appealing to gov to give us Rights instead of demanding they protect our ‘unalienable’ ones. In the process we end up validating their right to create new Rights, legislate social change, and force us to do whatever the current pop cause dictates. Gay marriage is not about equal rights, it’s about redefining the legal term ‘marriage’ to include same-sex and thereby force social acceptance of the redefinition. Obamacare subsidies are about taking from Peter to help Paul which is not protecting anyone’s Rights either, certainly not Peter’s. In the first case, the problem is that gov is in the social change business, notably by legally defining personal relationships. In the second, it is about control and power, you are forced to do what they deem useful and forced to give them your money (taxes) to do it.

    Legislating social change is a bully’s game, if you can’t change people’s minds by argument then get the gov stick to change them for you.

    1. Your statism is scary.
      Your contempt for our constitution is even worse.
      When has ANY state EVER been delegated ANY power regarding marriage? Nowhere. Not ever. That makes you one swinging a stick, placing your own tribe above individual rights and liberty.

      If you simply cannot accept our form of government, especially the 9th and 14th amendments, then perhaps you should consider moving to Cuba, or North Korea or China.

      1. Funny, I started to reply to this but then I read your other comments. I think you are your own best spokesperson for your ideas and don’t really want a discussion so here are two points that that we don’t need to discuss.

        A point of caution, read your own stuff before you submit to avoid typos, make arguments instead of declarations, and try to understand what people are saying before you comment. In this case, we probably agree on a few things but you assume we don’t.

        A point of advice, read. There are viable critical points about the Constitution that the anti-federalists, for example, made. It is not scripture and although you can venerate as you will, the Constitution is only a blueprint for a kind of government. In fact, the second government that this country has had. The koolaid trick is to get you to believe that country and government are the same but if you don’t accept that premise then it is possible to love your country and be critical of the government. From that distinction, we can talk about how to make a better government to serve our country and its people. And no, my idea of better would not resemble autocratic, depostic models like North Korea, China, and Cuba. It would follow the Declaration of Independence’s lead where unalienable Rights are primary.

        We might just agree on more than you think.

  50. Scalia’s dissenting arguments in the ACA and gay marriage decisions were so laden with petty insults that one might have thought he was channeling his inner Palin or Trump.

    1. Then you’ll appreciate how he his blowhard written opinions were jammed up his ass.
      Twice.

      To defend making the subsidies available to consumers everywhere, Roberts cited a line the dissent to the 2012 decision in favor of Obamacare, in which Scalia said, “Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”

      Roberts used the line to argue that it “is implausible that Congress meant the Act to operate” in a manner to limit the subsidies only to those states with state-operated exchanges, as the challengers in King v. Burwell argued.

      This is not the first time Scalia has seen one of his dissents used against him. His dissent to the 2013 Windsor decision that struck down the Defense of Marriage Act was widely cited by lower courts to invalidate state bans on same-sex marriage.

      http://talkingpointsmemo.com/d…..gainst-him

      In other words, the subsidies were upheld because Scalia said that’s what Congress intended. (Not the only argument)

  51. I thought his comments were perfectly coherent. Maybe you should learn to read better.

Please to post comments

Comments are closed.