Supreme Court

Here's What John Roberts and Salon.com Have in Common

Conservatives and progressives share a common criticism of Justice Kennedy's gay marriage opinion.

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Credit: Library of Congress

Last week's historic Supreme Court victory for gay marriage has been widely praised by American liberals. But at the left-wing site Salon.com, one liberal law professor has cast a dissenting vote. Sure, Obergefell v. Hodges is "great news," concedes Northwestern's Andrew Koppelman, but the decision is nothing to get too excited about on account of "the remarkably weak reasoning by which the Court got there." What's the problem with the Court's reasoning? Here is Koppelman's explanation:

The decision relied on the doctrine of "substantive due process" — the idea that some liberties, not enumerated in the Constitution, are so important that government can't take them away. "The Constitution promises liberty to all within its reach," Kennedy's first sentence declared, "a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity."…

Substantive due process, however, invites courts to invent new law out of nothing — to declare as constitutionally protected any conduct that they think is important.

Substantive due process is the idea that the Due Process Clause of the 14th Amendment—which forbids the states from depriving any person of life, liberty, or property without first providing due process of law—offers not just procedural safeguards but also protects a range of substantive individual rights. This doctrine played an important role in the Supreme Court's 1965 decision in Griswold v. Connecticut, in which the Court struck down a state law banning the use of birth control devices on the grounds that it violated the unenumerated privacy rights of married couples. Substantive due process also played a key role in the Court's landmark 2003 decision in Lawrence v. Texas, which struck down that state's ban on "homosexual conduct" for violating the liberty rights of gay people under the 14th Amendment.

But wait a minute. Aren't Griswold and Lawrence both cases where the liberal side won? Why would a liberal like Koppelman want to distance himself from the constitutional underpinnings of Griswold and Lawrence? Here is the explanation.

In addition to Griswold and Lawrence, substantive due process also played a central role in the Supreme Court's famous 1905 decision in Lochner v. New York, in which an economic regulation setting maximum working hours at a bakery was struck down for violating the unenumerated right to liberty of contract protected by the Due Process Clause of the 14th Amendment. To say the least, Lochner is not the sort of case that liberal law professors tend to admire.

But Lochner also poses a real problem for any intellectually honest liberal legal thinker. As I explain in my recent book Overruled, Griswold and Lawrence both owe a vast intellectual debt to Lochner. Indeed, as I put it, Lochner's libertarian DNA "lives on prominently today in the landmark liberal rulings that legalized birth control and eliminated state restrictions on 'homosexual conduct.'"

So what's an honest liberal law professor to do? On the one hand, liberals are supposed to hate Lochner for striking down state regulation that violated an unenumerated right. On the other hand, liberals are supposed to love Griswold, Lawrence, and now Obergefell for striking down state regulations that violated unenumerated rights. To his credit, Koppelman recognizes this fundamental contradiction in modern legal liberalism. He's struggling to reconcile the irreconcilable.

Ironically, Koppelman's liberal critique of Obergefell is practically the mirror image of the dissenting opinion cast in that case by conservative Chief Justice John Roberts. "Allowing unelected federal judges to select which unenumerated rights rank as 'fundamental'—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role," Roberts declared in Obergefell. He went on:

Ultimately, only one precedent offers any support for the majority's methodology: Lochner v. New York, 198 U. S. 45. The majority opens its opinion by announcing petitioners' right to "define and express their identity." Ante, at 1–2. The majority later explains that "the right to personal choice regarding marriage is inherent in the concept of individual autonomy." Ante, at 12. This free- wheeling notion of individual autonomy echoes nothing so much as "the general right of an individual to be free in his person and in his power to contract in relation to his own labor." Lochner, 198 U. S., at 58 (emphasis added).

In other words, John Roberts and Salon are in total agreement: The Supreme Court's landmark decision legalizing gay marriage rests on a libertarian legal foundation that protects "the general right of an individual to be free in his person." In their common view, that right shouldn't exist. Thankfully, they're both on the losing side of this case.

Related: Lochner Isn't a Dirty Word: Correcting the cartoonish vilification of a libertarian Supreme Court decision.

NEXT: Could a Hypertension Drug Rewire the Brains of Addicts?

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  1. What is the gay marriage to Rotherham article ratio?

    1. Can 0 be part of a ratio?

    2. And what is the ratio to illegal Internet satire? The foolish “substantive due process” argument would even allow judges to legalize the various forms of satirical impersonation appropriately criminalized by competent legislators and judicial authorities in New York, over the “First Amendment” dissent of a single liberal judge. See the list and documentation at:

      http://raphaelgolbtrial.wordpr…..rsonation/

  2. Fucking lawyers.

    The reason there will never be Libertopia is because it would put lawyers out of a job. Here are the only two laws required:

    1. A person may do as they wish, provided they don’t violate the rights of others.

    2. The only legitimate purpose of government is to protect the rights of the individual.

    Negative rights are infinite, the only positive rights you have are those specifically listed in a constitution.

    Isn’t that a lot simpler, boyz? Of course, it’s hard to charge $300/hr.

    1. How do you decide if someone has violated someone else’s rights….with lawyers?!

      *runs*

      1. They’re a necessary evil.

        My bitch is the law is too complicated, and it doesn’t need to be. Anyone else find it a bit disturbing that the people to whom the law applies cannot determine whether they are living within it without the assistance of a $300/hr decoder ring?

        AND, the vast majority of those writing the law, happen to be lawyers?

        Why, it’s almost like it’s done intentionally to provide job security.

        Complicated laws give politicians more power. They can set up their cronies while shielding the fact from direct public scrutiny because the average voter won’t wade through 10,000 pages of shit they cannot possibly understand.

        1. Agreed 100%. Even if you believe that the law needs to be written to cover every specific instance and remove the element of judicial discretion or negotiated compromise between parties, it’s still very difficult to justify the complexity of law as it exists. Something like half the Senate and a third of the House are lawyers, and I don’t think that’s a coincidence. I’m not necessarily convinced there’s something nefarious going on–it could just be that people who make their livings based on the complexity of legal codes tend to create laws that are unnecessarily complex–but it’s definitely a thing.

        2. I’ve often thought that the primary motiv’n of appeals judges was not to advance any particular philosophy of law, but, in solidarity w their profession, to make the law more complicated & to make their rulings unpredictable.

        3. So, when we have that Art-V convention, one of the amendments that should be submitted for ratification is that lawyers are disqualified from legislative office on Conflict of Interest grounds.

          1. And lawyers be disqualified as judges, too.

      2. How do you decide if someone has violated someone else’s rights….

        Weigh them against a duck?

        1. Have they initiated force.

          1. Substantive due process is the idea that the Due Process Clause of the 14th Amendment?which forbids the states from depriving any person of life, liberty, or property without first providing due process of law

            Unless of course we find a large sum of cash on you, then it’s ours until you can prove otherwise. Because fytw.

    2. $300/hr, hah! In any case, most lawyers do non-court based stuff and of those who do most aren’t doing criminal law. Whatever dispute resolution exists in libertopia, there will be lawyers or the equivalent of lawyers handling the drafting of contracts, resolving disputes, writing wills, etc.

      1. Yeah, I didn’t mean to imply we could do without them. Just that the system could be greatly simplified.

        1. Although, I admit, my wording was poor.

    3. Forgot property protection – maybe it’s inferred.

      1. You obviously have the right to own property under 1, so yes, inferred.

    4. People think principles are OK in principle, but when it comes to brass tacks, they can’t bring themselves to treat everyone equally. For many (I daresay the majority of folk), there are going to be exceptions to whatever principle they claim to subscribe to (for example, self-ownership), which then, of course, negates the principle entirely.

      Next time you talk to a progressive, you can use a time-honored police interrogation technique: lock them down into unequivocally stating they subscribe to, say, the principle of self-ownership. Then present them with a couple scenarios. Start off with something obvious, like slavery. Then move onto something less glaring, like the right of a poor immigrant to climb the socio-economic ladder and become comfortable and successful and enjoy the fruits of their work. Then present the same hard work/success scenario and apply it to, say, David H. Koch. Then Anderson Cooper or Michael Moore. You’ll see the “yabuts” start to come out. Some animals are more equal than others.

      You can, of course, do the same with a religious social conservative.

      1. OK, try it, copper, I ain’t got nothin’ to hide.

    5. It’s so simple it has to work.

      Because that’s what really makes for a decent and prosperous society: simplicity.

      1. Exactly, I think you are coming around.

        See how simple life is when you don’t need to find legal ways to steal?

        1. Except to retaliate against initiatory force! Then stealing is perfectly OK!

          Ever consider that maybe you just need things to be simple so you can grasp them?

          1. Ever consider you need things to be complicated so you can continue to limit the rights of one group to the benefit of another?

            Morality is simple. Anyone claiming otherwise is trying to steal something from you.

            1. Morality is simple. Four years of undergraduate philosophy and all I needed was to come here and talk to you. To perhaps learn that A, in fact, equals A?

              1. You spent four years on a philosophy undergrad? You spent four years on a philosophy undergrad and either still don’t get that theft is wrong or have somehow gotten your head so muddled that you think theft is perfectly fine provided it’s the right people doing the stealing? Tell me you paid for those years out of pocket. Or would personal accountability conflict with your “morals”?

                1. Full scholarship and it wasn’t my only major. I also studied language. In doing so I learned that you can’t simply say “theft” without defining it. Libertarians love to define any taxation that pays for stuff they don’t like as theft, even though the taxes are taken in precisely the same way regardless of what they pay for. But theft is the act of taking, so this is nonsensical. It’s a way to claim you’re right without having to defend anything on the merits. It’s childish bullshit–so obviously so that even you idiots must realize it, and are just hoping no one notices.

                  1. Huh? Libertarians hold all coercive taxation as theft.

                  2. Libertarians love to define any taxation that pays for stuff they don’t like as theft, even though the taxes are taken in precisely the same way regardless of what they pay for.

                    This is splitting hairs. If you forcibly take my money against my desires and use that money for something that in no way benefits me (or in the case of drone bombing children, something that is morally repulsive), that is definitely theft. If you mow my lawn without agreement (or some other act which technically benefits me) and then forcibly take my money against my desires as payment, reasonable people can disagree whether that is an instance of theft.

                    Both instances are immoral, the rest is semantics.

                  3. “…even though the taxes are taken in precisely the same way regardless of what they pay for.”

                    No, they are not. How you can think this about a progressive income tax is mind-boggling.

                  4. change your wording slightly and you might be close to correct: taxes that are taken at the end of a gunbarrel for things the takers have no authority to be taking FOR is theft. Farm subsidies, drug enforcement, federal limits on firearms, taxes on alcoholl tobacco, and firearms (the Constitution says INCOME can be taxed…. imports can be taxed (tariffs), but nothing about other goods. Taxes to go play policeman in some 150 foreign nations, and, increasinly all round this nation. Taxes to pay for constand and all0but-everywhere surveillance, to steal raisins at the point of a gun from raisin farmers in California, to raid and steal milk and cheese from dairy farmers in Michigan, Wisconsin, etc, to pay for biased “research” for “safety equimpment” they will then mandate, stealing more from us to “pay” for the unneeded and unwanted video camera on the trunk of my new car, to pay farmers to grow cheap corn to make ethanol, also tax xupported, to be forced into our fuel at higher cost and damage to cars, and reduced mileage…. well, you get the idea.

              2. Objective morality IS simple.

                All actions are allowed except those involving the initiatory use of force, threats of force or fraud.

                It’s subjective morality that is complicated since it is different for each individual.

              3. You defaulted on your student loans too, i bet.

              4. Just four years? And in undergrad, at that?

                You are a child.

                You are like a baby.

                Four years is nothing. Nothing!

                You think you can understand anything in four years? Many of the works that were assigned to you (assuming you actually did READ the great works of philosophy and not some pedantic philosopher explaining “What Aristotle/Kant/Descartes/whatever actually meant was…”) took longer to WRITE than you spent studying it. Assuming you read it at all!

                Four years… Four year…

                When you have lived with Kierkegaard constantly reminding you what Love is for a decade, let’s talk. When you can quote the arguments of Socrates and can distinguish between Socratic Plato and Platonic Plato, let’s talk. When you really REALLY grasp, deep in your very being what Nietzsche meant when he said “God is dead,” then let’s talk. You do not grok philosophy by studying it for four years.

                You are a baby. You are a child not yet off your mother’s milk.

                …four years…my gracious….four years….

                /mumbling off back to his office….

                1. Well I only tacked on a philosophy major once I realized I had the time to do the hours and upgrade it from a minor. Then they awarded me senior of the year in that and my other major. Then I did continue schooling, you pompous blowhole.

                  One does not study the history of thought and come out the other end a libertarian. Sorry, that is just not plausible. Not for a reasonably intelligent person.

                  1. Now I see how valuable your “four years of study” is.

                    From the sound of it you went to a school with a small, simpering philosophy department. If the department was lax enough to upgrade from a minor to a major in a single year, while finishing other requirements I would hardly call that rigorous study. If I had course of study like yours I wouldn’t tell anyone.

                    And you are wrong. One can come out studying the history of human thought as a libertarian. It is not, by any stretch, the only sound postion to hold, but it is one which many philosophers and theologians far greater than you or I have come to hold.

                    I have a hard time with progressives who seem to say “No really, this time, this law, really will change who we are.” And yet, these people, men and women, exist and I respect them and their ideas and I read them becuase they are valuable, even if I disagree.

                    And now I know why everyone here speaks to you with such venom. You are a pompus child, an arrogant baby with nothing more to add to a conversation than a ficus. You comments are, at best, to be cooly contemplated by your betters.

                    “Not for a reasonably intelligent person…” Indeed. You have no grasp for real intellectual conversation. You have no ability to believe that someone can disagree with you, come to different conclusions, and be anything other than not “reasonably intelligent.” You ought to give your degree back to your school with an apology letter for clearly not learning what you ought to have.

                  2. Pompous blowhole? Your one to talk, Tony, you fucking idiot. I don’t think you learned anything in school, don’t feel bad, most don’t going to theft subsidized public school and places of “higher learning.

          2. Recovering stolen property is by definition not stealing. And you either know this and are being deliberately disingenuous (shocking, I know) or you’re too dumb to live without a live-in nurse.

            1. He doesn’t know the difference between initiatory and retaliatory force.

          3. Except to retaliate against initiatory force! Then stealing is perfectly OK!

            Do you mean taxation? Then no, it violates NAP.

            Do you mean repayment for a violation of NAP? Then yes, it doesn’t violate NAP to return $100 that party B stole from party B.

      2. No, that’s not all it takes.

        But there is something to be said for simplicity.

        The more complex the law gets, the easier it is to find conflicting interpretations or loopholes and to game the system. Or to come down harder or softer on arbitrarily disfavored or favored groups. Or to sneak in some relatively obscure law to favor you or your special interest.

      3. If it makes it easier, imagine that the rules are brands of deodorant.

        1. So 23 will be to Tony what 8 is to Shriek?

          1. Number of brain cells?

            1. That’s being really generous to both of them.

      4. Some people are so open-minded their brains have fallen out.

    6. All actions are allowed except those involving the initiatory use of force, threats of force or fraud.
      Government authority is limited to the retaliatory use of force.

      1. Fair nuff.

        Are there ways we differ or is the wording simply different?

        1. My wording is more specific to negative liberty. You know how positive liberty people go on about the “right” to healthcare, housing, living wage, etc.

          1. Hmmm.

            SO…if my tenet 2 was modified to say:

            2. The only legitimate purpose of government is to protect the negative rights of the individual.

            IOW, the only positive rights you have are that the government will protect your negative rights.

            Would we be there? I need to think more on this.

            1. Not that anyone asked me, but I think the problem is that you’re trying to come up with a legal code to cover a society that is not itself libertarian. You need rules enforceable by a state to prevent bastards from being bastards, and that’s your problem. You’re building wings for a pig, when you should just ditch the pig, if you see what I mean.

              Absent a libertarian (or an-cap) society, a libertarian legal code won’t work. Laws establish punishments for violating existing social mores if they’re at all effective; this is what the Progs don’t get about hate crime legislation and affirmative action. You’ve got to work on creating a society where people believe in self-ownership and non-aggression and eschew “positive rights” and state-sponsored aggression in order for a libertarian legal code to stand half a chance.

              1. I don’t disagree with anything you said. I’m more interested in identifying the philosophy on which a libertarian legal system should/could be built.

                1. Libertarian philosophy
                2. Write a constitution around it.
                3. Build a simple legal system that adheres to both.

                You’ve got to work on creating a society where people believe in self-ownership and non-aggression and eschew “positive rights” and state-sponsored aggression in order for a libertarian legal code to stand half a chance.

                Couldn’t agree more.

                1. Libertarian Bill of Rights

                  Article 1
                  No person may initiate force, threats of force, or fraud against any other person’s self or property.

                  Article 2
                  Force may be used against those who violate Article 1.

                  Article 3
                  No exceptions shall exist for Articles 1 and 2.

                  1. Libertarian Bill of Rights

                    I’d put it in the preamble of the constitution.

                    These are the tenets on which this constitution is based, they may not be violated by any law and any interpretation of the following document must be done so with this intent at the forefront.

                2. Well then I think the notion of government as the night watchman of last resort meshes fairly well with #2 and seems to fit with libertarian ideas about the state. Something like #1 == NAP/self-ownership, and #2 == government as a last-ditch enforcer of #1.

                  1. #2 also allows for self defense.

                3. What’s the old saw about civilization being that point in human development where we write codes of conduct to govern ourselves that have to be enforced by hired thugs?

              2. A society of angels doesn’t need laws.

              1. Oops, I’d say “negative liberty” instead of “negative rights”.

                1. Why’s that? How do liberty and rights differ in this context?

                  1. There may, and that’s a big may, be some situation in which a positive right falls under negative liberty. The distinction between rights and liberty is subtle I admit. I really just think liberty sounds better! Who’s not for liberty right?

      2. Yup. The biblical basis for the “civil magistrate” (government) is to bear the sword against those who DO HARM. That is it. End of job assignment. Security, safety, defense, are ALL the job of the people.

  3. In other words, John Roberts and Salon are in total agreement: The Supreme Court’s landmark decision legalizing gay marriage rests on a libertarian legal foundation that protects “the general right of an individual to be free in his person.” In their common view, that right shouldn’t exist. Thankfully, they’re both on the losing side of this case.

    Except in Lochner, like in Griswold and Lawrence, the liberty interest required nothing but freedom from state intervention and oppression, whereas Obergefell is about a positive liberty.

    1. This is the distinction that I haven’t seen very many journalists talking about – not even on Reason. Unless I’ve missed it.

    2. But aren’t they both really about contract law – Lochner was the state limiting the contract the bakery wanted to have with it’s employees and the gays just want to have the same contract rights to marriage as straight people?

      I’m not trying to make a point, just asking.

      1. Not really. Same sex marriage is about getting unwilling 3rd parties to treat the couple as (1)married (& 2) to each other. Granted, many, perhaps most, of the unwilling or uncaring (but unmovable) parties are gov’t entities (federal & state tax agencies, immigr’n authorities).

        1. I’m not a lawyer, but that seems like the same thing I’m saying — now that a gay marriage contract can’t be denied, it’s the same as a straight marriage contract and 3d parties have to recognize those as the same.

          Or are we getting into what the baker and photog have to do?

          1. Right, I see the same similarity, Root Boy. See also the emphasis that FoE and others here place on this being government recognition of marriage.

            This decision validates marriage contracts made between a gay couple and all of the consequences of that, as Lochner validated labor contracts made between an employer and employee that set work hours. There are 3rd party and tax-related consequences of validating or relegitimizing the Lochner type contract as well.

            Imagine the SC strikes down all minimum wage laws. A previously “unemployed” person, working under the table for $5/hr, may now be officially employed, and then lose some rights and gain some others.

  4. “poses a real problem for any intellectually honest liberal legal thinker”.

    Soooooo, poses NO problem at all for any liberal thinker?

      1. Feelzer doesn’t have the same ring to it.

    1. No its a real problem for those guys, both of them.

    2. Progressive thought is inherently arbitrary and contradictory. So, there may be a few honest ones, but there are none who could be consistent with regards to the law.

      1. Progressive thought, in the sense of thinking and then responding, simply doesn’t exist. The only time progressives think is when they reverse engineer justifications for their emotional reactions. But thinking in the sense of cogitating before responding just isn’t their forte.

        Thus rational arguments fall on deaf ears, since you can’t reason someone out of a stance that they arrived at by emotion. They feel it to be true, and you’re not going to persuade them with logic. Only emotional arguments have any effect on progressives.

        1. Why is it so hard for you to believe that other people actually don’t share your premises and values?

          1. I’m not saying that they don’t. I’m saying that their premises and values are born of emotion and feelings, not logic and reason.

            1. So are yours. There is nothing inherently logical about valuing freedom. Your preferences are not rational.

              1. Your preferences are not rational.

                Actually, they are. Liberty and free markets, while not being perfect, provide the best means of humanity to lift itself out of the default state of poverty. Sure the inequality that naturally arises from liberty will hurt some fragile feelings, but the poorest will still be vastly richer than the would otherwise be. That is very rational.

                Equality and redistribution must devolve to the lowest common denominator, which is poverty. While it may feel good to make everyone equal and diminish inequality, the logical conclusion is poverty. That is not very rational at all.

                1. Liberty and free markets, while not being perfect, provide the best means of humanity to lift itself out of the default state of poverty.

                  So what? Is that some kind of unstated universal goal? Hint: it’s not universal.

                  1. So what? Is that some kind of unstated universal goal? Hint: it’s not universal.

                    It’s seems rational to me to believe that people are better off unequally rich rather than equally impoverished. Please correct me if I’m wrong.

                    1. You are forgetting other options, like “stopping having kids and ending humanity,” which could be argued to be more rational?or less!?depending on other, possibly unstated goals.

                  2. I have to agree with Nikki about this. Reason is the faculty of the mind that shows us what means are best to achieve our goals. It does not determine what those goals should be. This is Hume’s analysis, and I agree with it.

                    So when we argue with people like Tony about property and the role of the state, we’ll continue going in circles. People like Tony don’t share the same basic premises (I call them “moral axioms”) that we do. And frankly, I’m fine with that. Not all people are the same. That is the reason why I want the existence of many, smaller states rather than huge, mega-states. Because this would allow people to find other like-minded people to create polities that agree with their moral axioms. It’s hard to force the same set of principles (or lack thereof) on a nation of 320 million.

              2. Logic is based on reason.

                “Reason is not automatic. Those who deny it cannot be conquered by it. Do not count on them. Leave them alone.” Ayn Rand

              3. There is nothing inherently logical about valuing freedom.

                I think that if there is one thing the Objectivists are good at, it’s convincingly arguing that there is. Nevertheless, the empirical data is overwhelming that our brains’ hard-wiring stacks the deck against us when it comes to strictly rational reasoning. And good thing too! Our brains are the product of evolutionary conditions that selected for the ability to make quick and decisive decisions when faced with incomplete data. People with brain damage that severed the connections between the frontal lobes (our reasoning center, for lack of a better term) and the limbic system (our emotional center) express the almost complete inability to make even the most simplest decisions even though they show no other signs of impairment. When making an appointment, if you ask them if they prefer Saturday the 6th or the 13th, they are completely paralyzed with indecision.

                1. I think that if there is one thing the Objectivists are good at, it’s convincingly arguing that there is.

                  This is true. Rand was right to connect all of morality to aesthetics. It’s just that she thought aesthetics could be objective, too, not that everything ends up being about aesthetics.

              4. Progressivism isn’t rational because it’s based on hope and luck by design. Progressivism posits that a.) the state is the best organizational system for human society, b.) a strong state is necessary to prevent individuals from abusing each other, and c.) inequality is inherently evil, the product of individual greed and corruption, and can only be combated by the state because d.) people are inherently uncooperative, greedy, unfair, and cruel.

                It then goes on to propose that, in order to manage this horde of vicious only-children too stupid and/or too vile to manage their own affairs, the state control their interactions. The state, of course, would be staffed by angels, or whichever of these horrid people happen to, by accident or luck, not be utter bastards, as determined by managers. Naturally, their managers must be chosen democratically, but on election day each of the troglodytes that make up the unelected masses undergo something like a Christmas Miracle and become well-informed, selfless, and far-sighted enough to choose the best among them to rule for two to six years.

                Progressivism assumes that the people, being horrible, must be controlled by a system created by those same people and run by those same people, and it depends on luck, happenstance, and the purifying effect of the state to remove the lesser impulses from most or all of the ruling class. How can that possibly be considered rational?

              5. Have someone lock you up for 30 days with only food and water and no human contact or even a window to look outside and then tell me that valuing freedom is not logical.

            2. That’s just something you tell yourself. You have never actually demonstrated this boast as far as I can tell–even if “logic and reason” were all that were necessary to formulate a political philosophy that covers all human circumstances (humans being feeling, emotional creatures).

              You’re all just buzzwords. We can’t tax billionaires because freedom! And logic!

              1. Tony, you have demonstrated on numerous occasions that you are immune to logic and reason. You wouldn’t recognize it if it punched you in the face.

                1. I’d be willing to try. I have quite a few books with “logic” and “reason” in their title. I’m willing to sacrifice a few of them to see what happens. Blood ruins books, but most are replacable.

                2. “I DID punch him in the face; fortunately, he didn’t recognize who I was.”

                  ~Login N. Reason

              2. Tell me Tony. What do you value?

                For me it’s liberty. What is it for you?

                1. You value negative liberty, Tony values positive liberty. The problem is that positive liberty requires the initiatory use of force.

                  1. The problem is that positive liberty requires the initiatory use of force.

                    Why is that a problem? If someone is so evil that they want to keep their own property and liberty without being forced to give you free shit, then shouldn’t they be lined up against the wall and shot?

                    /if Tony was honest

                2. I value lots of things: liberty, yes, also not starving, not being too hot or cold, my parents, money, a good book, alone time, a dry martini. Valuing only liberty is basically psychopathy.

                  You somehow get off saying valuing liberty is all we need to do because you don’t think you need to define liberty. We’re all just supposed to agree what it means. Even though it can easily mean the liberty to punch someone in the face. Without prevention or consequences, your liberty to do that is unimpeded. So you start inventing exceptions to liberty that comport with a world just governed enough not to sound totally absurd, but not nearly complex enough to cover actual human interaction on a social scale.

                  1. You somehow get off saying valuing liberty is all we need to do because you don’t think you need to define liberty.

                    Jesus you’re a fucking idiot. Liberty has been defined for you more times than can be counted. It’s pretty simple: liberty means being able to do whatever the fuck you want so long as you do not harm the life, liberty, or property of another person through force or fraud.

                    The only obligation that liberty puts on others is to leave you alone. That’s it. That’s all they need to do.

                    So don’t lie and say you value liberty. Liberty means that others are not obligated to feed you, to clothe you, to pay for your medical care, martini, or anything else. That is the opposite of liberty.

                    Liberty means you can’t use government to force other people to pay for your free shit. Liberty means anyone can carry a gun if they want, as long as they don’t use it for aggression. Liberty means people don’t have to ask permission and obey orders as a condition of engaging in economic activity.

                    You hate liberty. You despise liberty. You abhor liberty. Be honest for once.

                    1. You win the “Fuck Tony with the Logic Hammer” today. This entitles you to comment freely on the Reason comment section. You also will receive 1000 bolivar coupon on your next purchase of a woodchipper from 701 chip & shit inc.

                    2. Yet you come out with a bunch of right-wing bullshit policies that require you to completely ignore pollution as an infringement, not to mention all of the ways capitalism infringes on liberty. You don’t define liberty this way. You define it even more stupidly: as the absence of government (except for the things you need it for).

                  2. You somehow get off saying valuing liberty is all we need to do because you don’t think you need to define liberty.

                    You are being a disingenuous cunt. I’ve defined liberty to you at LEAST 20 times, directly to you. And defined it above…again:

                    1. A person may do as they wish, provided they don’t violate the rights of others.

                    yes, also not starving, not being too hot or cold, my parents, money, a good book, alone time, a dry martini.

                    And through liberty you can have all those things, WITHOUT shitting on the rights of others to get it.

                    So Tony’s world…gets all the things he values at the expense of someone else.

                    Fd’A’s world…Tony gets all he values WITHOUT taking it from someone else.

                    The bottom line is, in my perfect world you win, but you have to work for it. In yours, you get it for doing nothing because you take it from those who worked for it.

                    1. In Tony’s world it’s wrong for Peter to rob Paul to pay for things that Peter wants, but it’s perfectly acceptable, and even commendable, for Peter to have Jake from government come and rob Paul on Peter’s behalf to pay for things that he wants.

                      Principals, not principles.

                    2. Jake from State farm? She sounds hideous.

                  3. Tony, you don’t even really have a philosophy.

                    You just declare libertarian philosophically invalid due to your own strawman, over and over again.

                    I mean, for your argument to make any sense, you have to assume (see above) that no libertarian ever bothers defining what liberty or theft are. As if no one has ever done that.

                    I’m sorry, but you can “destroy” any philosophy presented in quick comments based on appealing to ignorance of the terms. “What does “equal” mean? What does “progressive” mean? What does “steal” mean? What does “vote” mean? What does “black” mean?

                    We’re all supposed to assume we know, but no one says. So, it’s all bullshit!

                    If you think that’s a compelling argument, then you need to stop coming so close to sucking your own cock over your academic accomplishments, and take a step back, to see how ridiculous you look.

                    1. I still don’t see how your definition of liberty according to me is invalid: “absence of government (except for the stuff I need it for).” To you guys there is almost nothing a corporation can do to people, individually or en masse, that counts as an infringement on liberty. Everything short of hiring goons to murder employees is permissible. But why? Like a government, a corporation is a powerful institution with widespread influence over its “citizens,” employees and customers, and outsiders alike. Some of you would even have corporations enforce your exceptions to why force is bad (like protecting your lawn flamingo collection).

                      Though I’m horrified to paraphrase Scalia, words matter. What liberty means is the whole question that separates liberals and libertarians. And to you it means something ridiculous, incomplete, and almost totally divorced from its own dictionary definition. There’s not really a whole lot of liberty practiced in anarchy.

                    2. I still don’t see how your definition of liberty according to me is invalid: “absence of government (except for the stuff I need it for).” To you guys there is almost nothing a corporation can do to people, individually or en masse, that counts as an infringement on liberty.

                      Fallacy: strawman. You’re making my point for me.

                      Tony, your criticism of libertarianism equally applies to yourself.

                      You yourself, are real happy with gay marriage regulation being banned by the constitution, and you could care less about polygamists.

                      That definitely counts as “absence of government (except for the stuff I need it for)”: regulations of marriage for gay people? bad. Regulations for polygamists? Good! Why? You don’t give a shit. It doesn’t bother you.

                      Then, someone makes a principled argument that perhaps both gay people and polygamists should be able to get married, and you tell them how arbitrary and ill-defined their concept of liberty is.

                      Apparently, when a libertarian goes into a voting booth, he’s being ridiculous by wanting government of a certain size, as opposed to, who exactly? Perhaps, a progressive who likes welfare, but isn’t so excited about funding a huge MIC? Is he somehow innocent of wanting government for some things, but not others? your criticism is ridiculous.

                      Yeah, words matter. And pretending you don’t understand words is just an appeal to ignorance. Hardly something to suck yourself off over, but you enjoy that, senior of the year.

                  4. Tony:

                    You somehow get off saying valuing liberty is all we need to do because you don’t think you need to define liberty.

                    No, I think we’re all supposed to value liberty so that we can be free to value what we choose, instead of having what we value imposed upon us, or for our values to be irrelevant in our daily lives. Liberty for the pursuit of values doesn’t forsake all other values.

                    Again, you’re just strawmanning: libertarians value liberty so they can be free to pursue their values, and then you accuse them of valuing only liberty.

                    I don’t understand you at all. You comment with this tone as if you’re ready to show everyone how ridiculous libertarianism is, and then you immediately veer off into irrelevancy and fallacies, from which you claim to pull victory. It really just looks like someone stroking themselves over and over again, but maybe that’s a “senior of the year” thing.

              3. We only have to formulate a political philosophy that covers all interactions between two individuals (objective morality) which is quite simple.

                All actions are allowed except those involving the initiatory use force, threats of force or fraud.

                Done.

              4. Tony:

                You have never actually demonstrated this boast as far as I can tell–even if “logic and reason” were all that were necessary to formulate a political philosophy that covers all human circumstances (humans being feeling, emotional creatures).

                Tony, with the high value you place on feelings and emotions, have you ever considered not being narcissistic prick?

                I mean, you’ve told us multiple times how much you dislike people. Really, listening to you be a dick, sucking his own dick, while you explain your philosophical superiority, and wrapping it up in the language of caring out people and their feelings, is quite humorous.

      2. Progressive thought is inherently arbitrary and contradictory.

        Conservative thought is too, what with the LOUD evangelical Bible-thumping and thou-shalt-comply-with-my-god’s-commandments.

        I am so fucking sick and tired of being told liberty and freedom flows from obeying their god’s will. Marriage between a man and a woman being recognized by the state is their god’s will. Marriage between same-sex couples being recognized by the state is not. Yet they want the state to be involved in heterosexual unions and lawyers to be involved in same-sex unions, if they MUST be involved at all.

        No, not the whole “conservative” collection [i.e., not all ___ are like that], but the ones that bang that drum do it the loudest and the MSM is only too happy to give them a soapbox they can be knocked off of.

        There ain’t a whole lot of Christ going on in those Christians and their god is not my God, but they see the world through an absolutist/universal lens as much as progressives do. People’s behavior must be regulated by the state. Until the state regulates what I do, and then the Gadsden flag gets pulled up the pole.

    3. Well it seems to have posed a problem for the guy this whole post is about.

  5. Just as Lucille said I didnt know that anyone able to get paid $7158 in four weeks on the computer .You can look here????????????? http://www.workweb40.com

    1. DON’T MENTION LUCY!!!

    2. Bluths are finally turning their fortunes around, then?

  6. I’m surprised this guy didn’t approve of Kennedy’s rationale, which as far as I can tell is ‘Feeling are good, this makes my feelings glad, let’s fucking do it.’

    1. Pretty good summary, that.

  7. By what measure is John Roberts a conservative? An answer to this would help me figure out what Reason means by the term.

    1. He was nominated by a conservative–George W. Bush.

      Of course, that brings up the question of why someone would call George W. Bush a conservative.

      He expanded the Great Society by way of the Medicare prescription drug benefit–like he was Lyndon Johnson

      He launched a war in the name of spreading Democracy like Lyndon Johnson tripling down on the Vietnam War.

      If George W. Bush was a conservative, then so was Lyndon Johnson.

      You’re right–the word “conservative” by itself doesn’t mean anything anymore.

      1. But the examples you bring up do comport w the concept of staying the course as conservatism.

      2. He defined himself as a “compasionate” conservative which allowed him to whip out the checkbook to prove how compassionate he was.

        Our checkbook though, not his own. Not long before leaving office he bestowed about 500 million dollars on Africa proving it. There is one town in Africa with a statue of George so I guess it was worth it.

    2. He’s a social conservative and a fiscal liberal. Also known as a Catholic.

  8. Accusing someone of having something in common with Salon.com really is below the belt.

    Kennedy should ask for an apology.

    And calling Salon.com “left-wing” might actually make me feel sorry for left-wingers…if making me feel sorry for left-wingers were actually possible.

    Salon is best read as a funnier and even more ridiculous version of The Onion.

    “Bobby Jindal, cynical charlatan: How a one-time GOP star turned into another scheming religious wingnut”

    “GOP declares war on the Supreme Court: What’s really behind the reactionary plot against the judiciary”

    That’s a couple of headlines from Salon.com today.

    No wonder Tony thinks he’s smart!

    1. From a couple of days ago… “Big Business declares war on science”
      http://www.salon.com/2015/06/2…..ng_action/

      1. If there were a Jon Stewart Daily Show making fun of liberals, the goofy headlines would all be the real headlines at Salon.com

        They’re unintentionally hilarious!

        It’s especially funny for people who remember when Salon used to be a serious publication.

        It’s like if the New York Times morphed into The Onion over a period of ten years.

        Even liberals are embarrassed by Salon!

        Like I said, it’s written for people like Tony so they can go somewhere and read stuff that’s so stupid it makes them feel like they’re smart.

        1. Man, remember why they named Salon? It was supposed to be a clearinghouse of lofty ideas and energetic intellectual debate. Back when televisions were big-ass tubes and a gigabyte sounded impossibly huge.

          1. Instead of Salon it should have been named Hubris.

  9. “intellectually honest liberal legal thinker”

    lol

    1. Yeah, that’s from the Department of Redundancy Department.

  10. All of the language about Autonomy and freedom is great. The problem is the gay marriage case wasn’t about that. People always compare it to Loving. The difference is that Loving was a criminal case. The plaintiffs were arrested for living as a married couple. Loving wasn’t about Virginia’s refusal to give interracial couple’s a marriage license. It was about the state arresting any interracial couple who claimed to be married.

    The situation with gay marriage today is completely different. Gays were before this decision free to live as married couples. They were free to get married in states that recognized gay marriages. They were free to have whatever relationship they wanted. The only issue was whether the state should sanction that relationship.

    1. Pretty sure the ruling was based on equal protection. And you lost so you might as well tuck your tail and quit.

      1. I am pretty sure you are an illiterate who is incapable of understanding the opinion or speaking intelligently about it, or really anything else.

        Seriously Tony, this is not a partisan “yeah gays” thread. This was a serious post about the language and nature of the decision. In other words, it isn’t a thread you need to be on. Do yourself and everyone else on this board a favor and let the adults talk for once. You literally have nothing to add here.

        1. Tony’s so dumb.

          How dumb is he?

          Tony’s so dumb that after being here for years, he still thinks we’re all against gay marriage!

          http://www.flamewarriorsguide……cranus.htm

          He thinks gay marriage is the triumph of the state over libertarianism.

          1. Tony doesn’t think. Saying that he does is an insult to those of us who do. He feels.

            1. Have you read that Ferrous Cranus flame warrior description?

              “Ferrous Cranus is utterly impervious to reason, persuasion and new ideas, and when engaged in battle he will not yield an inch in his position regardless of its hopelessness. Though his thrusts are decisively repulsed, his arguments crushed in every detail and his defenses demolished beyond repair he will remount the same attack again and again with only the slightest variation in tactics. Sometimes out of pure frustration Philosopher will try to explain to him the failed logistics of his situation, or Therapist will attempt to penetrate the psychological origins of his obduracy, but, ever unfathomable, Ferrous Cranus cannot be moved.”

              http://www.flamewarriorsguide……cranus.htm

              That’s Tony to a “T”. I’ve never seen one of those fit someone so perfectly.

              1. Yep. And that George (aka muirgeo) character that stinks up CafeHayek.

              2. You guys are there too: 😉

                http://www.flamewarriorsguide……alista.htm

                Capitalista is not always a wealthy fat cat; being a Capitalista is a state of mind rather than a reflection of affluence. A strident and extraordinarily self?satisfied Warrior, Capitalista takes every opportunity to extol the superiority of the free enterprise system and has a powerful aversion to the welfare states of Europe. Capitalista fiercely defends the market economy, bludgeoning “fuzzy-minded socialists” with Adam Smith, Milton Friedman and Friedrich Hayek. Though rather limited in his range of interests, Capitalista’s command of carefully selected historical facts, abstruse statistical comparisons and arcane economic theory make him a formidable foe.

                1. WE’RE FORMIDABLE FOES! YAY! Crusty Juggler is there too:

                  “Wily and very secretive, Perv isn’t actually a genuine Warrior in the strictest sense; he isn’t interested in combat psychology, fighting tactics or even winning battles, and he couldn’t care less about the subject under discussion – all he REALLY wants to know is what you are wearing.”

                  Plus, we’ve got the opposite of the Capitalista:

                  “Pinko has an angry, almost genetic loathing for privilege, greed, social exploitation, racism, sexism, homophobia, pro-lifers, the religious right, environmental degradation, the NRA, US imperialism, multinational corporations, big business, Republicans in general and George Bush in particular. Pinko openly admires Oliver Stone, Noam Chomsky and Michael Moore and anyone else who is critical of the US government and bourgeois culture. She ardently believes there is no enormity of which the United States is incapable and regards its entire history as an unbroken legacy of avarice, deceit and injustice. Though Issues, Weenie, Fragile Femme and sometimes Ideologue will defend Pinko in battle, her extremely predictable and tedious attacks eventually exhaust even those inclined to support her.”

                  1. @ susan
                    Well that pretty much covers the bases.

                    1. I kid because I love, Idle.

            2. “Tony doesn’t think. Saying that he does is an insult to those of us who do. He feels.”

              Well, suffice it to say, then, Tony seems to really feel that if the government can no longer discriminate against individuals and violate their individual rights because of their sexual orientation, then that means the government prevailed over libertarians–and he’s here to celebrate that victory!

              He’s so friggin’ dumb.

              1. He’s so obtuse he makes 180 degrees look acute.

                1. He’s so twisted, his portrait can only be drawn on the inside of a Klein bottle.

          2. Tony would probably be at the front of the line trying to exclude the Pink Pistols from Pride festivities. They’re gays that don’t think “correctly”.

          3. John is against gay marriage. I realize you’re not all John.

            You just accept his form of totalitarian theocratic bullshit while deriding and screaming at anyone who dares suggest raising taxes on billionaires by a penny. Always been curious about that.

            1. No I am not Tony. I am against judicially mandated gay marriage. i really couldn’t give a shit less if gays get married. They were married before. The problem isn’t gay marriage. The problem is gays insistent that the government put a gun to everyone’s head and force them to play along.

              1. Because taxes. As someone pointed out elsewhere, this wouldn’t be an issue if the state didn’t have financial interest in deciding which marriages it “approves” of. But, because there is $$ involved, thanks to the progressive state which believes at its core that humans can be “fixed” to act correctly by the government, this is an issue.

        2. The comparisons of the gay marriage decision to the Civil Rights movement in general are horribly offensive. I don’t recall any pride parades being attacked by police dogs in recent years, but maybe I just missed those stories.

          1. It is. As recently as the early 60s, a black man so much as speaking to a white woman the wrong way in public could get him beat up and put in the hospital. It was horrible. To equate “some evil baker won’t bake my wedding cake” or “I have to have a power of attorney to see my boyfriend in the hospital” to the kind of shit that went on in the Jim Crow South is utterly disgusting.

          2. I think it’s a good comparison in terms of the way it was fought.

            Both the Civil Rights movement and the gay rights movement worked by way of changing the minds of the general population–and the laws changed afterwards.

            It’s sort of like comparisons to the Nazis. The holocaust was the worst thing the Nazis did, but it wasn’t the only rotten thing they did. If somebody wants to compare some modern politician to the Nazis because he used a tragedy like the Reichstag fire to justify attacks on our civil liberties, or tries to censor the news, launch a popular outcry against deviant art, etc., I don’t think that’s a slight against the victims of the holocaust.

            What, I can’t compare someone who’s acting like a Nazi to the Nazis because he isn’t also engaging in genocide against Jews? No comparison is 100% complete, but that doesn’t mean they aren’t effective and good within the limits of an apt comparison.

            The civil rights movement was like the gay rights movement in certain ways–for instance, the way that the government used the legal system to discriminate against them and the way those movements fought that discrimination. Anyone who says that gay suffering was as bad or worse than black suffering under slavery, Jim Crow, etc. is out to lunch, but how many of them are really making that exact comparison?

            1. But they don’t compare the way it was fought, they compare the subjects directly. There was a newspaper that said they’d no longer publish letters to the editor regarding gay marriage on the grounds that they wouldn’t publish letters from racists either. The problem is that opposition to gay marriage does not imply that someone hates gay people in the way that a racist obviously hates other ethnicities, so it’s a false comparison.

              1. The problem is that opposition to gay marriage does not imply that someone hates gay people in the way that a racist obviously hates other ethnicities, so it’s a false comparison.

                Oh yeah? Well what possible reason could someone have for opposing gay marriage? By the way, I’m not accepting any answer other than hating gays! Gay hater!

                1. From a religious perspective, I think a lot of people would point out that Jesus died for a gay people, and it’s preposterous to suggest that they don’t care about someone whom Jesus thought it was worthy to sacrifice himself for. In fact, many of them might claim that it’s specifically for the benefit of gay sinners that the government shouldn’t accommodate their sin. They’ll claim that God loves gay people so much that he gave his only begotten son to save them from everlasting hell–and that’s why the government should condemn their sin of being gay rather than enable it.

                  I don’t have to agree with that logic, by the way, in order to understand it, but the way I understand it, many Christians are not fundamentally hateful of gay people just becasue they want the government to discriminate against gays. The way they see it, they want the government to discriminate against gayness just like they want the government to discriminate against armed robbery in a way. Actually, they see it more like adultery. They don’t want to throw people in prison for being gay just like they don’t want the government to throw people in prison for cheating on their spouse.

                  But they don’t want the government to facilitate adultery either, and that’s what they think gay marriage is doing.

                  1. Ken,

                    Please don’t assume that everyone with a religous perspective (be they Christian, Islam, Hindu, or otherwise) wants to impose their own religous laws on others. I have some very specific beliefs about right and wrong, about decency and kindness and generosity and soberity and so on. But that doens’t mean I, or any other religous person, wants to impose that system on another by force of coersion.

                    In fact, for me, it is just the opposite. I want people to have the freedom to act outside of their moral code, without governmental coersion/bullying, because it needs to matter when they do as they ought, according to their own own personal religion.

                    I think that the concern from most religious folks is not that they want the government to discriminate. Rather, they want to have the freedom to believe what they believe, and act how they ought to act, without fear that they will be punished for thinking outside of the state-approved orthodoxy.

              2. Anyone who equates the suffering of gay people to the suffering of blacks during slavery and Jim Crow is wrong to do so.

                I can see how some newspapers might come to conclude that just like they wouldn’t publish some letter calling for the government to discriminate against couples of different races–because it’s racist–they won’t publish letters anymore calling for the government to discriminate against gay people either.

                But that isn’t equating the suffering of slavery and Jim Crow to the suffering of not being able to get a marriage license. It’s comparing the logic of racism to the logic of homophobia–it’s not equating their suffering.

                Think of it this way: If racism against a black man is an ad hominem fallacy and homophobia against a gay man is an ad hominem fallacy, then pointing out that they’re both ad hominem fallacies isn’t comparing the suffering of blacks to the suffering of gays. It’s comparing what’s comparable, which is perfectly legitimate.

            2. No Ken you can’t. Or you can but if you do you are using sloppy and disrespectful language. Do people even I compare police to Nazis? Sure we do. But when we do that we are engaging in hyperbole and sloppy thinking. If the entire police reform movement were based on the idea that its struggle to rain in the police is the same as the resistance movements in Nazi Germany, that would be both stupid and incredibly disrespectful to the actual victims of the Nazis. The gay rights’ movement taking of the mantle and language of the civil rights movement, at least after Lawrence was insulting and disrespectful.

              1. When I make comparisons to the Nazis, a lot of times I really mean it.

                If Obama wants to use the coercive power of the state to force us all to make sacrifices of our individual rights for what he thinks is the common good? Then he’s acting like a Nazi.

                No, really.

                And just because he isn’t rounding up Jews and burning them up in concentration camps doesn’t mean he isn’t acting like a Nazi in the specific way I compared him to the Nazis.

                And when people cheer on the President for rounding up people and locking them in cages because of their preferred intoxicant–to the extent that we have had the highest incarceration rate in the world? They’re acting like Nazis–in that one way–too.

                No, really.

                Even if they don’t want to see Jews rounded up and burned in concentration camps.

                There is no comparison that is 100% accurate in every way. There are, however, legitimate comparisons.

                Women are like flowers. They’re all beautiful in their own way.

                Women aren’t like flowers in other ways, but that comparison is still legitimate.

                1. You are correct Ken, it’s a matter of degrees. Just because the degrees of outcome differ doesn’t mean the actions causing the outcome weren’t similar.

                  You CAN compare the US’s incarceration of Japanese-Americans to that of the Nazis and jews.

                  Similar action, just to a lesser degree.

                  1. Frank,

                    At some point a matter of decree become a matter of difference. If the government gives me a parking ticket and denies me any due process and makes me pay the $35, is that the same thing as them arresting me and shooting me without due process? Sure it is. In both cases it arbitrarily punished me without cause or recourse. It is just a matter of degree; $35 or my life. The comparison is of course ridiculous and insulting because the difference between an unfair $35 fine and being shot is so great that even know the principle was the same the difference between the two situations is so great as to no longer be analogous in any meaningful way.

                    The same is true of gay rights and the civil rights movement. Before Lawrence when being gay could get you thrown in prison, the language was justified. After that, it became insulting.

                  2. No ovens, though.

    2. So…. are you implying that the state should legally have the right to define marriage as between whites only?

    3. And most importantly, anybody else who wanted to treat a same-sex couple as married was allowed to.

  11. Whatever your opinion on the issue of state sanction, it takes a pretty cockeyed view of freedom and autonomy to think that you are not free to have a relationship unless the state sanctions it. The issue before the court was really about equal protection. Gays were already free to be married. They were being denied state sanction. And that is not a freedom issue, that is an equal protection issue. The court dodged that and relied on the frankly bizarre notion that you are not free to be married unless the state blesses off on it because to decide in favor of gay marriage under purely equal protection grounds would have required declaring sexual orientation a protected class. And the court didn’t want to do that but at the same time really wanted to mandate gay marriage.

    1. On the drive home yesterday there was a piece on NPR about a gay couple in New Orleans who were so happy that their love could finally be validated.

      As if their love isn’t valid unless the government says it is.

      1. I asked a liberal friend of mine if the government tomorrow declared all marriages invalid, would that means she would have to find another husband and her marriage would be over? The answer of course was of course it wouldn’t. I then asked her, then why are gay couples not married unless they have government sanction. She was completely dumfounded and had no answer.

        1. I’m sure she had to do some frantic Facebooking to clear her head of the badthink that you infected her with.

          1. Clarence Thomas is being libeled because he said in his dissent that human dignity can’t be taken away from you by the government and then said being a slave can’t rob you of your dignity. Libs did not like that.

    2. There are certain benefits married couples enjoy, such as medical decision-making and other financial and property sundries. So, yes, you do need state sanction to get those things.

      1. Big deal. That just means it is an equal protection issue. When the government denies you a benefit, it is not infringing upon your freedom. It is treating you unequally. So it is an equal protection issue not a freedom issue. I am no less free because I can’t collect unemployment when I have a job. I am being a denied a government benefit, in this case for good reasons consistent with the equal protection clause.

        1. Isn’t that just what I said above? Equal protection is a thing; the constitution requires it. If no straights (like you) were allowed to marry, then there wouldn’t necessarily be a civil rights violation.

          But you, hypocrite, still agitate against equality even after the fact, despite availing yourself of the bennies and refusing to get a divorce on principle. You find me one marriage equality opponent who isn’t a Christian thug at heart. Just one. It’s all about your version of Jesus requiring you to treat gays as outcasts, and everybody knows it.

          1. OR as has been repeatedly stated to you, legal reasoning matters. The legal reasoning that a protected group has positive rights X, Y and Z is a dangerously slippery slope because it can lead to all sorts of ridiculous consequences. Not least of which is affirming the power of the state to dictate who is allowed and not allowed to be “married”.

            1. Tony is an idiot and not even an entertaining one.

            2. The legal reasoning that prevailed didn’t even establish gays as a “protected group.” It simply found that there is no legal basis for denying them the same right to marry that straights have. If there’s a slippery slope, then it started with straight marriage.

              1. The legal reasoning that prevailed didn’t even establish gays as a “protected group.” It simply found that there is no legal basis for denying them the same right to marry that straights have. If there’s a slippery slope, then it started with straight marriage.

                If your position were accurate, then we can expect this same ruling to have effectively recognized and sanctioned polygamist marriages as well. Has it?

                1. People are not born polygamists.

                  1. People are not born polygamists

                    So?

                    1. So that’s what makes them (and incestuous couples) different from gay people. But by all means let that completely separate and different group have their day in court. I don’t give a shit, and it’s not my job to defend them.

          2. Tony, equal protection does not mean the government must treat everyone exactly the same. Don’t feel bad for not understanding that. There are multiple people on this board who claim to be Libertarians who don’t’ get that either, even though I have explained it to them literally dozens of times.

            1. True, but then in this case a conservative Supreme Court decided it was necessary to treat gays the same as straights. And you can’t argue why not, you’re just a bigot.

              1. Not really Tony. If they had done that, being gay would be a protected class. They just said marriage is a this really great thing and therefore gays should be able to do it. That is really all the case said.

                In some ways Tony, it insulted gays. It didn’t give them the special class treatment they wanted and said they were incapable of having real relationships without the government sanctioning them. The decision itself manages to insult pretty much the entire human race. The only people who don’t see that are people who are happy to get the result and think anything that gives it to them must be great.

      2. The funny thing is, most of these bennies (other than perhaps Social Security, and other gov’t provided stuff) could still be done. Just not one stop shopping. A gay man wants to give his “husband” medical power of attorney? Fill out and sign the form. A lesbian wants to make sure her “wife” gets the house, fill out and sign the form. Want to make sure your partner is your primary beneficiary for your life insurance? Fill out and sign the form.

        I am not arguing one way or the other (because frankly at this point I don’t want to see any more fucking rainbows or hear anyone else talk about how the “institution of marriage” is being destroyed). Just pointing this out.

  12. It would be nice to think that the Court would start applying all of this language about freedom and personal autonomy to other cases and rule things like drug laws and minium wage laws unconstitutional under the 14th Amendment. I can’t, however, see that happen. This case was far to results oriented for it to have much of an effect. The four liberal justices don’t believe a word of Kennedy’s language if the subject of the case doesn’t involve some kind of sexual or liberal culture war issue and would never apply it to an economic case. They were just willing to sign onto it because they wanted gay marriage. Kennedy I think might believe it, but I don’t think the other four conservative justice do. So I can’t see Kennedy’s reasoning ever commanding a majority again.

    What seems to have happened here is that Kennedy wanted a particular result but didn’t want to make gays a protected class. So he relied on due process and liberty to get where he wanted to go. That is nice and all if you like gay marriage. There is however little reason to think that this language will apply to any future cases.

  13. I’m happy that gay marriage is now legal, but for the first time that I know of, SCOTUS has found positive rights (goodies from the state) in the constitution.

    The privileges associated with straight marriage are goodies, not rights.

    The best thing about the constitution is that it enforces NEGATIVE rights, things the state can’t do to you.

    1. It is a semantic point but an important one. Gay marriage was not illegal. No gay person was being thrown in jail for being married. This is not like it was for interracial couples before Loving. There, if an interracial couple claimed to be married, the sheriff showed up and arrested them. Interracial marriage was illegal and it was a crime to be in one.

      Gay marriage was perfectly legal before this decision. Gays all over the country were having ceremonies and calling themselves married. They just couldn’t get a license. This case was about the state sanctioning and recognition of gay marriage. It was not about the legality of gay marriage. I know it is a semantic distinction but it is an important one.

      1. The other day I made a comment to that effect and Botard said I was wrong, Wrong, WRONG.

        I didn’t engage. No point.

        1. He is not big on fine distinctions. I don’t think he intentionally trolls. I think he is just that simple minded.

        2. Typing in ALL CAPS is a pretty irrefutable argument. Best not to take on such titanic debaters.

      2. Actually in response to the “marriage equality” movement, starting in the late 1990s some states & provinces did adopt statutes purporting to make it illegal for couples of the same sex to have any relationship resembling union. I don’t think any of those were going to be enforced, though.

        1. I don’t see how they could after Lawrence.

  14. Didn’t Robert Bork’s nomination get derailed because he supported this concept?

    1. No. Bork was the opposite. He thought there was no such thing as substantive due process.

  15. There’s an interesting Supreme Court case from 1798 in which two justices (Samuel Chase and James Iredell) had it out over what is basically this very same issue: to what extent are the courts empowered and/or competent to uphold and enforce natural rights. Chase was of the opinion that the courts have a duty to declare void any laws that violate what they called natural justice. Iredell contended that natural law was such a nebulous thing that judges were simply incapable of discerning when a law violated such rights, unless, that is, they had some concrete principle against which to measure the law (e.g., Congress shall make no law abridging the freedom of speech). And Iredell added that even if it were possible to make those decisions without some concrete principle being implicated, that the proper place to lodge that power in the government was in the legislature, not the courts.

    While I do believe in the existence of natural law and justice and sympathize greatly with Chase’s argument, in the end I agree with Iredell. And it’s also why, although supportive of same-sex marriage, I agree with the dissenters in Obergefell. Substantive-due-process rights are just an excuse for judges to impose their policy preferences on the population at large. Unless the judge has some concrete principle against which to measure a law, he or she should defer to the acts of the legislature as a far closer approximation of the people’s will than a court could ever be.

    1. If we didn’t have a republican (small r) Constitution, and instead had a Council of Elders whom I trusted to properly apply natural law…but neither of these is true.

    2. I disagree. You say, “Iredell contended that natural law was such a nebulous thing that judges were simply incapable of discerning when a law violated such rights,” but as far as I can tell that’s the judge’s job. It’s not as if courts and judges were invented following the Constitution.

      1. Historically, that was part of a judge’s job. Determining what real-world rights a people have is an act of lawmaking, which is something that judges historically did (it’s how the common law developed). But judges did that in their role as a representative of the king, not as a philosopher-king, which is the role that modern judges are fulfilling when they make those determinations. The king was the sole organ of governmental power. The king made, enforced, and interpreted the law. In essence the king delegated his lawmaking power to the judges to make those decisions, and the king reserved the power to overrule those decisions when he disagreed with them.

        In the modern governmental triad (and especially in the American constitutional conception of it), the people have granted the lawmaking function to the legislative branch. Unless Congress specifically grants the courts the power to make law on a particular subject, then any act of lawmaking performed by the courts is inherently illegal and illegitimate, no matter how wonderful the outcome of that lawmaking might be. American federal courts simply do not have the legal authority to make law on their own authority.

  16. “So what’s an honest liberal law professor to do? On the one hand, liberals are supposed to hate Lochner for striking down state regulation that violated an unenumerated right. On the other hand, liberals are supposed to love Griswold, Lawrence, and now Obergefell for striking down state regulations that violated unenumerated rights. To his credit, Koppelman recognizes this fundamental contradiction in modern legal liberalism. He’s struggling to reconcile the irreconcilable.”

    Maybe it troubles the professors, but do you actually think it troubles the Supreme Court majority? For decades they’ve been using substantive due process for sex cases but not for property-rights cases.

    All that the liberal justices know is that they just joined an awesome decision to make the world better. All that Kennedy knows is that he wants to be on the Right Side of History and not get snubbed at legal conferences. And he thinks Justice Powell missed the boat by denying a right to sodomy and later, when it was too late, regretting his decision. Kennedy doesn’t want to be another Powell and kick himself for the rest of his life for failing to join such an awesome Historic Decision.

    As for principles, those are for academics and conservatives to worry about.

    In any case, bowing to your feelings and following your bliss *is* a principle.

    1. “”A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall.”

      At the end of the day, the outcomes matter more than anything else. Any legal regime that required unequal status of gays in 2015 is not worth defending or being consistent with.

      1. tony, do me a favor and please stop sodomizing that quote. You don’t know what it means or how to apply it. It deserves better than to have your filthy paws on it.

        1. I realize the irony. But just because libertarians happen to flap their jaws about individual liberty doesn’t mean they aren’t also dogmatists.

          1. Yeah it is awful to actual have a philosophy and STICK TO IT! It is easy to stick to your principles when things are going good. It is when when you have to go uphill or actually face some consequences that principles become difficult to adhere to. Unfortunately, that is exactly when we need principles. Whatever they are.

      2. “At the end of the day, the outcomes matter more than anything else.”

        I didn’t know some liberal would come right out and *say* this. But thank you for providing evidence for my point.

        1. Tony’s not a liberal. He’s a progressive, which is the opposite of a liberal.

          1. Yeah calling progressivism liberalism is like calling ham bacon.

            1. OK, progressivism then…

              mmmm…bacon…

      3. The end justifies the means…right? Wrong.

      4. I think this quote deserves some elaboration — to wit:
        What is meant by a “foolish consistency”?

        Either a consistency is foolish, or it is not — but you seem to imply that all consistency is foolish, discarding the possibility of a wise (non-foolish) consistency. It may be that that is so, like applying ‘colorless’ and ‘green’ as concurrent descriptors of something, but that depends greatly on what is meant by the qualifier ‘foolish’.

      5. “A witty saying proves nothing.”

    2. Ultimately in the USA (going back to the Griswold case) judges based this on the hilarious reasoning that:

      (1) If it weren’t for making babies, there’d be no people.

      (2) Therefore all law, including constitutions, is based on the ability of people to make babies.

      (3) Therefore people must be allowed to make babies.

      (4) If you’re allowed to make babies, you must be allowed access to means to not make babies even though you fuck.

      (5) That means you must be allowed to have control over other things related to fucking, even that fucking which can’t produce babies, because it’s too icky to make rules separating different kinds of fucking, because that’d require the law to distinguish things that are icky for judges to contemplate.

      (6) Fuck yeah!

      Fuck the sqrls that are making commenting so hard.

  17. The SCOTUS decision on same-sex marriage did nothing for liberty. In fact, in some respects it made things worse in regard to religious and civil liberties. It’ll become even crazier and more widespread. Though one positive aspect is that it’s forcing states to consider getting government out of marriage all together. No more issuing of marriage licenses. Both sides are wrong on this. The marriage state complex is a progressive invention of which both sides (particularly the traditional right) have taken like bait on fishhook. The GOP should fully embrace stateless marriage as well. Make it a campaign issue to get the state out of marriage from repealing federal laws having to do with marriage and abolishing marriage licenses. Replace it with some contract that couples get to decide the terms over or civil unions. Let marriage be a privately conducted institution like it use to be a hundred or so years ago. Time for libertarians, constitutional conservatives, traditional righties and even left-wing gay activists to work together in divorcing the state from marriage.

    1. “Let marriage be a privately conducted institution like it use to be a hundred or so years ago.”

      Well, back then (or maybe two centuries back), the government still recognized people’s marriages – and denied such recognition to fornicating, adulterous and same-sex couples.

      But they didn’t have marriage licenses, so they had that much going for them.

      So you didn’t need a license from the government to wed; indeed, you could proclaim yourselves married, live together as husband and wife, and then the state would generally recognize you as married, with the legal consequences of recognition – like testimonial rules making it tougher for the government to force you to testify about marital matters.

      1. The one wrinkle was that, in England, if you wanted to get married through a *ceremony,* rather than the informal method, you used to have to go through the Church of England. Then they gradually recognized non-Anglican ceremonies. Then they authorized government bureaucrats to conduct these ceremonies. And then the imposed licenses, so the officiant would be fined for conducting an unlicensed marriage.

        Those last two developments are arguably bad ideas.

        It would be better to just have people marry through a ceremony of their choice, so long as it involves them proclaiming themselves married before witnesses, and they’d be encouraged to file a record of the marriage, but if they forget to do that, they could still get the marriage recognized if they proved the ceremony in court.

        1. But such a method would still leave the question – which relationships would be recognized as marriages?

        2. The reason why licenses were developed was that after the Reformation it was impossible to tell who was married. Remember, married women could not contract without permission of their husbands. So you needed to know if a woman was married. Also, after the reformation churches no longer recognized each other’s marriages. So you needed the government to step in and decide which marriages were valid and which not. Again, being married has all kinds of implications in estate law. Family law is at its heart a set of enforced contractual obligations protecting the interests of women and children, who were back in the day wards of their husbands and fathers. For example, in order for a woman to have Dowager rights over her step kids on her late husband’s land, she had to be married. And once there was more than one church, it was debatable if she was or not. Suppose she is a Protestant and the kids still Catholics. They could rightfully claim the marriage was invalid because it wasn’t done or recognized in the church and thus grandma doesn’t have dowager rights and needs to hit the road. Marriage licenses solved that issue by giving the government not the church the final say on who was married.

        3. According to a Canadian court that analyzed the same-sex marriage issue around the turn of the century (which I should’ve saved reference to yrs. ago, because it was a very informative analysis), marriage licensing (or at least witnessing & recording) began something like real estate registr’n, to prevent bigamy, which was understood to be a fraud perpetrated on prospective spouses. A marriage was required to be a public act.

          1. There was a Sherlock Holmes story that involved a clandestine (& coerced) marriage.

            1. That was part of the law too: witnesses to make sure the marriage was freely entered into.

              1. BTW, I was a legal witness to a marriage officiated by a town clerk. The requirement was that there be some witness who was not acting in a gov’t capacity.

                The basis of family law is quite libertarian. Family matters being complex, however, there was a lot that could, & did, go wrong w family law re divorce, inheritance, & child custody & abuse. I don’t think it was a result of anyone’s evil design.

          2. Yes. It was a fraud on both spouses and the public at large. Before the Reformation, there was no need for license since there was only one Church to register a marriage.

            1. As a matter of fact, in England both before and after the Reformation there were some dicey controversies over marriage.

              Someone would have a church wedding and later claim, “oh, I forgot to mention, before the Church wedding I had a secret, common-law wedding.” And you could marry in secret by just agreeing to marry and following up that commitment by having sex.

              Sometimes people would try to get out of their church-sponsored wedding by making up a secret wedding they supposedly had earlier.

              And sometimes this could totter the throne. If the king died, there could be a competition between claimants – one claimant the son of the public church wedding, but another claimant saying, “no, that official wedding doesn’t count because the late king previously had a secret wedding, making the children of the public wedding all bastards who can’t inherit the crown.”

              And one of Charles II’s illegitimate sons claimed that his parents had contracted a clandestine marriage, and the secret evidence was in a secret black box which I can’t show you because then it wouldn’t be a secret, or whatever. And gullible people followed this guy to their deaths.

              So yes, there could be confusion about this issue.

              1. Remember, illegitimate children cannot inherit under the common law. Moreover, the English rule of primogeniture raised the stakes enormously. If a bastard son could claim his father was secretly married to his mother and he was legitimate and the oldest son, he got everything. Also, since men usually outlived their first wives and often married much younger ones later in life, there were nasty fights over dowager rights as the young step mom looked to move in on the kids’ inheritance.

                1. Yes, indeed.

                  I once read up on medieval legal history (which everyone ought to do from time to do – it’s fun), and the English church courts (which handled marriage cases) were frequently hearing claims involving alleged clandestine marriages.

                  And some jurists at the time suggested that if you have a clandestine marriage but didn’t have enough witnesses to convince the church court, you had to defy the church court and move away to a new community, so you wouldn’t get treated as a fornicator or adulterer.

  18. But Lochner also poses a real problem for any intellectually honest liberal legal thinker

    So, both of them?

    1. Both? Where are they in some kind of captive breeding program to save the species from extinction? They sure as hell are not in the wild from what I have seen.

  19. Damon, I am interested in your opinion whether Kennedy’s decision in Obergefell helped further the cause of judicial enforcement of unenumerated liberties. I read the decision as being within the post-New Deal mainstream of there being only a stingily narrow list of supposed “fundamental rights” that the courts will protect.

    1. That is what it looks like to me too. Like I say above, I don’t see any reason to think the language or logic of this decision will ever be applied to a more broad set of liberties. This case is the court giving the country its gay marriage pony and nothing else.

  20. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1?2. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante, at 12. This free- wheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added).

    And how terrible all of these sentiments are. Blech. It’s the talk of anarchists, really.

    1. In some ways Kennedy’s waxing poetic about the wonders of marriage and love makes the decision worse because it further limits it to these facts. The right to contract isn’t marriage. And resting this decision on how wonderful and important marriage is just makes its logic less applicable and less likely to be applied to something like the right to contract.

      1. Pretty sure this falls under “feature, not bug”.

      2. Like the Griswold & Roe opinions re how wonderful babies are.

        1. The best thing about Roe is that it found a right to conduct private transactions without undue government interference. Yet apparently the only private transaction on the face of the earth is an abortion. Not prostitution, not drug sales, not gun sales, ….

          1. The best thing about Roe is that it found a right to conduct private transactions without undue government interference. Yet apparently the only private transaction on the face of the earth is an abortion. Not prostitution, not drug sales, not gun sales, ….

            And how it came from the constitutional right to have your medical information private from the government and its intrusion… but the ACA, which requires your medical information to not be private but fully shared with the government is, apparently, constitutional.

            I’ve long thought that the Court just pulls shit out of its ass and dresses it up in legalese.

    2. “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.”
      Except when the freedom involves a protected person, then freedom goes out the door and, the freedom to contract in relation to his own labor is denied.
      All the whoopin’ and hollerin’ by liberals ignores the fact that it reinforces the requirements that photographers, bakers, florist, or any other business that might want the freedom to not be involved in a “redefined marriage” can be punished for their belief, whether religious or otherwise.
      Or, maybe, that is a plus, to the totalitarians that are given the liberal label.
      Libertarians must be conflicted about this. While it gave a freedom to homosexuals, it took away freedom from many business owners and will inure to further loss of freedoms as they sue anyone who has an objection to how marriage has been redefined by the court.

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  22. Lets pray that we see a revival of Lochner within our lifetimes. This time Lochner needs to be fully applied across the board.

  23. Another thing, Damon. Unenumerated rights are expressly addressed in the 9th Amendment. I would love to see an analysis dealing with this forgotten amendment and how the 14th Amendment would apply it to the states.

    1. These would, I imagine, be rights which existed at the time of the Bill of Rights but which they didn’t get around to mentioning – like access to the courts, or freedom from government monopolies, or other things in the Anglo-American history of liberty.

      I don’t think the 9th Amendment was meant to empower the courts to just pull rights at random out of a hat, simply to enforce rights which already existed.

      1. That is, to rephrase, the courts enforce pre-existing rights, whether explicitly in the text or not, but can’t make up new “rights.”

        1. I don’t think, then or now, anyone with a shred of intellectual honesty would claim complete and inerrant knowledge of natural law. Powers are enumerated, rights are not, not just because of the aesthetically pleasing asymmetry but also because of the limitations of human knowledge and experience.

          1. There’s only one human right, the right to negative liberty, i.e., the right to be left alone.

            1. There’s only one human right, the right to negative liberty, i.e., the right to be left alone.

              And natural law is about what, exactly, that right means in a concrete sense when there is more than one sentient being in the world.

      2. I don’t think the 9th Amendment was meant to empower the courts to just pull rights at random out of a hat, simply to enforce rights which already existed.

        Not exactly. The Ninth Amendment means that no court may ever issue a ruling on the basis of “no such right exists”. Where the right “comes from” is irrelevant; all that matters is somebody has claimed it. This does not mean that any government action can be overturned just because somebody pulled a right out of his ass; it means that the government must show some justification for its exercise of authority beyond mere disdain for the individual.

  24. “…struggling to reconcile the irreconcilable.”

    Progressivism in a nutshell.

  25. Another stupid commentary from LGBT shills. In case you didn’t know, Cato and Reason sold out to LGBT funding years ago. They have absolutely nothing whatsoever to do with libertarianism.

  26. Another stupid commentary from LGBT shills. In case you didn’t know, Cato and Reason sold out to LGBT funding years ago. They have absolutely nothing whatsoever to do with libertarianism.

  27. And yet I’ll bet you that all the liberal justices who ruled (in the gay marriage case) that everyone has the right to be treated equally will turn right around in the upcoming affirmative action case and rule that…well…we didn’t really mean EQUAL equal. Some have to be a little “more equal” than others.

    1. Didn’t they, kinda, already do that when they ruled that “disparate impact” could be used as “proof” of discrimination, despite no identifiable discriminatory act or intent.

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  29. so the sodomites now have “protection” under the newly made law promulgated by SCOTUS. Fine. THEY want the linerty to engage in certain activities many of us find abhorrent. Fine, I have no issue with “letting them”. Their cunduct in Wisconsin, New York, California, or the house next door do not affect me. Have at it. But will SOMEONE please tell me how this decision will apply the same principles of freedom of association and contract that will prevent me and others from being severely punished for declining to participate in behaviour I find abhorrent based on my rtelious and moral standards, by which I have faithfully blived for many decades? And don’t even bother trying to tell mec :it won’t happen” because it not only can, but does and is, A family in New York just got the news that a pair of lesbians who deliberately and calculatedly entrapped them have beaten them up financially to the tube of $13,000 for declining to host their ceremony in the family home. Then there is Melissa, in Oregon, “owing” Oregon $135,000 for declining to support another pair of entrapping lesbians, and a grandmother in Washington named Baronelle now has everything she owns under the greedy control of her state’s perverted Attorney General, whi has taken his own initiative to persue her in court for declining to participate in another ceremony, two males, despite the fact they never had an issue with it, she helped them find another willing florist, and they are still friends afterward.

    1. So, it appears their plot of achieving full reversal of roles, first expressed at a meeting in Laguna Beach, California in 1969, is well on the way toward realisation.

      If these sodomites want equal protection under the law, they MUST accept that others also desire it.. the First ARticle of Ammendment provides that I not be prohibited the free exercise of MY chosen religion… and any and all “religions” based upon biblical moral standards will hold that sodomy is am abomination before the Lord whom we serve. And for any of us to participate, aid, abet, further, enable, become an accessory to, such activities is no different than providing the pistol to the bank robber and driving him to and away from the bank.

      1. I ascribe to no religion, yet I also wish to be free to refuse to participate in what I consider a completely unnatural joining of two individuals engaging in a “redefined marriage”.
        What’s next? Brought before “justice” if I turn down an invitation to one of these ceremonies?

  30. If domestic partnership agreements had been allowed as proposed by libertarians – Constitutional conservatives – the redefinition of marriage would not have happened. We can’t blame SCOTUS. They went by the Constitution, as expected. Unfortunately, the Christian right was locked into a strict interpretation of the Bible when it should have been the Constitution.

    1. They went by the Constitution?

      Four pretty strong interpreters of the Constitution said the majority did no such thing and, as with Roe v Wade, the majority relied on a “penumbra” and nothing in the actual text.

  31. No, the problem is that they are, as you put it, “liberties,” not “rights,” only there in case the Federal government did overstep its mandate. The irony is that the Bill of Rights has helped it do just that, which is why Madison and other Federalists argued against adoption. The Founder’s assumption was that rights in a republic were inherent freedoms, not liberties granted by an absolute power, and certainly not by a federation with circumscribed powers. “We the people, in order to form a more perfect union,” did not alienate their rights; they entered into a contract to protect them; a contract with strictly limited powers. Besides that none of us alive today had anything to do with it. It was surely presumptive of Morris to have suggested that those people had any right to usurp the sovereignty of the states such as it was. Adding the “bill of rights,” as Madison feared, opened the door to consideration of them as entitlements, or liberties granted by the government, creating rights by creating crimes, as Bentham would put it. There wasn’t the distinction between public and private that obtains as a result of 200+ years of creeping absolutism anyway. Government stuck mainly to questions of justice and regulation, not police and provision of services.

    1. As to the main question, government should never have taken over marriage from the church in a republic and ought to have been disestablished long ago. The Federal government should surely not discriminate in its operations, but has no authority to tell the states not to, nor anyone else. Discrimination is essential to free markets, and thought, itself. No one has a right to be married, anymore than to be a millionaire or a Senator.

  32. I like the end result, but cutting Constitutional corners to jump straight to something we like is like enjoying the burst of speed we get from our ship burning its own timbers. We’re supposed to reach this sort of thing by the ultimate form of renewing consent to our government, Constitutional amendment, not by some weaselly legal linguistic runaround that takes away the pressure to change the Constitution the regular way.

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