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The 4 Principles Guiding Kennedy’s Majority Opinion Supporting Gay Marriage Recognition

Personal autonomy and freedom of association not bad ideas to bring up.

Really, the explosion of stock photo choices predicted the final decision.Credit: Dolgachov | Dreamstime.comIn today's historic Obergefell v. Hodges ruling, granting that gay couples have the same right to have their marriages recognized by the government as heterosexuals, Justice Anthony Kennedy is mindful that our media appetites have drifted in a list-based direction. In writing the majority opinion, Kennedy points to "four principles and traditions to be discussed that demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples."

Kennedy apparently resisted the urge to include a slide show or animated gifs, but does detail more about each of these four principles and show how many previous Supreme Court precedents upholding marriage rights have led to this point.

Individual autonomy. The first "tradition" discussed contains my personal favorite quote so far, which is all about the liberty and not about trying to dazzle with soaring rhetoric. "[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy." He continues, "Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. He reminds at the end of this section of the text in the Loving decision said that the right to marry or to not marry or not marry a person of another race "resides within the individual and cannot be infringed by the State."

Right to intimate association. Kennedy writes that the marriage is a fundamental right because "it supports a two-person union unlike any other in its importance to committed individuals." Kennedy is reaching toward the Griswold v. Connecticut decision here, which affirmed the right of married couples to use birth control and a decision that prisoners could not be denied the right to be married. Essentially, in a complicated fashion, Kennedy is simply saying that gay people should be able to get married because, well, they want to be married to each other: "Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other."

Safeguarding children and families. Previous court precedents have declared "[T]he right to 'marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause." Kennedy notes that many states have allowed gay couples and individuals to adopt or foster children, providing "powerful confirmation from the law itself that gay and lesbian couples can create loving, supportive families." He notes that when states refuse to recognize the marriages of gay couples, "they also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples." But, he notes, whether or not couples decide to have children should not be a prerequisite for marriage either, because that's not the standard for heterosexual recognition.

Marriage as a foundation of American social order. Kennedy actually acknowledges what many social conservatives say about marriage, which is that it is part of the bedrock of America's social structure, even quoting Alex de Tocqueville's historical observation that "There is certainly no country in the world where the tie of marriage is so much respected as in America" and the Maynard v. Hill decision declaring that marriage is "the foundation of the family and of society." Kennedy brings all this up as a way of getting to the reality that federal and state government has tied a whole host of rights, benefits and responsibilities to marital status. He concludes that there is no difference between same-sex and opposite-sex couples in regards to this principle: "Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable. As the state itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution in the Nation's society. … The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our charter."

Here also he responds to defenders of bans who say that gay couples are trying to create a "new" right to same-sex marriage. He finds such an assertion inconsistent to how the Supreme Court has tackled other marriage-related rulings. Loving v. Virginia didn't identify a "new" right to interracial marriage. Rather, it ended the practice of "excluding the relevant class from the right." He determines "Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite sex couples, and it would disparage their choices and diminish their personhood to deny them this right." 

Photo Credit: Dolgachov | Dreamstime.com

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  • Almanian - Wood Chipper-ish||

    Mawaj.

    Mawaj is what bwings us togevvuh.

    Wuv. TWOO wuv....

  • In League with the Dark Ones||

    Mawidge is a dweam wiffin a dweam.

  • Almanian - Wood Chipper-ish||

    "Just get to 'I do'!"

  • ||

    Man and wife. Man and wife.

    They never said I do.

    /movie pedant

  • JayWye||

    LOL. i just watched that DVD last night.

  • robc||

    Prediction: within next 2 years, 6 states stop recognizing marriage.

    I hope for 57, but the libertarian moment aint here.

  • John Thacker||

    Nope, I'm pretty sure that won't happen.

  • ||

    I believe it can't happen.

  • John Thacker||

    I'm going to say that's as accurate as a prediction that states would entirely stop funding public schools in order to maintain segregation. I believe that Harry F. Byrd's Virginia tried that, but that was the only one, and the courts stopped it.

  • JFree||

    Every opinion and dissent affirmed the OBLIGATION of the state to include 'marriage' as something it controls.

  • thom||

    This. The decision wasn't "if a state offers marriage it has to offer it to everybody" but "the state must marry people who love each other."

  • Drake||

    Once again, the Onion is reporting the real news years ahead of it happening.

    http://www.theonion.com/video/.....-don-14401

  • Arisuka||

    No, no they won't. The divorce industry would put a stop on that altogether. You should watch Divorce Corp.

  • Rob Ives||

    Looking forward to Reason's reaction when individuals are forced to support Gay marriage and when Federal funds are used to impose actions contrary to the consciences of individuals. Also, how about polygamy?

  • kinnath||

    Also, how about polygamy?

    Can't get here soon enough ;-)

    And yes I have stated that siblings should be allowed to get married too.

  • AD-RtR/OS!||

    Does this mean that "Hannah" can now marry her horse - who speaks far better than she?

  • ||

    polygamy

    You mean traditional marriage for the greater part of human existence?

  • GroundTruth||

    Hush..... no facts here!

  • A special place in JW's Hell||

    when Federal funds are used to impose actions contrary to the consciences of individuals

    Otherwise known as Tuesday.

    I suspect that Reason will react as they have previously: freedom of association trumps homo marriage. Sadly, that is a minority opinion in the US.

  • ||

    Reason will react with several paragraphs of denouncing bigotry. Followed by one line that reads something like " but you have to tolerate icky people/ideas in a free society".

  • kinnath||

    The good news is that this ruling will eventually destroy the "advances" in the law that have been made over the last 3 or 4 decades to protect "wives" from the consequence of divorce from their evil "husbands". I really look forward to wives divorcing wives and husbands divorcing husbands in the not-so-distant future.

  • Rich||

    "What the State has joined together let no one, um, not (mumble) put asunder."

  • Pan Zagloba||

    How would it be a problem? If law is there to protect wives from husbands, then it has nothing to do with gay/lesbian marriage. After all, you can say clear intent was to protect women from men, and per new Roberts Doctrine that means you can rule whatever you want.

  • GamerFromJump||

    "Oh shit, there's two men/no men? Who do I put the screws to, then?"

    /"Family" court judge

  • GroundTruth||

    You're a few years late on that one. One of the first lesbian couples married in MA decided to call it quits a few years in. Just like the real test of an elected presidency was not the inauguration of Washington, but his retirement at the end of his second term, so samesex marriage became completely real when that first pair now had to use the courts to get divorced.

    Marriage is a three party contract, not two. You, your spouse and the state. Your spouse may not mind if you have a little something on the side, but the state can have a say to. Again, even more so during divorce proceedings; if you and spousey decide to bang the mattress during certain parts of the divorce proceedings, the judge may decide you're still not ready to be single again.

  • John Thacker||

    Hard to see anything in this decision that wouldn't apply to polygamy. Seems to be only public opinion against it that prevents it. Sure there are some practical concerns, but they're not worse than the effects of divorce, remarriage, and blended families (and alimony, child support, custody battles, inheritance, and other nasty family law issues.)

  • kinnath||

    yup.

    The conservatives have complained this ruling will lead to polygamy. They're right. ;-)

  • Woodchippin' 4 Jesus||

    As it should.

  • Notorious G.K.C.||

    Not necessarily - the Supreme Court was issuing a purely arbitrary judgment, and they get to decide, on a purely arbitrary basis, not to protect polygamists because polygamists are icky and gays are cool.

    You don't seem to realize that these judges see no principles limits on their power. They can support whichever groups they like, and deny support to groups they don't like.

    Who is going to stop them?

  • Notorious G.K.C.||

    no *principled* limits

  • ||

    Who is going to stop them?

    The Knights of Malta.

  • Notorious G.K.C.||

    Sigh...I said that attacks on single people prove too much, because they attack the Knights of Malta...rather than face the ridiculous consequences of your own principles you shift the blame to the guy who pointed them out.

  • ||

    If you don't want the answer, don't ask the question.

  • Notorious G.K.C.||

    YOU: You gay faggots never made any contributions to literature and drama!

    GAY GUY: What about Oscar Wilde?

    YOU: Ha ha, you just compared yourself to Oscar Wilde!

  • ||

    Your analogy would have to be several steps more intelligent to even cross the "retarded" threshold.

  • Woodchippin' 4 Jesus||

    They cannot stop local governments from issuing plural marriage licenses. And believe me, in Utah, if gay marriage is a fundamental right, plural marriage is too.

    So there goes the bigamy bans.

  • Woodchippin' 4 Jesus||

    Father Time, because everyone dies. Even those with lifetime tenure.

    Andthey can be ignored.

    Who is going to stop local governments from issuing plural marriage licenses? The LBGT community? The Pope? Ruth Bader-Ginsberg?

    Oh, I think not.

  • GroundTruth||

    And the problem is?

    A "line" type of group marriage could be extremely stable, provide an amazingly secure and resource filled home to bring up the kids, and be a fantastic way to build up and safeguard capital.

  • ThomasD||

    You mean, nothing other than when Kennedy, writing for the Court, said " In forming a marital union, two people become something greater than once they were..."

    Arbitrary, yes. Unsubstantiated, yes.

    But clearly the Court has headed the polyamorous off at the pass. Their desires will surely require a SCOTUS revisit.

  • Woodchippin' 4 Jesus||

    If two is good, three is better.

  • JFree||

    Only public opinion? Well the dissenters all said that the issue belongs in legislatures where 'public opinion' rules (and it is those legislatures that move more slowly than judges facing individual cases where 'common law' applied to specific complaints/complainants has clearly indicated that current law creates disparate and unfair treatment).

    And the majority ain't ever gonna be siding with some wanna-be polygamist from Utah. So unless the polygamist is some different demographic (perhaps a three-eyed bisexual/trans Muslim immigrant from some poor country who wants to marry both gay/straight), polygamy is dead.

  • Woodchippin' 4 Jesus||

    Oh, you are so wrong it is pathetic.

    This ain't Brigham Young's Mormon polygamy party anymore, bucko.

    Plural marriage will be the law of the land.

  • JFree||

    No it won't. Not one of the three main anti-polygamy SC cases - Reynolds v US; Davis v Beason; Late Church of LDS v US - was mentioned in the opinion or any of the dissents.

    That means those are still settled precedent. And the way the opinion/dissents were structured today, none of three have any chance of being reopened. In fact, two of them (Reynolds; LDS) were actually strengthened by the opinions/dissents.

  • Woodchippin' 4 Jesus||

    And when Utah County or Carbon County or Rich County or Cache County or Piute County or Kanab County starts issuing plural marriage licenses, what then?

    Gavin Newsom, SF Mayor, issued marriage licenses to same sex couples, even tho CA law was against gay marriage.

    It is not settled. Particularly now.

  • JFree||

    If that happens, then the majority today will find a reason to squash it. Ain't no way no how that Kagan/Sotomayor/Ginsburg/Breyer are gonna side with ANYONE coming from the traditionalist/right of mainstream Utah politics

  • Rich||

    Kennedy writes that the [sic] marriage is a fundamental right because "it supports a two-person union unlike any other in its importance to committed individuals."

    Well, it depends on what the meaning of "committed" is. If that's Kennedy's reason for calling something a fundamental right, we're in for even more interesting times.

  • Woodchippin' 4 Jesus||

    All those are valid reasons for your support of plural marriage, Scott. Which you do, n'cest pas?

    And let me remind you - the State of Missouri issued an extermination order - any Mormon could be killed for any reason. Your "can you believe this kill the gays?" petition column from yesterday is 160 years behind the times.

    It already happened to Mormons, Scott.

    So please - if you are an honest person, you will support plural marriage and right this injustice.

  • DJF||

    Individual autonomy by getting a government license which forces others to give you special rights.

    Right to intimate association? You don’t need a government license for that.

    Safeguarding children and families? So now people who can’t have children can now get a government issued child?

    Marriage as a foundation of American Society so lets have government step in and make major changes

  • RenaD||

    This.

    My spousal unit and I have been together for 20 years. We own a home together, provide for two dogs (no kids), pay taxes, run our own businesses, and basically contribute to society in all the "traditional" ways, except we are not, and have no plans to be, married.

    So although, okay, hurray for the gays having the right to be just as miser––I'm mean blissfully wedded—as everyone else, the implication that those of us who choose to live our lives outside the confines of state and church sanction are somehow not part of the foundation of American Society really chaps my ass.

  • retiredfire||

    My U.S. Constitution only prohibits things of the States and, unlike the federal government, doesn't enumerate powers they may exercise.
    It, even, states that: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
    So, anything not prohibited - and those things are spelled out and don't include any mention of marriage - is allowed and reserving power over marriage is included.
    That's why this "decision" is so flawed - it gives FEDGOV a power not granted by the Constitution, but, what else is new?

  • Woodchippin' 4 Jesus||

    With in the next year, hundreds of plural marriage applications will be submitted. And sympathetic county clerks will issue marriage licenses.

    There ain't no stopping this, baby!!!

  • VillainousWoodchipper||

    If Jesus has a problem with us, we'll feed him feet first into a woodchipper.

  • Notorious G.K.C.||

    "Marriage as a foundation of American social order"

    "You icky Socons say marriage is the foundation of America's social order. Well, we just redefined marriage to allow same-sex unions. Now what do you say to *that*?"

    "Uh, we don't believe a same-sex union is a marriage."

    "But we just said it was, you bigots!"

  • SugarFree||

    It's a sad day for bigots everywhere. Boo-hoo-hoo, Cindy Lou Who.

  • ||

    we don't believe a same-sex union is a marriage

    My rabbi doesn't think Catholicism is a religion. So fucking what? It's Friday, go eat some mackerel.

  • Notorious G.K.C.||

    If I thought the Catholic Church had invented the sex-binary definition of marriage, I would be proclaiming this fact from the rooftops as an argument in favor of the Catholic Church. I would say, "you see, the Catholic Church is the true Church, because we're the ones who said marriage is a union between a man and a woman. You're welcome!"

    Sadly and unfortunately, I can't make such a claim, given the fact that just about every religious *and non-religious* tradition up to about 2003 affirmed the sex-binary definition of marriage. I have to reluctantly give props to the Jews, the Muslims, the Buddhists, the Confucians, the Native American faiths, etc., etc., for acknowledging the same truths we Catholic acknowledge...that marriage unites a (biological) male with a (biological) female.

    Oh, well, I would have loved for the Catholics to claim so credit for this salutary and glorious sex-binary definition of marriage, but those other traditions won't let us do it.

  • ||

    Jews in the US don't generally have legal objections to goyim eating bacon and shrimp even though it offends their god. Perhaps that could be a good example to follow.

  • Notorious G.K.C.||

    Yes, that's *totally* responsive to what I said.

  • JFree||

    Well EVERY civil law relating to marriage originates directly from canon law relating to marriage. Sometimes it was a direct copy (ie 'establishment' - banns turn into licenses). Sometimes it was a coopting (ie 'establishment' - eg a civil bureaucrat begins to perform an interdenominational ceremony that Catholic priests stopped performing in 1905). Sometimes it was in opposition (ie 'prohibition of free exercise' - eg prohibition of interracial marriage)

    So there's that. The only thing that civil government has now gradually been able to accomplish is to turn the secular state into its own religion now.

  • retiredfire||

    The tradition of a man and a woman being the exclusive parties in what has been defined as marriage, began long before any organized religion.
    It is rooted in nature, in which there is no comparable male/male or female/female pair bonding, because the fundamental purpose of said bonding is reproduction/propagation of the species.
    Governments became involved because of the benefits to society to encourage families and having children raised through exposure to the different male/female role models.
    There was no way to know, for certain, that couples could, or would, have children but the uncomplicated way to encourage propagation was to limit it to male, plus female - a pair that could NEVER reproduce, to be granted the benefits that go along with marriage, makes no sense.

  • VillainousWoodchipper||

    Good day to be gay then, you're saying.

  • Syd Henderson||

    Nicely written decision. I really like the closing remarks.

  • Arthur45||

    Kennedy's "Indiviual autonomy" is flawed - if a person decides what is right, then there's no reason he can't choose to marry his dog. Kennedy also shows extreme stupidity in correlating marriage with romantic relationships in that marriag eis a positive. Hasn't Kennedy seen the divorce rate?
    He ridiculously elevates what is nothing but a contract, a scrap of paper, to the level of heavenly bliss. He is a jerk - a relationship is in no way either helped or hurt by a marriage certficate.

  • Arthur45||

    Kennedy's "Right to an Intimate Association" - here again Kennedy is, in effect, claiming that a marriage certificate (a scap of paper)somehow transforms a plain old relationship to something special,. Emprical evidence, which Kennedy apparently never considers, indicates that this is not the case (look at divorce rate) and any fool knows that the attraction between two individuals can never be affected one way or the other by a scap of paper. Kennedy lives in some kind of ivory tower.

  • Arthur45||

    Kennedy notes that many states have allowed gay couples and individuals to adopt or foster children, providing "powerful confirmation from the law itself that gay and lesbian couples can create loving, supportive families."
    Obviously Kennedy is easily convinced by the bizarre logic that states have alowed adoption. Apparently those states which have banned same-sex marriage don't provide evidence.
    There has not been enough time to even measure the effect on children of such marriages, but common sense tells us that having a diverse parental group (both genders present) has got to have a very different effect from a non-diverse same-gender parental group.
    Kennedy's claim of "evidence" is laughably inane. Kennedy is not a very bright candle..

  • retiredfire||

    Where has any state been denied any power over marriage?
    The Constitution is clear about "Powers Prohibited of States" and marriage isn't one of them.

  • JFree||

    Why is it that 'libertarians' are so freaking obsessed with 'rights' rather than 'freedoms'?

    'Nature' or 'God' doesn't grant 'rights'. You can either do something - or you can't. That's freedom - not rights

    Common law (supposedly our legal tradition - but it is clearly one that all the judges pissed on today) ACKNOWLEDGES freedoms unless they conflict with someone else's freedom or a civil prohibition against that freedom. Marriage was

    Civil law (including the Constitution) grants rights. The civil state may promise not to infringe on some freedoms (and call them 'rights') - but that is merely a promise. And the default in a civil law system is that nothing is allowed unless it is permitted.

    The second the federal government mandated that all states were required to issue 'marriage licenses' - we lost our freedom and let the state define our rights. That occurred in 1923. Following on a 1911 Uniform Marriage and Marriage License Act by an interstate compact of states whose explicit purpose was to ban common law marriage and require licensing of all marital relationships

  • mmmmm Woodchips||

    "Why is it that 'libertarians' are so freaking obsessed with 'rights' rather than 'freedoms'?"

    The two terms can be used interchangeably. The right to bear arms vs. the freedom to bear arms. I don't see a notable distinction. You are free to exercise a right or not exercise a right. The point is government can't infringe on your rights. At least that is how it is supposed to work.

    "'Nature' or 'God' doesn't grant 'rights'. You can either do something - or you can't. That's freedom - not rights"

    This conflicts with the founding principles of the US and with many concepts of where rights originate. If you want an education read how John Locke derived the first principle.

    "The second the federal government mandated that all states were required to issue 'marriage licenses' - we lost our freedom and let the state define our rights. That occurred in 1923. Following on a 1911 Uniform Marriage and Marriage License Act by an interstate compact of states whose explicit purpose was to ban common law marriage and require licensing of all marital relationships"

    What Libertarians disagree with this? Freedom of Association is the proper ruling but recognizing that would open up a whole can of freedoms that are too uncomfortable for most to accept: Racists could discriminate who they serve in their businesses, homosexuals couldn't force Christians to participate in their marriages, and the entire US would degrade into a cesspool of rape, racism, and people dying on the street!

  • mmmmm Woodchips||

    On a second skim I think you are confusing positive rights or positive laws with rights in general. These are two very different things.

  • retiredfire||

    The Constitution didn't require any kind of equality until an amendment, intended to punish the Confederates, included it. No two people can possibly be fully equal, let alone requiring full equality for everyone.
    Instead of laws requiring a compelling public interest to remove a freedom, the 14th turned it on its head and required a compelling public interest to remove "equality".
    That addition has been such a terrible alteration of how the nation was intended to be, it really should be removed.

  • Arthur45||

    Kennedy again show a shallowness of thinking that is amazing in pointing out social values of marriage. He speaks of such things as govt laws concerningmarriage, etc but fails to realize that most, if not all,of those govt laws are not particularly (if at all) relevant to same-sex couples.
    - they deal and account for the differences of the genders in a normal marriage, which is not thecase here. He also folishly ascribes all the strengths he mentions to MARRIAGES, which of course, never before were gay. Kennedy has a really dopey idea that marriage is a THING with certain characteristics. In fact, no two marriages are alike. Kennedy's arguments are elementary school quality.

  • Sudden||

    "Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution"

    That's just too rich. Someone wanna forward Kennedy any number of CPS abuses noted on these austere pages? Because I think he is sorely mistaken as to the breadth of liberty parents enjoy in their childrearing.

  • retiredfire||

    I think someone should send Kennedy a copy of the Constitution, and include an explanation that NONE of those things are mentioned in and, therefore not protected by, that document.

  • epsilon given||

    On the contrary, there's a special amendment just for these rights. It's called the "Ninth Amendment".

    BUT...(and this is a huge BUT)...the chances of the Supreme Court giving this amendment the time of day is nil to none. It would open up to many liberty cans of worms.

  • KAR 120C||

    On the first two reasons, Kennedy is on pretty solid ground. These gave sufficient grounds for striking down the marriage law because as drafted and applied it violated the Equal Protection Clause of the 14th Amendment, denying rights of association and personal autonomy to individual who happened to be homosexual. That is where the opinion should have ended.

    But he didn't stop there because he, like most of his colleagues, was obsessed by the need to rationalize an explanation for the ruling in the context of centuries of cultural history and legislation about "marriage as a civil, public bundle of obligations and privileges. And he screwed this all up with conclusory assertions masquerading as social science and history. That so many colleagues bought into this line of arguments is the most troubling development of all. This Court will do anything to perpetuate state involvement in the most personal and intimate affairs--so long as they like the way the involvement works out.

  • MRC01||

    I agree with the direction of the decision, though I found Thomas' dissent well reasoned. He raises an interesting and important question, differentiating the right "from" (to be free from coercion), from the right "to" (to enjoy benefits or privileges). This distinction is key to libertarianism.
    If a state denies a gay couple the right to the benefits or privileges or marriage, yet doesn't coerce them - they remain free to cohabit, have any formal ceremony they want, adopt childern, etc. Then the govt has not restricted their liberty, it has only refused to grant them the same special benefits (such as a tax deduction) it grants to others (heterosexual married couples).
    Put differently: if equal protection covers both rights "from" and rights "to", then this decision goes much further than many people realize. Polygamy would be protected, and more generally, means-testing any government benefit, privilege, or subsidy (giving it to some but not others) could be viewed as a violation of the 14th amendment.

  • MRC01||

    Actually, the same did not apply to slavery or women voting. In those cases, people were denied their liberty. It's hard to see how their liberty was restricted when gays were free to cohabit, formalize their partnership with any ceremony they like, adopt children, etc. Nobody prevented them from doing whatever they want, but they were denied certain benefits that result from govt recognizing the partnership as a marriage.

    The flaw in Justice Thomas reasoning was tunnel vision. What he said was correct yet incomplete. He ignored an important aspect of marriage - it's a contract and the ability to engage in voluntary contracts that are recognized by the govt and legally binding is a fundamental civil right.

  • Micu5||

    #4 is just a fancy way of saying that the state keeps putting its fingers where they don't belong. But... yeah.

  • AD-RtR/OS!||

    So, if personal autonomy and free association trump all, does that mean I can literally interpret what the speed limit should be, and that the cops in Waco were in the wrong no matter what?

  • Tionico||

    so the proper course for we who believe marriage IS, and is ONLY, between one man and one woman, is to simply remove OUR marriages, established by God, from the purview of civil government. Stop insisting married couples go and get "permission" from the state. It is GOD who joins any two together, not the state. Hitler tried that, and it didn't work then, either. Still won't.

    Kennedy raises some vaid concerns, but he bases them all upon the meme that two males or two females coming together are the moral, ethical, legal, and practical equivalent of two of opposite sex coming together. On that foundational premise he fails utterly.

    Perhaps a deluge upon our Senators to force these nine legislators in black pyjamas to uphold the Constitution might be in order. These would-be lawmakers would force Federal will, as voiced by them, upon each of the states, against the clearly expressed will of most of them. The Tenth Ammendment does not allow room for that.

  • Cap'n Krunch||

    This isn't about religious marriage, it's really about state licensing.

  • Cap'n Krunch||

    The only rights the federal constitution actually protects are those enumerated in it. I wouldn't give a thimble of warm spit for who can get a state license for civil marriage and who cannot, but the 10th grants the states and the people of those states the power to decide whether anything is a right or a privilege under their state constitution. If the citizens decide marriage will be a right in that state then there can be no laws regulating it, that's counter to the very concept of a right. Every state has made marriage, just like driving, a privilege with qualifications like age limits, tests like driving tests or blood tests, and licensing which may be revoked by the state. Just as some are not allowed to drive in some states, some are not allowed to marry in some states, that's the very nature of a privilege. This effectively decimates the 10th amendment.

    Even as our privileges are being turned into rights our rights are being demoted to privileges. This is not how America is supposed to work. While I have no issue with gay marriage, the place to do this is in the individual states. We're transforming from a nation of sovereign states to a nation of soviet satellites without bothering to alter the constitution to allow that.

  • SomebodySmart||

    Check the Fourteenth Amendment. It forbids a State to deny to any person within its jurisdiction the equal protection of the laws, and it goes on to empower Congress to enforce the article by legislation.

  • epsilon given||

    I completely agree with this. Indeed, I would say that just as the State has no business saying who can or can't be married (and should never grant licenses), I would go so far as to say that the State has no right to say who can and cannot drive (and should never grant licenses for that, too).

  • jschmidt||

    must have missed the word marriage in the Constitution.

  • Tempest45||

    So he supports "individual autonomy" and "right to association"..... except when it comes to purchasing health insurance......

    These guys are just making this stuff as they want to impose their views on people.

  • Unable2Reason||

    Freedom of association is worthless without freedom from association. Gays have won the big kahuna, now can we stop with the "civil right to get your wedding cake baked"?

  • JayWye||

    First,every state already offered marriage to everyone,normal or homosexual.....AS MARRIAGE IS DEFINED;man-woman. That definition is several thousands years in existence. So it's dishonest to claim that homosexuals were denied the right to marry. It's just not what homosexuals want. What they want is the special right to REDEFINE marriage to suit their perversion and mental illness.
    The courts have NO authority to redefine marriage or order states to redefine it. That is SOCIETY's business,not the courts. the PEOPLE'S right.
    And comparison to interracial marriage is another falsehood,because marriage was never defined (in law) as "two people of the same race" by ANY US state.

    The US is now ruled by a majority of 9 people not elected to office and who have life terms. We're now a banana republic.

  • SomebodySmart||

    Technically, the sickos are not violating anybody's rights by having a gay old time, so as libertarians we must tolerate them, but this does not mean we should accept them. They have no right to force legitimate wedding photographers to focus and capture a very sick feeling. Neither do they have any right to have gun-toting goons in bulletproof vests track down an adoptee child and force the innocent kid into the hands of homosexuals.

  • dirty dave||

    From Mark Steyn today:

    "In 1986, in a concurrence to a majority opinion,
    the Chief Justice of the United States declared that
    "there is no such thing as a fundamental right to commit homosexual sodomy."


    From today's opinion:
    (4)
    The right to marry is a fundamental right inherent in the liberty of the person, and under
    the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex
    may not be deprived of that right and that liberty.


    So, I guess you can marry him, you just can't suck his dick.

  • Scott Wilson||

    Since "safeguarding children and families" is a high priority for the Left now, and since they insist that all states accept licenses from other states, I'd like to see New Jersey accept the Texas concealed carry license.

  • Cathaoir||

    Ahh, I can see it now...

    "Being licensed to carry in one State but having that valid license denied in another is one of the most perplexing and distressing complications in the law of gun control. … Leaving the current state of affairs in place would maintain and promote instability and uncertainty. For some gun owners, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of criminal victimization while across state lines. In light of the fact that many States already allow concealed carry—and hundreds of thousands of these concealed carry licenses already have been issued—the disruption caused by the recognition bans is significant and ever-growing."

    (see pg 27-28 Majority Opinion, Obergefell v. Hodges)

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  • SomebodySmart||

    Where are all these flaming liberals who decry "discrimination" against sickos who CHOSE to be homosexuals (It ain't a shotgun wedding, is it?) when there is a very real hate crime going on against everybody younger than 21? Did you know they can take my car if my son brings home unopened beer? That they're using sting operations called "shoulder tap" where they entrap you into buying for somebody and you get arrested? And what are Mr. and Mrs. Twenty supposed to do, build a time machine so they can obey a law against being under 21? Clone themselves so on election day they can outnumber the assholes who hate them? Spend their honeymoon night singing, "Wouldn't it be nice if we were older, then we wouldn't have to wait so long?"

    Martin Luther King, Jr. said, "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

    Bans on interracial marriages judged people by the color of their skin. The drinking age is just as bad because it judged people by the date of their birth. The laws against same-sex marriage judge people by the content of their character.

  • retiredfire||

    Were the laws that said a marriage was only between a man and a woman being enforced in a discriminatory manner? Violating anyone's equal right?
    Everyone was permitted to marry someone of the opposite sex - EVERYONE, no discrimination.

  • whonose||

    Since when did REASON become so damn Statist and hypocritical? Before this latest SCOTUS decision, it wasn't illegal for homosexuals to marry, but now they're the proud possessors of the right to have their marriages recognized by the State. How comforting.

  • ddonna30||

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  • Cathaoir||

    Kennedy's opinion signals that consanguineous marriage will be sanctified before polygamous unions by his invocation of the “two consenting adults” standard:

    it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.

    The above guiding principles support constitutionally requiring consanguineous marriage just as much as, if not more than, same-sex marriage. Seriously, the opinion is practically already written:

    "It is now clear that the challenged laws burden the liberty of consanguineous couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: consanguineous couples are denied all the benefits afforded to other couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to consanguineous couples of the right to marry works a grave and continuing harm. The imposition of this disability on consanguineous persons serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry."

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