8 Reasons Why Obergefell Won't Be Overturned

Justice Kennedy's decision forcing states to recognize same-sex marriage is not at risk

In tomorrow's WSJ, the Cato Institute's Walter Olson explains why the Supreme Court's landmark decision in OBergefell v. Hodges is not at risk of being overturned, no matter who replaces Justice Kennedy on the Court. He identifies eight reasons, some doctrinal, some political, and some pragmatic why this is so -- and he's right. The traditional bases for overturning precedent would not counsel overturning Obergefell, a case asking the Court to revisit the Obergefell holding is unlikely, and it is even more unlikely that more than one or two justices on the Court would have any interest in revisiting that case even if they were presented the opportunity. As Olson notes, "gay marriage isn't going anywhere."

Comments

[Joe_JP]

The battle is more likely over things like Masterpiece Cakeshop and the breadth of rights based on sexual orientation and gender identity.

[Brett Bellmore]

Right. Not the extension of judicially invented "rights", but the contraction of normal rights as part of the process. That, aside from how it was accomplished, was the real problem with Obergefel: Every judicial enlargement of one person's liberty usually entails reducing the liberty of other people.

[James Pollock]

Since the edges of liberty fall where they intersect the rights of others, yes, any enlargement of one person's rights involves limiting others. One person's right to be treated like a person necessarily erodes another person's right to treat them as subhuman. One person's right to be treated equally by the government necessarily erodes other people's rights to get together and vote to treat people as less than equals.

If your self-worth is damaged because you can no longer treat other people like crap, without facing consequences... boo hoo for you.

[Brett Bellmore]

My right to life precludes your murdering me, that's one sort of restriction.

Somebody's right to a wedding cake from the baker of their choice is involuntary servitude for the baker. That's an entirely different order of restriction.

It's for this reason that libertarians usually make a big distinction between negative and positive rights. Only the latter can end up compelling action on the part of another person.

[Sarcastr0]

You are conflating bespoke cakes with more retail-based businesses.

[Brett Bellmore]

I don't consider that a relevant distinction. The relevant distinction for purposes of involuntary servitude, is whether or not the service is voluntary, not the nature of the service.

[Thrax2]

I, the Woolworth's lunch counter manager, plead involuntary servitude. These darn blacks keep coming into my establishment and demanding that I give them food.

[Lee Moore]

Not quite. If you're the Woolworth's lunch counter manager, you have an employment contract with Woolworth's (which you freely entered into) and you serve whoever they want you to serve, or they fire you. The likelihood is, at a probabiility of 100%, that they'd want you to serve "those darn blacks" and that if you didn't you'd be fired in about 8 seconds.

This is all 100% consistent with freedom of association. You and Woolworth's freely agree on an employment contract. When you are no longer willing to do what they want in return for pay, the association comes to an end. And at the lunch counter itself, "those darn blacks" and Woolworths (in the person of their agent - you) decide whether they're going to enter into a sandwich deal.

But suppose it was Thrax2, with his own (or her own) lunch truck, turning down "those darn blacks." And if the law makes you serve them against your will, what are we lacking from the ordinary meaning of involuntary servitude? Perhaps you could see it better if we postulate that the law requires "those darn blacks" to wash your lunch truck (for a reasonable fee) whether they want to or not.

[Thrax2]

You apparently didn't notice that it was 1961 and I would certainly not be fired for carrying out my employer's policy, but for present purposes that's irrelevant. The point that the Civil Rights Act requires public accommodations to be made available irrespective of race, and Brett's "involuntary servitude" notion would throw that out.

And we are "lacking from the ordinary meaning of involuntary servitude" the minor detail that when I offer a public accommodation like a bakery or a lunch counter, the implication is that I'll serve whoever comes in the door on a nondiscriminatory basis; certainly, it doesn't offend any basic conception of freedom for the legislature to tell me not to discriminate on the basis of race. It's not the same as, oh, say, being shipped from Africa to the U.S. in chains and forced to work without pay my entire life, just to pick a random hypothetical example.

[Lee Moore]

You apparently didn't notice that it was 1961 and I would certainly not be fired for carrying out my employer's policy

I said you would be fired for not carrying out you employer's policy. Which you would be in 2018 just as well as in 1961.

And we are "lacking from the ordinary meaning of involuntary servitude" the minor detail that when I offer a public accommodation like a bakery or a lunch counter, the implication is that I'll serve whoever comes in the door on a nondiscriminatory basis

No, that is not the implication. I have never seen any place of business describing itself as a "public accommodation" - any business reserves the right to decline to do business with anyone. When you open a business you sell to whoever you feel like selling to.

Unless the law intervenes :

certainly, it doesn't offend any basic conception of freedom for the legislature to tell me not to discriminate on the basis of race

It certainly does. The legislature may think it is worthwhile and on balance a good thing to infringe your freedom to choose who you associate with, by not allowing you to discriminate on the basis of race, but it's certainly an infringement of your freedom of association.

They might insist that you sell supper to Trump Cabinet members when they visit your restaurant. They probably won't, but if they did that would be an infringement of your liberty too.

[Lee Moore]

"public accommodation" is not a term used by businesses, it is legal term used in laws requring businesses to do business with people they don't, or might not in some circumstances, want to do business with.

Such laws only force businesses to do business involuntarily in some cases (eg race) which gives the lie to the notion that businesses hold themselves out as willing to sell to all comers. Unless you fall within a legally protected class, the business is not required to serve you, and no one pretends that it has somehow promised to do so, simply by setting up shop.

The idea of a "public accommodation" is simply an attempt by legislators to beg the question.

"Since you have promised to serve everyone, then you have already promised to serve Mr X and Ms Y, therefore we are going to hold you, legally, to your promise."

Works well as sophistry, but not so well as a valid argument, since the conclusion is assumed ab intio.

[Thrax2]

Discrimination was the Woolworth's policy in 1961. This just in.

Trump Cabinet members aren't a protected class. The Colorado legislature has, however, protected LGBT people. The people of Colorado are free to vote them out for that, but until they do, your standard non-artistic business can't turn them away.

As for whether the right to turn blacks away from your business constitutes freedom of association that necessitates striking down civil rights laws, you're free to think that. Not seeing a lot of elected officials running on that platform these days, for some reason.

[JesseAz]

Thrax, are you intentionally ignoring the fact that the bakers baked all matter of goods for all customers. They simply refused a single good that was in conflict with what they considered one of their religion's sacred rites. It was no different to them than baking sacrament wafers for a black sabbath.

[Thrax2]

So if Satanists walk into a McDonald's and say "we need some burgers for our black sabbath," the McDonald's staff can say "no way, man"?

Or if the McDonald's is run by Satanists and a church youth group comes in, the devil-worshiping staff can give them the bum's rush?

Sorry, I prefer the world where businesses that serve the general public have to respect nondiscrimination laws.

[Lee Moore]

I prefer the world where businesses that serve the general public have to respect nondiscrimination laws

I understand that. What I don't understand is how you manage to insist that requiring people to interact with people they don't want to interact with doesn't infringe their freedom of association.

It's almost as if you are unable to distinguish the concepts of :

(a) freedom
(b) whether freedom ought to be restricted

Maybe you're also one of those folk who think freedom and democracy are the same thing ?

[Thrax2]

I think the "right" to only sell consumer goods to the people you want to sell them to has a negligible at best relationship to the freedom of association, and I'm perfectly happy to see it trumped by civil rights laws mandating nondiscrimination. Note, again, that those civil rights laws only prohibit discrimination against certain protected classes.

(It has an even more negligible relationship to the prohibition on involuntary servitude, which is what we were talking about in the first place.)

[Lee Moore]

So the question is - what is your concept of freedom of association ? Not when is it OK to infringe it, but what is it ?

If deciding who you sell stuff to (assuming they are willing to buy) has a "negligible" relationship to the freedom of association, what has a non negligible relationship ?

1. deciding who you buy stuff from ?
2. deciding who you give stuff to ?
3. deciding who you listen to ?
4. who you talk to ?
5. who you date ?
6. who you make friends with ?
7. who you avoid ?
8. who you rent property from ?
9. who you rent property to ?
10. which sports team you play on ?
11. which sport you play ?
12. what TV channels you watch ?
13. which bank you use ?
14. whose advice you take ?
15. who you offer advice to ?
16. who you would pull out of a ditch ?
17. who you would leave there ?

What's in ? What's out ? Why ?

[James Pollock]

"What I don't understand is how you manage to insist that requiring people to interact with people they don't want to interact with doesn't infringe their freedom of association."

It's not complicated. If you waive your right, it's not infringed. If you open a business that's open to the public, you've waived your right to object when the public walks in and wants to do business.

[Lee Moore]

There's no point in dementedly repeating the same old begged question.

As a matter of fact, both custom and law, businesses do not commit to selling anything to anyone. You bring your selection of their stuff to the register. If they ring it up you've bought it. Simply having wares for sale is not an offer to sell that is binding on the business. And businesses routinely refuse to sell some stuff to some customers. For all sorts of reasons.

But even if the law was adjusted so that businesses were legally presumed to have made an offer to sell whatever it might be that anyone walking in might offer to buy, that presumption would be rebutted by a simple sign on the door contradicting the presumption.
Which, if the law were changed to create that presumption, is exactly what any business would do if it wanted to retain its previous right to do business with people it wanted to do business with.

Your waiver is a silly fiction. And even if it were made fact, it would be withdrawn with an explicit sign within a matter of minutes.

[Nelson Kerr]

A difference without any real s distinction.

[James Pollock]

"Somebody's right to a wedding cake from the baker of their choice"

That's an example of a "right" that doesn't exist, and never has existed, and nobody is agitating to have it start existing. Other than that...

If making cakes for people's events offends your religious beliefs, then being in the business of making cakes for people's events is not for you. Just like if your religious beliefs preclude you from voluntarily touching cloven-hooved animals, then a job at the hog-farmer' processing plant is not for you.
Conversely, if you DO operate a business in which you offer to bake cakes in exchange for money, and someone shows up with money in hand... then whining about involuntary servitude is just dumb.

[Lee Moore]

If making cakes for people's events offends your religious beliefs, then being in the business of making cakes for people's events is not for you.

But if making cakes for some events for some people offends your religious beliefs, then being in the business of making those cakes that you want to make for those events that you want to make them for, works just fine. Unless and until somebody happens along and passes a law saying you've got to make cakes for those events that do offend your religious beliefs.

Just like if your religious beliefs preclude you from voluntarily touching cloven-hooved animals, then a job at the hog-farmer' processing plant is not for you.

I imagine the accounts department would be fine.

Conversely, if you DO operate a business in which you offer to bake cakes in exchange for money, and someone shows up with money in hand... then whining about involuntary servitude is just dumb.

No what's dumb is pretending that anyone who opens a business is always and necesarily willing to sell their stuff to anyone who offers to make a purchase. Do you seriously think hookers - who are willing to accept money for sex - can't pick their Johns and can't turn down the ones they don't like the look of ? Or smell of ?

[James Pollock]

" Do you seriously think hookers - who are willing to accept money for sex - can't pick their Johns and can't turn down the ones they don't like the look of ?"

American hookers-- who are willing to accept money for sex -- have already demonstrated unwillingness to comply with the law (outside a few counties in Nevada).
I imagine the ones who tell their pimps that they are declining customers will have a short professional life.

[James Pollock]

" But if making cakes for some events for some people offends your religious beliefs, then being in the business of making those cakes that you want to make for those events that you want to make them for, works just fine."

But it doesn't. What if those "wrong customers" use a straw buyer, and YOUR cake gets used at THEIR event! God will know!

Except, well, that isn't really a problem for Christians, because Jesus told them to follow the law in this world and he'd have their backs when it was time for judgment in the next. I mean, unless it isn't about religion at all, it's just that we're looking for an excuse so we can be total dicks to the gays. But that couldn't happen in Jesus' America, could it?

[Lee Moore]

Yes, but God will know that you were deceived and are therefore not morally culpable.

[Lee Moore]

Since the edges of liberty fall where they intersect the rights of others

Nearly, but not quite. The edges of liberty fall where they intersect with the liberty of others. In fact so long as "liberty" is understood as equal libery, ie the maximum conception of liberty that can be held by each and every person, you never arrive at a clash of liberites.

yes, any enlargement of one person's rights involves limiting others.

Indeed yes. Only when you erroneously subsitute "rights" - in the sense of a right to get something off someone else without their consent, for "liberty" - mutual obligations not to interfere with another person without their consent, do you arrive at a conflict. For you have enlarged the zone in which one person is free to act (and indeed demand action from others) into the zones of other people.

[Lee Moore]

We can see this in the cake baking case. The same sex couple want a cake for their wedding, the baker doesn't want to sell them one. Free association - an (important) component of liberty - requires that both couple and baker get to choose whether to interact or not. Both sides have this freedom equally. The couple, just as much as the baker, have the right to decide whether they want to associate with him. And when he is a customer visits their toaster repair shop, the same freedom of asociation applies to both parties. And likewise in a non commercial interaction - if the baker wants to borrow their lawn mower.

But a right to demand that the baker supply cake ? That can't be fitted into any conception of equal liberty. It's a straightforward limitation of the baker's liberty, to pay for an extension of the couple's rights beyond the realms of liberty into additional rights. And so, inevitably, it produces a clash. Stick to liberty and you'll never get a clash. Invent "rights" over and above liberty and it's Clash City.

One person's right to be treated like a person necessarily erodes another person's right to treat them as subhuman

And in the end Clash City turns into a meandering blocks of meaningless suburbs in Nowheresville.

[damikesc]

We can see this in the cake baking case. The same sex couple want a cake for their wedding, the baker doesn't want to sell them one

That premise is false.

He had literally zero issue selling them a cake. He had, in fact, done so for years. He had a problem with designing one specifically for that event. That isn't "selling". It is specifically contracted work. And nobody should be obligated by law to enter a contract.

[Sarcastr0]

If all that changes is knowing something additional about the status of the people you've sold to for years, that's not a contract.

[damikesc]

The thing that changed was that rather than take a cake already on display in the store, they wanted him to make them a different, special cake that was not in existence.

If they bought a cake already in the store, he would've happily sold it to them. Again, as he had. Repeatedly.

They wanted him to make them a new and unique cake. That requires a contract as it is above and beyond what he sells.

[Sarcastr0]

rather than take a cake already on display in the store, they wanted him to make them a different, special cake that was not in existence.

Any speciality to the cake is not in keeping with the factual record as I understand it, damikesc.

Note that without the cake being special your logic also applies to new milkshakes at a lunch counter as well. Careful you don't eviscerate the Civil Rights Acts collaterally.

[damikesc]

Any speciality to the cake is not in keeping with the factual record as I understand it, damikesc.

They did not want a cake available in store that day.

Ergo, they wanted a cake that was special.

Not a hard concept.

If it is not on display at that moment, you're asking the baker to make something for YOU. That makes it special and not routine. He had cakes in his shop to sell.

Note that without the cake being special your logic also applies to new milkshakes at a lunch counter as well. Careful you don't eviscerate the Civil Rights Acts collaterally.

If a shop refuses to serve blacks, the market will kill them long before the government even starts to notice.

If a black youth asked a store to make a milkshake not on their menu, the store is free to say no. As they can with ANYBODY.

[Sarcastr0]

It's not a cake not on their menu, it's a cake they didn't currently have lying around. The analogy would be having to make a new milkshake. That's not a special milkshake, so it's not a special cake.

They did not want a cake available in store that day.

Ergo, they wanted a cake that was special.

That's some weak sauce right there. That's hardly what special means by any common usage. Indeed, the implication is well beyond the actual facts.

They didn't object to the work, the objected to who they were selling their goods to. That's not slavery, it's discrimination.

Are some rights being impinged? Absolutely - free association is giving way to equal protection.
Saying it's analogous to slavery is just melodrama.

[Lee Moore]

"If all that changes is knowing something additional about the status of the people you've sold to for years, that's not a contract."

No idea what point you're trying to make.

[Lee Moore]

True, but irrelevant to my point. You may substitute "a particular cake" and "that cake" for "a cake" and "one" as you wish.

[ActualRightWingPatriot]

If a baker can be forced to sell a cake to a person because of some "government interest," then a customer can be forced to buy a cake because of some interest, say, keeping local businesses afloat.

The anti-liberty folks want to have it both ways.

[Josh R]

It very well might be true that a law which required customers not to discriminate against businesses based on the race of the business owner would be constitutional. Nonetheless, the political branches have the option of passing such a law, passing anti-discrimination laws as we now have them, passing both types of laws, or passing neither of them.

[damikesc]

If your self-worth is damaged because you can no longer treat other people like crap, without facing consequences... boo hoo for you.

If your wants forces somebody into contract work against their will, then boo hoo for you.

In the end, forced servitude is illegal.

[Lee Moore]

Forced servitude ought to be illegal. But it isn't. The baker only won because the Colorado Anti Dissent Commission said unkind things about his religion. If they'd been more circumspect he'd have lost.

[jst1]

Maybe. They could have just taken the easy way out. This time.

[Brett Bellmore]

Forced, involuntary, servitude IS unconstitutional. As unconstitutional as Jim Crow was before Brown; A constitutional violation the Supreme court was comfortable with permitting.

The question is whether they'll ever have their Brown moment in regards to public accommodation laws.

[Joe_JP]

Public accommodations laws were a thing in antebellum times.

The 13A language was from the NW Ordinance. It was well understood not to disallow laws that required service in public accommodations.

I don't know what "Brown moment" means. Some argue -- if problematically -- that was a truly originalist opinion, truly applying the principles of the 14A. But, "involuntary servitude" was never thought, even in principle, to call into question common carrier legislation. Legislation that in the 1870s the Supreme Court applied to bakeries (Munn v. Illinois) in dicta.

The term applies to a historical group of people who contracted themselves away for a period of years. It didn't involve those who voluntarily, who could stop and move to another occupation when they want, on their own, have a business and then are required to serve people on equal footing.

[James Pollock]

"Forced, involuntary, servitude IS unconstitutional"

Tell this to the prisoners in the privately-owned prison sweatshops.

[Joe_JP]

Marriage is not an invented right, nor is equality.

But, this is so clear to enough people, and too much water under the bridge has flowed, that going back to the status quo ante will be tough.

[ActualRightWingPatriot]

"Equality" is a meaningless buzz word.

[ReaderY]

I suspect that as soon as a suitable Supreme Court Justice is in place, not only will a dozen states pass heterosexual-only marriage laws, but some of them will instruct their police to start enforcing their sodomy laws.

Hitler famously assured the Center Party that the government would respect political freedoms and civil rights. Liberals assured the public in the 1970s that passage of an ERA wouldn't lead to same-sex marriage or single-gender bathrooms. However badly we may want something, however strongly we think it ought to be ours by right and was or is being stolen from us, we shouldn't be this dishonest with each other just to bamboozle others into supporting what we want.

I think these matters are political ones, absent a constitutional amendment, in part because of my profound respect for the political process. And it is because of my respect for that process that I think we need to maintain norms of political discourse, including that attempting to con each other is wrong, no matter much we may be salivating to get a particular Supreme Court justice confirmed.

[nonzenze]

If you believe that private sexual conduct is "political matter", then I think we ought to have a movement to enshrine a presumption of liberty into our (new) political process, one that removes such things from the political process.

At least for my part, I think the history of this nation has clearly delineated that some matters are beyond the political process.

[swood1000]

At least for my part, I think the history of this nation has clearly delineated that some matters are beyond the political process.

How do you conclude that, given the long history in the country of laws against bigamy, adult incest, prostitution, bestiality, obscenity, gambling, drug use, etc?

"The practice of morality being necessary for the well-being of society,...[God] has taken care to impress its precepts so indelibly on our hearts that they shall not be effaced by the subtleties of our brain." Letter from Thomas Jefferson to James Fishback (Sept. 27, 1809).

[Krayt]

We have morality and it is shifting. Science hasn't claimed homosexuality is a legitimate problem since the 1960s. But you speak of (religious) morality.

This doesn't really have a place in lawmaking. It may overlap (e.g. Thou shalt not kill) but those are also tied to offenses against other prople. Offenses against God are religious. Others should not be made to live under purely religious commandments sans tying it to actual harm to others.

[swood1000]

Others should not be made to live under purely religious commandments sans tying it to actual harm to others.

Well you have a right to your viewpoint but this country has a long history of legislating morality. Furthermore, people support laws against the types of immorality I listed because, along with Jefferson, they believe that the practice of morality is necessary for the well-being of society.

[Mesoman]

Gay "marriage" is not about either privacy or liberty - it is about coercing other citizens to behave as it the gay couple is identical to a heterosexual couple.

I was long in favor of civil unions. I still am.

Gay "marriage" is an oxymoron.

[James Pollock]

It is about the government behaving as if the same-sex couple are equal to any other couple who have chosen to ask the government to recognize their marriage. Maybe it is. Maybe it isn't. The government doesn't get to assume. That's all.

If you want to believe that they aren't REALLY married, because your church says so, fine. Who cares? Religious marriage and legal marriage are not the same thing.

[perlchpr]

Who cares?

Well, "the gays", obviously. Otherwise they wouldn't sue people who refuse to play along.

Yes, in an ideal world, you'd be absolutely right. "Gay Marriage" would be nothing more than the government granting the same pair-recognition privileges to a homosexual couple that they grant to a heterosexual couple. (Automatic inheritance, right against incrimination, etc.) Bakers who want to be assholes would be free to be assholes, people who dislike funding assholes would be free to not-patronise them, and everyone could attempt to get along otherwise.

Since it apparently came with a whip hand to chastise heretics, however, it's completely unreasonable to say "who cares"?

[Nelson Kerr]

They sue people who refuse to obey civil law due to bigotry and hate. Not for refusing tpo play along.

[James Pollock]

"Well, 'the gays', obviously. Otherwise they wouldn't sue people who refuse to play along."

I'm gonna need some citations to examples of cases where "the gays" sued people for saying they weren't married.

[EscherEnigma]

Otherwise they wouldn't sue people who refuse to play along.

To the best of myknowledge, the only people that have been sued for refusing to "play along" are government agents such as Kim Davis who refused to process paperwork in accordance with the law.

All the bakers, florists and photographers that have been sued, were sued because they refused service. In most of those cases, the couple was not married and was not getting married Heck, the original Elane Photography case the couple wasn't getting any sort of legal recognition, it was a commitment ceremony.

[James Pollock]

The "gay wedding cake" case in Oregon occurred when gay marriages were still unrecognized by the state.

[Krayt]

Regarding saving marriage for straights per say (vs. allowed civil unions), to all the religious out there, I remind you (imagine I know how to bold and italics here) at the cost of your mortal soul (end mod) that it is God who does the real marriage, not the state.

These gays, indeed anyone married not just purelly civilly, but outside your range of accepted religious factions (usually 1) is a hellbound sinner.

State recognition has no impact on tje religious validity of the union, so who cares if they recognize gays and not just hellbound Jews and Muslims and Catholics and Southern Baptist Convention of 1908s.

[Krayt]

Per se (insert rolleyes here)

[Sebastian Cremmington]

Gay marriage is not oxymoronic it is moronic just like heterosexual marriage. Some states still have lifetime alimony!!

[EscherEnigma]

But Civil Unions were never a feasible option. They could only pass in areas that were already on the way to same-sex marriage, never had a chance to pass in the places most opposed, had no federal recognition or hope for federal recognition.

In short, they were a "compromise" that failed over and over again. And they didn't even achieve their most basic purpose, to get conservatives to the negotiating table!

That said, it was never about other citizens. It was always about the government.

[Eddy]

Now I suppose I'm in the position of defending liberals by saying they're not Hitler.

[Faxsibnatibng]

Eddy be like

[FlameCCT]

IIUC he/she/it was referring to the Trump admin and/or GOP as Hitler and/or Nazis.

[Paladin_44]

Well, this gets Godwin's into play pretty quickly.

[David Nieporent]

I suspect that as soon as a suitable Supreme Court Justice is in place, not only will a dozen states pass heterosexual-only marriage laws, but some of them will instruct their police to start enforcing their sodomy laws.

No. And if they did, it would take about 30 seconds to secure an injunction from a federal judge. And the Supreme Court is not going to grant cert.

[Brett Bellmore]

I am personally less exercised about the ultimate outcome, (Or, anyway, the part of it that doesn't involve subjecting photographers and florists to involuntary servitude.) than I am about the way it was achieved.

If it had arrived via the democratic process, then, (Again, excepting those bits.) I'd have just shrugged. It wouldn't be the craziest thing happening in America.

But, it didn't arrive via the democratic process. The democratic process did all that was reasonably in its power to scream, "No!", and then the courts crammed it down our throats anyway, on the flimsiest of reasoning.

Sadly, that does suggest it's not being overturned, at least not fully. It has become a question of the power of the judiciary vs the rest of society, and members of the Supreme court are not impartial when that sort of question arises. They are firmly on their own side.

Nor is an amendment every going to reverse this decision, because the hurdles are, deliberately, too high, and it is already a fait acompli, which (Thanks to those other bits.) people are afraid to too publicly oppose.

Just one more step in our loss of self-government, I guess. Hold a funeral for it, and move on to the next fight.

[SimonP]

But, it didn't arrive via the democratic process. The democratic process did all that was reasonably in its power to scream, "No!", and then the courts crammed it down our throats anyway, on the flimsiest of reasoning.

Kinda like they did with campaign finance, gun rights, the Voting Rights Act, and probably a half dozen other decisions in the Roberts Court, but I don't see you complaining.

[Brett Bellmore]

Well, I'm not going to complain about the first two, because the 1st and 2nd amendments actually ARE in the Bill of Rights, and were perfectly on point.

As for the Voting Rights act, that's iffy; The 15th amendment actually does permit enabling legislation, so you can't say it was an outright constitutional violation. But Congress really shouldn't have taken the Court's dare on updating the list of covered states.

[Joe_JP]

So, "democratic process" is not the turning point here, it is debate over the constitutional meaning.

The "cramming" is the courts finalizing a societal, religious, political and legal process going back to at least the 1960s, even that building over years of development, one that developed bit by bit over a span of decades. Again, that isn't even the point, since IF the Constitution required it, "cramming" handgun legalization in D.C. and various states would be okay, even without again decades of development in the general area of privacy, equal protection and other law leading up to that point.

Then, there is the "flimsiest" reasoning. Applying marriage rights to couples who are equal to other couples is not flimsy. At any rate, factoring in years of precedent, including Lawrence v. Texas, not flimsy. This is why loads of lower courts, with liberal and conservative judges, reached the result.

There is a clear text about equal protection. Marriage was understood to be a protected liberty since the 1920s at least. The "loss of self-government" again is not applicable for you on guns etc. And, society in a myriad of ways recognized gays and lesbians deserve equal respect. Obergefell v. Hodges applied that principle in an equal fashion.

[Brett Bellmore]

"So, "democratic process" is not the turning point here, it is debate over the constitutional meaning."

When something is already in the Constitution, actually in the Constitution, (Not just pro forma claimed to be in it, because that's how the courts rationalize imposing their will on the public.) the relevant democratic process has already taken place, took place when the Constitution or amendment was ratified.

The right to keep and bear arms, the right to freedom of speech, to the free use of the printing press, the right of free exercise of religion... These are all ALREADY in the Constitution. Explicitly so.

[Josh R]

Campaign financing isn't actually in the Constitution. Whether certain restrictions on campaign financing violate the right of freedom of speech is a matter of constitutional meaning.

[Brett Bellmore]

The Supreme court hasn't ruled actual campaign finance laws unconstitutional. By which I mean giving money to a candidate. What they've done has been on the independent expenditure front.

You know, where you rent a printing press, or spend money having your speech more widely heard? I don't really see how you stop somebody from spending their own money, or pooling it with others, to be heard, and claim you still have free speech and press.

"You've got freedom of the press, we're just stopping you from spending any money on ink and paper! Bwah ha ha!" Nope, it doesn't work that way.

[Josh R]

That's a nice piece of constitutional meaning analysis that might persuade many people that freedom of speech (actually in the Constitution) includes the ability to fund advertising for or against candidates. Perhaps they might also be persuaded by a similar constitutional meaning analysis that due process and equal protection (also actually in the Constitution) includes access to civil marriage for same-sex couples.

[Krayt]

Mr. Nimzicki: "Mr. President. That's not entirely accurate."

Insofar as 80% of it is advertising, it is at ground zero of the First Amendment.

Maybe there could be a split for non-speech related stuff but I'll bet most of it is related to other valid electioneering activities.

[SimonP]

When something is already in the Constitution, actually in the Constitution, [irrelevant and ignorant snark excised] the relevant democratic process has already taken place, took place when the Constitution or amendment was ratified.

So what you're saying, Brett, is that the courts are really respecting the "democratic process" when they ignore all that bit about voting for and electing representatives who enact legislation and instead look back to the original "democratic" bargain struck when the Constitution was originally adopted. So you're not really drawing a coherent distinction here.

Never mind the dubious historical basis for saying that the Constitution represents the outcome of a democratic process in the first place. Do you know anything?

[Joe_JP]

Equal protection is explicitly in the Constitution.

Marriage rights are somewhat less so though for over a hundred years it was understood to be covered by "liberty" or some other explicit text.

So, it turns on analysis of the text. But, rhetoric about "cramming" does have more emotional effect.

[SimonP]

As Joe_JP has already pointed out, your response here reveals that you were simply lying through your teeth, above, when you purported to say that your real problem wasn't the outcome of Obergefell, but the fact that it reached its result other than through the democratic process.

LGBT activists have been hearing the same line for decades. It's a tired rehash of discredited arguments, well-worn and far past their sell-by dates. Either you're not old enough to know this or you're stupid enough to think that the argument is somehow still persuasive.

[Kazinski]

That was my objection as well, that the courts usurped the democratic process when there was obviously no original intent for same sex marriage in the Constitution. But I certainly think SSM is totally legitimate in Washington, where it was legalized by a vote of the people, and totally illegitimate in California where the people amended their Constitution to restore the prohibition on SSM, and the courts came up with a incomprehensible decision about how once the Constitution is changed it can't be changed back. However that ship has sailed and SSM would be overwhelmingly passed in California today.

I will note that the courts themselves set back SSM twenty years and created the need for Obergefell thru their own bungleing. When Hawaii and then Massachusetts courts first imposed SSM on their populations by judicial fiat, there were no state constitutional prohibitions on SSM, it was only after the courts started imposing themselves into the question that about 60% of the states enacted constitutional amendments against SSM making political progress much more difficult and lengthening the process considerably.

[James Pollock]

"there was obviously no original intent for same sex marriage in the Constitution."

The Constitution was amended to say that everybody is required to get equal protection of the laws, and was not amended to read that "everybody but the gays" gets it.
One of the core canons of construction for Constitutional text is the assumption that every word is in there on purpose, and the words mean what they mean. So if the text says "every person" it is meant to apply to every person, and an argument that "but sure they didn't mean to include THESE people when they said 'every person'!!!" must fail.

Strictly speaking, authorizing same-sex marriage was only one possible outcome. The other was to strike down state recognition of any marriage. I'm honestly surprised that THAT didn't get discussed more. Take marriage out of law and put it back exclusively in the hands of churches sounds like something that people griping that the law recognizes marriages that they reject on religious grounds. It would be chaos, but most of the civil elements of marriage can be replicated through contract law (remember making that argument, conservatives, when you suggested that the gays get themselves one of those instead of having the state recognize their marriage?) and issues of child support can already be handled by courts, and sometimes are resolved without marriage in the picture.

[Brett Bellmore]

"The Constitution was amended to say that everybody is required to get equal protection of the laws, and was not amended to read that "everybody but the gays" gets it."

That's right. And you know what equal protection of the laws means? If it's illegal to lynch a white guy, it's illegal to lynch a black guy, it's illegal to lynch a 'gay' guy. It must be illegal to lynch everyone, if it's illegal to lynch anyone.

Equal "protection" of the law means the law protects everyone equally. Nothing more. Nobody is left outside its protection. (OTOH, "equal protection" doesn't say what the extent of that protection must be. Just that everyone is equally entitled to it.)

The problem with Obergefel, setting aside the judicial usurpation, is that that's not what the word "marriage" MEANS. From time immemorial, everywhere, "marriage" has meant some number of men pairing up with some number of women, and this is not accidental, it's because we're biologically determined to need both sexes involved to have children. There can be redundant men or women involved in the grouping, but always at least one of each.

Then, less than 20 years ago, a fad suddenly swept the legal community, and in the space of just a few years, judges all over the place were suddenly resolved to impose 'gay' marriage on the nation regardless of what the public might think.

What really terrifies me is what fad might come next, now that they've tasted that power.

[ActualRightWingPatriot]

I wouldn't even just limit to to the legal community, but to the elite in general. The media, corporate America, academy, and judiciary all decided that they were going to foist gay marriage upon the nation, because it's eminently good, and no one can oppose such a thing unless he's a hateful bigot anyway.

[FlameCCT]

I'm still waiting to see a 2A case that cites Obergefell and marriage licenses as justification that all States shall provide Concealed Carry licenses with minimal requirement and recognize said licenses in all other States.

[EscherEnigma]

From time immemorial, everywhere, "marriage" has meant some number of men pairing up with some number of women, and this is not accidental [...]

You're right, it's not accidental. It's the consequence of hundreds of years of sodomy laws.

That said, jokes about some man being another man's "wife" are hardly modern. Pretty sure there's graffiti about it in Pompei. So it's not like the idea was all that novel, it was just illegal.

Gotta remember, back in the 90s there was still over a dozen states that had sodomy laws. Those wouldn't be ruled unconstitutional until 2003.

So yeah. It's not accidental. Because for most of European history, two men claiming to be married would have been understood just fine by folks, but it also would have gotten them variously murdered and imprisoned.

[Kazinski]

"The Constitution was amended to say that everybody is required to get equal protection of the laws, and was not amended to read that "everybody but the gays" gets it."

But a gay male before SSM could legally marry everyone I as a straight male could legally marry. How is that not equal protection of the laws? Just because a woman could marry his intended doesn't mean he was discriminated against because the 14th amendment didn't address the laws treating the sexes different.

[James Pollock]

"But a gay male before SSM could legally marry everyone I as a straight male could legally marry. How is that not equal protection of the laws?"

The violation of equal protection comes when the voters of California decided to strip away the legal right of marriage from SOME married couples, but not others. What did the people whose rights were taken away have in common? They were part of a disfavored minority.

I mean, suppose somebody managed to get a law passed that marriages performed in churches were no longer valid. That doesn't discriminate against anybody, because anyone can get married at City Hall or the Courthouse, right?

[bernard11]

If it had arrived via the democratic process, then, (Again, excepting those bits.) I'd have just shrugged. It wouldn't be the craziest thing happening in America.

Aren't the things you object to here based on state public accommodations laws?Or is it your view that any law you dislike, or interpretation thereof, is either undemocratic or just wrong?

[Joe_JP]

He is selectively concerned about "democratic process."

The public at large recognized that public accommodation laws are just and did so via democratic process. He thinks this is basically a Thirteenth Amendment violation.

He also liked it when a Republican minority blocked the Democratic majority in Congress during the Obama years before Republicans gained total control of Congress. "Democracy" means minority obstructionism when it suits. Now that Trump and Republicans are in power, however, a minority in the Senate blocking something is outrageous and limits on Trump's power, including by the courts applying constitutional limits, is a de facto coup.

[ActualRightWingPatriot]

Public accommodation laws not only violate the 13th Amendment, but the 1st as well, as they require associate people do not want.

[damikesc]

He also liked it when a Republican minority blocked the Democratic majority in Congress during the Obama years before Republicans gained total control of Congress.

Those are the rules of Congress and Congress has every right to change them --- and has done so.

What legislation did the Republicans stop from occurring under Obama? Obamacare became law in spite of them and the public clearly opposing it.

[Joe_JP]

The first sentence is true enough (to the degree the change doesn't clash with a constitutional rule) but skips over the reason for my statement.

Republicans "blocked" various legislation (and confirmations, leading to the rule change) that was filibustered, including certain aspects of the Affordable Care Act, including cleaning up the version past in the Senate -- King v. Burwell cites stuff that easily could have cleaned up in conference, but since Dems only had the President, a majority of the House and 59% of the Senate, it could not be done.

The public supported chunks of it and when it was threatened, even after Republicans gained full control, the opposition to change was so great that the law was largely left in place. Even though Republicans repeatedly voted to overturn it & opposed it in harsh terms. The fact that the public disagreed with parts of compromise legislation.

[Joe_JP]

The fact that the public disagreed with parts of compromise legislation is not surprising especially to the "not liking to eat vegetables" or "I don't like this but don't want to accept there are no unicorns" nature of some of the opposition.

[damikesc]

Republicans "blocked" various legislation (and confirmations, leading to the rule change) that was filibustered, including certain aspects of the Affordable Care Act

The Dems cut the GOP out of all negotiations and ignored all of their suggestions. So, they had no reason, at all, to support.

The Dems never "fixed" anything because their legislation couldn't be fixed without an outright repeal first, given that they lost the majority pretty quickly.

[Joe_JP]

The Dems spent a year trying to get the GOP to agree to a compromise, maybe because a leading GOP said there was "80% agreement." Some on the left in fact were annoyed at the amount of effort spent to do this. Later on, over 100 amendments, with repeated Republican support, was added to the legislation. So, not really.

I don't know what the second part means really. But, never mind.

[FlameCCT]

State public accommodation laws were based on needs like housing, food, medical, etc. not wants like cake, flowers, pictures, etc. They also included religious exceptions like Jewish (kashrut/kosher) and Muslim (halal) not being forced to provide items that violated their religious beliefs.

We would have had no need for Obergefell because it could have been resolved through government decades ago by government issuing civil union licenses for everyone, and returning marriage back to religious organizations. Simple replacement of marriage with civil union in all the laws would have been easy. However too many people on both sides wanted to keep the "issue" alive for political purposes.

[EscherEnigma]

Decades ago? One decade ago over twenty states had constitutionally banned civil unions because they were absolutely opposed to any recognition of gay unions.

Two decades ago and over a dozen states have active sodomy laws.

So when, precisely, do you think Civil Unions were a workable nationwide compromise?

[James Pollock]

"But, it didn't arrive via the democratic process."

Neither did Independence from Great Britain, or the end of slavery.

[apedad]

BB - but the ultimate outcome was achieved via CONSTITUTIONALLY APPROVED methods.

Why do you have a problem with that?

[Toranth]

Obergefell was a terrible ruling - no logic or consistency, but plenty of emotion. "Love cannot be denied" makes a great movie theme, but it's a terrible thing to base laws on... especially when you follow it by saying "except these types of love that I don't like".

The government has no business regulating religious ceremonies and personal relationships anyway. Do away with government sanctioned "marriage" of any sort, and allow people to use typical contract or partnership laws to work out things for themselves - no matter what the combination of age, gender, number, or whatever those consenting adults may be.

[regexp]

allow people to use typical contract or partnership laws to work out things for themselves

We did. Its called "civil marriage".

[Whistling Willie]

Contract/partnership law allows multiple parties to enter a contract. Civil marriage is restricted to two participants.

[James Pollock]

You meant civil marriage is restricted to two participants at a time.
Maybe someday we'll extend marriages to poly groups. I don't see any rush to do so, but it's certainly possible.
The main challenge to doing so is that many rights and privileges are extended to spouses by default when a marriage is recognized by the state, and those rights and privileges are set in statutes all through the legal code, and many of them assume there is only one spouse, and contain no provision for disagreement amongst multiple spouses. For example, a medical power of attorney is automatically extended to spouses. So, if you're in a car accident and can't make your own medical decisions, and your doctor thinks you need an operation but there are big risks, and one spouse says "do it" and the other spouse says "don't"... should the doctor proceed? Hold up? Settle the tie personally? Find a disinterested third party to decide? That sort of thing would need to be sorted out in the statutes if a decision to extend mairriages to multiple spouses.
Just finding all the provisions where spouses have powers, rights, and privileges would be a challenging undertaking. Then working out the impact of multiple spouses and possible conflicts between them is going to be... a challenge.

[ActualRightWingPatriot]

Why should a person be denied the right to marry the CONSENTING ADULTS that they LOVE so you can avoid a little bureaucratic adjustment?

[James Pollock]

Why indeed?
Did you misunderstand what you read?

(In any case, you can be married to whatever group of people you like (assuming they also like you), AND your little dog, too, AND the horse you rode in on, if you can get your church to go along. None of my business.)

[Toranth]

Obergefell explicitly excluded poly-marriages. It's entire basis was on the idea that Equal Protection meant that everyone had the right to marry someone they love because LOVE! - and then went on to explicitly call out poly relationships and say "Except you."
The various varieties of homo/bi sexual groups that wanted to be married are not very numerous. Somewhere between 500,000 and 600,000 in 2016.
There are currently estimated to be around 2,000,000 polyamorous relationships in the US, with another 8-10 million "loose" marriages where the various non-married lovers do not live with the central couple.
The discrimination against poly marriages actively endorsed by Obergefell is gross, and a betrayal of the very 'logic' it professes to use to support homosexual marriage.

As for the contracts vs marriage - every question you ask can be easily answered by the terms of the partnership, or is something that already arises during normal life.
Two spouses disagree? What do you think happens when a single parent is injured, and two adult children disagree on how to treat them?

It would be trivial for a state to define a series of standard terms that a 'life-partnership' should include, based on exist marriage law. Ancient religious presumptions of rights and responsibilities - taken straight from the Bible - are NOT the appropriate way to regulate other people's interpersonal relationships.

[Brett Bellmore]

From a policy standpoint, (But not from the internal reasoning of Obergefel, such as it was!) excluding polygamous marriage makes sense.

As you note, the number of people actually interested in SSM is rather minute, and they won't be people who'd have been otherwise interested in normal, heterosexual marriage anyway. So the social impact is fairly limited.

Polygamy is a rather different kettle of fish. In societies that practice polygamy, wealthy men end up with multiple wives, because they can afford and attract them, and this produces a shortage of available women for the rest of the men, because the sex ratio IS pretty close to 1-1.

Men who can't find mates are a well known source of social instability. Anything that produces an abundance of them, (Sex selective abortion, for instance.) is dangerous to a society.

Now, this shouldn't have mattered to the Court, if they were actually motivated by the reasoning they claimed. It's no less a liberty issue for polygamists, and the religious liberty aspect is stark.

[Toranth]

That is true; an excess of unmarried young men can lead to problems - and China is discovering.

On the other hand, only about 1/3 of the US adult population is married at all right now, so it is unclear how much of an effect that would actually have here. Social pressures are quite different in the West.
I like to think that society in the modern US would not behave the same as the 17th century Middle East, but that may be putting too much faith in humanity...

[EscherEnigma]

Do away with government sanctioned "marriage" of any sort, and allow people to use typical contract or partnership laws to work out things for themselves [...]

Yeah, gay folk tried that. For decades. It cost thousands of dollars for half the rights and responsibilities, didn't really cross state lines, were never recognized outside the US, and could be broadly summarized as "utter shit".

Legally adopting your partner was more effective at actually securing your rights in a way that would be recognized.

[Toranth]

You are correct that there were problems with the 'civil unions' approach. Mostly because the government continued to recognize religious marriage, while trying to create something parallel that was kinda the same but kinda different, so it led to lots of problems. To top it off, it was done state-by-state, which strictly limited the reach.

If the Federal government just said "No." it would have enough force to work - certainly in the US, and through treaty in much of the rest of the world.

[John Rohan]

Obergefell was one of the worst rulings ever, and I say that as someone who believes gay marriage should be legal (freedom means even the freedom to make personal choices that I don't agree with) . It's ludicrous beyond belief to assume that the framers of the Equal Protection Clause intended it to apply to same-sex couples.

However overturning it would cause problems. For one thing - when gay marriage is legal in state but not the other, then what? If all states have to recognize each other's marriage licenses, then you only need one state that offers same sex marriage licenses and effectively its legal in the whole country (everyone can just go there and get married).

[Procyon Mustelid]

"t's ludicrous beyond belief to assume that the framers of the Equal Protection Clause intended it to apply to same-sex couples."

Right, but if things they didn't intend nonetheless fit within the scope of the words of the clause (or if things they did intend don't actually fit within the words written and ratified), what's supposed to govern: the clause or the intent? I've always thought it was the clause. Unintended consequences happen.

[James Pollock]

The underlying principle is that the government should treat people equally, regardless of what immutable properties they might have. The authors of the 14th amendment were immediately concerned with issues of skin color, and being as it's been 150 years and we're STILL working on that one, they can be excused for not spending a lot of time examining what other groups might be affected by this principle. But that IS the principle they wanted, and it has effects they maybe didn't expect.

Nobody who voted for the 18th amendment is still alive, so what they thought is no longer relevant. I'm a person who IS alive, at present, and I think the principle of treating all people equally regardless of their immutable characteristics IS one I want our government to adhere to. This means (grr) that persons who are actually persons and persons who are legal entities "incorporated" get treated equally, such that corporations have rights drawn from the Bill of Rights, just like actual people do.

[ActualRightWingPatriot]

No, the underlying principle was not that the government should treat all people equally. That's a modern creation (especially the bit about "immutable properties." The drafters had no intention of giving women the right to vote (which came by amendment, not by "interpreting" equal protection), and certainly had no intention of creating a nebulous right to "marry" someone of the same sex.

The underlying principle was that the law should not leave any person outside of its protection, just as it says. For example, everyone had standing in court to seek redress for the same legal wrongs.

[James Pollock]

You'd have to be CRAZY to read "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." as requiring the government to treat people equally, eh?

[Lee Moore]

It doesn't say "treat people equally" though, does it ? Once it has dealt with privileges, immunities, life, liberty, due process etc, it forbidsthe government from "deny[ing] to any person within its jurisdiction the equal protection of the laws."

The extent to which any law can be said to "protect" a person depends on the details of the law.

So if we take a law, say, like one requiring males aged over 21 to register for the draft, and if drafted, serve, the law isn't "protecting" anyone. (It might be said that the nation is being protected but that's not the same thing.) So if women are not covered by this law it is not treating a man equally with a woman. But it's not denying him the equal protection of the laws. It's imposing an additional legal burden on him.

[John Rohan]

But under the previous policy, everyone was treated equally. Marriage was defined as a man marrying a woman, and everyone (assuming they are legal age) was able to do so.

[James Pollock]

"But under the previous policy, everyone was treated equally. Marriage was defined as a man marrying a woman, and everyone (assuming they are legal age) was able to do so."

Except that that's not the case. Some of the states that instituted statutory marriage DIDN'T define it as a man marrying a woman. That detail was left out. California's Supreme Court found that in California, the right to marry did not contain such a restriction. A couple of thousand people sought, and received, marriage licenses when this ruling came out, before a proposal to explicitly limit marriage to ONLY hetero pairs.
Which is why the court case in California was different. It was a blatant, obvious attempt to strip away a right from a disfavored minority, not an attempt to extend a right.

[less lean eel son]

See James' reply. Also, using that definition of marriage certainly means will treatment will not be available. If Adam(Male) cannot marry Bob(Male) but Cheryl(female) can marry Bob, clearly Adam and Cheryl are not being treated the same under the law. This is obvious. Allowing your premise(your definition of marriage is used) already defeats the availability of equal treatment.

[Marshal]

I've always thought it was the clause.

If so why did we need Amendments to end slavery and grant women the vote?

[James Pollock]

Well, the slavery one is easy. The thirteenth amendment came before the fourteenth.

Granting women the vote... which some states did already before the amendment... is arguably covered by the fourteenth, except the Supreme Court had already neutered the "privileges and immunities" prong.

[Joe_JP]

Later on, the Equal Protection Clause was used to strike down various limits on voting rights, including poll taxes in state elections (the amendment later on only covering federal elections). It is somewhat harder to use it to protect women voting given the language of Section Two though there are arguments around it.

[damikesc]

However overturning it would cause problems. For one thing - when gay marriage is legal in state but not the other, then what? If all states have to recognize each other's marriage licenses, then you only need one state that offers same sex marriage licenses and effectively its legal in the whole country (everyone can just go there and get married).

Give marriage licenses the same cross-country recognition that gun licenses have.

...oh, wait...

[FlameCCT]

Exactly. I'm waiting for the 2A case that cites Obergefell as binding precedent.

[Joe_JP]

The gun recognition is to my understanding by agreement, not constitutional command.

Ditto something like driver's licenses. Traditionally, states had the power to deny recognition of marriages that violated public morals such as cousins marrying. The rule of interstate recognition is not as strictly applied in the licensing context. Court orders, like custody orders, would be more strictly enforced.

[RobinGoodfellow]

It doesn't work that way for concealed carry licenses.

[EscherEnigma]

when gay marriage is legal in state but not the other, then what?

Yeah, it was problematic. When I drove across state lines I had to check the news to see if I was currently married.

I mean, did you forget that was the case for about two years between Windsor and Obergefel?

If all states have to recognize each other's marriage licenses [...]

DOMA Article 3 was never ruled unconstitutional.

[bernard11]

It's ludicrous beyond belief to assume that the framers of the Equal Protection Clause intended it to apply to same-sex couples.

It's equally ludicrous to imagine that they had a considered and well-informed opinion on the subject.

Surmising what the framers "intended" about something they never thought about is pointless. Really, all your argument amounts to is statement that at the time of the framing homosexuality was regarded as a sinful perversion, not actually an unchanging aspect of anyone's nature. They may well have thought that - with some exceptions, I suspect - but there is no reason we should honor that idea today.

[Joe_JP]

Yes.

For those inclined to follow that sort of thing, you can find various language by Madison, John Marshall etc. on how the Constitution has many general principles for which the specific applications was well understood to be likely to over time to be applied in ways that match new experiences and knowledge that its creators might have only dimly realized at the time. The general language of the Fourteenth Amendment, including the special power given to Congress to enforce it, was also crafted with that in mind.

"Equal protection" is the text, not "how we specifically in 1868 understand it," or coverture would now not be a problem. That was what traditional marriage entailed, many things now deemed illegitimate.

[ActualRightWingPatriot]

If that's the case, then the Constitution has no meaning.

[James Pollock]

The fact that you can't understand it doesn't mean that nobody can.

To loop in a little exchange from above, the equivalent would be reading the second amendment to apply to flintlocks only, because the guys who wrote the 2A had no understanding of modern cartridge-based firearms, since they hadn't been invented yet.

[DjDiverDan]

It's even more ludicrous to imagine that you have actually thought about this matter, bernard11.

[bernard11]

Well, that's a perspicacious comment, DJD.

An absolutely stunning rebuttal to the point I made.

Do you have anything to say, or did you just decide to hurl a random insult, in keeping with your usual practice?

[Eddy]

Why equal protection? Why not use the Bill of Attainder clause to establish gay marriage?

Why not use the Contracts Clause?

Why not the Titles of Nobility Clause?

[Eddy]

If we read the Constitution according to its *spirit,* holistically, without being bound by the prejudices of the past, doesn't it become clear that a law discriminating against LGBTs is a Bill of Attainder, an impairment of their right to make marriage contracts, and the establishment of a de facto straight aristocracy?

I doubt there's some founding era document expressly disavowing such an interpretation, and if there were such a document, it would be a product of the bias of its time, not binding on those of us who have more enlightened views.

[EscherEnigma]

Because Kennedy liked applying Griswold's Privacy Rights.

You shouldn't confuse Kennedy's eventual decisions with what folks actually argued. He ignored the argument and went off on his own tangents a lot.

[Brett Bellmore]

"It's equally ludicrous to imagine that they had a considered and well-informed opinion on the subject."

There are an infinite number of topics they lacked a considered and well informed opinion on. Whether equal protection entails everybody being given armed guards. Whether the 13th amendment prohibited demanding that your son to mow the lawn. Whether the right to trial by a jury of one's peers requires that left-handed plumbers have juries of left-handed plumbers.

The idea that an amendment could be interpreted to require, over a century after it was adopted, something that wasn't even SUGGESTED in the intervening years, makes a joke of the amendment process. It renders the outcome of constitution drafting and amending radically unpredictable.

[James Pollock]

Are you one of those "originalists" that argue that original intent matters, as long as the original intent matches with yours, and it doesn't if it doesn't?

The original Constitution expressly contemplated that some people were less equal than others. The 14th amendment altered that... all people are equal under the Constitution, whether they be white-skinned like Chief Justice Taney, or dark-skinned like Dred Scot. But they didn't say "all people are equal, no matter what skin color they have." They cut it short at "all people are equal". If they didn't contemplate that treating all people as equals would mean that all people might expect to be treated equally, well, maybe they should have before they voted to finalize the text.

I don't see any reason for treating a hetero couple who want to be married and have the state recognize the marriage and a homo couple who want to be married and have the state recognize the marriage differently. Over the course of the endless debate, I've seen several claims advanced... "I don't want gay people to be married because thinking about gay people having sex makes me feel icky inside" and "My religious teachings say that gay people aren't nice and don't deserve to be treated like people" and variants thereof being the most common. Neither one convinces me. Got anything else?

[ActualRightWingPatriot]

No, they did not say "all people are equal." Had they said that, then imprisoning murderers would be unconstitutional, as the government isn't imprisoning non-criminals.

[James Pollock]

So you're unfamiliar with how our justice system works?
May I suggest starting by Googling "pre-trial detention"?

[damikesc]

The original Constitution expressly contemplated that some people were less equal than others. The 14th amendment altered that... all people are equal under the Constitution

Note that "amendment" word?

There is a process to change the Constitution.

SSM simply bypassed it.

[Sarcastr0]

The dead hand rigidity ship sailed at least by 1819. 'We must never forget that it is a constitution we are expounding.'

[Eddy]

Chief Justice Marshall went on to smoke a blunt, "before the Commerce Clause makes it illegal."

[damikesc]

You want rights?

There is a procedure to do that.

Don't whine that it is "hard"

[Sarcastr0]

It's not just hard, it's not operating as intended. See 200 year old precedent. See the 9th Amendment.

More likely, it's not me that's whining, it's you who hates how many rights you can't trample these days.

[James Pollock]

"Note that "amendment" word?

There is a process to change the Constitution.

SSM simply bypassed it."

So, the point that SSM was covered by the tenth amendment and the fourteenth amendment is lost on you? Or are those no longer "amendments"?

[Joe_JP]

Volokh Conspirators like Prof. Adler in fact argued U.S. v. Windsor, the DOMA case, should have been a 10A decision. Strangely, however, Justices Thomas et. al. found a way around that.

[EscherEnigma]

As did Griswold, Loving and Lawrence.

Not everything needs an amendment.

[Smooth Like a Rhapsody]

Did we need the 19th Amendment, or was that a wasted effort given that a court could have created those rights?
If "equal", means, as you apparently claim, "EQUAL!!!", then why are 10-year-olds denied the right to vote?
If "equal" means "EQUAL!!", then how is it that the District of Columbia had segregated schools for decades after 1868? Were the people governing the District evil, or merely tremendously stupid?

[James Pollock]

In the period following the 14th amendment, there was a concerted effort by some to limit the practical effect. These efforts included some USSC rulings made by or for people that weren't quite ready to embrace the notion of legal equality. Some folks STILL decline to embrace it.

"If 'equal', means, as you apparently claim, 'EQUAL!!!', then why are 10-year-olds denied the right to vote?"
Because the 26th amendment comes AFTER the 14th amendment, and it authorizes states to discriminate against 10-year-olds with regard to voting.

"If 'equal' means 'EQUAL!!', then how is it that the District of Columbia had segregated schools for decades after 1868?"
The same way, I assume, that so many OTHER places had segregated schools... the fiction of "separate but equal" accommodations. We didn't get around to kicking that aside until 1954, and even then the court ordered desegregation at an unspecified future date.

[EscherEnigma]

I'm gonna botch this, but it's something like...

"The moral arc of the universe is slow, but it bends towards justice."

So sure. Things take time. Sometimes the "right" decision is arrived at different ways. But we get there eventually. The failings of our forebears shouldn't mean that we can't do the right thing.

[steeltown lad]

No, you've convinced me. Morality and "ickiness" are hereby banished from the political and policy realms. Do you have a catamite? (Not that there's anything wrong with that.) More than a few folks in my region are down with man-boy love. Treating all people as equals means that all people can expect to be treated equally....well said!

[James Pollock]

Yes, your opinion on the subject is valid, even though you have a taste for the "man-boy love".

[john.camburn]

James Pollard: The 14th Amendment does not say "all people are equal", as you claim.

It says that no State may "deny to any person within its jurisdiction the equal protection of the laws."

Those are two very different things.

Originalists recognize that those two things are very different, and they also recognize that it is critical to understand the meaning of those words at the time the Amendment was passed ? not by extending or curtailing its meaning based on today's cultural sensibilities.

[James Pollock]

Yes, if you selectively ignore most of the 14th amendment, it no longer says what the entirety of the 14th amendment says.

But then again, you couldn't even get my name right, and it is printed above every comment I make, so expecting you to have an attention to detail would have been an error on my part.

[Lee Moore]

You were the one claiming that it says "all people are equal" !

Which it doesn't.

Seems to me that you are in a weak position to complain about people selectively ignoring chunks of the 14th Amendment. At least Mr Camburn's chunk is actually in the 14th Amendment.

Which yours isn't.

[QuantumBoxCat]

Number 5 had me not believing my eyes!!

[Rev. Arthur L. Kirkland]

Another rousing meeting of Libertarians For Bigotry . . . And Big-Government Bigotry In Particular.

Carry on, clingers.

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[Michael Cook]

Early in the 21st century, gay marriage seemed a bridge too far. Even Obama was afraid to go there. But then, but then, the LGBTQ alliance started feeling its oats and realized (1) We can raise a lot of money for political purposes, (2) we already have a lot of influence in academia, the mainstream media, and, of course, the entertainment industry.

Soon great numbers of TV sit-coms, dramas, and movies appeared with sympathetic and likable gay characters in them. (Ever since Oscar Wilde interesting writers lean that way.) Very soon, public opinion began to swing and politics changed. Obergefell followed like a colorful ribbon on a donkey's tail.

Well, no big deal. Reserving the legal right of marriage for heterosexuals only is more a millennia-old cultural tradition (that curiously, religions of all sorts subscribed to perhaps because out of concern for the social aspects of intense pockets of gay culture that blossomed in cosmopolitan areas) than a life-or-death practical concern for civilization.

Still, we reach a serious issue. Many citizens have no trouble at all with gay people as individuals doing whatever they want to do in privacy. It is when people of any like mind band together as large, powerful groups that they become of concern to their neighbors.

All groups can exhibit cult behavior, such as (1) always seeking legal advantages in recruitment of new members and reinforcement of wavering members and (2) using lots of $$$$ power to suppress critics.

[Michael Cook]

Lots of donkeys around who want to be judges, BTW.

[ActualRightWingPatriot]

If the average American knew that the likeable gay characters image was a farce, I'm not convinced such a high percentage would support LGBT issues. The average homosexual is an HIV+, depressed, drug abusing deviant like David Mangum.

[apedad]

I've asked this before but forgot the answer: How do you know so much about homosexual activities?

it's like you're an expert or something.

[ActualRightWingPatriot]

I lived in NYC for many years.

[NToJ]

Yea you did!

[ActualRightWingPatriot]

All of my gay friends/acquaintances did nothing but hook up. Not to say that the degenerate hookup culture isn't prevalent among heteros these days, but it's worse by an order of magnitude among gay men. They literally did nothing but meet men out to have sex.

[David Bremer]

Well, your NYC gay friends (of which, given your style on this board, I'm sure were sooooo numerous) certainly represent a fair cross-section of every homosexual across the nation.

FWIW, the gay guys I knew in college didn't hook up nearly as often as the straight guys I knew. Well, that's my assumption based on their actions and talk. And the homosexuals I know now are all in committed relationships.

It seems to me you're harboring a lot of jealousy over their social lives.

[James Pollock]

"All groups can exhibit cult behavior, such as (1) always seeking legal advantages in recruitment of new members and reinforcement of wavering members and (2) using lots of $$$$ power to suppress critics."

If the local gay folks' club starts talking about joining the UFO behind the comet, feel free to excuse yourself from the meeting and decline the offers of refreshments.

[NToJ]

Republicans should hope it doesn't get overturned. If it was likely to prevail in the culture war, Republicans can just run against it like they have against Roe. If they were never going to win the culture war, the Court saved them a lot of face.

[Rev. Arthur L. Kirkland]

That's the practical angle.

There also is a 'don't be a stale-thinking bigot' angle, which tends to be overlooked among right-wingers in general and faux libertarians in particular.

[Sebastian Cremmington]

Kennedy did Republicans a huge favor with Obergefell just like Roberts did with the individual mandate...it makes sense because they are both Republicans! Overturning Roe will be great for Democrats but it must be done.

[James Pollock]

" Overturning Roe will be great for Democrats but it must be done."

Or, and this is just offered for completeness, demand for abortions could be reduced to near-zero by using other methods to avoid unwanted and unintended pregnancies. Good access to education would be a start, but also broad access to contraception.

If the only people who get pregnant are the people who want to be pregnant, the problem of abortion ceases to be a problem. If only there were some group of people organized around the idea that only people who want to have children should become parents. Nah, that'll never catch on.

[Sebastian Cremmington]

Generally in neighborhoods near PP clinics unplanned pregnancy rates are higher than in those without clinics. I support PP but our generous welfare system undermines their mission because for poor American women having a baby improves their financial situation...men get stuck with child support debt which ruins their lives. Once a superior form of male birth control is developed then we will probably end up like Japan with a declining population.

[James Pollock]

We have a declining population but in-migration fills the gap.

"having a baby improves their financial situation...men get stuck with child support debt which ruins their lives."
Hmm. Turns out I'm the wrong person to make that argument to. I was a single parent. Never had any child support debt. I had some of the ordinary kind of debt, because my ex-wife didn't make any child-support payments.

[tkamenick]

"traditional bases for overturning precedent"

There is only one basis for overturning precedent, it's called "do I want to". Everything after that is just excuse-making one way or the other.

[James Pollock]

Well, there's a "evidence has emerged that shows our previous choice was incorrect" category.

[Sebastian Cremmington]

Obergefell requires laws outlawing polygamy be declared unConstitutional...I won't hold my breath on lower court judges correctly applying precedent and the Supreme Court will simply ignore the rulings. Muslims that wish to engage in plural marriages will continue to be harmed by our lack of marriage equality but no one will fight on their behalf.

[Michael Cook]

Anyhow, being a career Republican in the extremely blue county containing Seattle in 2006 I ran for representative in our state legislature. Since in the 33rd registered Dems outnumber R's by 2:1, but somebody has to be on the ballot and it was my turn to be Mr. Sacrificial Whipping Boy.

I actually did considerably more than going through the motions, to include riding public transit into downtown Seattle one night to address a candidate meeting that was all LGBTQ folks in the audience, although they had some other name for their organization that has slipped from my mind. It was asked and answered that no, I did not support gay marriage but had no problem with fully equivalent civil unions, including parental rights, etc.

It was all quite civil and I actually had a good time. In fact, I was approached by two people who took my begging cards and later ended up being my largest donors. One was a log cabin Republican for economic reasons and the other was an NRA member much more obsessed with the second amendment than any social issue.

[Michael Cook]

Anyhow, being a career Republican in the extremely blue county containing Seattle in 2006 I ran for representative in our state legislature. In the 33rd registered Dems outnumber R's by 2:1, but somebody has to be on the ballot and it was my turn to be Mr. Sacrificial Whipping Boy.

I actually did considerably more than going through the motions, to include riding public transit into downtown Seattle one night to address a candidate meeting that was all LGBTQ folks in the audience, although they had some other name for their organization that has slipped from my mind. It was asked and answered that no, I did not support gay marriage but had no problem with fully equivalent civil unions, including parental rights, etc.

It was all quite civil and I actually had a good time. In fact, I was approached by two people who took my begging cards and later ended up being my largest donors. One was a log cabin Republican for economic reasons and the other was an NRA member much more obsessed with the second amendment than any social issue.

[Brett Bellmore]

Heck, I joined the LP back in the 70's, and I'd reject some of what has become libertarian ideology, like this open borders obsession.

[perlchpr]

Oh, good. A topic that attracts all the crazy wackos!

And indeed. Here you are.