LGBT

There's No Constitutional Right to Interracial (or Same-Sex) Marriage, Says the Architect of the Texas "Heartbeat Bill"

It's the one amicus brief supporting Mississippi's abortion restriction that takes a wrecking ball to the Supreme Court's fundamental-rights precedents

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In an earlier post, I noted that the vast majority of the 81 briefs in Dobbs v. Jackson Women's Health supporting Mississippi's 15-week abortion ban were mum about Obergefell v. Hodges, which held same-sex couples have a fundamental right to marry under the 14th Amendment's Due Process Clause. My review also indicates that most of them have relatively little to say explicitly about any of the other substantive due process precedents–preferring to treat Roe and Casey like tumors that can be excised without affecting the rest of the body. This silence may be strategic, but it's nonetheless notable.

The main exception is the amicus brief filed on behalf of Texas Right to Life (TRL), written by Jonathan Mitchell and Adam Mortara. Mitchell was "the conceptual force behind" SB8, the Texas "Heartbeat Bill," which effectively bans abortions after six weeks of pregnancy and authorizes "any person" to seek an injunction and award of at least $10,000 against those who assist women obtaining such abortions. Mitchell was a clerk for the late Justice Scalia and is a former Solicitor General of Texas.  Mortara was a clerk for Justice Thomas and is a lead lawyer in the challenge against Harvard's affirmative action program, seeking to have the Court overrule its landmark 2003 decision upholding race-conscious admissions policies. Both have sterling credentials within the conservative legal movement. Their brief will be closely read in the Justices' chambers.

The TRL brief maintains that the constitutional right to abortion declared in Roe and reaffirmed in Casey has no basis in constitutional text or history and that stare decisis should not prevent them from being overruled. So far, so expected.

But there are many other decisions that similarly lack any constitutional grounding, the brief says. Among these is Loving v. Virginia, which struck down a state anti-miscegenation law in part on substantive due process grounds.

Supporters of Roe have correctly observed that this Court has recognized and enforced other supposed constitutional "rights" that have no basis in constitutional text or historical practice. The Casey plurality opinion, for example, noted that right [sic] to interracial marriage from Loving v. Virginia, 388 U.S. 1, 12 (1967), has no textual or historical pedigree, much like the right to abortion that this Court invented in Roe v. Wade. . .  To be sure, the rationale of Loving purported to invoke the doctrine of substantive due process and a supposed constitutional "freedom to marry," which is nowhere to be found in the language of the Constitution.  (pp. 22-23)

The conclusion that the constitutional right to marry is baseless follows from a larger critique of substantive due process common within conservative legal circles, including among some Justices. But few publicly acknowledge the full implications of the argument for the unenumerated substantive-due-process right to marry, much less specifically for the right to marry a person of a different race. Give Mitchell and Mortara credit for candor.

Still, a Supreme Court advocate cannot be heard to question the outcome in Loving. So while rejecting the substantive due process holding, the TRL brief attempts to reach the same result by asserting that "the Civil Rights Act of 1866 provides all the authority needed to set aside a state's anti-miscegenation law." That's because the 1866 Act prohibits racial discrimination under state law in making and enforcing contracts and, the authors assert, marriage is a contract subject to this statute. "So Loving remains good law regardless of whether the Constitution's text or historical practice can support a right to interracial marriage," the brief concludes.

This analysis is curious in several ways. First, the TRL brief is essentially saying that marriage rights for interracial couples are secure only by congressional grace, not by fundamental constitutional law. Congress would be free to revoke that protection (though it assuredly would not do so these days). Second, the argument suggests that in 1967 bans on interracial marriage had already been illegal under federal law for more than a century. That certainly would have been news to the 16 states that still had such laws. Indeed, historically, all but nine states enacted anti-miscegenation laws at some point. Third, the TRL brief ignores the independent holding of Loving that bans on interracial marriages are unconstitutional under the Equal Protection Clause. Is there no textual or historical basis for that holding? Fourth, the TRL brief characterizes the issue as involving "a right to interracial marriage" rather than as involving "a right to marriage" that interracial couples must be allowed to exercise.

In places, the brief reads like a progressive parody of the conservative critique of unenumerated constitutional rights–conceiving rights in the narrowest way and then, so conceived, finding no constitutional support for them. But at least TRL finds a way to conclude that states must allow interracial marriages.

According to TRL, however, "the news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage." The rights announced in Lawrence and Obergefell "are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence." While "far less hazardous to human life," they are just "as lawless as Roe."

Here the brief specifically rejects Mississippi's view that Obergefell might survive in a post-Roe world.

Mississippi suggests that Obergefell could be defended by invoking the "fundamental right to marry" which is "'fundamental as a matter of history and tradition.'" Pet. Br. at 13 (quoting Obergefell, 576 U.S. at 671). But a "fundamental right" must be defined with specificity before assessing whether that right is "deeply rooted in this Nation's history and tradition."See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (requiring federal courts to employ a "careful description" of conduct or behavior that a litigant alleges to be protected by the Constitution, and forbidding resort to generalizations and abstractions). Otherwise long-prohibited conduct can be made into a "fundamental right" that is "deeply rooted in this Nation's history and tradition," so long as a litigant is creative enough to define the "right" at a high enough level of abstraction. The right to marry an opposite-sex spouse spouse is "deeply rooted in this Nation's history and tradition"; the right to marry a same-sex spouse obviously is not.

Like the "right to interracial marriage," according to TRL, the "right to same-sex marriage" is nowhere to be found in the Constitution. There is no right to marriage in the text, so there is of course no right to marriage that same-sex couples must be allowed to exercise. Further, TRL says, states must even be allowed to criminalize sexual intimacy in the privacy of gay couples' homes.

What's notable about this line of argument is how unremarkable it is in mainstream conservative legal critiques of substantive due process, Obergefell, and Lawrence. It's a critique some of the Justices endorse. No doubt many of Mississippi's amici also share it, although they are not as forthcoming.

In the end, Mitchell and Mortara say they are not necessarily asking the Court to overrule Obergefell and Lawrence right now, but they believe it would be nice if the Court wrote "an opinion that leaves those decisions hanging by a thread."

There are many ways to distinguish abortion from gay marriage, some of which are relevant to constitutional law. Among other things, both equal protection and stare decisis will figure differently in these contexts. But if the influential architect of SB8 and his widely respected co-author somehow persuade a majority of the Justices to write an opinion eviscerating substantive due process, one thread supporting Obergefell will be a lot easier to cut.

 

 

NEXT: Things are Getting Messy

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  1. How about them human rights based on natural law that Trump’s state department pushed? Funny how those are apparently based only on the state of society at the time the constitution.

    1. Ivy indoctrinated lawyers on the Supreme Court just made those rights up to impose their feelings, biases, and self interests on the nation. They violated Article I Section 1 giving all lawmaking powers to the Congress. They are in out of control insurrection against the constitution. Arresting them, trying them, and sending them to federal prison for 10 years have every legal justification. I would arrest the dissenters for failing to stop the crimes of the majority opinion holders.

      1. Ivy indoctrinated lawyers on the Supreme Court need not recognize any limits on their powers. It will only take five just minded justices to rule that the High Court has the power to make decisions regarding troop deployments in time of war. Or even enter a restraining order against NORAD from responding to a nuclear strike against our country.

  2. “There’s No Constitutional Right to Interracial (or Same-Sex) Marriage, Says the Architect of the Texas “Heartbeat Bill””

    Or, “The federal right to interracial marriage is statutory, not constitutional, says the author of the Texas ‘heartbeat bill.'”

    That’s just as pithy a summary and it conveys more information.

    I *do* think interracial marriage is protected by the 14th Amendment. And I think the argument equating interracial marriage with a same-sex relationship is worthy of Theodore Bilbo or other segregationists. If they’d been clever enough to hit on such an argument, they would have been denounced, of course, for comparing two totally different things.

    Still, the headline, while “technically accurate,” buries the lede – you need to go deep into the post to find that, yes, Texas Right to Life believes there’s an enforceable federal right to mixed-race marriage.

    1. Can you imagine, say, Lester Maddox or whoever back in 1967 ranting and raving that “if you let whites and blacks marry each other, eventually you’ll be saying men can marry men and women can marry women!”

      Imagine the storm of mockery and incredulous outrage such a hypothetical Maddox statement would have met with. It would have been cited as an example of how the segregationists were either unhinged or liars, or both.

      1. Well, OK.

        But so what?

        1. So? It means nothing that there was a *national consensus* against a 14th Amendment right of same-sex marriage, including the unanimous Baker v. Nelson decision that not only was there no such right, but that the issue didn’t even present a substantial constitutional question?

          Today, if anyone, no matter how tentatively or apologetically, says that the Constitution means what unanimous court in Baker v. Nelson said it meant, is considered an extremist.

          1. The Baker v. Nelson justices were in several cases the same people who said there was a right to interracial marriage. Now we’re expected to believe they were just unwoke morons who didn’t understand their own decision.

            1. Cal, Baker v. Nelson was a per curiam affirmance and, as such carries little precedential weight. Under the tipsy coachman doctrine, an appellate court will affirm the lower court if there is any basis for doing so, whether or not that was the basis the lower court applied. So, since all we have is a per curiam affirmance, we don’t actually know *why* they affirmed. Maybe they agreed with you on the merits; maybe not.

              1. So…maybe they based their ruling on the gold trim around the American flag?

                1. For as much as we know, maybe they did. The bottom line is that they didn’t tell us why they were affirming; under tipsy coachman it may or may not have been the rationale adopted by the lower court; and that’s why per curiam affirmances are of limited precedential value. I don’t recall ever seeing a per curiam affirmance cited in a brief, and I’ve been doing this for a very long time.

                  1. So? There was still a consensus against a constitutional right to gay marriage.

                    1. Not necessarily. They may have decided there were procedural issues involved, or that the arguments for gay marriage hadn’t been well developed, or that they just weren’t ready to go there. Speculate all you like, they didn’t tell us. Maybe they agreed with the lower court, maybe they didn’t.

                    2. Or they may have decided it based on then-existing precedent that is since been reversed. Again, we don’t know. Which is why PCAs are of limited precedential value.

                    3. No, I mean a consensus among the general public.

                      As for what they meant by saying there was no substantial federal question, maybe the case was procedurally defective so as to keep the court from reaching the merits, but if gay marriage at the time was a real issue outside of a fringe, then they’d have brought a new appeal with a new case.

                    4. Cal, the radical idea that all men are created equal includes blacks and women lacked a consensus among the general public for most of our history. So what? Black equality was achieved via constitutional amendment, and women’s equality by changing social norms that the courts eventually adopted, but in both cases, we ended up at a place that would have been considered fringe for most of our history.

                    5. Via the amendment process.

                      The relevant amendment in the case of women being the 19th, for equal suffrage.

                      Curiously, even after this amendment was adopted, women bewilderingly didn’t always vote in a strictly “egalitarian” direction. Some of them supported protective labor laws, protections and benefits for widows more generous than benefits for widowers, and so fort.

                      In fact, the 19th Amendment was a big disappointment. Women didn’t always vote the right way.

                      Hence the Supreme Court’s “sex equality” decisions – because actual women couldn’t always be relied on to vote us into a unisex utopia.

                    6. “Black equality was achieved via constitutional amendment, and women’s equality by changing social norms that the courts eventually adopted” after the states actually rejected an amendment that would have done that, rendering the states’ power to refuse to ratify moot.

              2. So, since all we have is a per curiam affirmance, we don’t actually know *why* they affirmed. Maybe they agreed with you on the merits; maybe not.

                Well, that’s not quite right. They did say why they affirmed: “for want of a substantial federal question.”

                1. That’s true; I overlooked that. But substantial want of a federal question still covers a lot of ground, so my basic point about it not having much precedential value still stands.

                  1. The ruling was on the merits, fully binding on all lower courts, and was explicitly overruled in Obergefell.

            2. Bigoted, superstitious, vanquished hayseeds are among my favorite culture war casualties.

              And the core audience of a White, male, right-wing blog.

              1. You’re a white male, aren’t you?

                1. Has he ever answered that? Does he feel guilty?

                  1. I am a White male.

                    I would be ashamed to be part of an odds-defyingly White, archaically male blog in modern America (let alone academia) — even without the intolerant, superstitious clinger part.

                    1. Shouldn’t a women and/or BIPOC be making these posts of yours?

                      I mean, you take this white male blog and make it only whiter and male-er.

                    2. We’ve seen enough of you to know that you are incapable of shame.

                    3. Artie, you need to check your white supremacy. You need to give your job to an illegal diverse. Do it now.

              2. You sure sound like David Brin.

          2. Perhaps that’s because our notion of what it means to be gay has changed.

            1. The constitution evolved!

              1. No. The facts applied to the same old Constitution evolved.

                1. Well, to be fair, the Founders did wear wigs and fancy clothes, maybe they were just closeted and it just to some careful legal reasoning to bring the implications of their views out of the closet…

              2. Our understanding of the facts of homosexuality changed.

                It seems perfectly reasonable, then, that the way we understand the Constitution to apply changed.

                1. “Our understanding of the facts of homosexuality changed.”

                  Who is this “we” what are these “new facts”?

                  1. Gandydancer : Who is this “we” what are these “new facts”?

                    “We” is 70% of the American public and steadily climbing in support for same-sex marriage. Hell, these days you can’t even scrape-up enough dead-ender Republicans for a majority against the issue. Per a recent poll, 55% of GOPers have decided to join everyone else.

                    Of course this support has been rising continually for decades. By Obergefell v. Hodges in 2015, a 60% majority of Americans already supported gay marriage. The Supreme Court led from behind, not pushed out beyond public opinion. But that’s what happens when this country’s understanding of the facts of homosexuality changes.

                    (now if only we can get Republican’s understanding of vaccines to change! But that’s probably the work of many more decades)

                    https://news.gallup.com/poll/350486/record-high-support-same-sex-marriage.aspx

                    1. How long will it be before the court rules that traditional male-female marriage can be outlawed in order to make the country safe for LGBTQ and to make up for millennia of discrimination?

                  2. Homosexuality was long viewed as aberrant behavior. It’s now viewed as a largely-immutable trait.

            2. Well, obviously: It used to mean lighthearted and carefree.

              1. (and I heard Paris was just the place for’t)

          3. It means nothing that there was a *national consensus* against a 14th Amendment right of same-sex marriage, including the unanimous Baker v. Nelson decision that not only was there no such right, but that the issue didn’t even present a substantial constitutional question?

            It means close to nothing. That decision came at a time when the perception of homosexuality, and understanding of its nature, was changing dramatically. A decision reached at a time when it was considered a mental illness shouldn’t carry weight today.

            1. “the perception of homosexuality, and understanding of its nature”

              Even if we assume that marriage is simply a matter of public opinion, the Court isn’t the voice of public opinion.

              But more fundamentally, the very reasons which make marriage a constitutional right make a radical redefinition of marriage implausible:

              “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” At least that’s what the Court said in the Loving decision.

              https://www.law.cornell.edu/supremecourt/text/388/1%26amp%3Bhl%3D

              Are same-sex relationships fundamental to our very existence and survival?

              You know, it sounds as if the Court is referring to the association between marriage and the propagation of the human race. But that can’t be the meaning, because we’ve been assured the the connection between marriage and children is distracting, misleading and irrelevant.

              1. Then, even more explicitly, there is the comment in Skinner v. Oklahoma, a sterilization case, that

                “Marriage and procreation are fundamental to the very existence and survival of the race.”

                https://www.law.cornell.edu/supremecourt/text/316/535

                Another dated, clinger-tastic reference by the Court to the so-called connection between marriage and perpetuating the species. (/sarc)

              2. I didn’t say marriage was simply a matter of public opinion.

                What I said was that an analysis of the right to SSM can come to one conclusion if you begin with the idea that homosexuality is a mental disorder and quite another if you begin with the idea that it is a normal state of being for some individuals.

                The fact is that marriage, as a legal matter, confers certain benefits on the married couple. Bans on SSM deny those benefits for no reason that I can see.

                And yes, Cal. The “procreation” business is really a red herring. As has been pointed out endlessly we do not, and never have, prohibited heterosexual marriages where procreation was impossible.

                Also, if the issue is just procreation, you hardly need marriage. You can get plenty of procreation without it. So whatever the court meant, it wasn’t just talking about having children.

                Random sentences from court opinions about non-legal matters don’t constitute authoritative statements.

                1. “Random sentences from court opinions about non-legal matters don’t constitute authoritative statements.”

                  In a legal case about sterilization, they discussed marriage and procreation.

                  In a legal case about interracial marriage, they called marriage fundamental to existence and survival.

                  You’ve, sadly, painted yourself into a corner where you have to disavow the Court’s explanation of why marriage is a fundamental right. You even feel obliged to take the position that this is legally irrelevant!

                  1. I haven’t painted myself into any corner.

                    I’ve pointed out that marriage, per se, is not “fundamental to our existence,” and that procreation, which is, can be, and is, carried out without benefit of clergy, as we used to say.

                    Marriage is, in fact, very deeply rooted in human culture, of course. Why that suggests that it should be denied to same-sex couples is mysterious. It becomes even more mysterious when we realize that it confers legal privileges that have nothing to with childbearing.

                    1. I’ve shown that these are not “random sentences,” but central those judicial opinions. To endorse the Obergefell decision, it is necessary to drop the rationale for those previous opinions, dismiss the entire rationale as a “red herring,” and start from scratch.

                      Which means I won’t be hearing any invocations of the Loving case by supporters of government-recognized gay marriage?

                2. The fact that the State may refrain from inquiring into your ability to procreate before allowing you to marry does not mean that marriage is not about procreation and the proper care of children.

                  And, btw, it is still not a fact that homosexuality is not a mental disorder.

                  1. Why is marriage entirely about procreation and the care of children? Why, for example, do some religions regard marriage as a lifelong arrangement even if there are no children, or the children are grown, or even deceased?

                    It’s not.

                    And no, homosexuality is not a mental disorder, at least not in the views of those who actually know something about mental disorders. That you think otherwise doesn’t make damn. And it doesn’t make a damn if some judge thinks otherwise either.

                    1. “Why is marriage entirely about procreation and the care of children?”

                      I don’t know, ask the Justices who decided Skinner and Loving. You’re repudiating their work and starting from scratch.

                    2. And they certainly didn’t say “entirely,” that was your insertion.

              3. In Obergefell Justice Kennedy addressed why marriage is a fundamental right, and then applied these principles to conclude access to marriage for same-sex couples falls within that right:

                1) “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”

                2) “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”

                3) “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”

                4) “this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”

                1. ‘“A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”’

                  I’d forgotten the Court showed such chutzpah.

      2. You should be able to marry outside the species, like your adorable dolphin boyfriend trying to hump you everywhere you go. One dolphin committed suicide after separation from his girl. You should be able to marry the boyfriend robot, the one that says, don’t you dare touch those dishes. No human boyfriend was ever been as good in every way.

        After all, marriage is not to protect and to privilege human reproduction, the sole purpose of life.

        I pray God blesses and protects the brothers taking those psycho,
        heavy set, white girls off our hands. Welcome to the Jerry Springer Show, brother.

        If you hate homosexuals, have them undergo the torture of marriage, and especially of divorce. Lawyers just wanted to plunder homosexual assets. That is the sole purpose of these phony rights. The smallest fraction of homosexuals have fallen for that lawyer trap.

        Why is Carpenter not disclosing these facts?

        1. My dog is at my feet now. I wonder what marriage to her would look like. Would she know she was married to me? If so, how? Does she want to be married to me? How would we know? Does it matter whether she wants to be married to me, and, if so, who would decide and how? What paperwork would I have to fill out, and what rights would marriage to my dog give me? Would I “own” my dog anymore, or could she divorce me? If I “screwed the pooch” and were prosecuted for animal cruelty, could I plead as a defense that I was exercising my marital rights? And would the answer be different in a state, like mine, that recognizes marital rape?
          I could call myself my dog’s husband all I want, and it would mean as much as my calling myself her daddy.

          1. We know your dog is married to you, in all ways already. She is jealous, possessive, and is always sticking to you. She is a dog, a hooer, she would love it if you had sex. She will give you oral 10 times more than the wife. Now, she is living indoors. She has catered meals, health coverage, all because she licked you a couple of times. Biggest goldbricking, self serving hooer ever. As long as the perks keep coming, she will also be loyal.

          2. Among many other things, marriage is a contract. Show me a dog that has the capacity to enter into a contract, then we’ll talk.

            1. That, too, is a consequences of skylosandry. You’re just leveraging one rights violation to enable another.

              1. This is the only reference to “skylosandry” on the internet according to Google. Congratulations.

      3. In common law too, a marriage was always considered void, if never consummated by coitus. Didn’t matter what other kind of sex they had, no coitus, no marriage.

        1. This is not quite accurate. Common law (following from canon law) distinguished void marriages from voidable marriages. A void marriage was never legally valid. A voidable marriage could be invalidated upon petition of one of the spouses, usually through annulment proceedings. Furthermore, a spouse who entered the marriage with knowledge of the defect was often held to have waived voidability.

          Lack of consummation made a marriage voidable, not void. The marriage could obviously not be consummated before the wedding.

          Likewise, permanent and incurable inability to consummate the marriage made a marriage voidable, not void. It was presumed the spouses might not know each other’s full situation before marriage. Furthermore, if they did know going into the marriage, this was considered waiver.

          So let’s say that an element of marriage is consummation by coital intercourse, i.e., the “penis in vagina” marital act. Same sex couples can’t perform it so can’t consummate the marriage. But this simply creates a voidable condition that both parties waived by knowingly entering into such a marriage. It is as though a woman married a man whom she knew to be impotent: after the wedding it is too late to get out of the marriage on the grounds of his impotence.

          Of course, at common law, marriage was between spouses of different sexes! So a relationship between two persons of the same sex wouldn’t fit into the category of marriage at all. But if we set that definitional issue aside, we see the marriage is not void or voidable.

    2. The lower courts certainly thought interracial marriage protected by the 14th amendment. They started overturning laws against it almost immediately, where they weren’t simply preemptively repealed by Reconstruction legislatures.

      Then the Supreme court overturned this in Pace v Alabama, and the laws flooded back. But the Supreme court back then was on a mission to render the whole 14th amendment moot, so that’s hardly surprising.

      The argument that such laws aren’t barred by the due process clause is obvious, substantive due process is an abomination the Court invented to overturn Slaughterhouse piecemeal without admitting that the case had simply been decided wrongly. But I don’t think there’s actually an intellectually sound argument that the 14th amendment didn’t imply such laws were impermissible. It was an obvious conclusion, used by foes of the amendment to attack it.

      1. “But I don’t think there’s actually an intellectually sound argument that the 14th amendment didn’t imply such laws were impermissible. It was an obvious conclusion, used by foes of the amendment to attack it.”

        Republican Senator Lyman Trumbull was a foe of the 14th Amendment?

        As he famously noted:

        “If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either.”

        1. The man who said, “We, the Republican Party, are the white man’s party, we are for free white men and for making white labor respectable and honorable, which it can never be when negro slave labor is brought into competition with it”? The man who opposed the westward expansion of slavery not because he opposed slavery itself, but the Republican creed “favors the giving of our public men to free white men–not to negro slaves”?

          Doesn’t strike me as crazy that he doesn’t love the 14th Amendment.

          1. He voted for the 14th and helped write the 13th. And if I’m not mistaken he helped to write the Civil Rights Act of 1866 which the authors Prof. Carpenter criticizes claim serves as the basis for outlawing anti-miscegenation laws.

            Yes, I could believe that the Civil Rights Act of 1866 outlaws anti-miscegenation laws in the same way Bostok found that the Civil Rights Act of 1964 outlawed discrimination on the basis of sexual orientation, because, logically speaking, “sexual orientation” is a subspecies of “sex based” discrimination.

        2. This is similar, I think, to the way that advocates for the ERA denied that it would lead to same sex marriage and men using women’s bathrooms, while it’s opponents declared that it obviously would.

          The, once the ERA had been defeated, its advocates proceeded to use the 14th amendment to demand… same sex marriage and men using women’s bathrooms! Ya think maybe they’d have used the ERA to that end if they’d had it?

          Sometimes people are dishonest in debates, that way. Or, more charitably, self deceiving about points that hurt their case.

          The fact remains that interracial marriage being legalized was a widely discussed consequence of the 14th amendment, even if it was the foes who pointed it out. And once it was ratified, we proceeded to get it, until the Supreme court deliberately acted to render that amendment moot for generations.

          It wasn’t something that came out of the blue.

          1. It’s almost as though you elided decades if intervening precedent and social change!

            1. It’s almost like you don’t want to admit the distinction between “consequence that was pointed out at the time” and “consequence nobody at the time thought it had”.

              I’ll be blunt, then: Legalizing interracial marriage was an anticipated and intended consequence of the 14th amendment, which said amendment’s proponents lied about to make ratification easier.

              Legalizing same sex marriage was an anticipated and intended consequence of the ERA, which said amendment’s proponents lied about to make ratification easier.

              The difference is that the 14th amendment was ratified, and the ERA wasn’t. That’s a difference that’s supposed to matter.

              1. And in both cases the Supreme court decided to make sure that whether or not the amendment was ratified wouldn’t matter…

                1. Amendments allow discontinuous change in the constitution.

                  That does not mean there is no mechanism for incremental change in our constitutional understanding.

                  I think you know that weakens your outrage, which is why you seem to think right after the ERA failed, it was gay marriage time.

                  Legalizing interracial marriage was an anticipated and intended consequence of the 14th amendment, which said amendment’s proponents lied about to make ratification easier.
                  The 14A was passed via fraud on the American people is quite a take.

                  1. A fraud on the American people, and votes at gun point in the South.

                    Great taste, but you don’t want the health department looking at how that particular sausage was made.

  3. Thought-provoking article in both directions. I have to quibble with one point, however, in the discussion of the Civil Rights Act of 1866. While it is true that it “would have been news to the 16 states” that their “bans on interracial marriage had already been illegal under federal law for more than a century”, it was undoubtedly just as unexpected news to those same 16 states that their bans had already been illegal under the Constitution for even longer.

    The length of time that an error has been committed does not make it any less of an error. That particular criticism by Prof Carpenter of the TRL brief strikes me as untenable.

    1. Well stated, I had the same thought.

    2. Yes, and presumably Roe v. Wade’s discovery of a constitutional right to abortion was even more surprising news, as it presumably existed at least as early as a right to inter-racial marriage. (It is hard to precisely date emanations and penumbras, though.)

    3. I am in an interracial marriage. And I could not get a religious wedding in our synagogue until my wife’s conversion the Judaism was completed. So I am in favor of interracial marriage.

  4. Technically speaking, there’s no Constitutional right to marriage…period. It’s not anywhere in the Constitution.

    States have put various barriers to marriage for various reasons throughout history, and those continue today.

    1. Marriage started in religion long before government insinuated itself into the process.

      All government does is check a little box for possible later court enforcement in divorce. Even “breach of promise” isn’t really a thing anymore.

      Is someone arguing this should not apply to interracial or gay marriage? Why? This isn’t the religious portion of the marriage, which should be the important part to these people. Let them live in sin and go to hell, from your point of view.

      Or maybe god gets mad at nations that force god to recognize these marriages?

      1. “Or maybe god gets mad at nations that force god to recognize these marriages?”

        That’s right out of the Westboro Baptist Church’s playbook!

        Oh and just a heads up, um, some people on this blog get mad if you 1) don’t capitalize God or 2) don’t spell it G*d.

        Because, um god or some shit….

      2. “Or maybe god gets mad at nations that force god to recognize these marriages?”

        Honestly I think they are afraid they aren’t quite as righteous as Noah or Lot, and thus won’t be spared if god decides to wipe us all out

        1. It’s a waste to fret over this. No standard of personal behavior assures one’s safety when the God of the Bible is really on a tear (see e.g. Exodus, final plague).

        2. Kevin Smith : “Honestly I think they are afraid they aren’t quite as righteous as Noah…..”

          I agree with the opinion that Noah wasn’t quite the thing. From Martin Cruz Smith’s book, Wolves Eat Dogs :

          “By the way, Noah was an asshole, too.”

          “Why Noah?” Arkady asked. This was a new indictment.

          He didn’t argue.”

          “Noah should have argued?”

          Yakov explained, “Abraham argues with God not to kill everyone in Sodom and Gomorrah. Moses pleads with God not to kill worshippers of the golden calf. But God tells Noah to build a boat because He’s going to flood the entire world, and what does Noah say? Not a word.”

          “Not a word,” says Bobby, “and saves the minimum. What a bastard.”

      3. Marriage is not religious so much as it is social.

        It’s a social contract between (typically) a man and a woman, regarding property held in common, legitimization of children, and inheritance. It’s designed, at its core, as a social mechanism to raise children and generate and pass on production and wealth.

        A continual property that’s been observed, is that those children from two parent households do continually better educationally, socially, and so on.

        States and nations have put several laws in place about it, often to strengthen it. Often the barriers were ones of age, ones of familial relations, ones of number of people allowed in a marriage.

        1. “children from two parent households do continually better educationally, socially, and so on.”

          Follow-up studies have found that the important factor is having two involved adults. The level of involvement in the child’s life was the determining factor, not marriage or living in the same house or whether it was two men, two women, or one of each or even the age. A mother and a grandmother achieves the same general result as a heterosexual married couple living together.

          It makes sense. I imagine that there is an upper limit where incremental gains plateau, but three involved adults probably get better results than two. It’s more resources for the child to call in their development.

          1. “Follow-up studies” : Not in general.

            Marriage can provide long term stability in a way a cohabitation relationship or other less solid relationship cannot. And it’s the stability that’s quite important.

            Are there exceptions? Sure. But in general, it’s the stability and resources that help.

            https://www.clasp.org/sites/default/files/public/resources-and-publications/states/0086.pdf

            1. “Marriage can provide long term stability in a way a cohabitation relationship or other less solid relationship cannot.”

              More so before unilateral no fault divorce, of course.

              1. I’m not sure one can assume a miserable marriage is better than a split up one.

                1. “Better”? You’d have to study that. “More stable”? Yeah.

            2. Like I said, when you remove “marriage” and insert “two involved adults”, the results remain the same. There is no difference between married and not-married, not is there a difference between heterosexual and homosexual. There isn’t even a difference between heterogenerational and homogenerational adults. The difference is about the level of involvement of the adults.

            3. The NFSS study is the one that is most often cited by people who want to preference heterosexual, married couples as the “best” childrearing environment. There were massive methodological errors, not limited to removing divorced parents from the heterosexual group and including children who never lived in a same sex household, but had a parent who came out during a heterosexual marriage, in the homosexual, but not heterosexual, group. Basically, “Regnerus removed the effects of divorce, infidelity, single parenthood from his heterosexual ‘control’ group, but not from the gay parent group”.

              When the bias was removed? This was the result; “A 2015 reanalysis raised serious questions about the validity of the study, suggesting misclassification of families, inconsistency in answers suggesting mischief, and evidence many respondents did not live with their non-heterosexual parents. When these cases were excluded the differences largely vanished.”

        2. Historically, well really up to the 1960s, it was neither religious nor about social contract. It was a license to have officially approved sex. Like driving licenses, import licenses, fishing licenses, etc there have always lots of violations and sometimes lots of tolerance, but nonetheless.

          Most our arguments over who can get married stem from a vestigial belief that it’s government affirmation of a romantic relationship. Justice Kennedy (stupidly and harmfully) doubled down on this in Obergefell.

          If marriage is really about tax returns, hospital visitations, and some defaults on inheritance, then there’s no reason not to let siblings, parents/children, or even just business partners “marry”. And that would have been a better direction for modern, post-sexual revolution government to take – only civil unions, stripped of any romantic symbolism, for everybody.

          Leave affirmation to friends, family, and churches.

          1. Yes, we could completely privatize marriage and let any two people get “civil unions” without inquiring about sex and leaving it to the private sphere.

          2. “Historically, well really up to the 1960s, it was neither religious nor about social contract. It was a license to have officially approved sex.”

            And the reason for that relates to children, the upbringing of the children, and the continuity of society. The key development in the 1960’s was a consistent, well-behaved birth control.

            But before that, sex led to children. A person who engaged in sex would end up having kids, whether they wanted to or not. Having a vast number of children without the proper support mechanisms would be devastating to society in the long term. Hence, marriage.

            1. And for a while, marriage was an economic contract with the woman being more property than an equal partner.

              Marriage right now stands for something more involving love than childrearing. Which is why the right’s arguments otherwise have failed utterly.

      4. Eh, not exactly. The concept of marriage existed even before organized religion and exists even in cultures that don’t have religion as we in the West typically think of it. But you’re right – government was among the last to the game. I will also quibble, though, that the recognition was initially primarily for inheritance rather than divorce. But either way, it’s about the distribution of assets.

    2. The Supreme Court has found marriage is a Fundamental Right under the EPC and (presumably) the 9A.

      You’re welcome to disagree with that, but I don’t think your idiosyncratic take will win the day.

    3. Well there is a difference between civil marriage and religious marriage. My parents were not allowed a religious wedding…at least not in an Orthodox or Conservative service. Fortunately my dad was friends with a Reform Rabbi.

  5. In my voracious reading of the US Constitution, I see no clause that gives the federal government any authority whatsoever in marriage, mating or abortion…

    1. When you define government as a creation of The People, with certain powers and no others, who in their right mind would grant government, i.e. other people, the power to regulate adult sexuality?

      No one. Thank you and good night.

    2. Do you see anything in it that makes the President the Commander in Chief of the Air Force?

      1. Given that the Air Force was born of the Army, you can draw the authority from that, just like you would draw the authority over the Marine Corps from the Navy (and the Marine Corps actually existed when the Constitution was drafted)

        1. And given that gay marriage is founded on the same principles as non-gay marriage, you can draw the authority from that too.

          1. In other words, none at all?

            1. In common-law marriage, what makes you married is acting like you’re married.

              1. And then government got involved…

      2. Unlike airplanes, “marriage, mating or abortion” existed in 1789 and in 1866.

        So this is not the dunk you think it is.

        1. But in both cases, the text is being read in such a way as to produce a result consistent with the underlying value.

        2. “Unlike airplanes, “marriage, mating or abortion” existed in 1789 and in 1866.”

          There were military forces in the air prior to 1866. Balloons were used for surveillance, and manned gliders also existed. Focusing on the airplanes is misguided. But then, again, you’re you so “misguided” is expected.

          Space existed in 1789, so I guess if Washington had wanted to create a Space Force during his term in office as President, he would have been their Commander-in-Chief.

        3. Bob from Ohio : “Unlike airplanes, “marriage, mating or abortion” existed in 1789….”

          Indeed, abortion did exist in 1789. In colonial America, abortion was not just legal—it was a safe, condoned, and practiced procedure – common enough to appear in the legal and medical records of the period. Official abortion laws did not appear on the books in the United States until 1821, and abortion before “quickening” (14 weeks to 26 weeks into pregnancy, when a mother feels the baby kick) did not become illegal until the 1860s. If a woman living in New England in the 17th or 18th centuries wanted an abortion, no legal, social, or religious force would have stopped her.

          (I’m not sure your reply is the dunk you think it is, Bob)

        4. The Montgolfier Brothers flew their balloons in 1740

      3. In addition to Mr. Smith’s excellent rebuttal, the President is the Commander in Chief of the Armed Forces, not a particular service.

        1. That’s almost a relevant distinction. Almost.

          The different services ARE treated differently in the Constitutional text. Specifically, the funding for an army (if Congress decides we need one) can’t have any appropriations that last longer than 2 years, while the Navy can.

      4. Technically, the Air Force is an army. Yes, that sounds stupid today and the flyboys hate hearing it but that is their legal status. Therefore, the first line of Section 2 grants the President his authority as Commander in Chief.

        1. Why is it not a navy?

          1. When the Constitution was written naval voyages could last two or three years, away from home and with little to no communications back to the government.

          2. Funding. Congress can “raise and support” multiple Armies (Section 8, bullet 11) but can “provide and maintain” only one Navy (Section 8, bullet 12).

          3. Two fundamental differences between the army and navy, so far as the founders were concerned:

            1) The army could oppress the people throughout the country, the navy could only mess with you if you lived on the coast, it was not a force for taking and holding territory. This made the army more dangerous to our liberties. So, standing army bad, standing navy OK.

            2) The army largely doesn’t need capital equipment that takes a long time to obtain, and then lasts a long while, so you can raise an army as needed. Navies need ships and shipyards, which must be purchased well in advance. You can’t raise a navy when needed.

            So, Army appropriations limited on assumption that you spend money on an army when you need one, Navy appropriations assumed to be an ongoing and regular expense.

            1. They counted a lot on the militia. And armories.

          4. “Why is it not a navy?”

            Because they don’t have boats.

            1. But the Army actually has a pretty large fleet of watercraft! During WWII, the Army even owned large troopships and various auxiliary vessels. Nowadays you the Army vessels you are most likely to operate are operated by the Corps of Engineers for maintaining inland waterways.

    3. Read the 9th Amendment. And the Article III powers of the Judiciary. A + B = right to marriage. Add in the 5th and/or 14th Amendments and you get the right to gay marriage.

      The same four (5th, 9th, and 14th Amendments plus Article III) makes abortion legal. Until there’s more than one legal person’s rights involved in medical decisions, the Due Process Clause of the 5th and 14th Amendments will protect a woman’s right to choose.

      I’m assuming you don’t like the 9th Amendment, correct?

      1. To get from 9A + Article III to a right to marriage would seem to require a currently applicable judicial precedent identifying marriage as one of the unenumerated rights. Is that right, and if so, can you cite such a precedent?

        1. No need to involve Article III it can be deduced from the 9th Amendment alone. If further evidence of historical fact is required it’s found in the Declaration of Independence. It seems fairly clear that marriage would fall under the pursuit of happiness as one of the inalienable rights included in the phrase:

          We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

          Of course we could argue ad nauseam on whether the Declaration of Independence is a judicial precedent or not. Consider that while it isn’t likely to have been a declaratory judgement that would have been delivered by any of his majesty’s courts it certainly was an indictment of the king and his policies.

        2. “To get from 9A + Article III to a right to marriage would seem to require a currently applicable judicial precedent identifying marriage as one of the unenumerated rights. Is that right”

          No, that’s not right.
          unenumerated rights means you have them whether anyone’s previously taken note of them or not.
          Then you have the fact that the government has limited powers over you (this is the concept of freedom) and so deciding that the state has the power to tell you you’re not married first requires finding some legal authority that the government can tell you whether or not you’re married.

          1. But who decides whether a purported unenumerated right X *is* a right, if not the judiciary? (Including the question as to whether X is presumptively a right absent sufficient legal authority to the contrary, a decision which in this case you seem to have delegated to yourself)?

            1. I think you and I are on the opposite tacks. I would argue a purported unenumerated right X is a right unless denied by the judiciary. To me, I have a right to buy a candy bar and while that right is unenumerated I don’t believe I need permission from any judiciary to buy one legally beforehand. To my non-lawyer understanding that’s kinda how the judiciary works, if nobody is harmed or cares, there’s no lawsuit and even if they cared it would be difficult to grant standing. The big issue is the nannies in government who think they know better than everyone else that causes most all of the problems.

            2. “But who decides whether a purported unenumerated right X *is* a right”

              It either is, or it isn’t. People in government arguing about it doesn’t change its nature.

      2. Not a right – it’s none of ‘governments’ business, nor should it be.

    4. Lotta people mixing up is and ought when it comes to marriage here.

      1. And they’re arguing about the wrong thing. People are married if they think they’re married. What the nice people are arguing about is whether or not anyone else has to accept that they’re married. For the state, that answer may be different from what any individual thinks about it.

  6. Also – the argument based on the Civil Rights Act of 1866 of goes back to no more than six years after passage of that Act, in 1872. Then, the Supreme Court of Alabama said marriage was a contract protected by the 1866 act, and therefore blacks and whites could marry. Naturally the Alabama court changed its mind in 1877 – I doubt they were motivated by stronger legal reasoning, but by the fact that Reconstruction was over and white supremacists were back in the saddle.

    https://scholar.harvard.edu/files/fryer/files/guess_whos_been_coming_to_dinner_trends_in_interracial_marriage_over_the_20th_century.pdf

    (p. 5)

  7. I am very much in favor of the states adopting family codes permitting gay marriage with very similar rules for heterolsexual marriages.

    That being said, Ogerfell is a terrible constitutional decision. 14A / equal protection has no basis in whether there should be or should not be same sex marriage. All laws are based on what is considered right or wrong and are enacted via the democratic process, either through the legislature or via the people. Whether you agree or not, Laws were enacted banning sme sex marriage because enough people believed it was wrong.

    The legal rationale in Ogerfell is that virtually any law can be invalidated under the EP clause. A poor person can afford that electric vehicle, therefore the tax credit is unconstitutional uner the EP clause, The polygomist shall have the right to multiple wifes / husbands because he / she has the natural right to multiple spouses, etc.

    1. Obergefell fails EPC because hetero marriage in America is super gay…so we can ban gay marriage but then we must ban all marriage because all marriages in America amount to gay marriage. In fact same sex marriage actually makes sense whereas hetero marriage is very dumb and in fact African Americans have the right idea about how to treat marriage and child bearing—younger eggs are better eggs and you will most likely get divorced so don’t bother getting married.

      Furthermore, the 6 week ban would actually survive EPC analysis, but an outright ban would not because in America we don’t really protect embryos like we protect newborn babies. So we can’t treat miscarried embryos differently than we treat aborted embryos.

    2. The problem your “equal protection doesn’t apply because enough people believed it was wrong” argument is that it leaves no protection from tyranny of the majority, which is exactly what the Equal Protection Clause is SUPPOSED to protect against

      1. Ah, no. What the EPC was supposed to protect against, essentially, it outlawry. IF the law protected one group of people in a circumstance, it had to protect everybody. Nobody could be put outside the law’s protection.

        The content of the law’s protection wasn’t specified, but it had to be equal protection.

        1. How is that different? It prevents the majority from enacting laws to oppress a minority, and “enough people believing it” isn’t sufficient justification

          1. It’s easily different from barring the tyranny of the majority, because the majority get to pick what the law would protect. Barring the application of a different right, nothing in the EPC prohibits the majority from banning everybody from doing something only the minority want to do.

            1. So then in your opinion cases like Brown v. Board of Education were decided wrongly, since segregation barred everyone from attending integrated schools and thus was not a violation of equal protection?

              1. No. I think Brown was decided rightly, in light of the empirically determined fact that, in practice, separate was never equal, because only people who didn’t want equal were demanding separate.

                I don’t think the Court was obligated to ignore that long history, but if separate *had* in practice been equal? Equal was all the 14th amendment demanded.

                I anticipate the day when the Court will come to a similar realization about “reasonable” regulation of firearms…

                1. the empirically determined fact that, in practice, separate was never equal, because only people who didn’t want equal were demanding separate.

                  So your doctrine requires past performance to assure future results, and also some telepathy about future people.

                  Seems complicated!

                2. “I anticipate the day when the Court will come to a similar realization about “reasonable” regulation of firearms…”

                  And determine what, that they can’t regulate firearms, they can only regulate people?

            2. ” the majority get to pick what the law would protect.”

              But they don’t. Depending on how long it’s been since the last mass shooting was in the news, there is a majority of people who favor keeping firearms away from loons, but then people show up and demand that any law that regulates loons is impermissible if it limits their access to firearms (you know who you are). The claim will inevitably include somebody claiming that it’s all part of a secret plot to disarm everybody, because that’s what all the “gun-grabbers” want. Meanwhile, there isn’ t a majority clamoring for abortion restrictions anywhere but at the RTL rallies and CPAC galleries. OK, maybe at the local diocese, too, but you can’t be completely sure.

              1. Yeah, I get it: You trust polls better than elections. I don’t. Elections are how government responds to public opinion, not polls.

                1. With gerrymandering, elections are definitely a poor way for the public to hold representative accountable. Gerrymandering allows politicians to avoid having to respond to or address their constituents concerns, since they are in a safe district. They are then free to respond to donors and lobbyists. And they do, because that’s where the money and power are.

                  So I’ll take randomized polls with rigorous standards and a history of success over the tilted playing field of most HoR or state house elections.

                  1. If you imagine there are no techniques akin to gerrymandering for skewing the results of polls, I’ve got some news for you. Barring a topic where the public is absolutely united and adamant about their views, a sufficiently unscrupulous pollster can always get the result they want.

                    1. That’s why if someone cites Pew, you know it almost certainly has good methodology and if someone cites Rasmussen, it probably doesn’t. Polling organizations have reputations for a reason.

                      Bias in a poll is the result of bad methodology (intentional or not), which can be examined in reputable polling organizations by anyone and conforms to standard practices.

                      Using best practices and providing transparency removes the bias you are talking about. For example, you can quibble about whether a poll of registered voters instead of random citizens creates a “lean” one way or the other, but the same study done the same way over time will give you a very accurate picture of trends and real-time opinions.

                    2. Yes, but the usual way to tilt a poll is by how the poll is worded. You may get the same result if you ask the same question, but get a completely different result if you ask a slightly different, and more to the point question.

                      Gallup Historical Trends

                      “Do you think abortions should be legal under any circumstances, legal only under certain circumstances, or illegal in all circumstances?” (2018)

                      Under only certain circumstances 50%.
                      Legal under any circumstances 29%.
                      Illegal in all circumstances, 18%>

                      But then you ask about elective abortion in the 3rd trimester, and only 20% think it should be legal. A third of the people answering “legal under any circumstances” didn’t really mean it!

                      And 75% thought abortion to save the life of the mother should be legal in the third trimester, 83% in the first. Looks like those “Illegal under any circumstances” people did mean it.

                2. “Yeah, I get it: You trust polls better than elections. I don’t.”

                  No, you do not get it. Not sure why you put that bit in there about what I believe in between your two conflicting claims, but then, you’re a partisan, and that explains a great deal of irrationality. I’ll just put you down for that.

                  “Elections are how government responds to public opinion”

                  Or, at least, they would be if minoritarians didn’t manipulate them.

    3. “I am very much in favor of the states adopting family codes permitting gay marriage with very similar rules for heterolsexual marriages.”

      IF that marriage is legal in any state, then it remains legal in all the others.

      Your descent is undone when you try to bring up the “polygomist”. If someone is of a religion that allows polygamy, then their religion allows polygamy and they can have as many religious marriages as they want. The state is only required to register and recognize one of them at a time, however.

      the reason the Obergefell verdict came out the way it did was because the Mormons backed a measure that didn’t just tell the people who wanted a spouse of the same sex as they were that they couldn’t go get one, they also told the people who already had lawful marriages that their marriages were to be invalidated. which is a fairly blatant violation of equal protection.

      The best solution is probably to eliminate state recognition of marriage entirely. The state has no reason to be involved. Let people who want to enter a contract of being joined as family write up such a contract, instead of giving them the contract of adhesion that is statutory marriage.

    4. *Obergefell was not decided on the basis of equal protection, so it definitely does not stand for the proposition that “virtually any law can be invalidated under the EP clause.”

      That said, it *should* have been decided on the basis of equal protection and reached the same result, as explained in an amicus brief prepared by Bill Eskridge and Steven Calabresi on behalf of the Cato Institute.

      And your argument that the Fourteenth Amendment plays no role in determining what laws are valid so long as they are democratically enacted is (1) absurd, (2) terrible, and (3) clearly wrong as the text itself provides that “[n]o State shall make or enforce any law . . .”

  8. Equal Protection is the primary holding of Loving; neither that ground nor the Due Process paragraph erect a per se rule against the practice, but simply point out that the racial classifications that the state cited are an insupportable basis. If there were a countervailing interest (such as the welfare of the child in a racially polarized society), it could theoretically sway the balance. (As unthinkable as that might be, politically and morally.)

    Think if it as a soccer field. There is a difference between a municipality’s keeping someone from playing because of their race, or letting a group of like-minded folks play rugby on the field, and a municipality’s decision that the match itself, no matter how it’s played or by whom, imperils a contrary state interest.

    (At which point it becomes important that Loving left that morally regrettable option open. The law has its own structure; it’s not just a mirror of the moral sensibility.)

    Mr. D.

    1. “(At which point it becomes important that Loving left that morally regrettable option open. The law has its own structure; it’s not just a mirror of the moral sensibility.)”

      At some point, you have to count on the grown-ups to act like grown-ups.

  9. So basically they said the quiet bit out loud?

    1. It’s 2021. The quiet bits (aka the ugly bits) have been said out loud for several years and some folks are eating it up with a spoon. Public bigotry is in fashion again.

    2. Meh, it’s what we’ve known for a long time. It’s easier to get 5 justices to say “it’s a right!” than it is to get a constitutional amendment, or, at times, to get a law changed, because we don’t live in a direct democracy.

      1. And also because that’s pretty clearly in the Constitutional Text, in both the 14th and 9th.

      2. ” It’s easier to get 5 justices to say “it’s a right!” than it is to get a constitutional amendment”

        That’s by design. The default assumption of the Constitution is that anything not directly prohibited is allowed (there’s Latin for that, but I’m writing for Americans, not Romans). So, yeah, “it’s a right” is true, for most things. It’s a shame you object to living in a free society, but (brace yourself) it’s your right to do so. Just like it’s my right to completely ignore your objection.

        1. I suppose you could try moving to a less-free society. No same-sex marriages or abortions in Afghanistan, going forward

          1. It’s pretty clear that Afghanistan fell to the Taliban so rapidly because of lack of public support for the values America as a colonial power was trying to force on them, do you disagree?

            1. Partly.

              AFAICT, corrupt and incompetent government was a part of it. The army felt no loyalty and sort of melted away before the Taliban. Whether that was because the soldiers didn’t want a more westernized country, and liked the Taliban, or because they were ineptly led and didn’t like the government I don’t know.

              Probably some of both.

              1. Corruption and incompetence is sort of like “all else being equal” when it comes to the Middle East. But I see your point.

              2. Our cutting off maintenance for their support aircraft a few months before leaving might just have had something to do with it, though.

            2. “It’s pretty clear that Afghanistan fell to the Taliban so rapidly because of lack of public support for the values America as a colonial power was trying to force on them, do you disagree?”

              Partly. If the Aghani people are going to reject the Taliban, they’ll have to fight to do so. Thus far, they have not.

        2. By design? Not really. Go back and read your Federalist 78. Moreover, judicial activism, as it is called, really took off with the Warren Court, and we’ve been at it ever since. Don’t color anybody shocked when the Right decides rather than trying to tame the courts, they engage in the same thing the left has been doing for a couple generations…which is trying to get five justices to say “it’s a right!”

          1. Love your argumentation:

            It’s a shocking disgrace when their side does it, but it worked, so we had to start doing it, too.

            Good thing that abandoning rule of law is no longer a shocking disgrace, no?

      3. Good luck getting anything done in a direct democracy. Of course I suppose you can get a mob to rule on anything if the advertising is right.

        1. One of the problems with direct democracy is a lack of limits on getting things done. There’s nobody sitting back wondering whether something should get done or not.

  10. The problem is that the text of the Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” explicitly makes their argument invalid.

    A right, by definition, does not exist based on governmental recognition; the word they are looking for is privilege, which is not the same thing as a right. Therefore, the fact that a supposed right was or wasn’t protected by a government in the past is not relevant to the question of whether or not it is, in fact, a right.

    Scalia and all the originalists who use this line are wrong on this point, not as a matter of my opinion, but as a matter of basic reasoning as applied to the constitutional text. It also means that the idea that “the right isn’t found in the text” is wrong, for the same reason. Period. Also, the conception advanced by Josh Blackman in a recent post, of a difference between procedural and substantive rights is wrong, once again, using the same basic logic. It doesn’t matter what Blackstone said, the text of the constitution is clear.

    It doesn’t matter what your political philosophy is or your personal views on abortion, you don’t just get to make things up. That was supposed to be the whole point of originalism, yet originalists are just as guilty as progressives. Its quite embarrassing, frankly.

    If you think Roe and Casey are wrong, then make a valid argument. This isn’t it.

    1. Justice Thomas falls for it, hook, line, and sinker. For example, he thinks that Gideon was wrong, that the Constitution only protects a right to have a chance to hire counsel, because that’s what the founders originally understood.

      But if you look at the text regarding the Right to Counsel, it says “In all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defence.”
      It says to have the assistance, not the opportunity to have assistance. Originalism apparently requires explicitly clear text to mean something that it literally doesn’t mean? That is beyond wrong, and is so asinine that it calls into question the entire system of reasoning that is used.

      1. I think, fairly speaking, the text is a little ambiguous. It could go plausibly more toward the Thomas view or more toward the Gideon approach. Personally, I prefer the latter as do many folks, but I acknowledge it doesn’t follow completely inevitably from the text.

        The problems with originalists as I see it are: (1) they deny the text is ambiguous in the first place—even though most hotly contested Constitutional provisions are quite vague and lay down broad principles more than detailed rules; (2) whether or not they acknowledge (1), they go right to historical “evidence” (using that word loosely), which isn’t even intrinsic, it’s extrinsic, so just from that it carries less relevance and weight; (3) they criticize the use of legislative history in statutory cases—even though it’s the rough equivalent of historical evidence in constitutional cases; (4) they arbitrarily reject considering any other kind of extrinsic evidence; (5) they reject any and all precedent, even though (a) it has its own historical pedigree and (b) understanding and applying precedent is sort of like, you know, supposed to be a major part of what judges do and what makes them more qualified to be judges than just people off the street; (6) they insist historical evidence is always conclusive, even though most times it’s highly equivocal at best; (7) going back to (1) again, even though most provisions have a range of plausible interpretations, when a liberal interest is at stake, conveniently the interpretation nearly always ends up being the most restrictive and tight-fisted one; and (8) a lot of doctrines they swear by—like sovereign immunity beyond just the literally 11A text, nondelegation, separation of powers, unitary executive, and due process incorporation (this last one is huge)—have no or almost no basis in the text, let alone historical evidence.

        1. You omitted the ‘they tend to embrace or appease multifaceted bigotry’ and ‘they tend to suppress reason and science to flatter silly superstition’ parts.

          1. How careless of me!

            1. It’s a difficult list to keep up with.

          2. You omitted the fact you’re the biggest bigot here Artie.

            1. Don’t sell yourself short. You’ve got a shot at the title.

              1. After Frick spoke, Frack had to join.

      2. So people charged with summary or petty offenses have the right to court-appointed counsel and jury trials? Summary and petty offenses are crimes, yet they have been deemed exempt from the jury trial requirement since at least the 19th century and long before “originalists” gained influence.

        And surely you’re aware of the sovereign immunity cases of the 1800s that arguably ignored the plain language of the Constitution?

        1. Yes, the Supreme court, in it’s jury trial jurisprudence, simply ignored the clear language of the Constitution. They do that sometimes.

          But as to the right to counsel, I think it generally is correct that it’s a right to counsel if you can get it, not a right to be provided it if you can’t. This IS how rights generally work: The government is prohibited from stopping you, not required to assist you.

          Paying for counsel if people can’t afford it is good policy, though.

          1. Brett,

            Even if you are right about Gideon (and you’re not), the argument that we have to do it the way it was done at the founding is nonsense.

            Your argument makes much more sense, as an argument, than Scalia’s. Congratulations.

            1. This is not an argument that we have to do it the way it was done at the founding, but only that we’re not obligated to do it differently barring an actual change to the text of the law.

              1. we’re not obligated to do it differently barring an actual change to the text of the law.

                No change needed. Where does the text say you only get a lawyer if you can pay one?

                No doubt that was the practice at the time. But maybe we got smarter, and realized that due process really does require that the defendant have a lawyer regardless. Again, no change in text needed, just an improved understanding of what the text implies.

                You know, it’s a commonplace that defending yourself in court is a foolish, losing, undertaking. Yet some how you regard forcing someone to do that as not violating due process.

                1. Like I said, I’m not arguing that the government can’t decide to pay for the counsel of indigents. I’m arguing that it isn’t constitutionally obligated to, which is what reading the right the way you do would imply.

                  I totally support supplying indigents with lawyers. In fact, I’ve long advocated that people who are acquitted should be made whole of all expenses imposed on them by the prosecution; Legal expenses, lost time, lost income, and so forth.

                  1. Ok, Brett.

                    Someone is accused of a crime but can’t afford a lawyer, and thus must navigate the entire process on his own.

                    Is it your opinion that that individual is receiving “due process” of law.

                    Now, note that I’m talking about this happening in 2021, not 1792.

                    1. Yes, that is my opinion. I think “due” process is rather less than “ideal” process, and we are free to do better than it, and should.

                    2. The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.

                    3. And properly so, Sarcastro, because if the government were to abandon that majestic equality, it sure as hell isn’t the wealthy who’d get the short end of the stick.

                    4. Says the guy who thinks Gideon was wrongly decided.

                      Pretty good counterexample there.

            2. “Your argument makes much more sense, as an argument, than Scalia’s. Congratulations.”

              In both cases there’s a tendency to start by assuming the outcome they’d prefer, then working backwards through the legal reasoning to reach the preferred outcome.

      3. But if you look at the text regarding the Right to Counsel, it says “In all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defence.”

        It says to have the assistance, not the opportunity to have assistance.

        Well, no, it says the right to have the assistance of counsel, not the assistance of counsel. What you want to read it as saying is, “In all criminal prosecutions, the accused shall have the Assistance of Counsel for his defence,” And it could well mean that, but it does not “explicitly clear[ly]” mean that.

        1. What did you mean to write when you wrote:
          “no, it says the right to have the assistance of counsel, not the assistance of counsel.”
          It seems like you meant to put in two things that are different, rather than two things that are the same.

          1. No, I said two different things. See,

            “the right to have assistance of counsel”
            “the assistance of counsel”

            That’s not the same; you can tell because there are different words in one of them. Just like “People shall have the right to keep and bear arms” is different than “People shall keep and bear arms.”

    2. This, exactly this.

      This is why I think Roe was rightly decided, but badly reasoned.

      The majority opinion should have be short.

      “Go read the ninth amendment again and shut the fuck up.”

      1. “retained by the people”

        Retained means keep or continue.

        The right to an abortion had to exist in 1789. It didn’t so it could not be “retained”.

        1. It did, though.

          1. I’ve heard this before, that there were abortions allowed in colonies so therefore origionalists should support abortion, but other than a handwavey kind of assertion, I’d like to see some laws on the books from the era.

            1. At that time criminal laws were typically not codified. Abortion prior to quickening was not a crime at common law.

              1. Given the medical tech of the time, you’d have been hard put to prove somebody was pregnant prior to quickening.

                1. So? Burden is still on you to show the founders wanted to, but could not.

                  1. So, they banned it at the earliest point in pregnancy where you could actually prove the woman to be pregnant, and this suggests that they didn’t mind abortion?

                    1. Sure, you can write your own convenient narrative.

                      Or you can look up the origin of the word ‘quickening.’

        2. There is zero indication the Founders wanted to instantiate the norms of 1789 in their Constitution.

          And plenty of text to indicate they wanted something a lot more adaptable.
          And plenty of contemporaneous actions to indicate that was their intent.
          And also plenty of contemporary legal thinking to indicate that Constitutional law could be built on incremental evolution of precedent, in addition to amendment.

          I mean, I’m not an originalist, but that’s better than being a hack one like you are.

          1. I might be open to the idea that judges were to be like super legislative philosopher kings when it comes to dreaming up the the natural rights people were endowed with.

            But, even if that were the case, the federal ones would only restrain the federal government while the state ones would restrain the states.

            1. “I might be open to the idea that judges were to be like super legislative philosopher kings when it comes to dreaming up the the natural rights people were endowed with.”

              This was, of course, an actual belief during and shortly thereafter the Founding. Law, in this worldview, is plainly visible in Nature, and the judge’s job is to see it amongst all the other things going on in Nature. Natural law is the term of Art.

              https://en.wikipedia.org/wiki/Natural_law

          2. >There is zero indication the Founders wanted to instantiate the >norms of 1789 in their Constitution.

            You mean other than writing them down, that is.

            >And plenty of text to indicate they wanted something a lot more >adaptable.

            Other than making the amendment process so difficult, that is.

            >And plenty of contemporaneous actions to indicate that was their >intent.

            Constitutions are a process of compromise, it would be astounding if every jot and tittle were not open to some interpretation. That’s called politics.

            >And also plenty of contemporary legal thinking to indicate that >Constitutional law could be built on incremental evolution of >precedent, in addition to amendment.

            Besides Jefferson’s call for a constitutional convention every 20 years, which cuts across your other points because things coming out of said convention would be written down, this isn’t a mountain out of a molehill.

            >I mean, I’m not an originalist, but that’s better than being a hack >one like you are.

            A living constitutionalist is just another kind of hack

            1. You mean other than writing them down, that is.
              What norms are in the Constructional text? Are you confusing norms with rights?

              Other than making the amendment process so difficult, that is.
              The amount of ambiguity throughout the text indicates the Constitution is more a flexible framework than an ironclad system. Frameworks may need amending, but that doesn’t mean they are inflexible to begin with.

              Constitutions are a process of compromise, it would be astounding if every jot and tittle were not open to some interpretation. That’s called politics.
              Room for compromise looks a lot like flexibility to me.

              Besides Jefferson’s call for a constitutional convention every 20 years, which cuts across your other points because things coming out of said convention would be written down, this isn’t a mountain out of a molehill.
              First, ideas from Jefferson that didn’t get instantiated are hardly the sole authority on the Constitution.
              Second, I am speaking to original public meaning, not just of the Founders. It’s very helpful for originalists to understand how people at the time thought a Constitution operated!
              Third, a regular amending convention does not curtail the possibility that the Constitution can change in ways other than formal amendment. Since you seem more into drafters’ intent than public meaning, I again point you to the founding generation’s changing understanding of Constitutional practice.

              Bob is trying to pretend the Constitution is a complete taxonomy of rights and powers as written in 1789. That’s not even a real Constitutional belief, it’s just a way to crap on rights. Because that’s what a lot of the right has become – struggles against rights, whether negative or positive. And struggles against limits on executive power as well.

            2. “Other than making the amendment process so difficult, that is.”

              During the first ten years of the Constitution, how many times was it amended?

              1. The amendment process isn’t actually all that hard. The current drought of amendments isn’t due to Article V, it’s due to Congressional opinion diverging from popular opinion: Congress no longer wants the amendments the public would ratify, and knows the public wouldn’t ratify the amendments they would want, so they’ve stopped originating amendments.

                There are plenty of amendments that would be ratified in a heartbeat, but Congress would never want to give the states the opportunity.

                It’s a consequence of our political class becoming self-perpetuating and ideologically distinct from the general electorate.

                Sooner or later the states will finally get sick enough of it to bite the bullet, and unambiguously call for a constitutional convention. And then it’s my expectation that Congress will get stubborn and refuse to admit that they have, and we’ll have a full scale constitutional crisis.

                1. Or the public could be change-averse. Like the American People tend to be most of the time.

                  There’s also a popular way to ratify amendments that does not require Congress. So Congressional elitism doesn’t really explain why we don’t like amendments these days.

                  1. Of course there’s such a way, I mentioned it: A constitutional convention. The only reason we haven’t had one yet is that the various calls for one have used different language, which gives Congress an excuse not to add them all up together.

          3. “There is zero indication the Founders wanted to instantiate the norms of 1789 in their Constitution.”

            Because obviously they wanted to instantiate the norms of a 2021 faculty lounge in a race hustling Department of [Something] Studies.

    3. “If you think Roe and Casey are wrong, then make a valid argument. This isn’t it.”

      Ultimately, the argument is “we REALLY DON’T LIKE that you guys (referring to the Supreme Court) won’t let us tell those durn wimminfolk what to do.” which is always going to come off as a poor argument, except to those who are making it.

      For some reason, the largely elder folks who make up the modern (sic) Republican party find it frustrating that younger people still enjoy sex and as a result the fogies strike out at the fact that the current society is non-Victorian on the subject. You can see it in the priorities of the Ed Meese Justice Department, followed by the Ashcroftian one.

      1. Agreed. Just as Dred Scott was a terrible decision, the fix was a Constitutional Amendment.

      2. Actually, the data indicates that younger people have piss-poor sex lives.

        1. Well, if you grow up in a legal environment where a woman can decide months later that a consensual encounter was rape, and just asking somebody out for a date can be actionable harassment, you’re going to be a bit antsy, I should think.

          1. Maybe don’t speculate what’s in the mind of young men, but actually speak to them.
            At least at law-school age, they don’t seem too nervous about it.

          2. “if you grow up in a legal environment where a woman can decide months later that a consensual encounter was rape”

            You might learn to treat her well enough that she doesn’t reach that conclusion.

            1. Yeah, I’m betting you’ve never dated or married a woman who’s bipolar.

        2. “the data indicates that younger people have piss-poor sex lives.”

          That was just you.

      3. Ultimately, the argument is “we REALLY DON’T LIKE that you guys (referring to the Supreme Court) won’t let us tell those durn wimminfolk what to do.”

        This is so simplistic as to be laughable.

    4. Like so many others, you miss the most basic, fundamental issue. As a result, you’re way off the mark right out of the gate.

      Yes, the 9th amendment means there could be a “right to marry,” for example, in the sense that it is something which the federal government should not infringe. A right being unenumerated does not mean it isn’t a right.

      But that doesn’t mean that the federal government has the power to control state governments on the matter. Much less that the federal judiciary has the power to control states on the matter.

      1. “that doesn’t mean that the federal government has the power to control state governments on the matter.”

        You might want to re-take Con Law II. It turns out that after the Civil War, the federal Constitution was amended to allow the federal government to act as guarantor of civil rights against infringement by the States.

    5. Further, odd that you think your comment somehow supports Roe and Casey.

      The Ninth Amendment may well preclude opponents of unenumerated rights from denying that a right exists because it is not enumerated (again, applicable as to the federal government only). But equally true, a proponent of an unenumerated right cannot rely on the Ninth Amendment to establish or identify any such right. So it leaves it unresolved.

      Ultimately, you will have to fall back on natural reasoning and you’ll have to face the issue that an unborn human being is still a living human being notwithstanding differences in size, developmental stage, cognitive capacity, dependence and so on.

      1. “unborn human being is still a living human being”

        Not according to the law:
        https://www.law.cornell.edu/uscode/text/1/8

        Nor most Americans, for that matter.

        1. You proved yourself wrong with your own link. Try reading it better.

          1. Dear God, another one? Here’s the Cliff’s Notes version for the slow kids:

            1 US Code 8 has 3 subsections.
            A) defines person, child, human being, and individual as being “born alive”.
            B) defines “born alive” (hint: not a fetus).
            C) says that the law doesn’t change the status of anything any time before being “born alive” (aka a fetus).

            It’s not that hard to follow unless you don’t want to accept it.

        2. “unborn human being is still a living human being”
          Not according to the law…

          So, once the Nazis declared Jews to be “Untermenschen,” that was the end of the story, right? Nothing else needed to be said?

      2. “you’ll have to face the issue that an unborn human being is still a living human being”

        Why would that be a problem, considering that this has been my position all along?

        1. Legally a fetus is neither “living” or a “human being”.

          If you say “I believe that an unborn human being is still a living human being”, that would be true.

          Stating it as a fact is not true.

          1. Unless you think people speak in US-Code-ese, your citation of a subsection of the US Code (introduced in 2002) that defines terms within that section of the US Code is absolutely irrelevant.

  11. I’m fine with the expansion of civil liberties as unenumerated rights due to changing attitude, even if it wouldn’t have been considered as such in the past.

    This is in accordance with the original concept of unenumerated rights.

    I am not fine with “changing attitudes” granting government more control over things, that it didn’t used to be considered as having, without constitutional amendment.

    This limits the growth of government power at its own impetus, severed from well-reasoned supermajority approval of The People.

    If you can’t get a supermajority to think a new government power is a good thing, it probably isn’t. This is the fundamental meta-law putting the brakes on descent to tyranny, by stopping easy government growth of itself, also in accordance with the original concept and fundamental design principle of the Constitution.

    See, leaping a simple 50% majority to make major changes is the game nascent dictators love. Inflaming the political winds of passion is their world.

    If it’s a great idea, most will think so, not just a small majority, and they will think so 5 years from now, when things have cooled down.

    “Strike while the iron is hot!” is the enemy of long-term freedom from tyranny. So sayeth millenia of misery.

    1. You sound like Edward Snowden.

      But to actually stop overreaching power accruing to government, we need to go all the way back to The Declaration and exert our natural right to overthrow.

      1. “to actually stop overreaching power accruing to government, we need to go all the way back to The Declaration and exert our natural right to overthrow.”

        Some fellows tried that back in January, and things didn’t turn out well for them. Well, it worked better for them than for those other fellows back in 1861.

        1. LOL. If you think 1/6 was some kind of rebellion, you haven’t seen anything.

          1. All they did was attempt to take over the government. That’s no kind of rebellion.

    2. “I’m fine with the expansion of civil liberties as unenumerated rights due to changing attitude, even if it wouldn’t have been considered as such in the past.

      This is in accordance with the original concept of unenumerated rights.

      I am not fine with “changing attitudes” granting government more control over things, that it didn’t used to be considered as having, without constitutional amendment.”

      Can we change some attitudes about the 4th amendment, such as declaring that women no longer have a right to be secure in their persons? Just asking for a friend.

    3. “I am not fine with “changing attitudes” granting government more control over things,”

      Unfortunately, inventing new rights and pretending they’re in the Constitution, in the modern era always involves granting government more control over things. And particularly, centralizing that government power. It is granting a tiny unelected oligarchy (the federal judiciary) control over all State governments, and obliterating all vestiges federalism.

      One might say, oh well, I’m fine with the results so far. Great. That works, until it doesn’t. You’re just a few court-packed lunatics away from losing the right to bear arms, or whatever else. Consider carefully the logic of centralizing government power and expanding jurisdictions for “good” reasons. Where does it stop?

  12. I don’t believe this court is likely to completely undermine substantive due process or eviscerate rights not explicitly enumerated in the Constitution. It is interesting that Troxel and its progeny is not mentioned here, as even Justice Thomas (for whom Adam Mortara clerked for and kind of worships) recognized that, as Kennedy characterized it, “the custodial parent has a constitutional right to determine, without undue interference by the State, how best to raise, nurture, and educate the child.” This right is grounded in the substantive due process of the 14th Amendment. Of the nine justices on the Troxel court, Souter didn’t reach the issue and Scalia is the only one to express doubt (“While I would not now overrule those earlier cases (that has not been urged), neither would I extend the theory upon which they rested to this new context.”) (Souter, J, dissenting). Even the Chief joined the majority overturning the Washington law on substantive due process grounds. There is no chance this court will open that can of worms.

  13. Second, the argument suggests that in 1967 bans on interracial marriage had already been illegal under federal law for more than a century. That certainly would have been news to the 16 states that still had such laws.

    Similarly, the argument (which the Supreme Court approved in Obergefell v. Hodges) that limiting marriage to opposite-sex couples is unconstitutional under the 14th Amendment would have been news to the 37 states (out of a total of (checks notes} 37) at the time of the ratification of that amendment in 1868 who did exactly that (not to mention the 13 states that subsequently joined the union with laws no less restrictive).

    1. Your counting is off somewhere.
      You missed the fact that California’s marriage statute did not require spouses to be of different sexes prior to California Prop. 8. When the California Supreme Court actually checked the paperwork, and discovered that there was no such requirement built into their statute book, of COURSE we had to have a state-constitutional amendment that overturned the Cali supremes. But then they overreached, and decide to retroactively invalidate the same-sex marriages that had already be completed and registered by the time the amendment was added, and that’s a big part of what got that amendment discarded. Before that, you had equal protection in all the other states… anyone who wants to get married can marry exactly one person of a sex different from their own, barring consanguinity. Nobody is getting treated differently, everyone has equal opportunity. But going to what was then around 1100 married couples and saying “your marriage is going away, because (no reason)” was a little bit obviously because of sex, and was not equal under the law. That overreach is a major factor in why those marriages are valid in all 50 states now.

      1. “You missed the fact that California’s marriage statute did not require spouses to be of different sexes prior to California Prop. 8.”

        Didn’t, so far as I know, require them to both be alive, either. As I’ve remarked before, marriage laws didn’t typically specify “man and woman”, because that was considered to be part of the accepted definition of “marriage”, it would have been redundant to mention it.

        1. There were a couple of things they considered fairly important that are in there, which undercuts your claim that things they considered important were left out because obviously they had to be there. Consanguinity was and still is forbidden in statutory marriage, minimum age is in there, and the fact that you can’t get a marriage if you already have one with someone different than the person you want to marry now. Statutory marrige is relatively new. Go back to examine common-law marriage. What things does a person who wants to claim that a common-law marriage actually existed have to prove, to support their claim that a marriage existed? 1) present intention to be married, 2) “holding out” to the public as married, and 3) no previous state of marriage.

          1. “Consanguinity was and still is forbidden in statutory marriage, minimum age is in there, and the fact that you can’t get a marriage if you already have one with someone different than the person you want to marry now.”

            All of those things are forbidden forms of marriage because they were already understood to BE marriage, and so if you were writing a marriage statute, you had to explicitly exclude them.

  14. There is no constitutional right to:
    Marriage of any kind
    Asset Forfeiture
    Cross the street
    Show medical records to any damn fool who asks
    Be strip searched at an airport
    etc

    The founding fathers foolishly assumed that mankind was reasonable and rational.

    1. “There is no constitutional right to:[…]Asset Forfeiture”

      Well, you just keep holding onto the dream, and maybe someday you can forfeit your assets whenever and however you want to, because you’re an American. If you get some assets.

  15. The “architect” of SB8 violates the 1st Law of Holes.
    When you’re in a hole, stop digging

    1. So what happens when a hole finds itself in you?

      1. So what is your point?

        1. Apparently that you have no sense of humor.

          1. To prove that, you’ll have to expose him to some humor.

    2. He’s on a Mission From God.

      And not the good kind.

      These guys are on the dumb, delusional, obsolete, childish path.

      They’ll dig until they are replaced.

      1. “He’s on a Mission From God.”

        Funny, He didn’t say anything about giving anyone any missions, last time we talked. I guess He thought we were still working on the feeding the widows and orphans, and healing the sick mission He assigned back in Judea 2000 years ago.

  16. But we strongly feel those policies are right so let’s just pretend they’re in the Constitution!

    1. Make up your damn minds! I thought you guys were pretending they aren’t?

  17. There’s No Constitutional Right to Interracial (or Same-Sex) Marriage, Says the Architect of the Texas “Heartbeat Bill”

    Yes, there damn well is, said the US Supreme Court.

  18. “The conclusion that the constitutional right to marry is baseless follows from a larger critique of substantive due process common within conservative legal circles . . . ”

    To clarify, wouldn’t there be a “constitutional right to marry” even under this view in the sense that the Constitution prevents the federal government from infringing on such a right? Just not that it empowers the federal judiciary to control state governments on the issue. Federal and State are different things.

    1. Are you still pretending that a Conservative viewpoint isn’t oriented to telling people what to do and how to do it?

      1. Are you still pretending that the left is liberal and not completely authoritarian assholes? You’re not paying close enough attention.

        1. I don’t recall making any claims about the left. Are you sure you’re not confusing me with someone else?

  19. “What’s notable about this line of argument is how unremarkable it is”

    Indeed. And what is so remarkable is that it is not notable.

    1. It’s what Texas considers remarkable.

      1. Notable and remarkable are synonyms.

        1. You might want to consider what I consider to be a synonym for Texas.

  20. The only conclusion I can draw from this is that the entire process is a false-flag operation. As you mention, it sounds like a parody of conservative arguments. I would find this argument embarrassing if it was a villain speech in a comic book. It puts arguments on what almost anyone would consider sacred ground that aren’t even at issue here. The argument is going miles off the path just to trample more daisies.

    I find myself unable to believe that someone would actively put forth this argument, knowing the criticism and anger it would invoke. This is a either deliberate self-sabotage and own-goal or the author is completely and utterly insane.

    1. The train started running off the rails when they started pursuing a strategy of “whatever they’re for, we’re against!’ combined with the longing for 1859.

    2. I’m willing to bet that it is option C: this it truly what they believe and they are taking the opportunity to put it out there.

      It’s not like TRL is a moderate or defensive-minded group. They are an aggressive Christian organization that lives just on the rational side of the border between reasonable-but-extreme and batshit-crazy-theocrat. And their supporters come from both sides of the border.

      As has been pointed out regarding other ideas and issues in the past, what was once considered extreme (interracial marriage, a 5 day work week, divorce, cloning, a heliocentric solar system) are now accepted as unremarkable. Not even worth commenting on, they are so normal.

      TRL wants to be the vanguard in the defeat of substantive due process. In order to do so they have to address the most obvious impacts of their position in order to head off simple rejection based on, “jeez, they aren’t even smart enough to know that this will overturn Loving”. They’re saying they know and that they don’t think interracial marriage would disappear without SDP.

      Same with gay marriage and sodomy laws. It’s an obvious repercussion, but maybe they think (and believe the 6 conservative justices would agree) that it is a good outcome.

      Either way, I’m glad at least one brief had the honesty to say what the repercussions would be to eliminating SDP.

      1. Funny thing about sodomy. Straight people can do it, too.

  21. Somebody please tell these jackasses, sorry, these legal scholars of impeccable conservative credentials, that the Constitution didn’t come with a list of rights because it didn’t need one, The Constitution is a framework of which powers the federal government has and which powers the states have. If it doesn’t say the states have the power to decide who is married and who isn’t, then they don’t have that power. I’ll pause to give y’all a time to re-read the document. Is there anything in there that says state has the power to inspect your internal organs upon demand? No? Can they dictate to you who can be married? No again? Isn’t there a bit that says “except that Texas can, if they join the United States”? No? You have got to be kidding.

    1. “If it doesn’t say the states have the power to decide who is married and who isn’t, then they don’t have that power.”

      Well, in one sense I’d be glad to apply that principle – limiting the power of states to grant so many divorces and remarriages.

      1. Divorce is a good thing. I can’t imagine the misery I would have had to live through if my mother had stayed with my father. They were both great parents and good people, but they were miserable being married to each other. Their divorce is the best thing that happened to me and my sister.

        1. Nice to know, and I’m glad it worked out for you.

          In any case, the state can’t decide who’s married or not, contrary to James’ constitutional theories, which would have meant that your parents’ marital status would be none of the state’s business, meaning they couldn’t have dissolved the marriage by divorce. All that would be available would be a divorce from bed and board, which wouldn’t end the marriage, it would just have allowed the parties to separate.

          So depending on what kind of divorce your parents got, James’ theory may or may not have held the divorce unconstitutional.

          1. according to, not contrary to, James’ constitutional theories

          2. From the perspective of the government, marriage is just a contract between two people that conveys a set of privileges and obligations on the parties. That’s why divorce is all that’s necessary for remarriage according to the state but, for example, an annulment is necessary for the Catholic Church.

            1. But who decides who’s divorced and who isn’t, if not the state?

            2. But who decides who’s divorced and who isn’t, if not the state?

    2. yeah, not at all.

      Amendment IX (1791)

      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      Amendment X (1791)

      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.

      1. You undercut your own claim by pointing out why it is that states don’t have the power. Note that the final word of both amendments is “people” and not “state”.

    3. “If it doesn’t say the states have the power to decide who is married and who isn’t, then they don’t have that power.”

      Hey, jackass, you’ve got things backasswards. The States didn’t get their powers from the US Constitution. The Federal Government got its powers from the States through their ratification of the Constitution. The sovereign States were first.

      1. You’d have a point, if nearly 3/4 of the states weren’t created out of federal territories.

      2. No, he just had a point. Period.

  22. Things are Getting Messy

  23. If Loving v. Virginia were overturned, Mr. and Mrs. Clarence Thomas would have to either move or go to jail. (Of course, I have no doubt that 2021 Virginians would repeal their old racist law if Loving were discarded.

    1. You have clearly not read the article. Remove your shoe from your mouth and try again, or for the first time.

      1. What a maroon!

  24. Based on the amici’s justification for upholding Loving, it’s hard to see why the holdings of Obergefell and Lawrence would not also be safe under federal law prohibiting state laws from discriminating on the basis of sex. This is especially true in light of the Court’s recent holding in Bostock.

  25. I’m incluned to agree with the original views of Potter Stewart, who dissented in Griswold and concurred in Loving separately. The two don’t have anything to do with each other. Loving is a racial discrimination case analagous to Brown v. Board of Education. It no more implies any general privacy right than Brown implied a right to an education.

    I would also point out White’s opinion in Bowers v. Hardwick. The two simply have nothing to do with each other.

    Pretending the entire constitution rests on your special interest has a long history in this republic. Slavery and segregation fell, and the people who thought these things were so enshrined in the constitution that the entite republic would fall if they were removed were simply wrong.

    Roe was a bad decision. The general public never came to support it. Like Prohibition, one national policy does not fit all. And like Prohibition, sometimes it’s best to admit that, let the states do what they want, and move on. In the long run, respect for the constitution is improved that way.

    1. The general public does support Roe. The general conservative public doesn’t but at this point that’s only about 1/3 of the country. The general liberal public snuggles up to it like a baby with their favorite blanky. And the general independent, moderate public supports it.

      1. That’s an essentally meaningless statement. One of the two major parties, and one that wins the presidency and the senate majority about half the time, has consistently opposed Roe, and committed to appointing Supreme Court justices opposed to it. This basic fact hasn’t changed for decades. It was simply a matter of time – it was pretty much inevitable as a matter of probability – that the necessary number of vacancies would open up during a period when they happened to control both.

        Having a bare majority of the total vote simply doesn’t matter in a system where elections for the offices that do matter are done by state. Nor do polls actually support the totality of Roe; they tend in practice to support somewhat more restrictions than Roe allows, although not as many as in Texas’ SB8.

        This is radically different from, say, Brown. Both major parties came to endorse Brown. A movement to flat-out overturn it fizzled – not immediately, but within 10 years it didn’t have a home in either major party and within 20 years it was an essentially fringe political position. This is simply not the case with Roe. There is just no comparison.

        1. ” It was simply a matter of time – it was pretty much inevitable as a matter of probability – that the necessary number of vacancies would open up during a period when they happened to control both.”

          Didn’t happen. You needed the application of the McConnell Rule to get there.

          1. Well, you needed an application of the Biden rule to defeat the Bork nomination.

            Republican presidential nominees perceived as likely to tilt the balance got defeated when Democrats had the majority in the Senate; Democratic presidential nominees perceived as likely to tilt the balance got defeated when Republicans controlled the Senate.

            Same behavior on both sides for roughly 35 years. Each side argued that it had a special reason for its actions. But each side’s special reason, stripped of the partisan hoopla that its side is the American Way and the other’s the American Way’s enemy, was really just that they feared, generally correctly, that the other side’s nominee would tip the balance.

            1. And it was a matter of probability both sides would get a chance to stack the Court in their favor. The fact that the Democrats got their chance first was just dumb luck. So, frankly, is the fact that the Republicans got their chance under Trump and McConnell. While when the chance would occur was a matter of luck, the fact it would occur sometime in the half century or so after Roe was close to inevitable. It’s essentially been a 5-4 balance for decades.

              1. Remember how pissed cultural conservatives were at John Paul Stevens for not being conservative enough? Or Sandra Day O’Connor?, Or Anthony Kennedy? Or David Souter? Or John Roberts? Or Brett Kavanaugh (sometimes)? Or Neil Gorsuch (sometimes)?

                There are two ways to see the “betrayal” of cultural conservatives by Republican-appointed Justices. Either cultural conservatives are way out of the mainstream and 7/12 of Republican-appointed Justices (since Ford) reject their premises constantly (and 2/12 sometimes) or liberals are successfully masking their beliefs through years of judgeships just so they can get nominated to the Supreme Court by Republicans.

                While they got it “right” with Thomas and Alito (and can probably count on Barrett), you have to be worried that Gorsuch will throw out a libertarian opposition to overturning Roe or Roberts and Kavanaugh will find the original reasoning wrong, but uphold it for other reasons.

                Admit it. You aren’t confident that you will win this one and know that if you can’t make it happen with McConnell’s manipulative confirmation games, it will never happen.

                1. You’re missing a third possibility, which is that Republican officeholders are often lying to the voters about being cultural conservatives, and betray those voters whenever they think doing so will be deniable. “I’m shocked! Shocked, I say! How could I have known O’Connor/Kennedy/Souter/Roberts would have been so unreliable?”

                  When they weren’t unreliable at all.

            2. “Republican presidential nominees perceived as likely to tilt the balance got defeated when Democrats had the majority in the Senate; Democratic presidential nominees perceived as likely to tilt the balance got defeated when Republicans controlled the Senate.”

              In one case, there was a vote called, and in the other there wasn’t. To you this is equivalent.

      2. Will also mention ghat there has basically been a 5-4 majority in favor of Roe on the court for over 3 decades. Democrats feel cheated over Merrick Garland. But Republicans feel cheated over Bork. If Bork had gotten on the Court, Roe would have been overturned over 30 years ago and we wouldn’t have had this judicial cliffhanger and political stalemate hanging over us for 3 decades. For all the pretending both parties do, both parties having been appointing justices based on their perceived views on this one issue for 35+ years. Let the court handle judicial matters, and not act as a set of proxies for obviously political ones.

        If the majority of the public supports legalized abortion, they will vote for people who will vote it in. If they don’t do that, they don’t really support it.

        1. “Will also mention ghat there has basically been a 5-4 majority in favor of Roe on the court for over 3 decades. Democrats feel cheated over Merrick Garland. But Republicans feel cheated over Bork. If Bork had gotten on the Court”

          You need more analysis before you decide these are equivalent. Bork wasn’t going to be confirmed if put to a confirmation vote. Garland would have.

        2. What about all the Republican-appointed Justices that upheld Roe? What’s that about?

      3. It only looks like that if you’re taking the view from 10,000 feet. Once you get into the detailed poll responses, you find that the public may say they support Roe, but it’s only because they don’t actually understand Roe, public opinion on abortion is very different from what Roe did.

        1. You can game the system a bit by how you phrase the question. If you ask “should women carry fetuses to term?” you get a slightly different ratio than if you ask “should women be forced to carry fetuses to term?”
          One thing that doesn’t seem to ever get majority support is “should legislators substitute their opinions on abortion for pregnant womens’?”
          In much the same way you can generate different answers to “gun control” questions by altering the phrasing.

          1. The questions, as posed by Pew for decades, is “Do you believe abortion should be A) illegal in all cases, B) illegal in most cases, C) legal in most cases, or D) legal in all cases? That is as neutral as you can make it.

            Not only has the sum of A+B never surpassed C+D, it has never surpassed 50%, A has never hit 15% and D has never hit 19% (all illegal loses to all legal) and the average over time is about a 60%/40% split in favor of abortion rights.

            Anti-abortionists like to cherry-pick polls or focus on disreputable polling organizations like Rasmussen, but that never overcomes the reality that it is a minority position and has been throughout modern American history.

            1. Gallup asks about abortion for various reasons at different points in the pregnancy. Elective abortion just because the mother doesn’t want a baby polls badly even in the first trimester, and a strong majority favor outlawing it after that.

              Abortion for cause fares much better in that regard.

    2. “Roe was a bad decision. The general public never came to support it. Like Prohibition, one national policy does not fit all. And like Prohibition, sometimes it’s best to admit that, let the states do what they want, and move on. In the long run, respect for the constitution is improved that way.”

      Yes, but the problem here is that, unlike Prohibition, Roe wasn’t accomplished by an explicit constitutional amendment, the Court just magically read the amendment into the existing text. So there’s nothing obvious to repeal, the way the 21st amendment stated, “The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”

      And the Supreme court practically never admits it has made a mistake, once more than a short while has passed; The Slaughterhouse decision was never overturned, which is why the Court had to invent ‘substantive due process’. (Loving v Virginia is unusual in this regard, it explicitly admitted Pace v Alabama was wrong.)

      1. “And the Supreme court practically never admits it has made a mistake”

        No? quick question, was the internment of Japanese-descended US citizens during WWII a lawful act? The Supreme Court said “yes” when an appropriate case was before them, but more recently, the case has been cited as if that case was overturned, despite never having been overturned.

        1. Wake me when they actually overturn it.

      2. “The general public never came to support it”

        The general public has always supported it.

  26. A note for any legitimate law deans encountering this thread:

    This White, male, faux libertarian, right-wing blog — a haven for old-timey racists, gay-bashers, xenophobes, misogynists, and authoritarian, superstitious clingers — is what you get when you hire movement conservatives for faculty positions at mainstream, liberal-libertarian law schools.

    You get to have these culture war losers misappropriate and diminish your institution’s franchise by associating it with diffuse bigotry, backwardness, belligerent ignorance, and childish superstition at the expense of reason, education, modernity, inclusiveness, progress, tolerance, and science.

    Spare yourself the ‘aw, Jeez, what did these misfits do this time’ moments, and occasional, ‘I apologize on behalf of our school . . .’ announcements. Reject affirmative action for Cruz-class Republicans and movement conservatives. Ignore the invitation for your school to emulate fourth-tier, conservative-controlled schools by hiring movement conservatives for faculty positions.

    This blog’s scant academic veneer is swamped by its disgusting habits of lathering our society’s right-wing malcontents with red meat; of incessant ankle-nipping (cherry-picked and misleading) aimed at strong, mainstream institutions; and of engaging in hypocritical, partisan, viewpoint-driven censorship.

    You’re welcome.

    1. Did I mention the regular publication of vile racial slurs?

      1. Your claim to be white is the only racial slur I’ve seen recently, not counting your others.

    2. Artie the bigot spews hatred on this forum daily. They banned you once, they will do it again.

      1. I try to respect the proprietor’s hypocritical, low-grade, selectively applied requests. I do not use the words he forbids. I try to avoid parodies aimed at knuckle-dragging, fairy tale-addled, right-wing bigots.

        But I agree — Prof. Volokh may censor or ban me again. That is his right — his sandbox, his rules.

        Partisan, disaffected hypocrites have rights, too.

  27. “What’s notable about this line of argument is how unremarkable it is in mainstream conservative legal critiques of substantive due process, Obergefell, and Lawrence.”

    What’s remarkable is that Mr. Carpenter thinks that rejection of his own arguments is remarkable. He should get out more.

  28. interracial couples are secure only by congressional grace, not by fundamental constitutional law. Congress would be free to revoke that protection (though it assuredly would not do so these days)

    This identifies the problem without realizing it.
    Judges supplanting their moral settings for the Nations. The People will come the the right outcome. Never as fast as the early adopters would like, but get there just the same. There would be no abortion battle if congress wrote the legislation. Judges could learn something by understanding, the people will get to “their” moral center when the time is due

    1. It’s all well and good to tell people to wait when it’s not your ox being gored.

      We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was “well timed” in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word “Wait!” It rings in the ear of every Negro with piercing familiarity. This “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that “justice too long delayed is justice denied.”

      1. “It’s all well and good to tell people to wait when it’s not your ox being gored.”

        100% of the people on the pro-choice side of the argument have already been born. I’m not sure how many of the pro-life side are advocating removing a right that will never possibly be any use to them, due to their state of uterus-deficiency. From these facts you can clearly see a good bit of self-interest in this debate.

  29. To reason that an individual right, because it is not enumerated, does not exist directly contradicts the 9th Amendment.

    1. To a good number of the advocates on one side of this debate, there are only 2 amendments to the Constitution. One that says their right to practice their religion upon other people cannot be abridged, and another one that establishes the religion of the firearm as God.

  30. I know the cases read as fundamental rights cases, but I always felt the proper reading of the marriage cases is of Equal Protection. I say that because I don’t there is a right to any marriage at all. If the state wanted to stop doing marriages there would be nothing wrong with that. Further just from a semantic stand point no one has ever been able to give me a good answer to what the right to marriage entails. What is it that the constitution prevents the state from infringing on or requires the state to give you?

    1. ” I say that because I don’t there is a right to any marriage at all.”

      I think there may be a missing in this sentence.
      There isn’t a right to “any marriage at all”, or the Mormons would still be practicing polygamous marriages. They more-or-less caved on that issue to get Utah admitted as a state.

  31. I think Professor Carpenter’s view is not just wrong, but misleading. Taking Potter Stewart’s (and Hugo Black’s) view that Loving can be justified by the 14th Anendment Equal Protection prohibition of government racial discrimination does not mean that mescegenation laws are illegal “only as a matter of Congressional grace.” It’s true that the Equal Protection Clause generlly speaking gets enforced by Congressional statute, which also establishes the Supreme Court’s appelate jurisdiction. But exactly the same is true for the Due Process Clause. One is no more a matter of “congressional grace” then the other.

    In his eagerness as an advocate to try to argue that if his special interest falls so does everything, Ptofessor Carpenter appears to be snatching a statement out of context in a way that aimpky doesn’t make any sense. Potter Stewart’s and Hugo Black’s position that Loving is legitimate but Griswold isn’t is eminently defensible, and saying it’s a matter of “Congressional Grace” simply mosrepresente the position. And of course White, who voted with the majority in both Griswold and Loving, dissented in Roe and wrote the majority opinion in Bowers v. Hardwick.

    1. Carpenter isn’t expressing his view. He summarized TRL’s view which did not mention the Equal Protection clause, or justices Stewart or Black. Instead, they argued it was the Civil Rights Act of 1866, which means they are arguing it is only a matter of Congressional grace.

      1. The Civil Rights Act of 1866 was pretty much eviscerated on review, so basing any modern understanding of law on it seems dubious at best.

  32. I can still remember when the VC was a place where a conspirator was booted because of his … views on gay people.

    I enjoy the occasional contributions of Prof. Carpenter. It’s sad to see that the commentary of the VC is filled with so many people that exemplify the current state of the GOP and their desire to denigrate the rights of anyone who doesn’t look like them or think like them.

    1. I wonder how a poll about interfacial marriage would come out these days.

      Or the genetic inferiority of black people, honestly.

      1. I honestly wouldn’t want to know. My faith in humanity is usually lessened by the comments here.

        And the sad thing is- this is hardly the worst place.

      2. “I wonder how a poll about interfacial marriage would come out these days.”

        Might as well as about space lasers, or whether people should get vaccines.

      1. Clayton Cramer. Long time ago. More like … no longer a conspirator. Continued to comment for some time after that.

          1. Oh, yeah. That. There was so much there, but this line –

            “My wife had somewhat stronger feelings on the subject, primarily because she had been in homosexual-rich environments, in high school and while working for Ronald Reagan in the late 1970s.”

            I love the fact he talks about “homosexual-rich environments” (….okay…) and then seems to think that people would just be like…

            “Oh, so … Ronald Reagan … that’s a homosexual-rich environment!”

            Seriously, it’s not like his wife worked on Broadway.

            1. Somehow, I read that as homosexual-enriched environments, akin to fortified with vitamins.

              I vaguely remember Cramer. But, the guy who was the weirdest was “sperm and eggs” guy. He never-endingly argued marriage equality would result in two sperms being combined to form a baby which would result in the end of the world.

              1. There’s been a lot of weird ones- the Sperm and Egg guy was definitely up there.

                …of course, one of the great and long-running jokes on the website was Mick, who had these insane birther and fraud conspiracies. We used to joke and laugh and make FRAUD!!11!!!!!! comments. Because everyone knew that Mick was a nutter.

                ….not to funny anymore, is it?

                1. Dang it. Why can’t there be an edit.

                  This is what happens when you get caught between “so” and “too.”

              2. Well, that’s eventually going to happen, there’s no technical reason that you can’t create a fertilized ovum out of two sperm cells, especially if you happen to have a random egg cell that you can remove the nucleus of. It’s just difficult to accomplish, not categorically impossible.

                I don’t see the end of the world part, though.

                1. ” there’s no technical reason that you can’t create a fertilized ovum out of two sperm cells”

                  Unless you understand how different sperm cells and egg cells are.

                  1. I probably understand more about how different they are than you do, unless you’re a biologist, since I’ve been following cloning research. The only fundamental question is whether or not you have available all the necessary genetic code. Two sperm cells from different individuals will get you that.

                    The epigenetics of one of the sperm DNA will need to be reset. This can be done by nuclear transplant into an enucleated egg cell, as cloning research has shown. There are probably other ways to do it, but that’s within current art. And you’ll need donor mitochondria, since sperm cells rarely pass them on. Again, the easiest way to do that is an enucleated egg cell.

                    So, at the current state of the art you DO need an egg cell, (Not a fundamental requirement, just a current technological limitation.) but you can certainly use two sperm cells to produce a fertilized egg if you’ve got that as a starting point, and the egg wouldn’t be contributing any nuclear DNA to the result.

                    1. “I probably understand more about how different they are than you do”

                      Unlikely, if you believe that you can make one out of the other.

                    2. “The epigenetics of one of the sperm DNA will need to be reset. This can be done by nuclear transplant into an enucleated egg cell”

                      So, you can turn two sperm into an egg, as long as you start with an egg.

                    3. He’s saying that a baby can be made from the genetic materials of two sperm cells. And he’s right. As of now you have to use an unnucleated egg cell, but even that might not be necessary soon. I’m certain that before I die it will be possible for two sperm cells (or two egg cells) to combine to make a diploid cell.

                    4. “So, you can turn two sperm into an egg, as long as you start with an egg.”

                      A sperm with an X chromosome is genetically identical to an egg cell, except for epigenetics, (Which genes are switched on or off.) and the cellular machinery that resulted.

                    5. “A sperm with an X chromosome is genetically identical to an egg cell, except for epigenetics, (Which genes are switched on or off.) and the cellular machinery that resulted.”

                      So, in other words, as long as you’re getting your sperm and egg cells from clones, you can make a clone?

            2. I really don’t see what was so awful about the post, actually. I mean, he’s right about those gay pride parades. The Onion nailed that one years ago.

              1. “I really don’t see what was so awful about the post”

                1. Any time you are asking, “Am I a … X” chances are you are, in fact, X.

                2. If your argument is the following-
                I had previously associated with homosexuals, not close to them mind you! I just assumed that they were weird, you know! I didn’t hate them, like my wife, who had met more of them. So in an attempt to get to know more of them, I asked a bunch of homosexuals on the internet, “Hey, why do all you homos like NAMBLA?” And you know what? Those homosexuals love NAMBLA! Absolutely love it!

                And that’s why I am totally into Focus on the Family- because those homosexuals and their love of child rape.

                …if that’s your argument in a nutshell, then maybe you’re better off keeping it to yourself. And if you don’t see it, then maybe … just maybe, you need to re-calibrate your sensors a little.

                1. “that’s why I am totally into Focus on the Family- because those homosexuals and their love of child rape.”

                  We didn’t know back then that churches had so many child rapists in them.

                2. ““Hey, why do all you homos like NAMBLA?”

                  No, he said ” I posted a question in a newsgroup associated with homosexuals, soc.motss, asking why groups like NAMBLA were allowed into the parade when homosexuals were, or should be, concerned about the stereotype of homosexuals as child molesters. I was expecting to get a bunch of responses along the lines of, “We can’t lawfully exclude them.” “We tried to get them to go away, but they won’t.” “We don’t approve of them at all.” ”

                  “Nope. The responses I received were overwhelmingly of the form, “What’s wrong with NAMBLA?” An astonishing number of homosexual activists defended NAMBLA, not just on “free speech” grounds, but on the grounds that their cause was praiseworthy. ”

                  Now, that wasn’t all the responses he got, but to have even gotten a significant number like that was pretty sick.

                  1. ” but to have even gotten a significant number like that was pretty sick.”

                    You’re judging things you’ve never seen.

                    1. I’ve never been to a death camp, either, but that doesn’t mean I’d have to reserve judgement on an organization proposing to set them up. If you’re enthusiastic about a pro-pedophilia organization, you’re certainly beyond MY pale.

                    2. Brett,

                      No offense, but you’re old enough to remember the 90s internet. Which means that you either know, or should know, how absolutely insane this “story” is.

                      Look, anyone can have their reasons for doing things. But for someone to say, “Hey, I don’t hate the homosexuals. I mean, I do, but I have a good reason. After all, I don’t hate them as much as my wife, who met homosexuals. And the only reason I hate homosexuals is because I posted, on USENET (usenet, remember!!!!!), a totally not-leading question about why all the homosexuals NAMBLA, and proceeded to get trolled …. I mean, c’mon guys, it’s not like I hate homosexuals, amirite?”

                      Seriously … there’s something seriously broken with you if you didn’t read this story and the alarms didn’t go off immediately.

                      ….Plus, he continued writing afterwards (as you know). So, to the extent that you had any doubt whatsoever (and you shouldn’t) … he cleared up that doubt repeatedly.

                    3. “I’ve never been to a death camp, either, but that doesn’t mean I’d have to reserve judgement on an organization proposing to set them up.”

                      Now, if I only have YOUR word for it that it’s a “death camp”, then maybe I would need to see for myself just how much death there is at Camp Hiawatha.

                      ” If you’re enthusiastic about a pro-pedophilia organization”

                      You’re enthusiastic about being a Republican, so you have nothing to stand on, here…

              2. “I mean, he’s right about those gay pride parades.”

                If you don’t like them, why do you keep going to them?

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