Today in Supreme Court History: April 28, 2015

4/28/2015: Obergefell v. Hodges argued.

Comments

[Speaking for normal people]

One of the worst decisions ever. Reason hates natural law talk but it let Gorsuch make his case using a very aberrant view of natural law from John Finnis.

Michael Pakaluk has said that New Natural Law Theory is " at every major point at odds with Aquinas" . THis is all also in a soon to be published 5 Views of Natural Law.

Was it pure laziness that the provenance of this legal thinking was bypassed by REASON ?

[Brett Bellmore]

The Court held off on taking any related cases until the lower courts had pretty much finished imposing SSM on the nation. Obergefell was more in the nature of a mopping up operation, the Court didn't lead the charge.

[not guilty]

SCOTUS granted cert in Obergefell because the Sixth Circuit decision there was an outlier which created a circuit split.

Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), is more than two decades old. Marriage equality has been nationwide for ten years now.

Are the Chicken Littles ever going to admit that the sky hasn't fallen?

[A Japanese Student]

To be fair, the Court usually grants cert when a statute is declared facially unconstitutional by the lower courts.

[not guilty]

Here the other circuits which had considered the matter had declared the state prohibitions on same sex marriage to be unconstitutional. Here a divided panel of the Sixth Circuit in DeBoer v. Snyder, 772 F. 3d 388 (2014), had upheld prohibitions of SSM in Kentucky, Michigan, Ohio, and Tennessee, creating a circuit split.

[SRG2]

How was your liberty infringed by the recognition of SSM?

[Stupid Government Tricks]

In a minor way, it increased the pool of spouses entitled to Social Security and other Ponzi scheme benefits. I doubt that's his objection, though.

[The Margrave of Azilia]

How is your liberty infringed by allowing pretrial detention without bail? I presume that you haven't been charged with that kind of crime, so unless you're a patriot who is aggrieved by violations of the constitution and founding institutions of your country why would you care?

[SRG2]

Answer my question then I will answer yours

[The Margrave of Azilia]

I did. Are you slow?

Do you know what a rhetorical question is?

[Purple Martin]

A well constructed rhetorical question is not itself an answer. Its rational purpose is not to Sealion or Gish Gallop—thus soothing the question asker's feelz—but to emphasize an actual answer intended to further continued on-topic discussion.

So, nonrhetorical question: "How was your liberty infringed by the recognition of SSM?"

(btw, your 2nd two questions are rhetorical, with the answers being No and Yes.)

[jb]

I care about pretrial detention without bail because I might be wrongly accused of a crime and wouldn't want to sit in jail while the courts figured that out. So the liberty interest is speculative rather than current, but it's not hard to figure out.

On the other hand, other than Stupid Government Tricks's explanation (which I agree is unlikely to be the objection here) it's hard to imagine how a straight person is hurt in any way because a gay person is married.

[The Margrave of Azilia]

Suppose you sold wedding cakes and were afflicted with an inconvenient conscience against selling wedding cakes to people who weren't getting into an opposite-sex marriage?

Ah, but that's OK, you ought to *want* to make same-sex cakes!

What if you ran a honeymoon tour company and wanted to make your services only available to opposite sex weddings?

Ah, that wouldn't be a problem because if you happened to have any scruples in this matter you could just close your business, problem solved!

What if the entire institution of the family is receiving a series of hammer-blows at the hands of the sexual revolution? That's OK, because you can't separate out gay marriage from the other aspects of the sexual revolution, so you can't pin down explicit responsibility.

What if your children get the idea that if the government defines marriage in such a bizarre way, that's the way marriage must be? That's OK, too, because the government is shaping a new enlightened generation for our new brave new world.

[jb]

Your business examples are silly. Those are easily separable from whether or not gay marriage ought to be allowed (and have been by the courts).

As for the rest, you're free to explain to your children what your version of marriage is. Once they turn 18, they're free to agree with you or not. In no event does someone else getting married affect your own freedoms on the topic, unless you think you have some sort of freedom from being exposed to ideas you don't like.

[The Margrave of Azilia]

"Your business examples are silly. Those are easily separable from whether or not gay marriage ought to be allowed (and have been by the courts)."

On *this* planet, the two issues seem to go together.

"ideas you don't like"

I suppose that if the government bombards kids with anti-Semitic propaganda nonstop, it's none of your concern since kids can always accept or reject the propaganda when they're of age, and it's not your job to protect them from such propaganda simply because you "don't like" it.

Same with anti-family propaganda. None of your business if your kids are bombarded with it incessantly.

[jb]

"On *this* planet, the two issues seem to go together."

*shrug* There have been actual Supreme Court cases on this. Your team won. No one has to bake a cake or code up a website if they don't like gay people.

And allowing gay marriage is hardly the same as anti-semitic propaganda. (The fact you think they're analogous is kind of gross, tbh.) The better analogy would be if the government for some reason didn't allow rabbis to conduct weddings and only allowed Christian ceremonies. I think we both agree that would be bad and unconstitutional. But just as Christians aren't harmed by Jewish ceremonies, straight people aren't harmed when gay people get married. I could kind of see your point if the government were putting out a bunch of pamphlets encouraging gay marriage, but simply allowing it as an option hardly counts as bombarding kids with anything.

[The Margrave of Azilia]

"if they don't like gay people"

In the sense that parents who insist on their kids behaving properly must hate their kids because it makes the kids feel bad.

But this makes sense to progressives, who truly hate those who differ from them in politics. They naturally assume everyone else works on this basis, too. So to one nurtured in these premises, the only way to express love for anyone is to agree with everything they want to do.

Teaching kids that families are unconnected to reproducing the species, and that the true family is simply one of a menu of options based on the personal tastes of the parties, is antifamily propaganda.

[not guilty]

"[A]nti-family propaganda" is quite a loaded term. Who, in the abstract, is opposed to the formation and maintenance of families? I suspect that, with rare exceptions, even those who are not themselves part of a family unit don't begrudge others who are.

The rub is, what is a "family," and who gets to define what does or does not qualify as a family? If blood ties are essential, then do adoptive parents and children constitute a family? Is an unmarried parent with one or more children a family? Is a childless dyad, married or unmarried, a family? What about one or more grandchildren living with one or more grandparents? Are parents of deceased children a family? Are siblings without parents a family?

And how do the answers of any of these questions figure into what does or does not constitute "anti-family propaganda"?

Those who would use the word "family" in an exclusionary manner in order to drive wedges between folks who love one another are downright despicable.

[The Margrave of Azilia]

What's despicable is trampling children underfoot in the search for adult pleasures.

There have always been orphaned children, widows with children, barren couples, etc. Stable two-parent (man/woman) families used to be recognized as the *norm,* which was not the same as denying the existence of less-than ideal family situations.

Denial of family bonds used to be a sign of cruelty and dehumanization directed against vulnerable people - e. g., slaves. Now it's a sign of advancement and enlightenment.

[not guilty]

Bonds among non-traditional familial units can be just as strong and loving as those among "[s]table two-parent (man/woman) families."

Shame on you for trying to elevate what you callously call "the *norm*" over and above other family units.

If I were representing people at the bar of eternal justice, I would not want you as a client. You disgust me.

[The Margrave of Azilia]

You are entitled to your own strong feelings, but not to your own facts. Shame on you for mistaking the former for the latter, and for being an enemy of the United States. Beijing should give you an award for your disloyal behavior.

[not guilty]

"[A]n enemy of the United States"?? "[D]isloyal behavior"??

That rhetoric is just plainly unhinged. Get a grip!

[The Margrave of Azilia]

Unhinged rhetoric? Physician, heel, thyself!

"If I were representing people at the bar of eternal justice, I would not want you as a client. You disgust me."

Piss up a rope.

"Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men & citizens."

https://founders.archives.gov/documents/Washington/05-20-02-0440-0002

[ReaderY]

Let’s go back to Hannah Arendt’s argument against the Civil Rights Act. Hannah Arendt famously (at the time) opposed the Civil Rights Act on grounds people ought to have a right to choose their own associates, and when they mind their own business they aren’t hurting anyone else. Let’s call this SSB (same-sex-business).

How is your liberty infringed by SSB? In general, when people mind their own business, how are they infringing on others’ liberty?

The Supreme Court in Atlanta Motel ruled in a way that didn’t require refuting Hannah Arendt. It said that government could outlaw “discrimination,” and hence SSB, just because it considers it immoral, and compared it to a list of laws - prostitution, gambling, etc. - that it said were classic morals laws with this just being a new one in the same category.

But you don’t accept this position, So how do you refute Hannah Arendt? And how do you do so in the SSB case without managing to knock the ground out from your argument in the SSM case? After all, your argument on SSM is, at least superficially, very similar if not completely identical to Hannah Arendt’s argument on SSB.

I think this is a much harder issue than it might superficially appear.

[jb]

There's a pretty obvious difference, though: if you're minding your business in a private context (like who you love or live with or are married to), it is actually the case that no one else is getting hurt.

On the other hand, if you're a business (or more problematically, a whole set of businesses) and your refuse to do business with certain people, it definitely has some tangible effect on them. There's a legitimate conversation to be had as to whether that harm ought to outweigh your freedom to operate your business as you please, but I do think there's a meaningful difference between the two examples.

[ReaderY]

The Reign of the Phallus, a feminist history of events in classical Athens by Eva Keuls, described a society in which by social convention sex for love and society was exclusively between males, while women were strictly for child-bearing (wives) or pleasure (prostitutes).

Keuls claimed that women were in fact harmed by these arrangements.

I think the difference between the two is that in Greece, homosexuality was both a mainstream practice favored by social convention, AND there was such an imbalance of power that male homosexuality essentially shut women out. Under those conditions, that’s very similar to commerce in 1960; the two are comparable. On the other hand, if this country had no history of race or sex preference in business and a single small bar or office somewhere in New York City decided to be whites only, nobody would even notice. Non-white people could go to plenty of other places, and the idea that there was anything wrong with the conduct itself would likely be regarded as prudish and intolerant. Who does it hurt?

That is, behavior that individually harms no-one when done in isolation can do a great deal of harm if done systematically by a whole society.

Our current society lies somewhere between these two extremes, neither isolated nor normative, on both matters. But in commerce, a society where it was normative, where everybody did it, is within living memory, so preventing it from returning seems entirely plusible. In domestic life, however, the society Eva Keuls describes is a conjecture about ancient history whose potential for being normative, and for harm if normative, is just an abstraction lying outside most people’s imagination.

But from a rational-basis point of view, shorn of emotion, the two are comparable.

Chief Justice Roberts’ remark about elephant whistles in Selma County is a much harder problem thn he gave it credit for. We don’t actually know for sure if the whistle prevented the elephants or not. This makes judicial decision-making about elephant whistle problems highly problematic. Counterfactuals -what would hve happened if something hadn’t been there - are always hard problems. If something hasn’t been a problem for a very long time, is it just not a thing anymore, it’s just ancient history,? Or was it successfully prevented? Are the claimed preventatives pure superstition or did they actually work? We don’t really know for sure. Indeed, given the resurgence of nothingness overt racism and gerrymandering in our society, Roberts’ remarks that of course state officials are not going to consider race in establishing electoral districts, that was a thing of the distant past now seem, if anything, somewhat naive.

[Speaking for normal people]

My kids are disgusted by gay couples and frankly I don't let them near my kids
Society is falling and SSM is the bellwhether

Support for Same-Sex Relationships Plummets as Less Find Them "Morally Acceptable"
Among independents, support for gay marriage has seen a more noticeable decline. Approval for same-sex marriage among independents fell to 68% in 2023, from 73% in 2021.

Independent-minded people see that perversion and disgusting behavior gets most of its energy from gays.

Where Reason contributed to this was in NOT stepping up for personal rights and federalism and free market when "Before the 2015 Obergefell v. Hodges Supreme Court ruling, numerous states had bans on same-sex marriage, including constitutional amendments and statutory laws." and they were forced to recognize gay marriage from other states but not vice versa

I can't find any possible defense of that being forced down to the state level.

Remember the bigamy SCOTUS ruling

"In rejecting Reynolds’ claim, the Court followed the traditional common law doctrines of state courts as well as federal practices in the territories and Washington, D.C. These doctrines, some of which continue today, include the confidentiality of confessions and the exemption of churches from taxation. In addition, the common law recognized traditional moral and legal practices, such as monogamy."

"[T]here cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion."

the penalty for homosexuality in several states was death—including New York, Vermont, Connecticut, and South Carolina (Barton, 2000, pp. 306,482). Most people nowadays would be shocked to learn that Thomas Jefferson advocated “dismemberment” as the penalty for homosexuality in his home state of Virginia, and even authored a bill to that effect (1781, Query 14; cf. 1903, 1:226-227).

[Dan Schiavetta]

Crawford v. Marion County Election Board, 553 U.S. 181 (decided April 28, 2008): Indiana law requiring photo ID to vote did not violate Equal Protection (6 - 3 decision)

Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212 (decided April 28, 2022): emotional distress damages not available under Rehabilitation Act of 1973 or Affordable Care Act (physical therapist did not provide sign language interpreter for deaf and blind client)

Vieth v. Jubelirer, 541 U.S. 267 (decided April 28, 2004): no justiciable question presented by Pennsylvania Republicans’ political gerrymandering, no matter how obvious (the Pennsylvania Supreme Court seemed to disagree, striking down a subsequent map that “clearly, plainly and palpably” violated the Pennsylvania Constitution, 645 Pa. 1, 2018)

Edwards v. United States, 523 U.S. 511 (decided April 28, 1998): sentencing judge can permissibly find that defendants distributed crack (as well as cocaine), which the Sentencing Guidelines treat more harshly, even though verdict did not necessarily involve crack

Richards v. Wisconsin, 520 U.S. 385 (decided April 28, 1997): no-knock entry (with warrant) justified because police were aware defendants knew it was the police at the door (of a motel room) and waiting for response would give them chance to flush the cocaine

Meese v. Keene, 481 U.S. 465 (decided April 28, 1987): the term “political propaganda” as used in the Foreign Agents Registration Act (“intended to influence foreign policy”) is content neutral and therefore no First Amendment impediment to registration and disclosure requirements for materials so designated by the Department of Justice (Canadian films that a California state senator wished to show, dealing with nuclear war and acid rain)

Costarelli v. Massachusetts, 421 U.S. 193 (decided April 28, 1975): In Massachusetts, trial for certain criminal offenses was without jury -- but if found guilty, can “appeal” and get a de novo jury trial in Superior Court. Does this system violate Sixth Amendment right to trial by jury? No jurisdiction to hear a direct appeal as to this; defendant must go through to Massachusetts’s highest court (he never got that far -- perhaps he was acquitted?). (Massachusetts has since eliminated this two-tier system.)

Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (decided April 28, 1975): reports given to Renegotiation Board (watchdog agency as to excessive defense contractor profits) are not “final opinions” disclosable under the Freedom of Information Act (Dick Cheney fought tooth and nail, mostly successfully, in resisting disclosure of documents as to his pre-9/11 Energy Task Force -- this holding was probably helpful to him)

Beauharnais v. Illinois, 343 U.S. 250 (decided April 28, 1952): upholding against First Amendment attack Illinois statute criminalizing materials “portraying lack of virtue in a class of citizens” (white supremacist handing out broadsheets accusing black people of rape, murder, etc.); if there can be criminal libel against individuals, there can be such against classes of people (this case, with opinion by the Jewish Justice, Frankfurter, with recent memories of the Holocaust, has in effect been overruled by later First Amendment jurisprudence, see discussion in Nuxoll v. Indian Prairie School District, 523 F.3d 668)

Zorach v. Clauson, 343 U.S. 306 (decided April 28, 1952): (no, this was not Zorach from “Space Ghost Coast to Coast”, a great show) “release time” from public school to attend religious classes is Constitutional (we Catholic kids were let out an hour early for the bus, though with Catechism added in, we ended up getting home an hour later than everyone else)

[The Margrave of Azilia]

"Edwards v. United States, 523 U.S. 511 (decided April 28, 1998): sentencing judge can permissibly find that defendants distributed crack (as well as cocaine), which the Sentencing Guidelines treat more harshly, even though verdict did not necessarily involve crack"

This sort of thing may may need stern measures - perhaps sentences should only be based on what the defendant has been convicted of (including past record), not uncharged or unconvicted crimes.

[David Nieporent]

The problem is that as long as there's statutory sentencing ranges, then the court has to base the sentence on something other than the conviction itself. i.e., let's say that there's a statute that says that the possession of at least 1 pound of cocaine is a felony punishable by 10-20 years in prison. The choices are:

1) Make that kind of statute illegal; require the statute to say "punishable by exactly 15 years in prison" and thus give the judge no discretion;
2) Require the jury to find every possible fact about the defendant that could affect the sentence;
3) Allow the judge to decide based on his consideration of various facts about the defendant where in that 10-20 year range is appropriate.

[The Margrave of Azilia]

To the extent that criminal conduct by the defendant is a sentencing factor, then, yes, a person should actually be convicted of the conduct (via jury or plea) before the court takes it into account.

[David Nieporent]

Why only criminal conduct? Isn't it a bit weird to have as a rule that a judge would be allowed to take into account A, B, C, and D — none of which a jury found to be true — but not take into account E, just because E could have been criminal conduct?

At a sentencing hearing, evidence is presented that the guy is a high school dropout, has gotten fired from every job he has had, is drunk all the time. The judge can cite each of those in giving a 15 year sentence instead of a 10 year sentence, even though a jury didn't find any of those facts to be true? But the judge must ignore the similar evidence that the guy beats his girlfriend because the guy wasn't charged with that?

[The Margrave of Azilia]

Why wasn't he charged with beating his girlfriend?

"is drunk all the time"

Drunkenness can be a crime depending on the circumstances - public intoxication, DWI. If that's not in his record why bring up the allegations in an unrelated proceeding, if we're serious about respecting the right to a jury trial on criminal accusations?

[Speaking for normal people]

But, David, you are the one drawing the line betwee legal and immoral. Look at the case of Kilmar Abrega Garcia : If I have kids and I know he is in my neighborhood and the only facts I have are that he beats his wife and engages in human trafficking--- what should I do ?????
https://www.dhs.gov/news/2025/04/16/kilmar-abrego-garcia-ms-13-gang-member-history-violence

People get all hypothetical and fake lawyery on here but if you have kids you want him GONE

[wvattorney13]

It's been a while since I looked at this issue, but I don't believe that anyone argues that in the statute that you put forward that there is anything wrong with a judge using his discretion and using any relevant facts to impose a sentence of between 10 and 20 years.

It is when something else is in the guidelines or statute, say that crack cocaine or if the defendant possessed a gun that imposes a minimum 15 years up to 20 that the argument starts that a jury has to find the relevant fact.

The argument against this---also valid in my opinion--is that it punishes the legislature for trying to bring about equality in sentencing and taking it out of the discretion of judges which can vary wildly.

[The Margrave of Azilia]

"Zorach v. Clauson"

"We are a religious people whose institutions presuppose a Supreme Being....When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe."/443 U. S. 313-14

[David Nieporent]

Vieth v. Jubelirer, 541 U.S. 267 (decided April 28, 2004): no justiciable question presented by Pennsylvania Republicans’ political gerrymandering, no matter how obvious (the Pennsylvania Supreme Court seemed to disagree, striking down a subsequent map that “clearly, plainly and palpably” violated the Pennsylvania Constitution, 645 Pa. 1, 2018)

It did not, of course, disagree. One was an opinion about the federal constitution, and one about the state.

[Dan Schiavetta]

They were construing the same language.

[Dan Schiavetta]

Actually they did disagree -- about justiability.

[JoeFromtheBronx]

Various notable opinions here.

Crawford split the justices' various ways with the controlling opinion limited to a narrow argument based on lack of enough evidence of discrimination. I found the plurality somewhat weak but regardless it was narrow. Good dissents.

Vieth v. Jubelirer is an example of the lack of a fifth vote to given teeth to partisan gerrymandering claims. The liberals never did get Kennedy to go along & once he retired, we had Rucho.

Zorach had the (in)famous " religious people whose institutions presuppose a Supreme Being" bit that ironically was written by Douglas, who later must have kicked himself for giving so much governmental aid (ha) to mixture of church and state.

The general idea that accommodating religious beliefs when governmental regulations burden them is allowed and encouraged by the Free Exercise Clause is fine. The problem, as the dissents noted, is when it goes too far and violates the Establishment Clause. We didn't have release time when I went to public school.

As to our institutions presupposing a supreme being, the Constitution does not. It particularly avoided doing so. The Declaration of Independence assumed one though some references had a deistic character.

If a supreme being exists, the Constitution still limits how the government should recognize such a being.

[not guilty]

Perhaps Justice Douglas still held political aspirations when he penned Zorach. President Truman had apparently given him serious consideration as a running mate in 1948.

[JoeFromtheBronx]

Perhaps so. He notably stopped restraining his rhetoric after the early 1950s. See also his dissent in Dennis v. U.S. (1951), which included this statement:

The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale along with obscenity and immorality.

Not something he would write a few years later.

[Speaking for normal people]

Your post is all implication...what does the 'perhaps' add that throws shade on a Court ruling? This is maybe from your Deconstruction course at Syracuse Law 🙂

[The Margrave of Azilia]

"Zorach had the (in)famous " religious people whose institutions presuppose a Supreme Being" bit that ironically was written by Douglas, who later must have kicked himself for giving so much governmental aid (ha) to mixture of church and state."

As for Douglas - too bad, so sad that he later changed his mind (if he did).

[Speaking for normal people]

You often remind me of Hillary Clinton who every time she had a major change of mind, most people saw that is why proof she never believed anything in the first place
Watch the vidoe of her supporting DOMA and then watch her gay marriage speech years later. She was a grown woman when she gave DOMA
Same with abortion and all the pictures with her and Chelsea and Mother Theresa !!! "Abortion should be very rare"
Then IN 2014 she is so gung ho on abortion she gets a Planned Parenthood award : In 2014, the Guttmacher Institute estimated that 926,200 abortions were performed in the United States.

RARER!!! "marriage is a sacred bond between a man and a woman" She was about 50 years old when she said that !!! --- changed her mind ????

[Dan Schiavetta]

The Framers were too sensitive to the religious wars of previous centuries to mention a Supreme Being except in the most general of terms. In fact most were in effect atheists, though of course they didn't imagine such a term and probably wouldn't have admitted it to themselves. They called themselves Christians but most were (as one historian put it) "scanty Christians". You have to get to Van Buren to find a truly religious man in the White House.

[The Margrave of Azilia]

No, they may not have been all held to Chalcedonian orthodoxy (though some of them did), but they knew what atheism was and they knew they weren't atheists.

Washington was characterized by someone at the Mount Vernon historical site as a "latitudinarian Anglican." Also significant (certainly significant to him), he was a Freemason who believed in God as the great Architect of the Universe.

"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle." /Washington's Farewell Address, 1796

https://www.georgewashington.org/farewell-address.jsp

While you may recognize the link between liberal Christianity/post-Christianity/unitarianism/deism, on the one hand, and atheism, on the other, the Founders didn't believe in any such link and would have been indignant at such accusations.

Jefferson thought that being an atheist didn't stop someone from being a nice guy, but Jefferson himself wasn't an atheist. And Jefferson was at the truly "leftward" end of the Founders' spectrum.

Even Paine believed in God ("one God and no more").

[JoeFromtheBronx]

"most were in effect atheists"

I think that's an exaggeration.

The coverage mostly talks about a few leading Framers, though even to them there were references to God. Madison was not an atheist, for instance. Jefferson was a deist, assuming a deistic "supreme being," though he was labeled an atheist.

Even Tom Paine referenced a belief in a Supreme Being, ironically arguing in Age of Reason that his book defended the true nature of god from misguided misinterpretations.

[Speaking for normal people]

Dan, those of us who have taken college level history courses see immediatly why you refuse to name the historian who said 'scanty Christians" --- Shame on you

I can name 10 world-class historians who say they were almost all very devout committed Christians.
We have the exhaustive statements in their own hand or speehes collected in 3 volumes for anyone who could qualify as a Founder and you are dead wrong

https://www.youtube.com/watch?v=5wH4RxLL_XI&t=11s
https://www.youtube.com/watch?v=jMZ-UoQckx0

In Their Own Words, 3 Volumes
by Judge Mark T Boonstra
What is exceptional about these volumes (closing in on 2000 pages ) is that there is no one YOU would call a Founder that isn't here. AND YOU ARE WRONG.

[wvattorney13]

Kennedy and Stevens were two justices who frequently would rule in a particular way in a given case but reserve judgment on a possible outlandish application of a principle which could apply in a different case.

This possibility was a case grabber because every plaintiff would come forward and argue that HIS case was the exception talked about by Kennedy or Stevens.

It continues to drive me batty that my incarcerated clients always think they fall into the structural error left open by Stevens in U.S. v. Cronic. That case is over 40 years old and I would bet at least 100,000 litigants have cited it and claim that they meet the test.

[JoeFromtheBronx]

The oral arguments for Obergefell v. Hodges had something of a lackluster character. The result was apparent.

Chris Geidner, for instance, wrote an article about how the Supreme Court let stand multiple opinions that allows thousands of same sex marriages to occur. It was unlikely after these opinions stood for so long that they would rule against same sex marriage.

Roberts silently going along even though he eventually dissented is telling. Roberts also silently went along in Pavan v. Smith, which applied the ruling expansively.

Some liberals were critical with some aspects of Obergefell but as a whole I think the opinion is well written. I would have provided a bit more on the development of same sex marriage, which has a rich history [see, e.g., Jack Balkin's 1990s article and book]. Still, the opinion was very good, including it's discussion of how liberty and equality overlapped & the various aspects of the right to marriage.

Some liberals wanted the opinion to rely on equal protection. Melissa Murray thought it praised marriage too much, noting many people have other relationships. But the advocates strongly pushed the marriage line, including cheering on marriage.

It is somewhat silly to blame Kennedy for agreeing with them, including tossing in a few colorful pro-marriage comments. Anyway, he also wrote Lawrence v. Texas, which protected intimate association overall.

[Dan Schiavetta]

When New York legalized gay marriage in 2011, only a single Democrat (Diaz) voted against it. He was also the only one to make a speech in opposition. Republicans, who all voted against it, did not have the nerve to stand up and say anything.

[The Margrave of Azilia]

The best lack all conviction, and the worst
Are full of passionate intensity

https://www.poetryfoundation.org/poems/43290/the-second-coming

[apedad]

Actually, it looks like a couple of Reps voted for it.

After weeks of suspense, Stephen Saland, a Poughkeepsie Republican, announced himself on the Senate floor as the 32nd senator to back the legislation, tipping the balance in favor of it passing. Saland defined his vote as a matter of conscience during a stirring legal defense of an amendment exempting religious organizations from the law.

Saland, who voted against gay marriage in 2009, was joined in announcing his newfound support for gay marriage on the senate floor by Mark Grisanti, a first-term Buffalo Republican who did not declare how he would vote until his floor speech Friday night. Grisanti, who said he struggled with the vote because he is Catholic, had been against same-sex marriage when he was elected last year, but changed his mind after an intense lobbying campaign, which included a call from Lady Gaga to her fans to contact him.

“I cannot legally come up with an argument against same-sex marriage,” Grisanti said.

Of the 33 senators to vote for the bill, 29 are Democrats and four are Republicans.

https://www.politico.com/story/2011/06/ny-legalizes-gay-marriage-057749

[Dan Schiavetta]

Thanks -- my memory was a little faulty.

It remained a fact that no Republican who voted against, had the nerve to stand up and defend their vote.

[Speaking for normal people]

Is rape , child molesting, necrophila "intimate asscoation"
The only thing you can call perverse or immoral is oppostion to what is immoral and perverse.
Reason, more and more, illulstractes the dead end that your founding Popper warned about but that you have ignored : if a society extends tolerance to those who are intolerant, it risks enabling the eventual dominance of intolerance; thereby undermining the very principle of tolerance. This paradox was articulated by philosopher Karl Popper in The Open Society and Its Enemies (1945)

[hobie]

As long as government wants to get in on the marriage business (where it doesn't belong, in my opinion) then they have to give all citizens the same treatment

[Speaking for normal people]

THat has 3 illogicalities to it
1) Under any circumstance it must get into marriage as most contracts such as insurance, SS, or home ownership are rendered null without it. Who gets survivor benefits upon a bigamist's death ???

2) Marraige itself , gay or not, is the opposite of 'the same treatment' that is what gays are fighting about !!! Forsaking all others. You stop at saying there should be no marriage because you see the idiocy of your position . Even common law marriage where neither partner made a legal contract MUST fall under the law for the sake of benefits, children, property etc. A mindless oversight on your part

3) Finally, in complete pomposity you say "in my opinion" --- oky that has the weight of one vote and currently nobody historically since our Founding has agreed with you and that is not my opinion.

NO NEED TO GUESS ANY MORE
NOTRE DAME PRESS

Preview
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A New Birth of Marriage
Love, Politics, and the Vision of the Founders
by Brandon Dabling

294 pages, 6.00 x 9.00 in, 3 tables

Hardcover
Published: April 2022

[A Japanese Student]

Is Obergefell the last time the Court scheduled multiple oral arguments initially? (90 minutes on whether states must recognize in-state same-sex marriage, 60 minutes for DOMA §2/out-of-state same-sex marriage)

[A Japanese Student]

Robbery-Murder Case (Third Petty Bench, decided April 28, 1959): Pro tip: if you are accused of capital murder, do not argue to the Supreme Court that the Constitution was unconstitutional...

Third-Party Substitute Property Forfeiture Case (Grand Bench, decided April 28, 1965): Criminal forfeiture of substitute property without notice and hearing violates due process and property rights under the Constitution (see also Nov. 28)

Business Negligence Causing Injury Case (Grand Bench, decided April 28, 1965): Double jeopardy does not bar prosecution as adult after dismissal of juvenile delinquency proceeding even if the dismissal was because there was no criminal offense (compare Breed v. Jones, 421 U.S. 519)

Tort Claims Case (Third Petty Bench, decided April 28, 2009): 20-year statute of limitations for wrongful death, previously held to be jurisdictional, should not apply where murderer concealed body for 26 years (2017 amendment made this non-jurisdictional, and 2024 case overturned precedents to rule that... well... see July 3)

JASRAC Antitrust Case (Third Petty Bench, decided April 28, 2015): JASRAC (music collective management organization) violated antitrust law by setting licensing fee for broadcasters as proportional to corporate income; broadcasters would pay the same amount regardless of number of works used, deterring them from contracting with other CMOs

Stimulants Control Act Case (First Petty Bench, decided April 28, 2022): Unlawful search or seizure alone does not trigger exclusionary rule in Japan (see April 25); here, the lower court held (and the Supreme Court affirmed) that there was insufficient suspicion to issue urine test warrant; the police should have persuaded the defendant to submit the urine samples voluntarily; and that the forced urine test was illegal. Court however reverses suppression, on the ground that lack of bad faith on the police means neither violation was serious enough to invoke exclusionary rule (I think the results would have been the same in the US, not because exclusionary rule requires bad faith, but because the seizure was lawful under US case law; a named informant confessed that the defendant (a repeat drug offender) sold meth (surely a probable cause), and I don't think US conlaw requires the police to exhaust non-coercive measures before seeking warrant)