Supreme Court Refuses to Hear Case Seeking to Overturn Obergefell

This result is unsurprising, and was predicted by most analysts, including myself.

Kim Davis. (Getty Images)

 

Today, the Supreme Court refused to hear Davis v. Ermold, a case in which the plaintiff sought to get the Court to overrule Obergefell v. Hodges, the historic 2015 ruling striking down laws banning same-sex marriage. There were no recorded dissents.

Some in the media and the LGBT rights community worried that the Court would take the case and reverse Obergefell. Most informed observers believed otherwise. See my August post explaining why, which built on an analysis by my Cato Institute colleague Walter Olson.

Davis, a former Kentucky county clerk  was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple, claiming she had a constitutional religious liberty right to do so. She was appealing a jury verdict against her for a total of $360,000 in emotional damages and attorneys fees. Her argument for overturning Obergefell was appended to this extremely weak religious liberty claim. I summarized the reasons why the claim is weak in my earlier post on this case:

Davis claims that government officials have a First Amendment right to refuse to issue marriage licenses to couples they disapprove of on religious grounds. It's worth noting, here, that some people have religious objections to interracial marriages and interfaith marriages, among other possibilities. Does a clerk with religious objections have a constitutional right to refuse to issue a marriage license to an interracial couple or to one involving an intermarriage between a Jew and a Christian? The question answers itself….

In the private sector, I think there often is a First Amendment free speech or religious liberty right to refuse to provide services that facilitate same-sex marriages, as with bakers who refuse to bake a cake for a same-sex wedding, website designers who refuse to design a site for such a wedding, and so on…

Public employees engaged in their official duties are a very different matter. They are not exercising their own rights, but the powers of the state. And the services they provide are often government monopolies to which there is no alternative.

In a June post on the tenth anniversary of Obergefell, I explained the great benefits of that decision, why it reached the  right result (even though I also believe it should have used different reasoning), and why it is likely to prove durable. Maybe the Court will yet prove me wrong on the latter point. But it was never going to happen in the Davis case.

There are plenty of genuine threats to liberty and equality in these difficult times. We should focus on them, not on mirages like this dog of a case.

Comments

[Krychek_2]

I have never had a whole lot of sympathy for plaintiffs who argue, in essence, that their religion prevents them from doing their job so they shouldn't have to do their job. How is this different from an Orthodox Jew or Muslim taking a job at a deli and then refusing to handle ham? Or a Christian taking a job at an Islamic publishing house and then objecting to facilitating the production of Islamic religious material?

If your job is against your religion, then find another job. Your employer should not be required to re-write your job description. In the Kim Davis case, her ground for complaint was even shakier since she could simply have delegated someone else in her office to issue the marriage licenses.

[Moderation4ever]

Well said. I feel the same way about a person's job. If you don't feel you can do the job without compromising your principals get another job.

[Bob from Ohio]

" Your employer"

"Her employer" was the citizens of that county. I say a majority at that time would have backed her.

[shawn_dude]

They're likely to back a lot more than just that, though. Amirite?! Why stop at just not solemnizing or recording the marriage? If the mob is gonna rule, everything up to lynching and witch-burning are back on the table.

[Malika la Maize]

I do solemnly swear that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky, so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office aforesaid according to law; and I do further solemnly swear that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within the State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, SO HELP ME GOD.

[Krayt]

Exactly. She was not a private citizen at a private job. She was a government employee. And as discussed the last time this blew through, government may not deny services just because they cannot find anyone willing to implement them.

Moreover, I pointed out that, as an elected official, in spite of being paid, she was not a government employee. She was the government. She was therefore directly responsible to fulfill that requirement.

[Krychek_2]

Assume you're right. Are you claiming that the clerk's duties are determined by what a majority of the people who live in the county think of any given law?

[Zarniwoop]

Do you also support a racist f*cker refusing to issue a marriage license to a caucasian and a person they think "don't look white enough", on religious grounds?

[not guilty]

"If your job is against your religion, then find another job. Your employer should not be required to re-write your job description. In the Kim Davis case, her ground for complaint was even shakier since she could simply have delegated someone else in her office to issue the marriage licenses."

I suspect that Kimberly Jean Bailey Wallace Davis McIntyre Davis, a self-proclaimed "Christian," was pleased to overlook Bible passages as the admonition of Jesus at Mark 10:11-12 (RSV):

"And he said to them, 'Whoever divorces his wife and marries another, commits adultery against her; and if she divorces her husband and marries another, she commits adultery.'"

As well as the words from the Apostle Paul to the church at Thessalonica:

For even when we were with you, we gave you this command: If any one will not work, let him not eat. For we hear that some of you are living in idleness, mere busybodies, not doing any work. Now such persons we command and exhort in the Lord Jesus Christ to do their work in quietness and to earn their own living.

II Thessalonians 3:10-12 (RSV). Ms. Davis does not appear to have missed too many meals.

[Currentsitguy]

Let me preface by saying I in no way agree with Davis. Now that that is out of the way I will say I have a certain amount of understanding when your job substantially changes. It wasn't too many years before Obergefell that not only wasn't the idea of same sex marriage on anyone's mind, the very concept would have never even occured to anyone. With that in mind I can't really fault someone for having never even considered it when they took the job.

Once the Decision came down, you could of course delegate what you find objectionable or resign your position if you find it that troublesome but I think its misplaced to blame her from taking the job in the first place.

[ReaderY]

So you can simply require all jurors to eat ham for lunch, and it’s fine that there are no Muslims on the jury, because it’s just part of the job, right? No sympathy.

To avoid giving bigots a free pass, the inquiry has to be whether something is an essential part of the job.

Ms. Davis actually got an accommodation. She didn’t have to personally sign the forms, a deputy clerk could. Nobody needs a license personally signed by the clerk as opposed to a deputy. So I think that was reasonable. But she wasn’t entitled to any more than that.

[TwelveInchPianist]

"Public employees engaged in their official duties are a very different matter. They are not exercising their own rights, but the powers of the state. And the services they provide are often government monopolies to which there is no alternative."

Yup. That's why there's no first amendment right for professors to teach that the world is flat or that men can get pregnant or whatever.

[Randal]

But men can get pregnant!

https://youtube.com/watch?v=cY9CiOqJEE8

[TwelveInchPianist]

Wow. I guess that explains the tone of some of his comments.

[Randal]

Biting yet cunningly persuasive?

[TwelveInchPianist]

Butthurt.

[Randal]

Funny! And yet, I'm wondering if you even clicked the link...

[MaddogEngineer]

Thanksfully, and even more amazingly, not even the IOC believes that.

[Randal]

For reasons that would be obvious if you were smart, the IOC is drawing the line at "having experienced male puberty," which is notably (and intentionally) not "assigned female at birth."

In any case, that has zilch to do with whether men can get pregnant, since the IOC is (obviously) not banning transgender men from competing in men's sports. Sorry to make you madder, Maddog, but there can still be pregnant men's gymnasts at the Olympics. Talk about a ratings bonanza!

[TwelveInchPianist]

From what I understand, it's not clear what the new policy will be.

They might even continue to let men with small penises beat up women, which ought to make many of you folks happy.

[Malika la Maize]

They got rid of private colleges?

[shawn_dude]

Accreditation of private colleges blurs those lines too, but I suppose a non-accredited private exists somewhere.

[Malika la Maize]

They’re not accredited by the government are they?

[TwelveInchPianist]

Huh? Private college professors can be fired for teaching those things.

[Malika la Maize]

"Public employees engaged in their official duties are a very different matter. They are not exercising their own rights, but the powers of the state. *And the services they provide are often government monopolies to which there is no alternative*."
**mine

Didn’t you say yup to that?

[TwelveInchPianist]

Yup.

[Malika la Maize]

That was silly then because there’s no government monopoly on higher ed.

[ReaderY]

So you can require all jurors to eat ham for lunch? And no head coverings. They unquestionably exercise the power of the state. So you can impose any requirements you want? No inquiry whether it’s an essential requirement or how easy accommodation would be? Doesn’t matter if the requirement adds nothing to the job other than keep heathens out?

[Brett Bellmore]

No, jurors aren't government employees, they're citizens being slightly compensated.

Probably not for actual employees, either, but government employee rights have nothing to do with jurors.

[not guilty]

"Yup. That's why there's no first amendment right for professors to teach that the world is flat or that men can get pregnant or whatever."

As a general proposition, speech by government employees carrying out the duties of their employment is not First Amendment protected. Garcetti v. Ceballos, 547 U.S. 410, 419 (2006) ("Government employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services."). The Court there did not reach whether there is an academic freedom exception:

. . . Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 12–13. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

Id., at 425. Even if an academic freedom exception applies generally, however, teaching that the world is flat reflects badly on the teacher's basic ability and competence. Under pre-Garcetti law, an educational institution need not retain an incompetent instructor.

The question of whether speech of a government employee is constitutionally protected expression necessarily entails striking "a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Mt. Healthy City School District v. Doyle, 429 U.S. 274 284 (1977), quoting Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

[Riva]

Of course they’re not going to overrule Obergefell yet. Far too soon for that. Gross constitutional error on this scale needs at least 50 years to corrupt the law before the Court would even think about overturning. That bad law is still young. It has years left to offend the Constitution and do damage to the country.

[Bob from Ohio]

"needs at least 50 years to corrupt the law"

3 generations of people being falsely told they have a"right" to kill a baby had a large negative effect. a 50 year judicial con.

[Longtobefree]

Not only was the man intended to cure cancer aborted, so was the one that could have defeated Nancy Pelosi.

[Joe_dallas]

Nancy pelosi is going to struggle as an outsider trader!

[shawn_dude]

For 246 years we told people that they could own other people as property and we told that "property" that they had no control over their own bodies. We're still telling women that, apparently. Now *that's* the real con here.

[Riva]

No one is doing any such thing. But, back to reality and more pertinently here, the Court has done considerable harm from Dred Scott, to Plessy v Ferguson, to Roe, and now with Obergefell, just to name a few.

[Nelson]

The first two did damage. The last two did good.

[not guilty]

One commonality between state laws criminalizing abortion and antebellum laws which authorized slavery is that each deprived (some) pregnant women of personal autonomy regarding childbearing. Each is comparably detestable. Women and pubescent girls are not brood mares.

[Riva]

The commonality is that the Court in all the above cases, to one degree or another, abused substantive due process to legislate from the bench and impose its "enlightened" views on "a Yolk who will be 'tested by following'..."

Underneath their gaslighting bullshit, the left does love an imperial judiciary, as long as it's aligned with their agenda.

[Mr. Bumble]

Who the fuck is this "we" and where did 246 years come from?

[Nelson]

“ they have a"right" to kill a baby”

No legal abortion has ever killed a baby. Ever.

[Riva]

Every abortion ever performed ends a life. That is the sick purpose of an abortion.

[not guilty]

Bob, there has never been a "right" to kill a baby. Every state's criminal homicide statutes prohibit the killing of an infant to the same extent that they prohibit the killing of any other reasonable creature in being. Some states subject a killing in utero to the same criminal penalties as killing someone who has been born. (These statutes typically exempt a pregnant woman who performs or procures her own abortion).

[Riva]

That was Roe and it’s disgraceful recasting in Planned Parenthood v Casey.

[not guilty]

Riva, do you know what the word "statute" means?

The killing of an unborn infant in utero was not an offense at common law. Statutes in derogation of the common law must be strictly construed. A state's adoption or rejection of a fetal homicide statute is simply not a matter of constitutional law.

[Krayt]

I would prefer rational change from legislation for new rights that would be laughed out of the room back in the day. After all, you cannot dream of such court decisions until you've gone 90% of the way using free speech to convince people.

Having said that, I have a soft spot in my heart for people taking their freedom by force, which includes Supreme Court decisions.

Note this is only for new rights, and not for living constitutionalism grants of new power to the government, sans conscious amendment by the Senate, the Several States, and The People.

Motivated power mongers will facete around there's no legal difference between the two. Hogwash!

The Constitution's philosophy and design clearly anticipate unenumerated rights. Recognizing a new one is not some abomination, some monstrosity. It's exactly in the spirit of rights as things reserved by The People.

But granting the power hungry new powers at their whim is exactly the opposite. The People deliberately and consciously made the government, which is to say tyrant kings and tyrant king wannabees, have to deal with this deliberately laborious, multiple supermajorities process. This is a feature, not a bug, power mongers. Keep doubling down on how evil the Founding Fathers were, and how we should just shuck it all off wholesale, because of your short sightedness goals.

If nothing else, Trump has great value teaching you how easily a charismatic can effortlessly sway simple majorities to arrogate new powers.

None of you nasty hacks will learn, though. He'll be gone some day, and you will immediately return to your power arrogations, you worthless hacks. You fair weather constitutionalists.

[MaddogEngineer]

It was only provocateurs on both sides who were falsely pretending the Court taking up this question (overturning) was likely. Unfortunately including some who should have known better.

Because it's theoretically possible is not a valid argument. Many things are theoretically possible. Ignoring that the particular facts of this case make it an unlikely vehicle, even were the Court inclined to revisit. That's never going to change, not in my lifetime.

[shawn_dude]

Before accusing others of bad faith here, remember that Roe v Wade was given similar certitude and it fell rapidly under Trump's court. Further, members of that court made a point of calling out LGBT rights as a worthwhile future target. Then someone resurrected Kim Davis as a vehicle to bring the question to the court. None of those things are theoretical.

We got lucky this time.

[David Nieporent]

Before accusing others of bad faith here, remember that Roe v Wade was given similar certitude

It was not. Nobody ever claimed Roe wouldn't be overturned, except perhaps conspiracy theorists like Brett Bellmore who insisted that GOP opposition to Roe was all designed to trick Republican voters into voting for them.

[Brett Bellmore]

Well, it was, which is why it took so long to overturn it. It required, not just a Court with a majority nominated by Republicans, but justices nominated by a Republican President who was actually willing to see Roe overturned.

We had a Republican majority on the Court for decades before Roe was finally overturned. Nominated by Presidents who claimed to oppose Roe. Why were they so freaking bad at actually picking justices willing to do it?

Because they didn't want to.

[David Nieporent]

Why were they so freaking bad at actually picking justices willing to do it?

THEY. WEREN'T. The last pro-Roe appointment by a Republican was in 1990, over thirty years before Dobbs!!!!!!!

Every single GOP appointment in the post-Souter timespan worked to overturn Roe. It's just that turnover on the Court is very slow.

[Brett Bellmore]

So, you're saying that for 20 years after Roe, in the face of white hot fury from Roe opponents, and in the teeth of campaign promises, Republican Presidents WERE nominating pro-Roe justices? Thanks for the concession.

[Sarcastr0]

Do the work, Brett.

Who were the Justices confirmed by Republican Presidents in those 20 years?
Were they pro- or anti-Roe?

[Joe_dallas]

Brett - Trump derangement syndrome afflicts most every leftists here. Its a serious mental disease considering that almost all of those suffering from TDS also suffer from an even worse case of Brett Derangement Syndrome".

[Malika la Maize]

It’s true, many Trump supporters seem deranged.

[Brett Bellmore]

No, you didn't get lucky. There hasn't been enough turnover on the Court for overturning Obergefell to be plausible, and the justices new to the Court since then were all nominated by Presidents who didn't find it objectionable.

The Court's program of rendering the rejection of the ERA moot is safe for decades to come, I'd say.

[Nelson]

“ were all nominated by Presidents who didn't find it objectionable.”

Because it isn’t objectionable. It doesn’t even make most people mildly uncomfortable.

True, those who believe that the word “tradition” has some magical talismanic power are outraged. But they believe that tradition is something inherently good, so they aren’t really worth listening to.

[Brett Bellmore]

Look, what I'm outraged about is the procedural aspect, not the policy aspect. Good policy, bad policy, who cares? It wasn't a policy the judiciary were entitled to put into effect!

Congress originated an amendment that would have had that implication, and the states rejected it! It was not the judiciary's place in our system of government to render that rejection toothless by reading the substance of that amendment into a different already ratified amendment nobody had previously thought meant anything of the sort.

It was a usurpation of power by the judicial branch, much as Roe was, but even more naked.

But I don't expect it to be overturned anytime soon, probably never at all, because the judiciary doesn't easily give up usurped power, it only does so if there is an utterly massive public opposition sustained over decades, leading to the gradual replacement of judges and justices with people who don't WANT to usurp that particular power.

And because Obergefell was not a terrible policy in the way Roe was, wouldn't be a bad policy at all were it not for misbegotten public accommodation laws, there won't be that massive public opposition.

So the usurpation will stand. But that doesn't mean I'm somehow obligated to not notice that it was a usurpation.

[not guilty]

"It was only provocateurs on both sides who were falsely pretending the Court taking up this question (overturning) was likely. Unfortunately including some who should have known better."

I suspect that I am one of those of whom MaddogEngineer speaks. In fact, I did not claim that that result was likely; I did caution that there was a danger that Ms. Bailey Wallace Davis McIntyre Davis's suit could provide a vehicle for the Court to abandon Obergefell.

If Obergefell is to be overruled, it will likely happen as a collateral issue just as was presented in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022). Now that the sky hasn't fallen during the 22 years since Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), and the ten years since Obergefell -- contrary to the dire predictions of critics -- no state is presently likely to prohibit same sex marriage per se.

There is still a need for vigilance to prevent the kind of sideways attack that Dobbs presented.

[ReaderY]

She had standing to challenge the judgement against her as too harsh, unfair, whatever. She might have standing to ask for some sort of personal accommodation going forward. But she has no standing to challenge Obergefelle itself. Merely disagreeing with a law does not provide standing. The fact her religion informs her views gives her no more of a personal stake in the matter than anyone else who disagrees with a law for any other reason.

[Krayt]

I'm not big on laws of general applicability stepping on religious adherance. But that's in the private sector. As a public sector employee, or more accurately, the elected government official itself, her constitutional duty is to fulfill her elected position in accordance to the laws and Constitution as-is.

Argue against such laws as policy if you like, but as things are, you still have to do the deed.

[Drewski]

"She might have standing to ask for some sort of personal accommodation going forward."

As an elected official there's nobody to grant her an accommodation except the legislature, and courts cannot order the legislature to pass laws.

[Brett Bellmore]

Indeed, I think Obergefell stank on ice, but that doesn't mean a government official has standing to object.

[Nelson]

Why? What is the rationale for believing advantages enjoyed by a heterosexual couple should be denied a homosexual couple?

[Poxigah146]

Because you're making a policy argument, not a Constitutional one.

Anyway, it's not the legal marriage rights that is the problem. Texas v. Johnson was the problem. No man should be permitted to put his penis into another man's butt, married or unmarried.

[Malika la Maize]

How small government of you!

[not guilty]

Uh, Poxigah146, how does buttsex relate to whether burning the American flag is protected under the First Amendment? Which, BTW, is what Texas v. Johnson, 491 U.S. 397 (1989), decided.

[Brett Bellmore]

Exactly. I've been saying from the start that this isn't a policy argument, it's a procedural one: It's not about whether legalizing SSM was a good idea, it's about who was entitled to make that decision.

And it wasn't the judiciary. The public were asked to ratify an amendment that would have legalized SSM, and they rejected it. That should have, barring another amendment, ended the matter.

[ReaderY]

I’ll double down on the Devil’s advocacy. What’s the rationale for saying that the advantages enjoyed by bigender businesses should be denied to same sex ones? Because Rev MLK Jr. thinks workplace sexual preference is a sin? Because politicians use slur words like “sexist” to describe it?

[Brett Bellmore]

The Constitution guarantees us equal rights, prohibits the government from discrimination, "No state shall... nor shall any state..." it does not reach private conduct.

States can reach private conduct as an exercise of their general police power, a power the federal government was deliberately denied, but which the Court gave it anyway with Wickard. But that doesn't mean they SHOULD.

As a matter of principle, a private employer should be as free to discriminate in hiring as a private employee is free to discriminate in job seeking. Employment liberty should work in both directions.

But that's a moral principle, not a constitutional one. Still, it's a principle I advocate anyway. I would no more force a business to hire somebody than I would force somebody to take a job with a particular business. It's just the mirror image of slavery, so far as I'm concerned.

[ReaderY]

Elected officials get accommodations all the time. The late Senator Lieberman sometimes had committee meetings and votes scheduled to avoid Jewish holidays, and got all sorts of accommodations with food, his security detail, etc. Kim Davis herself ultimately got one. She wasn’t required to personally sign marriage licenses she disapproved of. A deputy clerk did it.

Also,having standing just means having a personal stake and in the matter, not having a winning case legally.

[SRG2]

If ever a plaintiff deserved to lose a case on grounds of hypocrisy, it is Kim Davis.

[Zarniwoop]

+1
also +22, really.

I haven't looked. Anyone know if she's got a GoFundMe (or whatever the evangelical equivalent is) to "support her fight against eeeeevil"? Has she exited "actual serious appeals" and leveled up to "scam-the-rubes fund-raising"?

[Nelson]

She’s a religious zealot. Of course she’s scamming her fellow zealots. The only question is whether anyone she scams will ever consider that they were marks.

[The Margrave of Azilia]

I suppose that, lacking any actual legal reasons to defend the Obergefell decision, you need to cite "grounds of hypocrisy."

Taken as a given your assertion that Kim Davis is a hypocrite:

If hypocrites deserve to lose their constitutional cases, then the Communists deserved to lose every single free-speech and fair-trial decision they ever won, because Communist ideology entails the very negation of free speech and fair trials.

There was a recent post about the Klansman Brandenburg and his precedent-setting free-speech case. Do you think *he* believed in free speech?

[Nelson]

“ lacking any actual legal reasons to defend the Obergefell decision”

Defending Obergefell is easy. Opposing it is incomprehensible and requires “my morals are more important than your rights” thinking.

[The Margrave of Azilia]

Your remark is highly moralistic, and indeed, like the majority justices in the Supreme Court, you've allowed your personal version of morality to override both the positive law and the moral law.

The fact that *you* fail to comprehend something which opposes your whims doesn't say anything about the merits of the position you oppose.

It simply shows that you are simply not familiar with the issues, and it's unlikely that you've even read anything which goes against your preferred outcome.

Also, your stance exempts you (in your mind) from any need to look at the *promises* made by the supporters of same-sex "marriage" and see whether these promises have actually been fulfilled. Spoiler alert: They haven't. For example, consider the promises of the conservative supporters of same-sex "marriage" that their favorite idea would strengthen the institution or marriage in general, which of course hasn't happened:

https://firstthings.com/how-obergefell-failed/

Of course, you don't really seem like a "conservative case for gay marriage" type - you're more into radical individualism, which is a broad enough subject that a single blog comment can't cover it all.

[Nelson]

How so? My morality has nothing to do with thinking that gay marriage is clearly constitutional. It’s pure logic. If heterosexual couples have access to certain advantages through a contract, homosexual couples must have the same access. What would the argument against equal protection under the law be?

[The Margrave of Azilia]

Your premises are flawed, probably because you're uttering incantory phrases without putting a lot of thought into them.

Do you actually believe what you're saying? For example, is the government acting oppressively and unconstitutionally by recognizing two-person marriages but not "marriages" among three or more persons? Is that a denial of "equal protection under the law?"

In short, what principle are you upholding other than an emotional, "I feel it, therefore it's true" reaction?

[Malika la Maize]

It’s no more emotional to think dyads are fundamental to marriage than that opposite sexes is.

[Brett Bellmore]

"For example, is the government acting oppressively and unconstitutionally by recognizing two-person marriages but not "marriages" among three or more persons?"

In fact, it is. While polygamy has negative social impacts, it is at least a traditional form of 'marriage', unlike SSM. Number is not fundamental to the concept the way opposite sex is.

[Sarcastr0]

'Traditional but unequal' is not a set of laws that's done well in history or before the Court.

BrettLaw must be more sanguine about these things.

[Brett Bellmore]

My point is simply that polygamy and polyandry were within the existing definition of "marriage", being forms of marriage which had been practiced from antiquity. They had as much historical claim to being "marriage" as one man, one woman.

The same can't be said of SSM.

Why was one form of traditional marriage tolerated in the US, and another not? Religious doctrine, frankly. Suppression of polygamy was a violation of separation of church and state, grossly so: The federal government literally forced a major religion to change its doctrine on the topic, by military force!

I'm capable of recognizing that, despite my thinking that history has proven that polygamy is bad for social stability.

Just as I'm capable of recognizing that the Court was acting outside of its proper role by imposing SSM on the country, even if doing so wasn't particularly harmful in and of itself.

[Sarcastr0]

the Court was acting outside of its proper role by imposing SSM on the country
Nothing you've written about tradition - specifically Christian tradition - has anything to do with government's treatment of marriage.

You seem very proud how principled you are conceding polygamy could be legal under BrettLaw, but no one else deals in your increasingly incoherent legal world.

[DDHarriman]

How does the constitution restrict those certain advantages to only two people and not more, and then two that have to be in a romantic situation and not just any two people? Or single people?

Why can these advantages be restricted from every other configuration of humanity except two unrelated adults in a romantic setting?

[Malika la Maize]

I don’t think k there’s any romance showing necessary for a marriage to be valid.

[bernard11]

Indeed. Does anyone think Trump and Melania are madly in love with each other, or ever were?

[Brett Bellmore]

I have no particular basis for denying that, and neither do you. You don't know anything more about their private life than anybody else.

[The Margrave of Azilia]

So just to be clear, you *oppose* legal discrimination against polygamy and other forms of *polyamory*?

[Randal]

How does the constitution restrict those certain advantages to only two people... that have to be in a romantic situation and not just any two people?

Surprisingly stupid, even for you. People who aren't romantically involved get married all the time for a variety of reasons and nobody seemed to mind... until two people of the same gender tried it.

[not guilty]

"How does the constitution restrict those certain advantages to only two people and not more, and then two that have to be in a romantic situation and not just any two people? Or single people?"

Hint: the Constitution does not prescribe such restrictions. If a state wishes to legalize plural marriages, its legislature is free to do so.

[ReaderY]

Why do you consider Kim Davis a hypocrite?

She’s asking for things she isn’t entitled to. But everyone who loses a court case does that. You obviously don’t agree with her views. But that doesn’t make her a hypocrite. And she may be doing these cases in part to fund raise and get her name out. But lots of activists and politicians of all stripes do that.

[David Nieporent]

Why do you consider Kim Davis a hypocrite?

Because her position is supposedly based on her view of the sanctity of marriage, while her life reflects her lack of belief in the sanctity of marriage.

[SRG2]

Taken as a given your assertion that Kim Davis is a hypocrite:

I think this has been sufficiently established publicly that no further evidence need be produced.

I: am sure that Brandenburg was a hypocrite, but citing religious reasons for opposing gay marriage while being a serial adulterer and having had multiple marriages is a level above that because of the nature of religious belief.

[The Margrave of Azilia]

You lack a sense of proportion.

You literally think Kim Davis is worse than a man who wanted American Blacks to go to Africa and American Jews to go to Israel, who wanted "revengeance," and who was *willing to work with Nazis,* and who then dared to wrap himself in those Constitutional guarantees which (thank God) would prevent him from carrying out his plans? Willing to wrap himself in the same Constitution which the brave American boys who fought Nazis were sworn to support?

https://reason.com/2025/11/08/thank-this-klansman-for-your-freedom-of-speech/

And I didn't know you were a Catholic who in many (not all) cases considers remarriage to be adultery. Is this what you believe, or are you adopting that position for tactical purposes?

[not guilty]

Kimberly Jean Bailey Wallace Davis McIntyre Davis is a self-proclaimed "Christian," who obviously disregards such Bible passages as the admonition of Jesus at Mark 10:11-12 regarding remarriage after divorcing.

I suspect that if Jesus came to Eastern Kentucky, he would condemn Ms. Davis just as harshly as he did the scribes and Pharisees: ""Woe to you, scribes and Pharisees, hypocrites! for you are like whitewashed tombs, which outwardly appear beautiful, but within they are full of dead men's bones and all uncleanness. So you also outwardly appear righteous to men, but within you are full of hypocrisy and iniquity." Matthew 23:27-28 (RSV)

[The Margrave of Azilia]

Again, you fail to explain what makes her worse than a Klansman and would-be ally of Nazis who wanted to overthrow the same Constitution in which he wrapped himself when pleading for his First Amendment rights.

Also, I doubt very much that the same God who decreed "Thou shalt not follow a multitude to do evil"* would pile on to denounce some hapless woman who stood (albeit only in part) against the whims of the ignorant and licentious multitude.

In a typical modern gesture, you thank God that you are virtuous, unlike those evil Pharisees.

*Exodus 23:2-33 (KJV)

[The Margrave of Azilia]

In hindsight, Kim Davis should have gone beyond merely begging for a personal exemption from the Obergefell decision, an exemption under which, as she pointed out, her office would still give same-sex "marriage" licenses but without her name attached to it.

What would she have had to lose by a bold, direct attack on the Obergefell decision?

With her narrow approach, did she spare herself vile personal attacks? Did she avoid "$360,000 in emotional damages and attorneys fees"?

No, she got all those things anyway.

It would have been better to be "hanged for a sheep than a lamb" - better to go down fighting against the entirety of that bad, unconstitutional decision rather than to wage a low-stakes campaign which appeared to concede the premise of a "right" to same-sex "marriage" and simply to beg for a personal exemption which wouldn't have made much practical difference as far as limiting the damage of the decision was concerned.

With the enemies of the family and the Constitution - i. e., the friends of the Obergefell decision - going all-out, it's disappointing to see the friends of the family and of ordered liberty fighting for such small stakes.

With Davis' personal-exemption quest, she allowed the foes of the family and the enemies of the Constitution to put forward same-sex "marriage" as normative, as a given, and to confine the discussion to whether dissenters should be graciously permitted to disagree (answer: of course not!).

[Nelson]

“ that bad, unconstitutional decision”

Can you explain how it was even bad, let alone unconstitutional? Or is it just vibes and bigoted morality?

[The Margrave of Azilia]

See above as to which of us is applying vibes.

If you're going to wake up one morning and decide that a view of marriage which was universally held until the day before yesterday is wrong, it's on you to provide reasons and arguments.

[bloocow2]

I think them putting "marriage" in scare quotes in that last paragraph gives answer to that question.

Personally I don't mind if individuals such as this one don't recognise same-sex marriage as real marriage. It would sure be nice if everyone could stop being so weird about it! But the only recognition I really care about is legal recognition: having majority public support (which we do) is just the icing on the cake.

[DDHarriman]

It's not a real marriage in any sense. Gays even had to culturally appropriate our terms and all of our ceremony and tradition around natural marriage. Then, in demented form, they rushed out to adopt children, just like real normal couples, and wear these poor kids around like heterosexual costumes.

Humanity depends upon the male/female binary. Who gives a flying fuck about two degenerates and their terminal genetic lines... at a societal level.

[The Margrave of Azilia]

The thing is, I'm not going to shower abuse on bloocow2 simply because I don't think the government should be placing its approval on his lifestyle.

If I did that, I would feed into the belief that disagreement=hatred, a belief which the Westboro Baptist people (and those like them) share with the "gay liberation" folks. The Westboro people and the gay-lib people simply plug different factual assumptions into those moral premises.

Westboro Baptists: We must hate people who do wrong things, so therefore we must hate not only gays, but our own country which has pro-gay policies.

Gay Lib: We must hate people who do wrong things, but we mustn't hate gays, therefore, we must assume that homosexual behavior isn't wrong.

Same premises, different conclusions.

And of course this phenomenon exists beyond the issue of marriage.

Christ said we must love our neighbors, and even our enemies.

Did he *hate* the woman taken in adultery? By modern standards he did, because he told her to "go and sin no more." That shows a clear disagreement with her lifestyle. But he showed by His example that it's possible to oppose someone's lifestyle and still love them.

So even if someone with a different sociopolitical position or lifestyle is an "enemy," you still have to love them.

Is it possible to love someone without adopting the bad policies they support? It must be possible, because Christ gave a universal injunction for love, and he's not going to toy with us by demanding the impossible.

Nowadays, of course, we're all Westboro Baptists, preaching hate against anyone whose views or actions we oppose. Let's not single out the Westboro Baptists, since we see similar hate against political and social enemies across the board, on every issue.

If we hate people who differ with us politically, or who have divergent lifestyles, logically we'll have to hate millions and millions of people. That's exhausting!

Love is easier, albeit still difficult.

[Malika la Maize]

“Same premises”

Uh, literally and analogously that’s incorrect. I mean, you have two premises for the “Gay Lib” and one for WB, for starters.

[The Margrave of Azilia]

Your summary is incorrect, as can be seen by reading what I wrote.

[The Margrave of Azilia]

Start with premise that hate=disagreement.

Plug different alleged facts into the premise and get different results.

But the premise being wrong, you're going to end up with wrong conclusions, no matter which alleged facts you plug into your reasoning.

[Sam Bankman-Fried]

Bessent is the father of twins. Bessent is married to Prince Charming. Bessent impregnated Prince Charming by sticking his dirty D up his b hole.

[bloocow2]

I'm sorry you feel that way. But in generations to come, we'll be raising children in happy and healthy family units, teaching them to live and love whoever they want to. And you and people like you will be in the dustbin of history, where you belong.

[mulched]

Do you get yours custom-bred from a handmaid, or do you pick them out from the shelter?

[bloocow2]

We're planning adoption! Thank you for asking! We'll be sure to convert them to gayness as soon as they're capable of speech and comprehension.

It's actually refreshing talking to homophobes from time to time. Most people irl are too accepting (or too polite) to call us "degenerates" and the like anymore.

Or they correctly realise that what we choose to do with our lives is none of their (or the government's) damn business, which feels like the most libertarian or conservative principle there is.

[Zarniwoop]

sadly, some will take the "we'll be sure to convert them" bit seriously.

I'm quite hetero. My younger spawn says she knew she was gay from about the age of 6. Contra the "ooohhh noes, international gay conspiracy!!1!" folks, there was no indonctrination; just biology and neurological development. Which I'm fine with. She seems to have good taste in girlfriends; all I hope is that she is happy and stays happy.

Who would want anything else for their children?

[bloocow2]

Yes, well, people are going to have weird and misguided beliefs about what the gays do to children, regardless of what I say. Might as well lean into it!

But speaking seriously, I just want my kid to be happy with who they are. If that means being cis heterosexual, great! It will save them a whole lot of trouble from small-minded bigots :/

[Brett Bellmore]

How would someone the age of 6 'know' they were gay, without some sort of indoctrination? Children that age are basically neuter, they don't HAVE sexual identities.

If somebody that age thinks they're gay, it came from outside.

[Sarcastr0]

Different children are different.

I was into girls from when I was 8. Fascinated and terrified of them, not anything sexual.

[Brett Bellmore]

And that's my point: Being "gay" IS a sexual thing. It's literally sexual attraction to the same sex.

People who are young enough to not experience sexual attraction can't be "gay" OR heterosexual. Neither is applicable to children that young.

Somebody can be "gay" post-puberty, but prior to it, if they think they're 'gay' somebody put that idea into their heads.

[Sarcastr0]

Being "gay" IS a sexual thing

This is not true. Love and attraction need not be conterminous with wanting to bump uglies.

They are with you and I, but that's not gotta be the way. The human brain is varied!

You have real trouble understanding people can be different from you. It's a failure of imagination.

[Malika la Maize]

“you pick them out from the shelter?”

Left there by heterosexuals.

[not guilty]

One incidental benefit of same sex marriage is that now a closeted gay man will be less likely to marry a woman to use as a beard while he is getting tons of hot monkey sex on the downlow.

[Sam Bankman-Fried]

Actually RepooplicKKKunts issue is homosexual activity in general and so the fact gay marriage has decreased overall gay activity means it has improved America.

[not guilty]

Propagation of the species depends on having a sufficient number of women giving birth. That may involve impregnation by a few men or it may be by many. King Solomon, for example, had 700 wives and 300 side pieces, per I Kings 11:3.

It does not, however, depend on marriage. Conception is the sometime result of the sexual union of a virile male and a fertile female. Both parents may be unmarried, both may be married, and one or both may be married, but to a spouse other than the other parent.

[bernard11]

Indeed. It is occasionally claimed that a large percentage of Europeans have Genghis Khan as an ancestor.

I find this plausible.

[ReaderY]

It’s probably great political theater and a good fundraising strategy. But that’s not what courts are for. At some point, judges will need to start cutting her off and impose frivolousness sanctions.

[wvattorney13]

IIRC, the problem was not a demand that she personally approve the licenses. The problem was that she wouldn't even allow her deputy clerks to issue the licenses.

I have always said that Obergefell was wrongly decided and I am in the camp that believes that whatever these relationships are, they are not marriages. That being said, the Court decided otherwise and in our society they get the final word on what the Constitution says.

Rights are not secure if they can be ignored at the whim of every petty government official.

[The Margrave of Azilia]

"I have always said that Dred Scott v. Sandford was wrongly decided and I am in the camp that believes that Black people are citizens. That being said, the Court decided otherwise and in our society they get the final word on what the Constitution says."

[Sam Bankman-Fried]

So in a country with 4 million slaves…what would have changed had Dred Scott been “properly” decided?? Would a Black person in the north had been protected from being sold into slavery?? Of course not and so it would have changed nothing! People that think Dred Scott was “improperly” decided are idiots.

[Randal]

There was another option. Obergefell could have said that marriage, as traditionally defined, is inherently discriminatory and therefore governments, both federal and state, must have nothing to with it. It would be a religious status only. Governments would have to get out of the marriage license business and treat married and unmarried people the same. Likely a new, more equal institution (civil unions?) would replace marriages from the government's perspective, as the mechanism for encouraging and legislating around families.

It seems worse to me (and an even bigger break with history), but maybe you would prefer it, if your high-order bit really is what the word "marriage" is allowed to refer to.

I am in the camp that believes that whatever these relationships are, they are not marriages.

(And no, separate-but-equal is not an option.)

[The Margrave of Azilia]

See, wvattorney13, trying to be halfway pro-marriage, and throwing in some qualifications, won't work. You're either 100% with the anti-marriage crowd, or you're an enemy.

[Randal]

What does "halfway pro-marriage" mean? Lesbians can get married, but not gay men?

[The Margrave of Azilia]

Saying he's opposed but accepts Obergefell as a correct interpretation of the Constitution.

Submitting to you isn't enough; he has to enjoy the submission.

[bloocow2]

I'm not from America, but decisions such Obergefell are what allowed me to marry the love of my life, and have that love legally recognised. So I'm tremendously grateful for that, even if the specific legal reasoning they used was flawed. And I'm glad that it hasn't been overturned!

[Zarniwoop]

+1

[DDHarriman]

That's too bad.

[J. Ramlow]

Davis seems to be a sad sort of person, and almost certainly she has been getting poor legal counsel. I hope that 1) she can keep her job; 2) she's learned some things about Constitutional law; she now fully understands the difference between public service and private enterprise. Not holding my breath though. She's claimed that she's "...been called things and names that I didn’t even say when I was in the world..." Where does she think she is now?

[not guilty]

Ms. Davis lost her bid for re-election. And deservedly so, for making her county a laughingstock.

[Sam Bankman-Fried]

She can get a job at the Ark Encounter…just wait until she finds out Noah was a Jew! 😉

[David Nieporent]

Noah, of course, was not a Jew.

[Sam Bankman-Fried]

Did you get a look at his penis??

[not guilty]

Sam, a Jew originally meant a person from Judea, a land composed of the tribes of Judah and Benjamin, which did not exist as a nation until after the death of King Solomon.

Noah long predated Jacob (a/k/a Israel) and his twelve sons.