Friday, June 26, 2015

SCOTUS Saves Same Sex Marriage

CNN States Must Allow Same Sex Marriages

Thoughts?

67 comments:

Sean said...

Not at all unexpected, and entirely correct reading of the Equal Protection Clause, imo.

John said...

Personally I am hoping science catches up with SCOTUS sooner than later. To me it seems that they in essence ruled that being gay, lesbian, transvestite is a "state of being". And I don't think science supports this yet.

I am indifferent to the decision, however it may have set some interesting precedents for the future. Will society be required to accept all lifestyle choices and officially sanction them through a legal marriage?

Wike Equal Protection Clause

Anonymous said...

I don't see that the Supreme Court took a position on any science issue at all.

Where precedent's are concerned, here is a question I have. When a judge is considering a legal issue, should he or she apply the law to the case before him, or should he or she consider the impact of his decision on later cases? Cases which aren't now and might never be before him, or any other judge? To put it in slightly more loaded terms, should a judge injustice today, on the speculation that his decision might result at some future time?

--Hiram

John said...

Up end 50+ yrs of Jurisprodence

Equal Protection Debate

I like this best.
NR Thoughts regarding decision

John said...

Hiram,
Please note that 4 of the 9 justices think the wrong decision was made.

And the links I am finding indicate that the legal justification for the ruling was weak.

Anonymous said...

Please note that 4 of the 9 justices think the wrong decision was made.

One vote short of a majority it seems. Unlike King v. Burwell, the minority arguments made to the court at least are nor frivolous. I don't happen to agree with them in this context, but I might agree with them in other contexts. Like the dissenting justices, I am concerned about the problems of legislating from the bench. But sometimes other considerations prevail. The arguments and concerns raised by the dissenters yesterday were also present when the Supreme Court was deciding Loving v. Virginia, the case that declared laws against interracial marriage unconstitutional.

--Hiram

Laurie said...

I think most people view being gay as inherent for most gay people. If some people choose to be gay or bisexual who cares. I think very few people care whether science finds a definitive answere to this question.

I think it interesting how the supreme court continues to be mostly partisan. In the two rulings 15 votes were cast as expected, either liberal or conservative, and three went against their idealogical leanings.

John said...

Maybe... 3% gay/lesbian + 50% believe it is physiological. That would leave 47% believing it is just immoral behavior like internet porn.

Good thing a lot of Americans like porn...

John said...

I agree that justices voting along party lines with little legal logic is more than a little concerning.

Anonymous said...


I think it interesting how the supreme court continues to be mostly partisan. In the two rulings 15 votes were cast as expected, either liberal or conservative, and three went against their ideological leanings.

One of the things I found interesting about the King v. Burwell case is that it was decided along partisan line even though the actual issue in dispute, how statutory language is to be constructed, isn't remotely partisan. The ACA was poorly written because it wasn't cleaned up during the usual legislative process. Laszlo Birinyi used to like to say there is never just one cockroach. The language error found by the law professor that served as the basis of King v. Burwell was found by sifting through the a 2000 page, unrevised text. Does anyone doubt that was the only error? I am sure there are many. Some of those errors might have favored Obamacare supporters. Does anyone doubt that the Republicans on the court would have found some alternate theory of statutory construction to limit the impact of those errors?

--Hiram

John said...

MinnPost 1
MinnPost 2

John said...

I am pretty sure the ACA supporters have already found any such errors and are working to take full advantage of them

Anonymous said...

As Nancy Pelosi has suggested, you don't really know what's in a law until you pass it and implement it. It certainly is the case that the through the regulatory process, the Obama administration has made all sorts of tough calls, some of them one could quite reasonably argue are in conflict with the statute. But that's a separation of powers reflecting the checks and balance system established by the founders. Part of the checks and balances on Congress is that the executive is not necessarily compelled to do impossible things Congress mandated.

--Hiram

Sean said...

"Will society be required to accept all lifestyle choices and officially sanction them through a legal marriage?"

No. You should read your Wiki link, specifically regarding the various levels of scrutiny for evaluating equal protection claims.

John said...

From the NR article. It seems some folks disagree with you. And remember that the writer is pro-gay marriage.

"5) Given the open-ended, legally vacuous, follow-your-bliss nature of Kennedy’s majority opinion, it is difficult to imagine why polygamy won’t be next. Justice Roberts noted this in his dissent, and he was right to do so. In fact, the voices calling for exactly this are already being heard."

Politico Polygamy

Anonymous said...

Courts are supposed to decide the cases in front of them not those that aren't. I am sure there were those who argued that once we allowed marriage people would want to marry their dogs. Somehow nobody has ever gone down that slippery slope perhaps for the odd argument in Politico, perhaps.

--Hiram

Sean said...

I'm sure folks in favor of polygamy will try to take their case to court. The legal case regarding polygamy is quite different than the case regarding same sex marriage, though.

John said...

Marrying animals, children, etc are very different...

But if adults have the right to marry who they love and the people /society in the states are not allowed to define the rules of marriage. Then the step to polygamy, and even possibly "close relative" marriages, seems like a short one.

Just one test case needs to make it to the Supreme court and then they can define morality even further for every State in the Union.

John said...

Sean,
Please explain... I mean they are adults, they are in love, not allowing them to marry is causing them unhappiness, not allowing them to marry is denying them the human dignity of being married, not being married prevents them from getting benefits, visiting loved ones in the hospital, etc etc, etc.

It will be interesting to see where this one goes.

Sean said...

It's far easier to show societal harm caused by polygamy than by same sex marriage, giving the government a compelling reason to bar it.

John said...

What societal harm? They are in LOVE...

Sean said...

We've discussed this before. Reference that conversation.

Anonymous said...

But if adults have the right to marry who they love and the people /society in the states are not allowed to define the rules of marriage.

If that's the case you want to argue, I guess you have to prepare yourself for your argument's logical consequences. But I don't think that was the case that was decided the other day.

--Hiram

John said...

Sean,
I believe your argument went that polygamists would require more welfare payments and government support, which of course seems to be very unproven. I mean if they live in the same home and share duties, they may be very wealthy.

Hiram,
What do you believe SCOTUS ruled the other day?

Anonymous said...

That states were required to allow same sex marriages.

--Hiram

Sean said...

Nope. Try again.

John said...

Hiram,
What was there argument to support that ruling?

John said...

Ah... I found it...
G2A Gay Marriage

You said that you believed that "As long as we're giving the State a role in marriage, then the State has an interest in not allowing types of marriage that cause societal harm. I think the evidence on polygamy demonstrates that there is societal harm there."

Your personal belief was that polygamists subjugated the rights of some participants. As if this does not happen in many traditional marriages.

Where is the "Societal Harm" that you envision when willing adults agree of their free will to join any marriage?

Anonymous said...

Basically the Supreme Court held that the right to marry is a fundamental liberty protected by the 14th amendment, and that laws against gay marriage were discriminatory.

--Hiram

Anonymous said...

I think that polygamous or polyandrous marriages (or any combination of men and women greater than two people - why should it be one + many?) would need a different type of classification. There are so many more inheritance issues and other legal stuff that doesn't come into play when only two people are part of the contract. Maybe it could be a different class of corporation?

I have no real issue with whatever way consenting adults want to arrange their families, but we would need to make sure that people are treated fairly and have proper recourse when things inevitably go awry. It's a huge, entangled mass of worms. But we're intelligent beings; I'm sure we could figure out a way to make it work if we want to.

Joel

Sean said...

"Your personal belief was that polygamists subjugated the rights of some participants."

It's more than my personal belief -- it's the long history of polygamy across many societies.

Polygamous societies (in the case where we're talking one man, multiple women, which is by far the most common form):

1.) Have more crime, because there are more single men. (Single men are the leading perpetrators of violent crime.)

2.) Polygamous societies drive down the age of marriage for women. Early marriage leads to higher rates of childbirth, which drives down educational attainment. There's also a higher tendency for violent domestic assault when younger women are married to older men.

3.) Impacts on children are profound. Younger mothers mean that often, those mothers are less ready for the rigors of parenting and less educated. Children struggle with their half-siblings for resources and attention. There are higher rates of abuse, neglect and accidental death in these families.

Polygamous families are more likely to be in poverty than monogamous ones, because the tendency is for one breadwinner to supports a large family. Attention of the father is often divided between his multiple wives (and wooing new ones) and his children.

4.) GDP per capita grows three times faster in countries with monogamy. This is because of differences in how monogamous and polygamous families allocate resources.

5.) Polygamy is inherently unequal. In monogamous relationships, two individuals devote themselves completely to each other. But a polygamous husband gives himself to many wives. His fidelity is divided, while the woman is expected to reserve herself for her husband alone. On top of that, a large majority of polygamous arrangements involve a hierarchy of wives, where the first wife has more rights than those who come later.

Here's a study that details much of this:

The puzzle of monogamy

It's just not the same case legally as extending monogamous marriage to same-sex couples.

John said...

Sean,
I would think that much of what you described was in a large part due to the country in which these marriages occurred, their questionable laws and their culture.

I have to wonder if it may actually help in American society.
Atlantic War on Poverty

It may reduce the poverty rate by reducing the number of single parent families. And we already have a lot of single low income men who end up in jail anyway.

By the way we will never become a "polygamous society" anymore than allowing LGBT marriage is making us a LGBT society. These folks are still just a very small minority of the population, though sometimes they seem larger than they are.

John said...

Joel,
Just curious, with your new found freedoms to marry. Did you ever find a man to make an honest man out of you? (ie get married?)

John said...

Interesting perspectives.
US News Unintended Consequences
Allen West Gun Rights
DC Polygamy Attourney

Sean said...

I don't think the religious liberty argument has any merit. Churches today can't be forced to perform a heterosexual marriage, and there's nothing in the decision that would require them to perform a same-sex marriage.

Anonymous said...

John,

Thank you for asking. My boyfriend and I just celebrated one year since our first date. We've already touched on the subject of marriage, and I think we both agree that it is our future.

Joel

Anonymous said...

Lots of religious gay people want to get married. Should their religious freedom be protected. In any event, two people should not be denied a lifetime of marital bliss because there exists somewhere in this country a guy who doesn't want to make a cake for their wedding.

--Hiram

John said...

Hiram,
Are you saying one needs a cake provided by a Religious Right Baker to be able to get married? A cake provided by a moderate or Left leaning Baker just won't do. Or one that is home made...

John said...

Joel, Congrats on the stable relationship.

Sean, I am not concerned about Chuches being forced to act in opposition to their beliefs. I am concerned that Religious business owners are being forced to act in opposition to their beliefs. Which I think is the opposite of freedom.

For more... See the comments.

Sean said...

Eliminating public accommodations laws would be a huge step back for our society. We should not open that door.

Anonymous said...


"Are you saying one needs a cake provided by a Religious Right Baker to be able to get married?"

the argument I heard over the weekend is that same sex marriage shouldn't be permitted because at some point somebody who objected to it, might be asked to bake a cake for it.

==Hiram

John said...

Hiram,
The asking for the cake isn't the problem. The demanding the cake be provided by that baker no matter how the Baker feels about it is the problem.

Sean,
"Under United States federal law, public accommodations must be handicap-accessible and must not discriminate on the basis of race, color, religion, or national origin. The US states, in various non-uniform laws, also provide for non-discrimination in public accommodation." WIKI

The LGBT lifestyle is not listed as a protected class, neither is the KKK, PETA, Fur Farmers, Strippers, Women's Rights advocates, etc. The SCOTUS ruling went a long way towards making LGBT a nationally identified protected class, but I don't think they are there quite yet.

So no one is recommending "eliminating public accomodations" for the groups that are already identified. The LGBT supporters are demanding that the LGBT folks be added to the national list.

Sean said...

LGBT are protected under state law, by the way.

The problem with opening the door for discrimination against LGBT based on religious grounds is that it then becomes difficult to suggest that we shouldn't allow other sorts of discrimination based on religious grounds. Why is it not OK for a person who honestly believes that their religion says that they should treat African-Americans or women or Jews as inferior or not worthy to associate with, but it is OK for a person to discriminate against LGBT on those same grounds?

John said...

Because it says so right here...

"Under United States federal law, public accommodations must be handicap-accessible and must not discriminate on the basis of race, color, religion, or national origin."

It does not say...
"Under United States federal law, public accommodations must be handicap-accessible and must not discriminate on the basis of race, color, religion, national origin or sexual orientation."

John said...

Also, as I keep saying... Race, color, national origin, sex, age, disability, etc are clearly proveable through records, physical tests, etc. And freedom of religion is a cornerstone of our country.

Without some test, science, etc, the LGBT life style could just be a sin like adultery. And we don't usually protect people based on their chosen lifestyle.

Or do you think adulterers should be a protected class also?

A reminder: I believe that science will at some point figure out what makes a person LGBT, but until it does people should be free to believe as they believe. And associate with those who believe and behave similar to themselves if they wish.

Sean said...

"Because it says so right here..."

Under federal law, that's true. State law is a different story. And there's a reason for that being the case -- because the discrimination that LGBT people faced was severe, generally unrelated to their lifestyle and dramatically impacted their freedom.

As for adulterers, I know of no evidence that they are facing discrimination on any significant basis. They can still rent apartments and get jobs and pretty much live their life as they see fit. If that's not the case, come back to me with some proof, and I'll consider it.

John said...

"generally unrelated to their lifestyle"

Are you kidding? Except for the transgenders, these are normal everyday people like me and you. No one is going to know they are LGB unless they choose to tell them or they make it very obvious that they live the LGB lifestyle.

"dramatically impacted their freedom"

Let's see, they could not get married or do business with homophobes / people on the religious right. How again was this dramatically impacting their freedom?

Now that the "State" has addressed the marriage issue, will the LGBT Supporters demand that everyone must happily associate with them. Thus deeply impacting the freedom of those people. Maybe the LGBT supporters think that 2 wrongs will make a right...

Sean said...

"No one is going to know they are LGB unless they choose to tell them or they make it very obvious that they live the LGB lifestyle."

Do you think LGBT folks should have to hide their lifestyle in order to rent an apartment or get/keep a job?

"Let's see, they could not get married or do business with homophobes / people on the religious right. How again was this dramatically impacting their freedom?"

The inability to get married is significant.

"Now that the "State" has addressed the marriage issue, will the LGBT Supporters demand that everyone must happily associate with them. Thus deeply impacting the freedom of those people. Maybe the LGBT supporters think that 2 wrongs will make a right..."

I've never denied it's an infringement on freedom at some level. But we do this already for race, gender, etc, and it's been beneficial to society. Extending this to LGBT is no different.

John said...

"But we do this already for race, gender, etc, and it's been beneficial to society. Extending this to LGBT is no different."

It is HUGELY different... Until someone proves that being LGBT is physiological.

Until this is proven, the argument regarding if LGBT is a chosen life style or a physical reality will rage.

Is it like adultery, being a vegetarian, supporting the DFL? or Is it like race, sex, age, disability, etc? One we do not protect, the other we do.

The LGBT supporters already believe strongly that it is like race, sex, age, disability, etc. The extreme Religious Right already believe strongly it is like adultery, being a vegetarian, supporting the DFL, etc.

In America, people should be free to live by their beliefs until this is resolved once and for all. Or at least free to resolve the question at a State by State level. Not because 5 justices felt one way and 4 felt the other on the topic.

Sean said...

"Is it like adultery, being a vegetarian, supporting the DFL? or Is it like race, sex, age, disability, etc? One we do not protect, the other we do."

It is far more like the latter group. Adulterers, vegetarians, and Democrats have not systematically discriminated against. And, recall, it's not just physiological groups that are protected.

John said...

It is similar to the question of when a human life begins, but without room for compromise. SCOTUS decided that before "viability" stopping a human heart is legal, after "viability" stopping a human heart is murder. And we are still arguing this since science can not answer the question.

In this case SCOTUS BARELY decided being LGBT is like race, sex, age, disability, etc. They did this with little or no science on which to base their ruling. And unfortunately this an all or nothing ruling. All States and their citizens must honor marriages that they question. It is going to be a mess for awhile yet.

Anonymous said...

"Are you kidding? Except for the transgenders, these are normal everyday people like me and you. No one is going to know they are LGB unless they choose to tell them or they make it very obvious that they live the LGB lifestyle."

What about all of the people who have been harmed because of the presumption that they are gay?

John said...

Okay.. Physiological, physical, historical, proveable, etc.

As you said before: ex-military, pregnant women, etc were a lifestyle choice at one point in time. However once the choice was made, it became a fact and our society has chosen to protect them.

Religion is the only active lifestyle choice that I can think of that we choose to aggressively protect. And that is because it was one of the reasons this country exists.

John said...

"What about all of the people who have been harmed because of the presumption that they are gay?"

What about all the people that have been harmed because they were nerds, Conservatives, Liberals, PETA people, wore glasses, had bad fashion sense, fell in love with the wrong man/women, etc, etc, etc?

Occasionally bad things do happen to good people, that does not mean we as a society pass laws to protect everyone from everything.

Sean said...

Do you really think the discrimination faced by LGBT folks falls into the "Occasionally bad things do happen to good people" camp? If so, you need to get out of the bubble.

John said...

I probably do at that. And yet my point stands that LGBT folks are not alone in being harmed for standing up for their beliefs / life style.

Sean said...

Well, I was able to find this:

Wiki History of Violence Against LGBT in U.S.

but not a corresponding article for Conservatives, Liberals, PETA people, wore glasses, had bad fashion sense, etc.

John said...

It takes time for societites to change. Slow steady pressure is the best way to do it with the least amount of violence. Preferably with the majority of citizens in the State supporting the change. A few years back Gays and Lesbians could have been charged with crimes, now they can flout their sexuality in public and get married.

Wiki Sodomy Laws In USA
Wiki Crimes Against Nature

None of the freedoms being passed are going to protect LGBT folks from the types of attacks in your link. They will actually probably make them worse and more frequent as people on the other side of the controversy feel more and more angry that their beliefs are being ignored and freedoms trounced on to protect "sexual deviants". (ie the view from the Religious Right folks)

The LGBT supporters should probably stop and think about how much they want to anger nearly half the population. Especially when there are a lot of whackos in that group... My guess is that they will just keep shoving it down everyone's throat and the attacks will increase. The choices we make.

Sean said...

That's a whole lot of "blame the victim" talk there. It's very easy for a white, male, Christian heterosexual to lecture others on how they should wait for their civil rights when yours have been protected for hundreds of years.

John said...

So is your belief that we should cart blanche ignore the freedoms of the ~45% of Americans who believe LGBT is an inappropriate chosen life style?

Just tell them to trust us that we are smarter, they are wrong and insist that they suck it up.

Sean said...

Given that recent polling shows ~60% support for same sex marriage, I think your 45% number is overblown.

And by your "logic", Lincoln was wrong to issue the Emancipation Proclamation and America should have just waited decades for slavery to (maybe) die out in the South. I have precisely zero problem telling people who are violating the civil rights of others that they are wrong and they need to suck it up.

Laurie said...

I believe 40% oppose gay marriage, but I bet a fair number of those accept others being gay, they just want to restrict marriage to straight people and prefer that their own children be straight.

John said...

Sean,
Black and White is well... Black and White...
Slavery and Freedom is Black and White...
Sexual attraction is gray and fuzzy for now.
Moral vs immoral is always gray and fuzzy.

I am happy that you see this as Black and White, Good and Bad, Villain and Victim, etc. It makes it much simpler for you to see yourself and the LGBT supporters as the folks wearing the White hat.

While when I hear about LGBT Supporters threatening to fire bomb a pizza business because they did not want to take part in a gay wedding, I find it hard to determine who is the villain and who is the victim...

Or when I hear that the majority of citizens in a State believe that a marriage should be defined as the union between a man and a woman, yet others insist that they are bigots and incapable of determining right from wrong. And work to force their will upon them and limit their freedom.

Well, it would be simpler if I chose to see this issue as Black and White as slavery and freedom, black and white, etc.

John said...

You are correct though that the change is coming...
Wiki Polls

John said...

But please note the "By State" variation. It is interesting.

Sean said...

"While when I hear about LGBT Supporters threatening to fire bomb a pizza business because they did not want to take part in a gay wedding, I find it hard to determine who is the villain and who is the victim.."

The fact that there are idiots on both sides of the debate doesn't change the underlying reality. No one argues for LGBT rights on the basis of pointing to the disgusting behavior of the Westboro Baptist Church.

"Or when I hear that the majority of citizens in a State believe that a marriage should be defined as the union between a man and a woman, yet others insist that they are bigots and incapable of determining right from wrong. And work to force their will upon them and limit their freedom."

The Emancipation Proclamation did a lot of forcing on a large segment of the population that disagreed. So did women's suffrage.

The fact that LGBT can't be proven conclusively biologically is irrelevant to the conversation. As a society, we have an interest in preventing discrimination. A person's sexual orientation -- with scant few exceptions -- is irrelevant to whether or not they should be able to hold a job or rent an apartment or enjoy the legal and emotional benefits of civil marriage. The widespread, pernicious discrimination (and violence) that these communities have suffered over the length of our nation's history is disgraceful and I'm glad as a society we are stepping up and welcoming them fully into American life.

John said...

"The fact that LGBT can't be proven conclusively biologically is irrelevant to the conversation."

Of course this is where we disagree. Otherwise we had better start protecting the lifestyles choices of every citizen who chooses not to fit in with the boring norm. (not...) Imagine being forced to hire this guy as your receptionist.

I think we are aligned on most of the rest.