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I'm glad that my LBG friends can now marry anywhere. But damn, Scalia's counter opinion (and Roberts' opinion) strike me as well-considered and well-argued in the 2nd half of http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf . In brief, their view was that resolving this issue in the courts erodes the democratic process.

Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? Why is this class of license inequity different than other classes, where the states' right to license something is not resolved by SCOTUS?

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> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? Why is this class of license inequity different than other classes, where the states' right to license something is not resolved by SCOTUS?

Certainly with all the imagined legal expertise on HN, someone will answer. I have no expertise, but here's a shot at least from a moral point of view and based on some limited legal and political principles:

1) It can't wait because people are suffering now, today. Read Martin Luther King's 'Letter from a Birmingham Jail', where he points out that people who are not suffering always helpfully advise the oppressed to wait until later, 'until a more convenient time'. After I read that, I began to notice that pattern often.

2) We're not a democracy; we are, and this is essential, a constitutional democracy. Democracy is mob rule, or as someone said (Isaac Asimov?), 'democracy must be more than two wolves and a sheep voting on what's for dinner'. The Contitution, the Bill of Rights in particular, protects minority rights. It's not up to legislatures or the majority to grant or take away those rights. Civil rights are purposely excluded from the democratic process.

3) It's disingenuous to describe an issue of civil rights and the long-time oppression of millions as a dispute over licensing. Was segregation about hotel accommodations? Slavery and women's rights about employment disputes?

I think your third point is what's most striking about the dissenting opinion. Not providing marriage licenses to couples based on the arbitrary criteria of sex is a deliberate act of denying a specific group of people access to marriage.

The women's and civil rights movements went against the traditions of plenty of millennial old cultures such as the "Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs"[0] as well.

[0]http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf#p...

> The women's and civil rights movements went against the traditions of plenty of millennial old cultures such as the "Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs"[0] as well.

Don't forget that liberal madness about replacing monarchs with elected government!

The audacity! Europeans had feudalism for... as long as I can remember! Who do those colonists think they are?

https://en.wikipedia.org/wiki/Polish%E2%80%93Lithuanian_Comm...

1569–1795

"The Union possessed features unique among contemporary states. Its political system was characterized by strict checks upon monarchical power. These checks were enacted by a legislature (sejm) controlled by the nobility (szlachta). This idiosyncratic system was a precursor to modern concepts of democracy, constitutional monarchy, and federation."

"The Contitution, the Bill of Rights in particular, protects minority rights"...

"minority" should be replace with "individual". An individual is the greatest minority.

No, "minority" is correct here. Individuals who happen to be members of a majority do not need a Bill of Rights. Individuals who are a member of a minority do.

(edit: Holy cow this post got downvotes! If you think this is wrong please go read pretty much literally anything on the topic of the bill of rights by literally any of the founding fathers. Protecting the rights of democratic minorities was a very, very, VERY explicit goal of the bill of rights.)

From https://www.aclu.org/bill-rights-brief-history which is SOMETHING about the founding fathers and Bill of Rights:

"Democracy and liberty are often thought to be the same thing, but they are not. Democracy means that people ought to be able to vote for public officials in fair elections, and make most political decisions by majority rule. Liberty, on the other hand, means that even in a democracy, individuals have rights that no majority should be able to take away."

"Liberty, on the other hand, means that even in a democracy, individuals have rights that no majority should be able to take away."

"individuals have rights that no majority should be able to take away."

And yet, jrs235 is making an important point. The question is, which way does the causality run? Do individuals have rights because they're members of minorities, or do minorities have rights because they're composed of individuals? The correct answer, in my view, is the latter.

(Edit: Here is a summary of what happens below to save everyone time:

OP: 5 is a positive number.

jr: Correction: 5 is a number.

nm: That's a silly correction. It's more accurate to say it's a positive number, why are you correcting OP?

jr: But positive numbers are numbers!)

No, it is not an important point. It is a silly point that confuses the issue and is more wrong than right.

It is NOT accurate to say that it that the Constitution or Bill of Rights protects individual rights. They DO NOT protect individual rights. Instead, the Constitution provides for democratic self-governance bounded by some enumerated protections designed primarily to protect minorities. The hope was and is that these limited protections in tandem with democratic self-governance provide a system of government that will protect individual rights.

The Constitution and Bill of Rights is substantively and substantially different from a document that might enumerate a list of protected individual rights. Ensuring individual rights is the purpose and duty of the entire democratic process, not just the Constitution.

To make the point clearer, there are many items in the UN Declaration of Human Rights that the US recognizes (culturally) as being valid individual rights. E.g. The US provides universal access to education and the culture, on balance, recognizes access to secondary education as a fundamental right. But there is no constitutional prerogative for meeting this or other "rights" -- that's provided for legislatively. Georgia could defund its educational system tomorrow and the US Constitution wouldn't have squat to say about it.

In conclusion, the Constitution (edit)WAS NOT PRIMARILY DESIGNED TO PROTECT(/edit) individual rights. It protects primarily minority rights and provides for a system of governance that we hope will protect all individual rights.

(*edit, alternative wording for the paragraph above because jrs235 is nit-picking.)

> In conclusion, the Constitution does not protect individual rights. It protects primarily minority rights and provides for a system of governance that we hope will protect all individual rights.

The Constitution protects rights of individuals. It may not protect every agreed upon right. But the rights it protects belong to individuals (originally as drafted, those individuals were wealthy white land owners, not minorities like women or anyone else)!

The substance of my post above was that on balance, "minority rights" is a better characterization of the enumerated rights in the bill of rights than "individual rights".

Yes, saying "individual rights" isn't technically incorrect. But it's less accurate a protrayal than saying "minority rights".

Anyways, you're clearly ignoring the obvious intent of my posts in favor of stupid nit-picking. So I'm done.

The reason I press[ed] the issue of individual rights vs minority rights is because this quick summary gets read by others, assumed to be what matters, who then later don't believe that the rights belong to individuals, which gets repeated, which leads to the erosion of our individual rights.

>Ensuring individual rights is the purpose and duty of the entire democratic process, not just the Constitution.

And when the democratic process fails to protect individual rights, the Constitution, and more specifically the Bill of Rights, is the document that explicitly enumerates what the Government may absolutely not do.

May I ask where you received your education pertaining to the Constitution? And just to be certain (as I am currently assuming you are), are you an American?

> are you an American?

Yes.

> May I ask where you received your education pertaining to the Constitution?

From a constitutional law course taught by a professor with a JD from Harvard.

Again, rights of a minority are individual rights. But it's disingeneous to say that the constitution PROTECTS individual rights in general. It does not. It protects a small subset of individual rights that are most relevant when someone is in a political/racial/religious minority. Calling these rights minority rights is more accurate than calling them indvidual rights. In addition to minority rights, the consitutiton also provides a mechanism for ensuring other individual rights -- both de facto and de jure -- are protected.

Most of the founding fathers considered freedom from unreasonable taxation a plausible individual right. The Constitution doesn't provide explicit protections against that; instead, it provides self-governance.

Here is how I viewed this exchange:

OP: 5 is a positive number.

You: 5 is a number.

Me. That's stupid. It's more accurate to say it's a positive number, why are you correcting OP?

You: But positive numbers are numbers!

Me: Yeah duh I'm done here.

Positive number is more specific and accurate than number. I'd have agreed with you.

Individual is more specific and accurate than minority.

This would be more accurate:

OP: The square root of a positive number is a number so the square root of a positive number times another number means it also a number.

ME: The square root of a positive number is not just number, it's a positive number.

OP: So what.

ME: It means we can conclude even more... It means the square root of a positive number times a number is the sign of the non square root number.

No way. As a member of the majority that disagrees with said majority on many issues, I'd like to keep my Bill of Rights please.

> that disagrees with said majority

We typically call a person who disagrees with the majority a member of the minority.

> the majority

What majority? There are lots of majorities and lots of minorities -- one for each issue put forward to a group of citizens, and then a bunch of other cultural ones.

I doubt anyone is a member of each of those majorities. So yes, everyone needs these individual rights. But the rights were designed to protect individuals when they find themselves in the minority. So saying that the issue is individual rather than minority rights is disingenuous, confusing, and massively ahistorical. Again, many of these rights were explicitly designed to prevent violent mob rule. This issue is not up for debate. It is an historical fact. Go read what the founding fathers wrote about the Bill of rights.

What specifically can you point me to, what founding father, specifically wrote that the Bill of Rights was to protect minorities and not individuals?

I agree the founding fathers drafted the Constitution to prevent mob rule.

If a majority agrees we have freedom of speech, then we don't need the first amendment since it only protects minorities and minority opinions? The individual is the greatest minority, the Constitution protects individuals. Regardless of if an individual currently belongs to the/a majority or minority the Bill of Rights protects them.

EDIT: In other words, whether or not an individual is in the majority or minority opinion on an issue, the Bill of Rights protects the individuals to freely express their opinion. It's not as if an individual holds the majority opinion than they no longer get 1st Amendment protections. The rights belong to individuals not "minorities" (except in the sense that an individual is the greatest minority).

ADD: The founding fathers didn't care about minorities except themselves as individuals. They wrote the Bill of Rights to protect themselves individually.

See my response to ScottBurson. The Constitution does not protect individual rights in general. Instead, it protects a small set of individual rights that are most relevant when that individual finds himself in a minority, so-called minority rights.

It was expected that democratic self-governance would protect against other basic rights (e.g., to freedom from unreasonable taxation, the right to not be raped and murdered, etc.). But most individual rights are not listed in the Constitution, because the purpose of the constitution was to establish democratic self governance with protection for minorities against mob rule. NOT to provide for individual rights.

> What specifically can you point me to, what founding father, specifically wrote that the Bill of Rights was to protect minorities and not individuals?

Read Thomas Jefferson's First Inaugural Address, for starters.

Of course rights of minorities are individual rights, since minorities are composed of individuals. But the constitution was designed specifically to protect the rights of minorities, not to protect individual rights in general. The assumption was that democratic self-governance would provide for "little-r" rights; i.e., for fir and just governance.

Thomas Jefferson didn't say "I'm concerned about Sam and Henry over there... they might be in the minority on some opinion or issue in the future so I think we should draft a Bill of Rights to protect them." He probably thought, "I don't want to be screwed over by the majority. Perhaps I should draft some things to protect ME."

Because "ME" could be in the minority, whether by myself or 49.9% of the people.

Sure, they drafted rights to protect them in cases where they were minorities. Isn't that exactly what I'm saying?

I bet Jefferson didn't want to be raped. Wonder why he didn't make that an amendment? Could it have been because he figured that right could be provided in a non-constitutional setting?

"Individuals who happen to be members of a majority do not need a Bill of Rights."

Do you understand what you are saying? So if you are in the majority, the government can suppress your speech?!?!?

I'm not saying they don't have those rights, I'm saying they don't need them. Not at the particular moment when they are expressing an idea that the governing party agrees with.

If you agree with a supermajority of Congress and the President on issue X, your first amendment rights to say you support issue X aren't really super important. Of course you should still have them, but they are easily protected by way of democratic processes -- constitutional provisions aren't necessary when the lawmakers are on your side.

>The Contitution, the Bill of Rights in particular, protects minority rights...

You are jumping to the consequences of the Constitution, the Bill of Rights in particular, protecting individual rights.

Because the Constitution, the Bill of Rights in particular, protects individual rights, minority rights are protected.

> constitutional provisions aren't necessary when the lawmakers are on your side.

Except when the lawmakers are in the minority (and you being in the majority), the majority still needs protections. Since its the individuals, not minorities that are protected, the rights of the [individuals in the] majority are also protected.

You're confusing the logical consequence with the historical reality.

The historical reality is that the rights enumerated in the amendments were designed specifically to protect minorities.

Yes, "individual rights are minority rights" implies "minotiries get rights". But if the primary purpose was individual rather than minority rights, then why in god's name aren't other more obvious individual rights (e.g., right not to be raped) enumerated as constitutional amendments? The answer is because the legislature can and will do that anyways.

Because with rape there is an obvious harm and injury incurred upon another. In suppressing speech or taking away arms, what is the explicit injury inflicted? What injury is inflicted in allowing government agents to enter your house whenever they want vs burglars? Because the protections enumerated in the Bill of Rights are difficult to argue that injuries and harm have been inflicted. The answer is because there is/was a legal framework that existed to deal with bona fide injuries and harm inflicted.

Legally, you are right. Morally and practically, I'm not so sure. Few hearts and minds are changed as a result of the supreme court's rulings, just the code powering the justice system. Convincing 5 of the top judges is easy compared to convincing the populace, and the latter is more important for the long term goals of equality.

Federally legislated social change pushes back the more important goals of social equality and cultural integration. These are arguably more important, as our interactions with marriage laws are a relatively minor part of our lives when compared to our interactions with other people.

The historical precedent here is clear, of course - there are no and have been no segregation laws in America for decades as a result of federal action, but you'd be silly to say that segregation does not exist in America.

> Today's decision pushes back the more important goals of social equality and cultural integration. ... there are no and have been no segregation laws in America for decades as a result of federal action, but you'd be silly to say the result was that segregation does not exist in America.

As a counterpoint: Since the civil rights era, the welfare and integration of the black-skinned Americans has improved dramatically. Some argue that desegregation alienated more hearts and minds than it helped, but I've yet to see any evidence. Certainly American opinions about blacks also have changed dramatically. (But I agree that we do have a long way to go.)

> No hearts and no minds are changed as a result of the supreme court rulings, just the code powering the justice system ...

I'm not sure no hearts and minds were changed -- I suspect many will reconsider, having seen the decision of a respected institution and the direction of society -- but I agree that you can't do that by court order. But there is a very substantive change: Gay Americans now can get married!

Good points. "Few hearts and minds" is more accurate.

> Some argue that desegregation alienated more hearts and minds than it helped, but I've yet to see any evidence.

It's a question that isn't easy to answer empirically, but it's not outside of the realm of possibility that we would today have a less segregated of a society if segregation had come been eradicated in each community separately and via local and state laws rather than federal action.

All that aside, I think legal equality is a worthy cause and a great victory on its own. I hope we do not forget about social equality and cultural integration as worthy causes, as well.

> Convincing 5 of the top judges is easy compared to convincing the populace

About 60% of US residents now support gay marriage and consider it a right, according to the polls.

https://en.wikipedia.org/wiki/Public_opinion_of_same-sex_mar...

I'd be curious how that's distributed. Also, people lie on polls, for the similar reasons as they do if you ask them "are you racist?"

> No hearts and no minds are changed as a result of the supreme court rulings, just the code powering the justice system.

A lot of the "hearts and minds" you talk about are animated by "tradition", which is often code for "continuing to do the thing I grew up with". The legal code changes what people grow up with, thereby changing future hearts and minds.

Take a look at the graph of approval rates of interracial marriage:

http://content.gallup.com/origin/gallupinc/GallupSpaces/Prod...

Some of the change there is changing hearts and minds. But a lot of it is just the replacement of bigoted hearts and minds with new ones.

As Max Planck wrote, "A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it."

And if that's true for science, it's much more so for cultural things like this. I think there's little point in continuing to harm GLBT families in the hopes of preserving the delicate feelings of people who were unlikely to change anyhow.

On the flip side, SCOTUS rulings have the power to accelerate trends already happening in society. Making segregation in schools and in housing illegal does not eliminate racism. But it does lead to a generation of people that aren't raised in schools and neighborhoods that only have people of one race.

> Today's decision pushes back the more important goals of social equality and cultural integration. These are arguably more important, as our interactions with marriage laws are a relatively minor part of our lives when compared to our interactions with people.

We've proven as a society that this won't happen without administrative action being taken from the top.

The legality has real consequences for people right this second, so waiting for the tide of change is absurd to ask of those that are affected.

Both fronts can be attacked simultaneously.

Though, I do agree there is a trend to pass a stopgap measure and to then pretend the problem is fixed.

This is a logically-consistent line of thought that---inconveniently---doesn't seem to align with evidence.

Historically, it seems to be the case that when society legalizes something, and people can observe that under that new order, society doesn't crumble, societal attitudes on the morality of that thing change to reflect the reality (albeit slowly).

Consider women's suffrage. Consider no-fault divorce. Consider black men and white men being forced to serve side-by-side in WWII by the draft, then coming home to a country that still treated them unequal in the eyes of the law.

It's not a 100% consistent scenario (contrast abortion rights debate in the wake of Roe v. Wade), but the trend is for culture to adapt in the face of evidence.

No hearts and no minds are changed as a result of the supreme court rulings, just the code powering the justice system.

This assumes that peoples' moral judgments aren't influenced by societal opinion and that societal opinion isn't influenced by laws and the opinions of its leaders/elites. That seems like a tough case to make.

Today's decision pushes back the more important goals of social equality and cultural integration.

How so?

Which one is better?

1) A culture of segregation in the minds of part of the population AND segregative laws.

2) A culture of segregation in the minds of part of the population.

I would say 2 is better than 1. They already fixed part of it. And a part that was hurting a lot of people.

Hearts and minds are more easily influenced by the status quo than one might think. People whose opposition wasn't obsessive tend to take note of the fact that they know some friends of friends who had one of those gay marriages and they're apparently very happy, whilst their pastor who gave such eloquent warnings about the impending moral breakdown of America whilst the anti-gay-marriage ballot initiatives were being drawn initiatives has changed the subject of his moral crusade to something else, and above all it doesn't really doesn't seem worth revisiting the issue or worrying about homosexuals at all when they could be mobilizing to save unborn babies, their constitutional right to lethal weaponry or the immortal soul of their atheist nephew. When change is less drastic than you feared, it becomes easier to accept than you anticipated.

We're not a democracy; we are, and this is essential, a constitutional democracy

Or even a Constitutional Republic - as you say, we're not a mob-rule democracy.

Sometimes an upvote isn't enough. This is probably the most thoughtful writing I've seen on the topic today. Well done for someone that is not an expert. :-)

Scalia's argument isn't that marriage equality is an issue for the states. It that it's an issue for the legislature; that is, that the people should decide on it, rather than an interpretation of our secular scripture.

It's helpful to remember that the balance of powers were carefully designed, with an overarching purpose of not centralizing power into a monarchy or aristocracy. We are by design not a nation governed by a panel of philosopher-kings.

Because the Supreme Court has lifetime tenure --- a design feature intended to isolate the justices from politics, not embed them in it --- there's a lot of tension involved in their powers. Unlike politicians, they can't easily be removed if there's a popular outcry against their decisions. They're the guardians of the Constitution. But the Constitution is first and foremost a document of procedural safeguards: it is most coherently and powerfully understood as a mechanism to ensure that all citizens have open channels to the decision-making of their own governance. The procedures of US government are meant to be zealously protected, but the substance is supposed to be left to the people.

So a lot of the dissent in today's result is best read as, "regardless of what we think of marriage equality, who are we to override the decisions of the people?" And further militating against today's substantive intervention by five pro-equality justices is the fact that marriage equality isn't really a process right. Whether or not your marriage is recognized has actually not much bearing on whether you're capable of making your voice heard.

Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records. To allow Mississippi to reject a Massachusetts same-sex marriage is to contravene the process set up in the Constitution directly. That can happen, but probably not when the conflict is animated entirely by discrimination against a class of people.

All this is just to say: don't be too quick to discard the intellectual argument against Supreme Court-enforced marriage equality. There will be times in your life where the same arguments are going to make a lot more sense, applied to other issues.

You make excellent points and make them well. I would add: Let's not take the arguments entirely at face value. People facing defeat in federal court have long tried to hide behind states' rights (used for segregation and abortion, for example) and that any court decision that overturns legislation is democratically illigitmate.

> "regardless of what we think of marriage equality, who are we to override the decisions of the people?"

The courts were created, intentionally, as a check on the legislature and executive. Also, the will of the people as expressed in the Constitution, that all citizens are due equal protection and due process, is as democratically legitimate (and overrides) their will as expressed through the legislatures.

At the same time, as you say, there are legitimate concerns about the limits of judicial power, and they should be examined and advocated for, even if the advocacy is, as usual, for political convenience and not for principle or public good.

>Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records.

It's not clear cut as you imply. If it were, Concealed Carry Licenses for handguns would have reciprocity everywhere.

I think I just said it's not that clear-cut. :)

Another really helpful thing to remember about the Constitution is that it's incoherent. The framers were not logicians and the Constitution was not an exercise in formal consistency. There are provisions and even rights that conflict directly with each other.

And that's by design, too. The idea is to set up an enduring process that will generally converge, like a good distributed commit algorithm, on the citizenry having access to the channels of power. When that system arrives at a circumstance that implicates a conflicting set of Constitutional mandates, the design of the system is "fuck it, let smart judges chosen (at some remove) by the people resolve that."

The justices are supposed to be referees. They aren't supposed to change the outcome of the game. But anyone who's ever watched more than a couple baseball games knows that it's tough to keep refereeing and outcomes separate.

It happens to make sense to me that (a) allowing MS to deny full faith and credit to MA marriages is overt support for discrimination against LGBT people: it's using an implied principle (respect for people's belief in religious sanctity of marriage) to upturn an explicit principle, and (b) allowing MS to effectively monkeywrench the decisions of other states, so that you're effectively un-married if your job moves you from IA to MS, is undemocratic. So I think the refs made a good call this time. But reasonable people can see it differently.

As a libertarian, the less government is involved in marriage, the better. So yay!

But Scalia's argument is the stronger here. And there will be a time when this kind of reasoning is used in a way that will not be good.

Historical sidebar: back in the 90s, there was a rash of state governments passing "defense of marriage" laws. There was one at the federal level. At the time, the best argument I heard against such laws was that they were idiotic: there's no way the federal court system would start mucking around with marriage.

As I said, today's decision is a good thing. But I am very disturbed that many very intelligent people thought this was none of the court's business. For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.

> Scalia's argument is the stronger here

Scalia's argument is not new and goes back to before the civil rights era. It was wrong-headed then and it's wrong-headed now.

> there's no way the federal court system would start mucking around with marriage.

And maybe if fed and state governments hadn't felt the need to placate the angry mobs by passing super discriminatory laws, the court never would have had the demonstrable harm necessary to step in and make a ruling.

> For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.

That's kind of the hitch though, isn't it? We wouldn't even need the courts if there weren't always fairly smart people (smart enough to get elected, at least) who disagree that minorities should have Rights.

Court decisions to confer Rights are tricky because the procedural question is exactly the substantive question -- if Gay people have a Right to marry, then the court has no choice but to step in. And if they don't, then the court has no choice but to stay hand off. And whether they have that Right depends, basically, on your opinion. As Kennedy pointed out, the due process and equal protection clauses were written in an intentionally non-explicit way.

Edit: For example, it would be absolutely insane today for us to imagine the equal protection clause not providing a basis for banning discrimination based on race. Obviously, either our constitution forbids that practice under the Fourteenth Amendment or else our Constitution is seriously, seriously flawed. Right? Right. Now, go read the Plessy v. Ferguson decision.

There is a clear distinction between granting rights and denying rights. The Supreme Court should not be actively denying rights to people, unless it is clearly called out in the Constitution or state law. This is not one of those examples.

And thus far this court has been fairly consistent in granting rights broadly. This ruling stands in that tradition, but this time in a direction ideologically opposed to the right.

That's inconsistent with history. Off the top of my head, the Supreme Court ruled to deny rights in the Kelo and NFIB v. Sibelius cases.

The Supreme Court generally doesn't deny rights. It takes things off the table from legislatures, or puts things on the table.

You may be interested in "On Constitutional Disobedience" by Louis Michael Seidman (http://www.amazon.com/On-Constitutional-Disobedience-Inalien...). He wrote a NY Times piece which is the short version of his argument around when the book came out, "Let's Give Up on the Constitution": http://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-th...

Seidman is a professor of constitutional law at Georgetown.

I listened to him talking about that book on Econtalk. It was interesting, though I didn't find much to agree with in it.

> The idea is to set up an enduring process that will generally converge ...

Could you recommend any books on these issues?

EDIT: Thanks!

Yes! I really, really liked Ely's _Democracy and Distrust_. I don't know how current its ideas are (it's from 1980), but someone recommended it on some legal thread somewhere and I found it both super easy to read and also very illuminating.

Here's Posner on it, FWIW:

http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?artic...

The Supreme Court can be overridden by a Constitutional amendment, the process of which empowers state legislatures--either to approve an amendment offered by Congress, or to go around Congress itself with a Constitutional convention.

So, I think it is incorrect to say that today's decision takes the matter of same-sex marriage out of the hands of the people, or the hands of the states. Rather, it raises the bar that a government process must meet in order to discrimate by gender when recognizing a marriage.

This is a case of states violating the constitution of the united states. It's a pretty clear violation of equal protection. It's not up to the states to decide this.

Rights of a minority should not be left to the democratic process.

Yes, but why this minority? Why not allow 12 year olds to marry as a consititutional right? Why not allow brothers and sisters to marry? I'm not trying to make a slippery slope argument. I'm really asking.

States license things all the time, and the conditions of their licenses block certain people from doing certain things. Why are the courts blocking the right of states to license this activity (marriage) in this particular case?

Again, I'm personally happy with the outcome. It feels as wrong to me to say the LGBT can't marry as it would to say an interracial couple can't marry. But Scalia asks what the legal reasoning is, not whether it's the right outcome. What's different about this minority or this situation?

> Why not allow 12 year olds to marry as a consititutional right?

Marriage is a legal contract. 12 year olds can't enter into legal contracts (alone). Therefore, 12 year olds can't get married. This also takes care of pedophiles marrying children.

Gay people are born gay. So this is different from polygamy. Animals can't enter into legal contracts. So this is different from bestiality.

As an aside, my girlfriend just pointed out to me that it is hard to justify laws against incest (two adult relatives). Maybe we shouldn't have such laws.

The best way, in my opinion, to look at this issue is to see marriage not as some kind of weird lovey-dovey thing, but to see it as what it is, a legal contract that has special consideration in many areas of the law and society.

>As an aside, my girlfriend just pointed out to me that it is hard to justify laws against incest (two adult relatives). Maybe we shouldn't have such laws.

I don't think we should have them. We only have them because its "eeeewwwww." Social taboo. Cousin marriage is legal in most of the east coast, including in my state and cousin marriage wasn't taboo historically.

In non-cousin marriage states it would be hard to enforce such a ban anyways. Do you have to prove you aren't related when you get your license? Who is going to find out? Who is going to care? Is the IRS going to challenge you? Is your employer going to find out your spouse is actually your cousin, know that is illegal in the state you got married in, and then deny your spouse benefits because your marriage wasn't technically legal? Probably not.

"Genetic problems" is compelling in some ways (but probably overblown) but you can have sex without marriage and marriage without sex and have sex without children (especially in the case of same-sex sex, post menopause sex, sex with someone who had their gonads removed, sex with inter-sexed persons... I can go on...)

I would also say it is your choice to have children with genetic problems - I mean we don't actually outlaw it. If two people were carriers of a terrible disease we don't punish the parents for knowingly taking that risk. We don't punish parents who have children much later in life (children born to parents of advanced age have a higher chance of a few diseases such as Down's Syndrome.)

The reason we have these laws is nobody has challenged them in court yet and is not likely to because not to many people want to marry their sister enough to file a federal lawsuit and I'm not aware of too many people who were arrested for incest (regardless if they were practicing it or not).

Legislatures can pass any laws they want. It can only be challenged by judicial review after said law is passed.

I'm free with people having "Timmeh" children as long as I as a taxpayer don't need to pay for their choosing to have compromised children.

Having a child is always a genetic lottery. At what point does some somewhat advanced probability of some disease become "choosing to have compromised children"?

Gay people do not have to be born gay, even if the radical majority tend to be.

There is nothing that prevents a person from deciding they want to experiment sexually, or completely alter their sexual identity, at any given time.

It would be a form of bigotry to proclaim that straight people can't choose to be gay of their own free will, and vice versa. It would imply we're not in control of our own sexuality, and that we lack free will.

And this is not a support of the bigots that proclaim that being gay is always a choice and that gay people should just stop pretending and change their minds --- those people were always in the wrong, their argument was always vile. Sticking to the: gay people are all born gay, premise, is a defeatist response to that bigotry, it's a very very poor defense when a defense is not needed at all.

The proper position is: if I want to be straight or gay, it is my choice, period. If I'm born gay, that's fine; if I'm born gay and want to be straight, that's fine; if I'm born gay and only want to be gay, that's fine. And so on.

I am not sure I can buy into the "it's a choice" camp.

If you were a avid meat enthusiast, you owned your own meat smoker, held barbeques on the weekend, and your license plate said "3atmeat". if you woke up one morning and said, "You know what? Imma be a vegetarian" there is something disingenuous about that. Even if you decide that the treatment of animals by the meat industry is cruel, and you chose to abstain for ethical reasons, if a perfectly cooked and seasoned steak was presented to you, you would probably salivate.

Now, instead, if you found yourself never really enjoying meat, and found that dining without meat was more pleasant to you, then it would seem you were always a vegetarian, or at least have vegetarian leanings. and did not realize it.

EDIT: with respect to the person below: to be clear I am not saying that being gay is necessarily genetic. Perhaps neurological, but my claim is that you cannot fight against what feels natural without some repercussion

I think you missed his point. The point is, it doesn't matter whether it's a choice or not. It's not bad in either case.

It's first time I encounter someone sharing this sentiment too.

I'm so tired of hearing 'they're born this way' argument. It just sounds like if it was a choice, it would be totally ok to persecute them.

Agreed.

Although, I'm a vegetarian and I'm salivating at the thought of a perfectly cooked and seasoned steak. :)

That's arguable - folks are notoriously incapable of controlling their sexuality, to the point its reasonable to postulate free will has nothing to do with it.

It may be a moot point though, i've always felt that it's a gray area - not black or white.

Eg, i could feel/claim to be entirely straight. But if i have a drunken experience in college, perhaps i realize that i enjoyed it a bit. Did i change? Or was i never "100% straight" to begin with?

Who's to say that you can't even be wrong about your own sexuality? We're wrong about things all the time, even within our own minds. Is sexuality any different? I doubt it.

The idea that you're born straight or gay appears to be created by a desire to separate humanity. You're in one camp, they're in another, and with that separation you can judge them differently.

Interesting how it all comes about though. We're complex creatures in everything we do, it seems.

> The proper position is: if I want to be straight or gay, it is my choice, period. If I'm born gay, that's fine; if I'm born gay and want to be straight, that's fine; if I'm born gay and only want to be gay, that's fine. And so on.

I agree completely. I always thought that the biological argument was a red herring meant mostly to sway those that couldn't be swayed anyways (those that thought gay impulses were aberrant). The moral argument remains the same whether someone is born gay or choses to become gay.

> Gay people do not have to be born gay, even if the radical majority tend to be.

I thought about noting that "most" gay people are born gay, but I didn't. It doesn't really matter for my argument, provided that at least some gay people are born gay. The point is that you can't equate polygamy and gay marriage because polygamists make a conscious choice to be polygamists, they aren't born that way.

I would actually be fine with polygamy (I think the correct term is actually polyamory), but it is a commonly used argument against gay marriage because most people are against it or find it uncomfortable, and it has a pretty ugly history in some areas. I was trying to refute the "slippery slope" class of arguments against gay marriage, so I gave a refutation for that one.

> Marriage is a legal contract. 12 year olds can't enter into legal contracts (alone). Therefore, 12 year olds can't get married.

Marriage is a formal relationship between two people of the opposite sex. Two men or two women are of the same sex. Therefore two men or two woman cannot marry.

You can do anything, if you redefine the meaning of everything.

Strawman.

There's nothing about marriage that necessitates restricting it to members of opposite sexes. It is however a contract, which requires restricting it to persons that are capable of consent. Exclusion conflicts the basic premise of equal rights so the exclusion has to have valid reasons other than "because that's how we defined it".

A more interesting question would be why it's restricted to natural persons and why it is restricted to two persons.

> There's nothing about marriage that necessitates restricting it to members of opposite sexes.

There's nothing about contracts that necessitate restricting them to persons capable of consent, if you decide to define contracts not to require consent anymore.

If you feel free to redefine the nature of marriage, surely you can also feel free to redefine the nature of contracts.

Contracts, by their nature, require consent. If there isn't consent, then there literally isn't a contract. Do you and I have a contract saying that you'll give me all your money? Without consent, we might. I'll be expecting a check from you within a week.

Marriage, by its nature, as seen by the government (that is an important qualification), requires nothing more than two consenting individuals. In the eyes of the government, marriage is nothing but a contract between two people. If your religion wants to define it some other way, that's fine with me. But from the standpoint of our government, the way your religion defines it makes no difference, nor should it.

I would actually be perfectly fine with renaming the legal institution of "marriage". It would actually be better if no one could get "legally" "married". Just call it a civil union. If you want to have a religious ceremony, great, but all the government would recognize is a civil union contract. However, most people don't agree with me, so we're stuck calling it marriage even though it has nothing to do with religious traditions.

> Contracts, by their nature, require consent. If there isn't consent, then there literally isn't a contract.

'Marriages, by their nature, require a man and woman. If there aren't a man and woman, then there literally isn't a contract.'

You're not arguing: you're just asserting. One surely could have a piece of paper legally called a 'contract' which states that I owe you money, but to which I have no consented. The fact that it's not what you & I and the law today would call a contract would be irrelevant if the law changed tomorrow.

Heck, we have a constitutional amendment forbidding involuntary servitude except as punishment for a crime, and yet we have a draft and people can be forced to work for others. Words have lost their meaning.

> Marriage, by its nature, as seen by the government (that is an important qualification), requires nothing more than two consenting individuals.

As of today, in this country, that's true. A few days ago, it wasn't. Anything can mean anything once words stop meaning anything.

> I would actually be perfectly fine with renaming the legal institution of "marriage". It would actually be better if no one could get "legally" "married". Just call it a civil union.

That's what I've advocated for. And it shouldn't be limited to two people having sex with one another, either. If a fraternity wish to form a temporary civil union in order to secure health insurance or ownership of their home, let them. Why does the government care who's having sex with whom, if that sex cannot create children?

> As of today, in this country, that's true. A few days ago, it wasn't. Anything can mean anything once words stop meaning anything.

No, it was never true. What about marriage makes it specifically require a man and a woman? There was never anything in the government definition of marriage that meant that it required a man and a woman. There was never any requirement to have children, or even to be able to have children. The only reason "marriage" required a man and a woman is that laws had been passed to make it so.

In other words, you could take every word written on marriage in the legal code and apply it, without alternation other than fixing the pronouns, to a same-sex marriage. Marriage didn't change, it just became available to more people.

> What about marriage makes it specifically require a man and a woman?

Is that a serious question? What do you think marriage is, State recognition that two people want to have sex exclusively? Why does it even make sense to have State recognition of a sexual relationship? It really doesn't.

Now, I don't think it makes particular sense to have the State recognise sexual relationships which may produce children, because there's no real need for it too: modern paternity testing can easily solve the actual problem civil marriage addresses.

As for the rest, why should those civil benefits be limited to people in a sexual relationship? Why should I be able to put my brother on my insurance? Why shouldn't a fraternity be able to form a civil union if they wish?

What possible benefits does civil marriage confer that should be restricted to two people who have sex, but not restricted to two people who might produce children?

> Why not allow 12 year olds to marry as a consititutional right?

Children are not considered capable of consent.

> Why not allow brothers and sisters to marry?

Claimed societal interest in preventing harm to offspring born from inbreeding.

> I'm not trying to make a slippery slope argument. I'm really asking.

OK, well now you have a couple answers.

>> Why not allow brothers and sisters to marry? > Claimed societal interest in preventing harm to offspring born from inbreeding.

If that's all, it seems that logically, brother-brother marriage should be OK.

I suspect the real reason for a lot of these laws are is "because it's icky". The justifications seem more like rationalisations.

Yes, but "it's icky" didn't form arbitrarily, ex nihilo. If you go one level deeper and ask why it's considered icky, you may find justifications, some good, some bad, some outmoded, some relevant.

I should preface this by saying that Christmas dinner at the Hluska household is already complex enough...:)

On a serious note though, you allude to one of my favourite aspects of law. Throughout history, views on brother-sister marriage have changed. At points/places, it has been perfectly fine for brothers and sisters (especially in elite families) to get married.

I am far from an expert in this field so can't speak to why our norms changed. If you want to take this further, you should start with the Westermarck effect and look into the kibbutz study. Or, maybe consider how marriages between families evolved as a way of formalizing business or other strategic relationships. Either way, taboos are cool!!

For example, in ancient Greece, homosexuality was fine. Hell, even Zeus advocated it as a way to prevent pregnancy. Yet, by the early 1900s, it was considered mental illness through much of the world. Taboos are always in flux and I can't figure out why. Logically, you'd think that science and information sharing would make us all more liberal and taboo-proof, but I'm not sure that is happening.

- https://en.m.wikipedia.org/wiki/Westermarck_effect

> Logically, you'd think that science and information sharing would make us all more liberal and taboo-proof, but I'm not sure that is happening.

I think you're right - but i also think you're underestimating the lack of science minded individuals in the ones who are less liberal (such as in the US).

Education is becoming a big problem, in general.

The 'inbreeding' argument doesn't, and has never, held water. Not that I'm about to jump my sister; but as a point of science its not terribly significant. Cousins can actually have closer DNA than siblings; cousins are often allowed to marry (varies state by state). The idea that only horrible monsters will result is silly; its how all purebred farm animals are created.

The main argument against incest that I know of pertains to recessive genetic diseases. Suppose one parent has a recessive disease, and the other does not (P generation). Then F1 generation may have carriers, but will not display the disease. If F1 mate together, however, then the F2 generation may contain individuals who are homozygous for the recessive allele, so they will display the disease.

There was a case in which this happened, the "Blue Fugates" [0], who had a particular recessive disease[1].

[0] https://en.wikipedia.org/wiki/Blue_Fugates [1] https://en.wikipedia.org/wiki/Methemoglobinemia

This argument made sense before genetic screening was available, but falls apart with genetic screening, since you could screen the siblings to see if they are both carriers.

The other argument against incest is to protect vulnerable people from abusive adults.

There are enough cases to realise this is something of a problem, although protections can probably be built into the system.

And other forms of marriage are not subject to abuse? Doesn't rise to the level of prohibition, I think.

[citation needed]

>Children are not considered capable of consent.

Children (minors and the "age of majority") and age of consent is defined by law. While we have come mostly to an agreement on the age of consent for many things, nothing prevents us from changing our definitions or age of consent for varying activities.

The age at which the brain is capable of the higher levels of executive function necessary to make rational, informed decisions (not saying that such decisions are guaranteed, just that the brain is capable of considering them) is a function of biology, i.e. defined by natural law.

The legal framework of consenting age protects the abuse of a minor's inability to "think like a grown up", though it's arguable if the age of consent is too low (because biology dictates an older brain has a matured executive function capacity) or too high (because some kids, as many can attest, are wise beyond their years).

>The legal framework of consenting age

Should be "Current western and developed/modern civilization's legal framework of consenting age"...

>> Why not allow brothers and sisters to marry? >Claimed societal interest in preventing harm to offspring born from inbreeding. They can produce offspring without a marriage. Or, if it would be allowed, they could marry and dont produce offspring. Dont see how one is connected to the other. Its not a question of reasoning. All you need is a lobby big enough and enough time and you are allowed to do whatever you like to do. Marry a 12 year old, marry a pet, marry a car..

>Claimed societal interest in preventing harm to offspring born from inbreeding.

If that's a valid argument, why isn't the same argument [1] against gays valid? Conversely, if greater risk isn't enough of a constitutional reason to allow bans on gay marriage, why is it enough to make incest bans constitutional?

[1] http://www.cdc.gov/hiv/risk/gender/msm/facts/

How would legalizing gay marriage increase the risk of anyone getting HIV? You're not making any sense.

The same way that legalizing brother-sister marriage increases risk. Or could you explain more fully why one would increase risk but not the other?

You think that gay men are more likely to have unprotected sex with multiple partners if they get married than if they don't?

They might; something being officially sanctioned might increase the frequency.

Can you at least see a reasonable comparison between the two? If you don't think changing marriage laws affects behavior, shouldn't that apply to incest as well?

It seems to me that "legalizing gay marriage won't increase gay sex overall" and "legalizing sibling marriage won't increase sibling sex overall" are likely to be inconsistent with each other, and that the first is implied by your wording; if gay sex increases, it should also increase "unprotected sex with multiple partners".

Are you kidding around at this point? On average, people who are married are going to have sex with a smaller number of distinct partners than people who aren’t married. Gay marriage, if it has a significant effect on gay sexual behavior at all, will clearly reduce the risk of HIV transmission.

With regard to sibling marriage, the issue isn't sex per se but children. Although I am not myself deeply opposed to sibling marriage, there are many couples who strongly prefer not to have children outside of marriage, so it is quite reasonable to assume that banning sibling marriage will reduce the number of children of siblings. In contrast, it would simply be laughable to suggest that any significant fraction of gay people who have unprotected sex reserve unprotected sex for marriage. If that were so, HIV would not be a problem in the gay community!

So, no, there is obviously no reasonable comparison between your two cases, as a few moments of thought would make clear.

>On average, people who are married are going to have sex with a smaller number of distinct partners than people who aren’t married. Thus, gay marriage, if it has a significant effect on gay sexual behavior at all, will clearly reduce the risk of HIV transmission.

You're neglecting the possibility of increased gay sex due to wider acceptance, which would affect even unmarried gays.

Can you make the argument for higher risk from legalizing incest in your own words, so we can see why it wouldn't apply here?

I'm neglecting it because it's not a realistic possibility. You can't just imagine any old wacky scenario and use it as the basis of your argument -- it has to be plausible.

Gay marriage would most likely have no significant effect on male-to-male HIV transmission rates. In contrast, it is quite obvious that legalizing sibling marriages could encourage siblings to have children, thus increasing the risk of babies born with genetic defects. That being said, it is not clear to me that this constitutes sufficient grounds for making sibling marriage illegal, and I am not strongly opposed to legalizing it.

If you seriously think that there are lots of gay men out there just waiting for gay marriage to be legalized so that they can have lots of unprotected sex, then you really need to increase the diversity of your social circle.

>Gay marriage would most likely have no significant effect on male-to-male HIV transmission rates. In contrast, it is quite obvious that legalizing sibling marriages could encourage siblings to have children, thus increasing the risk of babies born with genetic defects.

Is there any difference between the two that's relevant legally? And do you have any more robust defense for the distinction? Your argument above made some sense when distinguishing overall gay sex increasing from risk increasing, but you seem to have abandoned that in your last sentence.

>If you seriously think that there are lots of gay men out there just waiting for gay marriage to be legalized so that they can have lots of unprotected sex, then you really need to increase the diversity of your social circle.

I could say the same about sibling marriage for you. "If you seriously think that there are lots of siblings out there just waiting for sibling marriage to be legalized so that they can have lots of unprotected sex, then you really need to increase the diversity of your social circle."

I wasn't expressing any opinions on what any particular law would lead to, just that the reasoning being used was inconsistent.

>You can't just imagine any old wacky scenario and use it as the basis of your argument -- it has to be plausible.

But this exact scenario is the basis of the argument above against sibling sex.

>Is there any difference between the two that's relevant legally

Yes, the difference between how gay marriage would affect the risk of HIV transmission vs. how sibling marriage would affect the incidence of genetic defects in babies.

>Your argument above made some sense when distinguishing overall gay sex increasing from risk increasing, but you seem to have abandoned that in your last sentence

I'm not sure what you mean. Gay marriage will neither increase the total amount of gay sex nor increase the risk of HIV transmission. There is simply no connection between HIV and gay marriage, so it would make no sense to try to use HIV to justify a ban on gay marriage.

>I could say the same about sibling marriage for you

You could, except that it wouldn't be true. Having children outside of marriage is still a big deal for a significant number of people. Unprotected casual sex is, virtually by definition, not something that appeals primarily to people who want to get married. Again, the facts are important. You can't just make up crazy hypothetical scenarios and use them as the basis of your argument.

Claimed societal interest in preventing harm to offspring born from inbreeding.

Does this mean that marriages between same-sex siblings will be permitted?

It's simply the fact that we find the idea of siblings having sex to be icky. Which is the same reason for the prohibition against same-sex marriage.

Where "no evidence" means "lots of evidence".

http://www.genetics.edu.au/Publications-and-Resources/Geneti...

Etc.

> There's no evidence that sibling marriage results in defective offspring. It's simply the fact that we find the idea of siblings having sex to be icky

Bullshit [1].

[1] http://www.larasig.com/node/2020

Did you read Your citation? Because it doesn't back up your assertion. It's says that for for first degree relations (brother-sister or parent child) the risk of death or severe defect increases 31.4% over the general risk. It doesn't say what the general risk is, but I assume it is relatively rare, on the order of 1 in 1000 or fewer. So risk to offspring from siblings would rise to about 1.3 in 1000. I would hardly call that proof that sibling marriage results in defective offspring.

The opinion goes into strenuous detail on the history of marriage cases before the court. This decision was not tearing down "what is marriage?", but pivoted (for Justice Kennedy, who was the deciding vote and wrote the majority opinion) on providing equal dignity. In essence, they found that the core aspects of marriage were upheld in gay marriages and as such they were due equal protection.

Your question — whose dignity falls under the scope of consideration — is the tricky one here. This is malleable and in the US Constitution is reinterpreted as views change. The majority's view is that, as we have seen states experiment with gay marriage and civil unions, we have found the arguments against them to be untenable. We've never defined marriage as being about procreation (e.g. if a man and a post-menopausal woman want to marry that's never been an issue) and we hold it as a form of social cohesion (which applies in LBGT unions, as seen in state who have allowed them.)

Why not siblings? This has a genetic argument against it that was not addressed here. Why not 12 year olds? We don't see their union as a part of the social construct. Again, this decision isn't about tearing down the definition of marriage. It upholds the definition of marriage and says that it applies to same sex couples.

> This is malleable and in the US Constitution is reinterpreted as views change.

This is the rub. What is the point of writing down laws and constitutions if the words don't stay put? If their meanings are ephemeral and open to interpretation, we are governed by men (executives, bureaucrats, judges, prosecutors, police) and not by laws.

There are states out there that make no pretension and are ruled by fiat. The U.S., in contrast, is supposed to be a nation of laws. The laws being checks against individuals and special interests. The legitimacy of the U.S. hinges on it sticking to the rules of governance that were set in place and upheld over the years.

Guess you oppose all those constitutional amendments then too?

The Bill of Rights even expressly notes that the rights enumerated do not cover all rights and cannot be expected to cover all rights, and that those rights not enumerated are not meant to somehow be lesser -

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

Exactly the opposite. Amendments are the correct way to change the Constitution.

Randomly deciding, "oh, we'll just reinterpret the existing language to mean something totally different, and is cool because times have changed..." is a totally different ballgame.

That sort of thinking violates the legitimacy of our legal system at the basest level. If words in a law, or in the Constitution don't mean anything and meanings can be changed on a whim, there is no solid ground for anything.

Except this is the norm. Is electronic communications protected? Freedom of the Press cover that? Who controls currency vs coin? What about bitcoin? Interpretation is going on all the time.

There's nothing wrong with interpretation, as long as that interpretation doesn't change the original intent. Obviously freedom of the press covers communications in general, already covered several types of communication originally, and would cover electronic communications and any other form of communication we invent.

If you want to change the original intent, though, that's an amendment. That's why prohibition required an amendment, for example. The court couldn't (as they disingenuously do today) just say, "well, over here the Constitution says that the feds have the power to regulate interstate commerce. So sure, prohibition is fine because commerce."

That's a stretch by any interpretation. Its obvious to me that an electronic amendment is overdue. Can we come up with a test for 'amendment required'? It can't be about what's 'obvious' to someone.

And therein lies the rub. Interpretation vs. legislating from the bench is in the eye of the beholder.

Doesn't matter anymore, though -- the majority of people, whether liberal or conservative, don't really care about freedom or laws anymore, or what the Constitution actually says. They just want the government and the courts to decide their way, regardless of whether it is good jurisprudence.

Constitutional amendments are certainly constitutional.

The judicial system discovering new rights is not.

And that clause of the Constitution certainly was not used when the question of mandatory health insurance came before the court. I would actually like that policy if it were consistently applied. Instead it is applied when it is the means to meet the desired ends. And that means we are a nation ruled by men, not by laws.

You asked, why this minority? Because two consenting adults want to get married, that's why. Not two children, but two adult Americans want to get married and have it recognized around the United States, not just a few states.

States screwed up when they took the civil part of marriage and associated it with the ceremonial part in a church.

>States screwed up when they took the civil part of marriage and associated it with the ceremonial part in a church.

Couldn't agree more. To me the correct answer is that the government should grant civil unions, and not recognize marriages in any legal way. Marriage should be between people and their religious institution. Want to get married? Great! Go to your church and sign your civil union documentation when you're done with the ceremony to get all the governmental perks. If your church doesn't want to allow homosexual marriage? Fine! Homosexuals can find an accepting congregation and get married there. Or they're non-religious, and can just go get a civil union without the marriage.

The real problem with the gay marriage debate hasn't been the inequality, or the bigotry, it's the fact that a religious institution got mixed up with a legal institution. So instead of teasing them apart, we've decided that the legal definition now partially defines the religious institution. That is why some people are going to continue to be somewhat justifiably angry about this. If we just gave them separate definitions, it would let people self-select private institutions whose definition they agreed with.

While I generally agree that it is annoying that religion and government got mixed up here, I've found that in a significant portion of cases, "marriage is religious, don't redefine it" is just a convenient cover for animus. Out of which things like North Carolina's 2012 state constitutional amendment came.

Why two? Civil marriage should be a normal contract between n entities that are allowed to engage in contracts. It seems extremely inelegant to have arbitrary restrictions on it.

I think it's pretty straightforward to come up with reasons why it's important to limit marriage to as few people as possible. One strong one being that it could be very bad for society to allow wealthy men (and women, though I think it would be less common) to marry a large number of women, especially due to the negative effect such a situation would have on lower class men.

But it's not limiting that. People are already free to do so and some religious or philosophies encourage or make it highly desirable. They just cannot be legally recognized which is pointlessly discriminatory.

I'm quite tempted to choose n = 1 and get those tax breaks all for myself.

> States screwed up when they took the civil part of marriage and associated it with the ceremonial part in a church.

In England that was because the church - specifically the Anglican church - wanted to gain religious power over marriage as a mechanism to make it harder for Anglicans to marry into other faiths. So I'm not really sympathetic to churches in common law countries crying about this one.

Well children are always an exception.

Siblings/cousins creep most people out due to inbreeding, but honestly I don't really see a problem with it if they promise to not have kids. (I'm an only child though, so I don't have any perspective)

Polygamy also seems like it should be legal to me, as long as everyone is a fully consenting adult.

Basically I just think the government should just stay out of peoples lives as much as possible.

I think they should stay out of marriage since it's almost entirely a religious construct. Instead, they can be in the business of civil partnerships, which dictate those things required by law - HIPPA/healthcare rights, inheritances, child custody, death rights, and so on, and so forth.

Then "marriage" can be defined by your religion. My wife and I were not married in a Catholic Church. Therefore, in the eyes of the church, we're not married. That's fine with me. In the same vein, I'm friends with a gay couple who's synagogue married them before their state legalized gay marriage. In their eyes, they were married, whether or not the state acknowledge inheritance/HIPPA rights.

It seems relatively logical, but it's never come up in conversation. Let the state make rules around civil partnerships, and let religions deal with marriage - which, basically, says that if you say you're married, then cool - you're married.

>Let the state make rules around civil partnerships, and let religions deal with marriage

That's exactly how it works now. One is called civil marriage and one is called religious marriage. The church sets their own rules and the government sets theirs. You can be in one, the other, or both at the same time.

Civil marriage is a legal contract, religious marriage is decided by the church and it is whatever the church says it is. The government lets clergy also officiate civil marriage but it doesn't have to. It does because it makes sense. You wouldn't have to need a civil official and a religious official at your wedding. You wouldn't have to go through two ceremonies, one at the church and one at city hall.

Don't put too much thought in the fact that both contain the word "marriage" in them.

Goodrich vs. Dept of Health (MASS.) (emphasis mine):

"Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society.... The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.... the arguments made... failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."

I agree.

I've long thought that a solution to the "gay marriage" "problem" would be for states to get out of the marriage business and just allow one adult to specify another adult as the legal party for all the things that a spouse gets under marriage.

Then there's no debate in terms of the state because the state doesn't define marriage at all! But that just exposes how some people WANT marriage to be man+woman to enforce their belief system.

I've heard this argument before, but I'm not sure I understand how that is different from what's going on now. It seems to just be semantics. The Catholic Church is still free to only marry Catholics and ignore the rest. That doesn't change. And people are still able to go through religious marriage ceremonies without bothering to be recognized by the state.

Personally I was married in a religious ceremony and then had to submit paperwork for it to be recognized civilly.

> The Catholic Church is still free to only marry Catholics and ignore the rest. That doesn't change.

The next round of lawsuits will see if you're right. There is some real risk you are mistaken. If not with regard to the Catholic Church, then with regard to private organizations recognizing or participating in marriage ceremonies.

> I think they should stay out of marriage since it's almost entirely a religious construct.

You can have two atheists go before another atheist, who won't invoke any deity, and marry them based on the rules of the state.

That religious people get involved in marriage no more makes it "almost entirely a religious construct" than anything else religious people do.

Why concede to religion that which it has not earned and to which it has no special right?

12 year olds, and brothers and sisters, are not oppressed minorities facing a long history of brutal discrimination.

>12 year olds [...] are not oppressed minorities facing a long history of brutal discrimination.

No, they absolutely are -- not in a way that really bears on whether they should get married, but seriously, have you been 12? Ever spent five minutes inside a Jr. High?

Being 12 is not a permanent condition, while generally race and sexuality are. While being 12 is not a choice - it's forced on most people - they also generally stop being 12, usually within a year or so of the condition.

When started being 12 when I was 10, and it lasted until I was 14 :(

A child labor analogy would have worked better IMO

The opinion very specifically did _not_ provided any protected status to gays and lesbians.

Persecution had nothing to do with it.

http://rt.com/news/185256-us-unicef-children-homicide/

> The US leads Western nations in child homicide rates, while millions of children around the world are threatened with physical, sexual and emotional abuse, including murder, rape and bullying, a new UNICEF report revealed

I dunno, sounds pretty brutal to me.

Two 12 year old girls can get married in Massachusetts as long as their parents approve.

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

Just a random thought but you could argue age discrimination is still equal because except for death, everyone goes through the same ages. In other words, when you're 25 you'll be treated by the law the same as other 25yr olds.

Brothers and sisters does seems to me like it's just people think of it as icky. Some cultures encourage marrying first cousins and the genetic risks are minimal. And even people that aren't related can and are tested for whether their genes combined will likely lead to genetic issues with their children. In other words the genetic risk is mostly not a valid excuse to ban siblings from marrying anymore than not being able to create children is for same sex couples.

The risks are not "minimal". There are increased risks in cultures where first cousins marry. Part of that is that married first cousins have an increased risk of having children with birth defects. And part of it is that people are more related than they think if everyone is marrying a first cousin.

The link I posted earlier deals with this.

While I don't necessarily agree with, say, sibling marriage, the argument about birth defects is not very compelling. This ruling pointed out at one point that an ability to procreate is not a requirement for marriage in any state. Further, genetic testing to avoid birth defects is not a prerequisite for marriage, so why would sibling marriage be precluded to avoid birth defects. Should society therefore only allow siblings or cousins of the same sex to marry because they can't procreate?

Thank you for pointing that out but I still maintain it's irrelevant. People that will pass on genetic issues to their children are not banned from getting married nor banned from having children. On top of which as science progresses it's likely all those issues can be fixed. In other words, it's not a valid reason to deny siblings getting married.

Sometimes the general opinion (let's say > 55% of the population) changes so quickly that it would take 10-20 years to wait for the parliament and senate to be sufficiently repopulated by representatives from the new generation, with more modern opinions.

In these cases you can reach a situation where the democratically elected representatives will hold an opinion that is more conservative than that of the general population.

In this case, whatever shortcut mechanism can be exploited to bring the legislation closer to the general opinion, it will be cheered by the general population.

The decision was not made through the normal channels, but people are happy nevertheless.

> Why not allow 12 year olds to marry as a consititutional right?

12 year olds can't provide informed consent.

> Why not allow brothers and sisters to marry?

I actually don't object to this, so long as they're not permitted to have biological children. The primary reason why incest is bad is because of the genetic damage caused by it; eliminate that problem (by preventing the possibility of said damage), and there's not really that much of a reason left to forbid it (other than a potential "ick" factor, but that's mostly subjective).

In the United States, the government -- at all levels, federal, state and local -- is allowed to discriminate against or in favor of particular groups of people. The government just has to show that the discrimination serves some permitted purpose, and depending on the groups involved may have to clear a high bar of proof that the alleged purpose is the real purpose (since some groups have historically been discriminated against for bad reasons, we have higher suspicion of new discrimination against those groups).

For example, state governments can require a person to have a driver's license before driving a car. This discriminates against people who don't have a license, but the support for it is rooted in a good reason: safety. Requiring people to pass a brief examination to show their knowledge of traffic laws and possession of the basic skills of driving is quite reasonable, and so driver's licenses are a permitted form of discrimination.

Similarly, people under a certain age typically cannot enter into contracts on their own. The support for this comes from the fact that younger people are less likely to be mature and knowledgeable and understand what they're getting into, so restricting it to a particular age (typically, the age at which one graduates from the public school system) and requiring the advice and consent of someone over that age for a minor to enter a contract is reasonable, and is permitted.

Over the past few years we've seen multiple alleged justifications for banning same-sex marriage asserted in courts, and each time they've been knocked down as nonsensical or even as contradicting the other policies of the state which advanced those arguments.

For example, we've seen an argument advanced that states have an interest in ensuring the production and safe rearing of future generations, that marriage is provided for the sole purpose of advancing that interest, and so a same-sex couple (who cannot procreate) should be excluded from marriage. Except this argument falls apart if you so much as breathe lightly on it: states which make this argument do not require any sort of commitment to have children from a heterosexual couple, and in fact will grant marriage licenses to couples known to be sterile, and many of them allow same-sex couples to adopt and raise children.

The result of this process has been that there really is no alleged justification or purpose left, other than "we don't like same-sex couples, largely for religious reasons". And that's not something our country allows as a justification for a law ("we don't like that kind of people" stopped being allowed about a half-century ago).

Because they brought the case to the supreme court. If 12 year olds and incestual couples want the right to marriage then they need to also bring that case to the supreme court. They didn't just decide to make this decision, they are judging a case that was brought to the court.

If that's how the equal protection clause works, why was it necessary to pass the Civil Rights Act as a law or Woman's Sufferage as an amendment? Based on the state of civil rights at the time, it's clear that the founding fathers did not intend the constitution to provide universal equality for all peoples.

I agree with this decision, but not because I think it's justifiable under the constitution. I see it as acceptable because I believe one of the unspoken roles of the Supreme Court is to be a group of 9 people who are a bit more wise than the average American.

Even though Scalia probably agrees with your unspoken rule, he doesn't reach the same conclusion because of it:

(Scalia, I): "...Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers, who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation..."

There's an often referenced and interesting argument from the TV show The West Wing where a republican woman argues against the ERA (Equal Rights Amendment) based on the same question - passing an amendment saying women are equal somehow implies they weren't under Article 14 of the Constitution.

https://www.youtube.com/watch?v=PQIkLTLf_IQ

> the founding fathers did not intend the constitution to provide universal equality for all peoples

In fact, they agreed that some people should be slaves to others and only landholding white males should vote. But the founding fathers intentions are not decisive or necessarily even important (and relying on grasping their intentions is, as I understand it, is not a legal principle but just one philosophy of many).

To emphasize the difference in perspectives: This is not a religion; the Founding Fathers are not gods, and they did not hand down scripture to us. They were the citizens of their day, they did what they did (I think they did very well), and we are the citizens of our day, to do what we think best. That's the essence of democracy; the Constitution and country are now ours, not the property or responsibility of 18th century or 19th century or any other ancestors; they belong to the people, to make of it what we will.

If you think about it, it's a very conservative and pessmistic idea to say we must appeal to these ancient authorities to decide things for us, that we can't do it ourselves just as well (and if you read about the people and politics of that era, you will see they were no different than us). A more optimistic and I think democratic point of view is to say (it's a well-known idea but I don't know who I'm quoting ...), "We are the ones we've been waiting for'.

The point is not that the Founding Fathers were mortal incarnations of the divine. The point is that the law has to have a meaning or else it is literally meaningless. If we use the law like tea leaves and just read in whatever meaning we want, whether or not it's what the law is actually supposed to mean, that puts us in a precarious position. Maybe today "equal protection" means that gays should be allowed to marry, but tomorrow it means that everyone should be equally protected from being hit on by gays. That's not a good footing for our society to be on.

> That's not a good footing for our society to be on.

That's actually very good footing for our society to be on. It means that the law can change as society changes over time. Future societies will not be bound to outdated precepts established by people who have never lived in their world.

We tend to think of laws as these unchanging concepts, perfectly created, but they are not. Ultimately laws are created by mankind and interpreted by the same. We may believe that they derive from a higher power, but we have no absolute proof of that higher power and thus, the law must begin and end with Man.

If some deity is willing to descend to the mortal plane and lay down The Law, then he/she or it welcome to do so. Until then, we are stuck with the best that we ourselves can do.

It's the job of the legislature to change the laws, not the courts.

> It's the job of the legislature to change the laws, not the courts.

Not according to our system of laws.

The courts are empowered to change laws that conflict with others, particularly with laws superior to the one in question; in this case the laws in the Constitution overrule state laws.

Also, the courts are responsible for interpreting laws, and therefore can change them in that way too.

> We tend to think of laws as these unchanging concepts ...

I think the best analogy here is, people tend to think of them as code.

> That's the essence of democracy; the Constitution and country are now ours

But isn’t that exactly the point? As I understand the various previous posters, the main argument is not whether the constitution should ensure a right to marry for everyone, but whether it does give out this right.

Further (again my interpretation), it seems that the issue is that the previous interpretation of the constitution did not allow for homosexuals to marry – otherwise it would have been allowed before. ‘The People’ now want to give out this right, but: should it be granted by a court deciding “This sentence, which previously was interpreted as X, now means Y” or should it be done by a change of the actual constitution?

Additionally, does this ruling imply that homosexuals were always allowed to marry (i.e. the constitution/law always allowed it, it was just misinterpreted by the courts) or does it mean that the law has now suddenly changed? Then, should such a change of law be implemented by a court or via the usual democratic process?

(I don’t understand the common law system and the US enough to give any answers to these questions, but they do seem interesting.)

Good questions. Essentially, I think the idea is that meanings change with context, but at the same time words don't allow just any interpretation.

The Civil Rights Act was not a prerequisite for interracial marriage. It was decided in Loving v. Virginia. (http://www.oyez.org/cases/1960-1969/1966/1966_395)

A constitutional amendment was necessary for women's suffrage because the constitution already spoke on the issue

Can you specify what part of the constitution is being violated here? There are amendments that protect race, color, gender, etc. Protection based on sexual orientation doesn't seem to be covered, at least not specifically.

In my mind, the correct solution to this issue should have been legislative (that is, add an amendment to the constitution), not judicial.

This really has nothing to do with sexual orientation.

It's not gay marriage, it's same-sex marriage. This is a subtle but extremely important distinction.

Gay people have always been allowed to marry. They haven't been allowed to marry the people they want, but a gay man was allowed to marry a gay woman in every state in the union. Similarly, straight people were not allowed to marry other straight people of the same sex.

Marriage is just a matter of straight-up sex discrimination. Bob can marry Jane but Susan can't, because Bob is a man and Susan is a woman. That's clearly discrimination based purely on the sex of the participants (and not the sexual orientation, which is merely the thing that might cause Susan to want to do this, but not relevant to whether it's allowed) and IMO a clear violation of the equal protection clause.

Laws are supposed to be sex blind. If a man can legally do something, a woman should be able to legally do it as well. That was not the case with marriage before this decision.

I should have phrased my earlier comment more specific to same-sex marriage, that's true. I don't think your second argument that marriage is sex discrimination is valid though. As you point out, both men and women have been allowed to enter into non same-sex marriages, regardless of their orientation or gender.

What's in question here is whether its discriminatory to not allow same-sex marriages to occur and whether states should be able to determine what marriage means and restrict it accordingly. Marriage has traditionally been between a man and a woman and certainly wasn't intended to be part of the 14th amendment when it was added to the constitution in 1868.

To add it more than 100 years later seems like a case of the judicial branch legislating and adding to the law, more than interpreting existing law in the context and intent of which it was passed.

I am not allowed to marry Steve, purely because I am a man. If I were a woman, I would be allowed. How is that not sex discrimination?

Because the institution, historically speaking, has been between people of different genders. It is only recently that people have even considered allowing same-sex marriages. It certainly wasn't considered or was part of the intent of the 14th amendment, when it was added to the constitution.

If you want to add a law to consider prohibiting same-sex marriage as discriminatory, then go through the process to add a law through the legislative process. Changing the meaning and intent of the current laws through the judicial process seems like the wrong way to go about it. It just isn't currently part of the constitution.

Why does the history of the thing have any bearing on whether something is sex discrimination?

It seems quite obvious to me: if a man is legally permitted to do X, and a woman is not, purely because she's a woman, then that's sex discrimination. It doesn't matter what X is or how much history there is around it.

If you want to argue that the 14th Amendment was not intended to prevent sex discrimination in marriage, I'm right there with you. But I don't see how you can argue that requiring marriage to be one man and one woman is not sex discrimination.

I mostly meant within the context of the current law and the historical understanding that marriage was only between a man and a woman when the 14th amendment was added. In my opinion, the constitution, as it currently stands, doesn't consider prohibiting same-sex marriage to be gender-based discrimination.

Seems to me that the question of whether denying same-sex marriage is sex discrimination lies outside of law, and the law's purpose is simply to discuss which forms of discrimination are legal. I would say that at the time the 14th Amendment was written, it would have assumed that sex discrimination in the context of who can get married was allowed, not that it didn't consider it to be discrimination in the first place. But that's really just splitting hairs.

I think the important bits are: the 14th Amendment wouldn't have been considered to allow this when it was written, but now it is.

That is correct. Change in attitude can be reflected by due legislative process, but some of the liberal victories always believed in Fiat, either from the POTUS or SCOTUS.

Rights of a minority should not be left to the democratic process.

If the constitution and the its amendments, which protect minority rights (and people's rights in general) aren't the result of a democratic legislative process, what are they a result of?

The question is whether the current constitutional legislation provides these minority rights. The court's role is to interpret existing laws, not add to them because it thinks its the right thing to do. That's the legislature's role.

Sorry, but as a lawyer totally in favor of gay marriage, Roberts, at least, is completely right on the legal theory.

There has been basically nothing, in the history of our country, considered more of a state right than defining marriage.

The supreme court is not a ruling council. Our constitution is about freedom from government intervention, not guaranteed government benefits.

The debates over everything in the past that led to amendments looked roughly the same as the debate over same sex marriage. For example, people beat each other on the floor of the senate chamber over slavery. The only difference to this debate is that a court ended it by deciding to change the constitution.

This is not how the process is supposed to work. The fact that the majority of the US may be tired of a broken political system does not change this.

>There has been basically nothing, in the history of our country, considered more of a state right than defining marriage.

Sorry, this statement just isn't true:

https://en.wikipedia.org/wiki/Loving_v._Virginia

>The debates over everything in the past that led to amendments looked roughly the same as the debate over same sex marriage. For example, people beat each other on the floor of the senate chamber over slavery. The only difference to this debate is that a court ended it by deciding to change the constitution.

So you are saying that every social issue must end with a constitutional amendment? The 14th amendment is already there. Why must we repeat the mistakes of the past every time a new issue comes along? Are you suggesting we should go to war to settle same sex marriage?

>This is not how the process is supposed to work.

You have not established this conclusion with anything you said. Nothing in this comment strikes me as from a "lawyer" but what do I know, I'm just an astronaut doctor lawyer in space.

" Sorry, this statement just isn't true: https://en.wikipedia.org/wiki/Loving_v._Virginia"

I'm aware of loving, which said nothing different? Loving basically said the same thing i did - they need a legitimate state interest. Race based discrimination is not a legitimate state interest. Therefore, Loving falls.

That is sane legal theory. But it doesn't change this case?

"So you are saying that every social issue must end with a constitutional amendment? The 14th amendment is already there. Why must we repeat the mistakes of the past every time a new issue comes along? Are you suggesting we should go to war to settle same sex marriage?"

So what is your view on the 14th amendment. What do you think equal protection means? Because what you've said here essentially implies you think the 14th amendment swallows the rest of the constitution, when instead, the 14th amendment has very specific application.

"You have not established this conclusion with anything you said. Nothing in this comment strikes me as from a "lawyer" but what do I know, I'm just an astronaut doctor lawyer in space."

You haven't actually refuted any point i've made. If you are arguing i am not a lawyer, that's fairly easy to verify. Past that, why actually listen to a lawyer, when you can cite that great legal authority, wikipedia.

If you want to make a legal argument, make one. Simply saying "Loving", does not work, because Loving is different.

> I'm aware of loving, which said nothing different? Loving basically said the same thing i did - they need a legitimate state interest. Race based discrimination is not a legitimate state interest. Therefore, this falls.

How is sex-based discrimination in marriage a legitimate state interest but not race-based discrimination in marriage? I'm having trouble seeing how Loving — which overrode states' control over marriage when it was unnecessarily discriminatory — can be a good ruling while Obergefell is a bad ruling because it overrode states' control over marriage when it was unnecessarily discriminatory.

Disclaimers: I'm not a lawyer, and I am 100% in favor of gay marriage.

I read Roberts' dissenting opinion pretty closely, and he discusses Loving several times. His argument doesn't read like a states' right argument at all.

His basic point is that, for better or for worse, the definition of marriage has always been a union between a man and a woman, and that the laws were written with this interpretation in mind. (I agree there, as he provides some good primary sources, and Kennedy's majority opinion acknowledges this fact as well.) We'll call this opposite-sex definition "Marriage" with a capital "M". Roberts also demonstrates that Marriage is a guaranteed right. (The majority agrees there, too.)

In the cases in question, states sought to restrict some people from Marriage, e.g. interracial couples, convicts, etc. These decisions were struck down by the court, because they violated the right to Marriage as it was guaranteed.

The gay marriage issue, however, is different. It does not seek to prevent restrictions on Marriage, but to redefine it to include more people (specifically, opposite genders). Roberts argues that creating rights is not the responsibility of the court, but should instead be handled by the legislative branch.

The majority argues that, even though past litigation and legislation only protected opposite-sex Marriage with a capital "M", it is okay to ignore their intentions if they are harmful or misguided. I think the dissenting justices were wary of doing that, because it goes beyond interpreting the law and wades into writing the law. It's not up to the court to determine what the law should be, only to determine what it is. Otherwise, they're usurping the power of the legislative branch, and thus of we, the people, who elect them.

This is easy: Race based discrimination is held to a heightened standard. Sex based discrimination is also. However, the majority in this case did not hold that this was sex based discrimination (despite arguments that it was).

That would, in fact, have been valid legal reasoning. Holding that it is sex based discrimination and subject to heightened scrutiny under equal protection would be perfectly reasonable.

Instead, they said that the equal protection clause and the substantive due process clause combine in a magical way to give a new right.

I don't think I can argue better than Obergefell v. Hodges itself where they cite Loving as precedent:

http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

>Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia , 388 U. S. 1, 12 (1967), which invali - dated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail , 434 U. S. 374, 384 (1978), which held the right to marry was bur - dened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley , 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, th e Court has reiterated that the right to marry is fundamental under the Due Process Clause. See, e.g., M. L. B. v. S. L. J. , 519 U. S. 102, 116 (1996); Cleveland Bd. of Ed. v. LaFleur , 414 U. S. 632, 639–640 (1974); Griswold , supra , at 486; Skinner v. Okla - homa ex rel. Williamson , 316 U. S. 535, 541 (1942); Meyer v. Nebraska , 262 U. S. 390, 399 (1923).

>A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding con - nection between marriage and liberty is why Loving inval - idated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki , supra, at 384 (observing Loving held “the right to marry is of fun - damental importance for all individuals”). Like choices concerning contraception, family relationships, procrea - tion, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Law - rence , supra , at 574.

>ee App. to Brief for Appellant in Reed v. Reed , O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, pro- vided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for he r own protection, or for her benefit.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection prin - ciples to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchberg v. Feenstra , 450 U. S. 455 (1981); Wengler v. Druggists Mut. Ins. Co. , 446 U. S. 142 (1980); Califano v. Westcott , 443 U. S. 76 (1979); Orr v. Orr , 440 U. S. 268 (1979); Califano v. Goldfarb , 430 U. S. 199 (1977) (plurality opinion); Weinberger v. Wiesenfeld , 420 U. S. 636 (1975); Frontiero v. Richardson , 411 U. S. 677 (1973). Like Loving and Zablocki , these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.

These are due process clause arguments, not equal protection clause arguments.

The majority in fact, found not that either of these provide a sufficient basis, but that they magically combine in some way.

If they had just said "this is sex based discrimination, subject to a heightened standard of equal protection", this would have been sound legal reasoning. But they didn't.

That is not my reading of it

>In Lawrence the Court acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See 539 U. S., at 575. Although Lawrence elaborated its holding under the Due Process Clause, it acknow ledged, and sought to rem- edy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State. See ibid. Lawrence therefore drew upon principles of liberty and equality to define and pro - tect the rights of gays and lesbians, holding the State “cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Id. , at 578. This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exer - cising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki , supra , at 383–388; Skinner , 316 U. S., at 541

That last sentence is the key:

>And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

They are not "magically" combining anything. Disallowing gays to marry is a violation of BOTH the Equal Protection Clause and the Due Process Clause.

This is where they simply assert there is an equal protection clause violation based on the fact that there is a substantive due process violation. It's just assertion. There is no precedent they are drawing on, and in fact, they acknowledge Lawrence was not an equal protection clause win. In fact, it was an equal protection clause loss, as i cited.

They point out a bunch of things about substantive due process (not equal protection) Then, they simply assert ">And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." This is not a legal argument, it's, as scalia would say, jiggery puffery. It's not a citation of precedent. It's not a logical argumentation from the standards applied to equal protection claims. You can see there are zero tests being applied here. It is simply bare assertion.

Basically, nowhere in this paragraph, have they explained how it is an equal protection clause violation for legal reasons. They just assert it exists.

There are in fact, reasonable arguments and conclusions to be made on either side of this particular legal battle. The majority made none of them :)

(As i pointed out, they could have held this was sex based discrimination subject to heightened scrutiny under the EPC, and disallow it there)

To be honest, if we are going to play armchair lawyer on hacker news, suggest you read these, and the decisions they refer to, with a really critical eye (to both sides). I suggest you take the time to look at what law schools outlines teach (it's a fine source if you want crib notes) about the equal protection clause.

With no disrespect meant, I simply have no remaining urge to try to explain to a large number of folks who confuse pretty basic constitutional law concepts, but want to argue with each other, what those concepts are. Not because i find it beneath me, but because it becomes exhausting :) Things like the substantive due process clause, the equal protection clause, etc, have a lot of precedent on them, and are very well studied. I would strongly suggest you take a look.

The Loving v. Virginia parallel is interesting, but the ad hominem and sarcasm against DannyBee are uncalled-for.

As a lawyer, could you explain how denying over 1,000 federal marriage benefits to same-sex couples would be offering them equal protection under the law?

First, this is not what laws were challenged. The laws that were challenged are very specific. As roberts says, "petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically"

Had they challenged benefits laws, that would change the equal protection analysis significantly. But in this lawsuit, given what they've actually challenged, the normal precedent would be to apply the rational basis test, and nothing stronger.

Again, i'll quote roberts, who quotes lawrence:

"In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.”" Lawrence, 539 U. S., at 585.

(Now, you could argue this isn't a legitimate state interest, but that's a pretty resolved question at this point, and would require overruling about 200 years of precedent on the issue :P)

The majority doesn't even bother to argue otherwise.

Second, the vast majority of the opinion does not rest on any equal protection claim, and not even the majority takes that argument seriously on these facts given the above. In fact, the majority doesn't even explain how their argument that this is correct works. They don't even spend a paragraph explaining it, just make a conclusory statement.

So to answer your question, i don't claim what you are stating would in fact, be offering equal protection, but will point out

A. This isn't actually the case before the court

B. Resolving that case does not require declaring states must issue same sex marriage licenses. It would probably require that those validly marriage be given the same benefits. SCOTUS is supposed to go out of it's way to not resolve questions not before it, and when they do resolve questions, they generally resolve them in the least sweeping way possible.

> "but that's a pretty resolved question at this point, and would require overruling about 200 years of precedent on the issue "

So, I assume you're leaving Loving v. Virginia out of that figure? [1]

[1]: https://en.wikipedia.org/wiki/Loving_v._Virginia

All of the precedent on the issue of "marriage" was made with the understanding that marriage meant a union between a man and a woman. Both the majority and dissenting opinions in today's decision acknowledged this fact.

Loving v. Virginia was struck down because it sought to arbitrarily hinder this right. However, gay marriage is a very different issue, because it seeks to expand the right to more people.

Well, as the history of this country has been one of expanding the scope of rights to encompass more people, rather than one of limiting rights to only apply to folks that think and act like the majority, I'm for it. The only time we tried to limit rights with a Constitutional amendment (prohibition), things didn't go so well.

I would also take issue with your framing of this case. I view gender as just as arbitrary a hindrance as race, especially given that the "Biblical definition of marriage" also dictates things like how one should treat their sex slaves. It's also worth noting that it was religious conservatives that were also raging against the decision in Loving v. Virginia, because it violated "traditional" notions of marriage.

So, what's the difference between an "arbitrary hindrance" and an "expansion of rights"? Who gets to decide? Which one is allowed, in your view?

For others who were also interested, the "over 1,000 federal marriage benefits" figure comes from a United States General Accounting Office report to Congress, updated as of 2004.

http://www.gao.gov/new.items/d04353r.pdf

> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states?

For the same reason that slavery couldn't be resolved by the states. For the same reason that racism can't be resolved by the states. Because these things haven't gotten resolved by states. The United States of America, sadly, has a significant minority of people who Just Don't Get It, and there are enough of them that if (when) they congregate they can form majorities in a number of states. And so the federal government needs to step in and dope-slap these people from time to time.

I think that gay marriage should be legal, but I disagree with this. Beware of the fallacy of analogy! There is no economic incentive for a state not to allow gay marriage, there was an economic incentive for states to keep slaves. Also, it wasn't the supreme court that ended up freeing the slaves...

There was no economic incentive to ban interracial marriage either. That didn't stop many states from doing it. And there are economic disincentives to racial discrimination. That didn't stop it from being institutionalized for decades.

And I didn't say the supreme court needs to step in, I said the federal government needs to step in.

I could agree with the federal government stepping in, just not the court.

I agree with this being a fallacy of analogy, but yours is the wrong point. There is absolutely economic reason to prevent gay marriage - lower taxes for married couples, for one thing.

I'm one of those who I think you would say "Just Don't Get It." Judging from your rhetoric, you clearly don't understand why some people do not think gay marriage is a good thing for the country. I don't think you have earned the right to say we "Just Don't Get It" and need to be "dope-slapped" until you actually get why we disagree with your viewpoint. If you can coherently argue for my position (even though you disagree), and you still don't think I'm being reasonable, then maybe you can use that kind of rhetoric.

> you clearly don't understand why some people do not think gay marriage is a good thing for the country

I've been studying this issue (and writing about it) for twelve years. I doubt very much there is an argument on either side I haven't heard.

But this is a red herring. It doesn't matter whether gay marriage is or is not a good thing for the country. (I think it is, but that's irrelevant too.) What matters is if it's protected by the Constitution.

So here's the test: do you think that states can Constitutionally ban interracial marriage? If so, then we'll just have to agree to disagree. But if not, then I submit that you cannot oppose same-sex marriage without being a hypocrite. There is no argument against gay marriage that cannot be applied just as well to interracial marriage.

If you think there is such an argument, I'm listening.

There is clearly such an argument: "marriage is about biological reproduction."

Of course, consistently applied, that should also argue against marriage of straight couples unable to have children (and probably also all the straight couples uninterested in having children). "No marriage after a hysterectomy" is not a position I've encountered.

> marriage is about biological reproduction

No, that argument applies (and was in fact applied) to interracial marriages as well: interracial marriages produce undesirable hybrids which have no racial identity and therefore cannot be integrated into society.

> "No marriage after a hysterectomy" is not a position I've encountered.

Of course you haven't, because no one really takes the reproduction argument seriously. When you dig into it, it's just an obvious smokescreen to cover up the bigotry which is at the heart of all opposition to gay marriage.

If there were an actual argument against gay marriage, any demonstrable harm that comes from it, don't you think that the Right would be shouting it from the rooftops? But they aren't. All they're shouting from the rooftops is how horrible it is to ram social change down people's throats. The fact that this is the best argument they can muster is proof that sometimes you have no choice but to ram social change down people's throats, because some people are simply impervious to reason.

I'm sorry I stepped in your rhetoric.

My point was not that it's a great argument, devastating to The Gay Agenda. My point was that it is an argument that does not equally apply to interracial marriage. The fact that someone could stack additional assumptions on top of that argument to get an argument that does apply to interracial marriage is irrelevant - you've built a different argument.

And it's absolutely an argument I have heard. Handwavy denial of its existence to serve your rhetoric is poor form. Addressing the argument directly should be easy enough; I touched on why I think it's a poor argument. I agree that those who make it don't consistently apply it - I raised that point explicitly.

Edited to add: To elaborate on why the argument you mentioned against interracial marriage is a different argument in the sense that is important here, one could easily believe that marriage is about biological reproduction, but believe that interracial "hybrids" are not a bad thing, and thus not be inconsistent in accepting interracial marriage but rejecting gay marriage on these grounds.

> I'm sorry I stepped in your rhetoric.

Cute.

> My point was that it is an argument that does not equally apply to interracial marriage

I didn't say it could be applied equally, I said it could be applied just as well. Those don't mean quite the same thing. To review, the argument as you presented it was:

"marriage is about biological reproduction"

That exact argument (in almost those exact words) can be and in fact was applied to interracial marriage back when that was still a thing. Look at e.g.:

http://www.mediaite.com/online/bet-you-cant-tell-the-differe...

The first quote is "They cannot possibly have any progeny, and such a fact sufficiently justifies [not allowing their marriage]." (State v. Jackson. Missouri, 1883)

The rhetorical force of your initial statement came from an accusation that one could not be consistent in denouncing gay marriage while accepting interracial marriage. Once you add additional assumptions, or rely on claims of fact that are true in the one case but false in the other, that does not hold. "Your argument sounds a tiny bit like something that was used to argue for something wrong" is not a good refutation.

As an aside, it looks like the quote is misleadingly truncated in a way that substantively changed the meaning. That said, the full version is still flagrantly factually inaccurate, so the reasoning above remains unchanged.

> people who Just Don't Get It Ah, but you clearly _do_ "Get It" and should have the right to impose your understanding of the universe on the rest of the country? Who gets to decide who "gets it"? Who decides in which situations those not-getting-it-majority-states should be denied their right to self-government and forced to adopt ways they oppose?

> Who decides in which situations those not-getting-it-majority-states should be denied their right to self-government and forced to adopt ways they oppose?

Ultimately, the Supreme Court, by virtue of the fact that the Union army won the civil war.

If you don't like it, you can always try to get the Fourteenth Amendment repealed. Maybe the Thirteenth too while you're at it. Good luck with that.

So your preference is for fundamental changes to the institution of marriage to be propagated by the force of state power rather than through reason, persuasion, and organic change.

I'm afraid the Union Army wasn't fighting for gay rights, so I don't quite see how that applies. Nor do I see the relevance of your curious implication that because I question the appropriateness of the Supreme Court proclaiming gay marriage by fiat, I must also be interested in bringing back slavery. ("Maybe the Thirteenth too while you're at it.")

> So your preference is for fundamental changes to the institution of marriage to be propagated by the force of state power rather than through reason, persuasion, and organic change.

Of course not. But that is, sadly, not an option. The forces of ignorance and bigotry are too deeply entrenched in the U.S. That is one of the costs of freedom. People are free to be ignorant, and they are free to be bigots. But the government -- neither federal nor state -- does not have that freedom, thank God.

> I'm afraid the Union Army wasn't fighting for gay rights,

No, they were fighting for the union. But then, having won the war and established the nation as a sovereign power, when the fourteenth amendment was duly enacted it became binding on all the states. Sometimes when you fight for things you end up accomplishing more than you set out to do.

> or the same reason that slavery couldn't be resolved by the states. For the same reason that racism can't be resolved by the states. Because these things haven't gotten resolved by states.

I'm not so sure that the states would not have resolved it (Edit: gay marriage, not slavery).

13 years ago, there were 0 US states with legal gay marriage.

6 years ago it was 3.

2 years ago it was 12.

Yesterday, it was 36 states (plus DC, Guam, and a whole bunch of native american tribes). 70% of the US population lived in areas with legal gay marriage.

You might argue that a few states abolished slavery, too, but that was not going to lead to nationwide abolition without war. I think gay marriage would have been difference, because

1. We have much more interstate trade interdependence now, and

2. We have much more personal mobility.

More and more large national companies are including support for same sex couples in their benefits, and when opening new facilities will take into account if the location is friendly to all their employees, including the LGBT ones. I think as soon as one or two of the hold out states lost some big project that would have brought a lot of jobs and money, and the awarding company cited as a reason for picking a neighboring state was that the winning state is more friendly to their LGBT employees, you'd see a lot of the hold out states changing their tune.

> I'm not so sure that the states would not have resolved it [slavery].

Opinions among historians seem to vary, but the impression I've gotten (albeit not with any careful study) has been that the slave states likely would have been extremely slow to abolish slavery, because:

1) the dollar value ascribed to enslaved people represented a huge proportion of the wealth of politically-powerful slave owners; and

2) many non-slave-owning voters in the slave states --- all white males, of course --- aspired to become slave owners and thus tended to sympathize with the interests of slave owners.

Oops. I meant that I'm not sure the state's would not have resolved gay marriage, not that I'm not sure they would not have resolved slavery. I've edited my comment to clarify.

Unfortunately, the southern states were going the opposite direction. There were states that strongly abolished gay marriage. Even after today's ruling, Texas is making passive-aggressive moves to make it difficult by encouraging county employees to use the "personal objection" reason to not issue licenses.

Then why have the states at all? Why have a tenth amendment?

Because even if you eliminate discrimination as one degree of freedom in the legal code, that still leaves a lot of room for experimentation. Some states have legalized marijuana, others haven't. Some states have high taxes. Some states have low taxes. Some states allow self-serve gasoline, others don't. I could go on and on. There's an awful lot of room for legal "biodiversity" left.

Based on this flowery language on the 14th Amendment in the majority opinion, I'm having trouble understanding why the 14th Amendment doesn't make marijuana bans illegal too.

Because marijuana bans apply to everyone equally.

That sounds like an attempt at a constructionist argument. That's not what I'm reading at all in this opinion.

I'm reading about the 14th Amendment being something that develops over time, helping people discover new freedoms, and be the very best they can be. It's fluffy stuff.

Did you read the opinion? Decisions typically contain some rhetorical flair ("fluffy stuff"), but there was plenty of substance to this decision. See e.g. pages 3-5 of the Syllabus. None of this analysis would be relevant to a decision about marijuana, and many of the standards the decision sets forth would fail in the case of marijuana.

Yes, I agree, but the 14th amendment requires some kind of asymmetry in order to have effect. To violate equal-protection, something has to be unequal.

"To violate equal-protection, something has to be unequal."

Like, say, incarceration rates.

Not sure I get your meaning here. People who break the law are incarcerated more than people who don't break the law. That's not an equal protection violation.

I was speaking of racial disparities in incarceration rates for marijuana possession, despite no similar disparity in usage rates.

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/04/t...

That seems to be missing a comparison with dealing rates - aren't arrests mostly targeting dealers rather than users?

> Some states have low taxes.

Some states have no taxes. Contrast Washington (state) and Oregon. Oregon has no sales tax, but an income tax. Washington has sales tax, but no income tax.

In Portland (which is right on the Washington-Oregon border), I recall a car with the license plate "TAXFREE," which was ambiguous enough that I couldn't figure out if it was referring to the owner being "tax free" (paying no income tax living in Washington) or that the car was "tax free" (the owner paid no sales tax when purchasing it in Oregon).

Surely the state of the license plate would have been a clue!

Maybe it was both.

You pay the sales tax based on where you live, not where the car is. For small purchases, no one tracks this but for large purchases like cars, you are charged the sales tax based on where you live.

Usually interstate commerce taxes are called "use tax", not "sales tax".

You will notice that the 10th Amendment mentions both states and people, which implies that the people can have rights that the states cannot abridge. The 14th Amendment made this explicit.

So, in other words, "the beatings will continue until you come around to our views"?

No, the beatings will continue for as long as you fail to respect the law. If you want to forbid gay marriage, it's very simple: repeal the fourteenth amendment. (Good luck with that.)

It's like I tell my liberal friends: if you want to regulate guns, it's very simple: repeal the second amendment.

So according to this ruling, the right for two men to marry has been "lurking" in the Constitution since 1868, right? But we just now discovered it? What I mean is that if someone had brought this case before the Supreme Court in 1870, the legally correct decision would have been to allow gay marriage? Things like that make me wonder what other "rights" (scare quotes because they are things that would not be considered rights today) are hidden in the Constitution, that will be discovered 150 years hence but would shock the conscience of nearly everyone alive today.

> So according to this ruling, the right for two men to marry has been "lurking" in the Constitution since 1868, right?

Yep. Just as the right to marry someone of a different race than you was lurking there but was not discovered until 1967.

>repeal the second amendment.

Alright, I'll bite: Historically, the second Amendment was meant to to refer to guns being allowed inside of a well-regulated militia. This is accomplished by the states' National Guards. It was not intended to mean that each person gets to have a gun.

This, according to America's Constitution: A Biography by Akhail Reed Amar. Great read, it walks the reader in a novel-type way through each part of the Constitution.

But, we've expanded the 'meaning' of the Constitution several times in ways the founders would have never anticipated. This in like with the 'living document' aspect, and a direct result of our veneration of document that is quite short.

> It was not intended to mean that each person gets to have a gun.

Actually, that is exactly what it was intended to mean. And that's exactly what it does mean according to the Supreme Court. The whole point of the second amendment is that The People do not need permission from the government to have arms. (Don't forget, the country was founded on the basis of a violent revolution against the then-exitisting government!) It's unfortunate the that founders confused the issue by putting some of their rationale into the text of the amendment. But the operative language of the amendment is clear: the right of the People to keep and bear arms shall not be infringed. Full stop.

Back then there were technological limits to how much damage one crazy person could do even if they did have a gun (and economic limits too -- guns were expensive. Only the rich could afford them.) It's unfortunate that the founders did not have the prescience to foresee the day when these limits would go away and a single crazy person could do an awful lot of damage. But for better or worse, that's our legacy.

Let's keep in mind that the Supreme Court, though we rely on them to interpret the Constitution, very often does so against what the founders had intended: take the example in my other comment, Heart of Atlanta Motel v. U.S., where the court unanimously decided that the state can force a business to serve black people under the Interstate Commerce Clause. The Supreme Court ruled that the Second Amendment allows people not members of militias to own guns. This was not the intention of the Amendment. My objection to your comment is that it betrays an attitude that whatever we do with the Constitution is what was Meant To Have Been Said, when in fact the Constitution is a living, breathing document that is constantly re-interpreted to meet our current needs.

Also, I do not find your dual argument -- that the Founders made their intention clear and also convoluted their intention -- particularly convincing. The Founders made quite a few mistakes when they drafted the Constitution[0], so their veneration as authors of the document seems quite overblown.

[0] Ackerman, Bruce. "The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy"

I didn't say the founders' intent should be venerated, or even necessarily taken into account. But you made a claim about their intent ("It was not intended to mean that each person gets to have a gun") and I was responding to that.

People can (and do) argue about the founders' intent, and people can and do argue about the consequences of controlling weapons, or failing to do so. But two things are inarguable: 1) the plain text of the amendment, notwithstanding the explanatory preamble, says that "the right of the People to keep and bear arms shall not be infringed", period, end of story. And 2) the currently operative Supreme Court ruling supports #1.

The real problem with this debate is that both sides are hypocritical. The liberals argue that the 2nd amendment doesn't mean what it plainly says, while conservatives argue that it does mean what it says while tacitly conceding that some limits on personal weaponry (like nukes or ground-to-air missiles) are nonetheless necessary and reasonable. The only real disagreement is over where to draw the line. But until everyone agrees that that's what the argument is really about we're not likely to make any progress.

>I didn't say the founders' intent should be venerated, or even necessarily taken into account.

Hm. I'm a little confused. How can you make a claim about what the intention of the clause was ("Actually, that is exactly what it was intended to mean") without claiming that Founder's intent should be taken into account?

Additionally, it's not pertinent to disclude the "explanator preamble" because, as you say, it's explanatory. The clause and the Amendment itself comes before an Amedment that speaks of quartering troops in peace time. It's clear that the writers intended the clause to be read in the context of militas.

"Equally anachronistically, individual rightists read “the people” to mean atomized private persons, each hunting in his own private Idaho, rather than the citizenry acting collectively. But when the original Constitution spoke of “the people” rather than “persons,” the collective connotation was primary. In the Preamble, “the People” ordained and established the Constitution as public citizens meeting together in conventions and acting in concert, not as private individuals pursuing their respective hobbies.” [..] “Founding history confirms a republican reading of the Second Amendment, whose framers generally envisioned Minutemen bearing guns, not Daniel Boone gunning bears. When we turn to state constitutions, we consistently find arms-bearing and militia clauses intertwined with rules governing standing armies, troop-quartering, martial law, and civilian supremacy. A similar pattern may be seen in the famous English Bill of Rights of 1689, where language concerning the right to arms immediately followed language condemning unauthorized standing armies in peacetime. Individual-rights advocates cannot explain this clear pattern that has everything to do with the military and nothing to do with hunting. Yet states’ rightists also make a hash of these state constitutional provisions, many of which used language very similar to the Second Amendment to affirm rights against state governments.”

Amar, Akhail-Reed. "America's Consitution: A Biography." 736-737

I'm not making any claim about how the clause "should" be read, only pointing out that the current reading of it was decidedly not the intention of the writers themselves. Further, to pull it out of context and make a claim about its meaning 'full stop' is to ignore the nuance of the document as well what those words would have meant when the document was drafted.

> How can you make a claim about what the intention of the clause was ("Actually, that is exactly what it was intended to mean") without claiming that Founder's intent should be taken into account?

It depends on whether the question on the table is, "What did the founders think?" or "Should what the founders thought carry any weight?" The intent is obviously salient to the first question, not necessarily to the second.

> It's clear that the writers intended the clause to be read in the context of militas.

No, it is manifestly unclear. That is the only reason we're arguing about it, because it's unclear.

The question on the table is "What did the Founders think?" I pretented cited, historical evidence of the context of the clause which make clear what the Founders thought. We're arguing about it because you do not find that evidence compelling, and I'm attempting to tease out where you've gotten your facts about this intent. I'll have to dig up the SCOTUS case for the DC handgun ban being overturned (2007?) to see why Roberts believed in an individual right, or believed that it was to be found in the Founder's intent. You appear to be basing yours on our 2015 grammar rules, which doesn't quite cut it if we're going all way back to 1787. Also, keep it mind it was manifestly clear for years before it was challenged in court :)

> where you've gotten your facts about this intent

For example:

http://www.thetruthaboutguns.com/2014/09/daniel-zimmerman/se...

the word "regulated" is the third word of the second amendment.

That's true, but it doesn't mean what you think it means. In context (both textual and historical) it means "well-functioning", not "constrained." i.e. it means "In order to have a well-function militia, the right of the people to keep and bear arms shall not be infringed." And the Supreme Court has (correctly IMHO) upheld this interpretation.

I'm all for repealing the Second Amendment. I am vehemently opposed to trying to do end-runs around it.

how are the rights of 8 year olds protected that they can't go to a gunshop unattended and buy a gun? or a convicted felon? how can something be a "right" if it's revocable? how is the word "arms" defined? Why can't I purchase a grenade launcher (after all, if you really want to build a "militia" capable of defending against the British re-invading, you're going to need them)? The 2nd amendment in practice is subject to tremendous levels of regulation. The kinds of regulations most Americans want, e.g. simple waiting periods to allow background checks, are a tiny frill of a regulation compared to how heavily regulated "the right to bear arms" already is.

> Why can't I purchase a grenade launcher

Because the second amendment isn't really taken seriously by anyone, not even the gun nuts. If it were taken seriously, it would become immediately obvious to everyone that it has become horribly dated by the advent of modern weapons technology and it needs to be changed. And then we could have an honest debate about where we ought to draw the line between weapons that people not in the military ought to be allowed to have, because everyone agrees the line needs to be drawn somewhere, even if it's just at WMDs. But no one seems to want to actually have that debate.

> Because the second amendment isn't really taken seriously by anyone, not even the gun nuts.

check out this article / video: http://talkingpointsmemo.com/livewire/texas-guns-poncho-neva... - the "constitution" is the entire rationale that open carriers use to call congresspeople "traitors" and threaten them inside their offices.

Sure, but I don't hear anyone -- not even the open carry folks -- calling for the legalization of personal nukes.

You know what a significant minority of people is when they have a majority? A majority.

I'm not saying they're not idiots, mind you, but you can't go against the will of the majority (dumb as it is) and still wave the "democracy" flag.

On a related note, this is why democracies suck: at least half the people participating are below average.

Who is waving the democracy flag? Certainly not me. I'm waving the fourteenth-amendment equal-protection flag. The United States isn't a (pure) democracy. Never has been, never will be. Thank goodness.

You're actually waving the tyranny-of-the-majority flag, in favor of equal protection for minorities. I'm not even honestly sure what to call that.

Call it what you like. I'll call it the Equal Protection Clause of the fourteenth amendment to the Constitution of the United States of America.

> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states?

Why should the States have the rights to prevent the exercise of a citizens civil rights granted by the US Constitution?

The Constitiution, and the Bill of Rights explicitly, exists because there are things that are just not left up to 'the majority' to come to a democratic decision over. They are rights that were recognized to be inalienable rights. Time and again, courts have had to step in to once again assert that these rights already belong to all citizens because the States have used the democratic process to trample and curtail them even though the highest law of the land already should have put such questions to rest.

The Courts ruling says this. "the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." Their dicision is not based on new law, it is simply stating that the US Constitution already recognized these rights.

Letting the States decide is letting the States pick and choose what parts of the Constitution they feel like following.

holy crap! "granted by the US Constitution" - wow, where to begin?

Here, how about this: our 'rights' are not granted by the Constitution, they are emphasized, publicly proclaimed. The Constitution delineates the rights and responsibilities of the GOVERNMENT. Anything granted can be taken away.

The Constitution 'grants us rights' in the way that it prevents the government from infringing upon them.

Rights that are not backed by Law do not materially exist. That is why the Bill of Rights (and related documents in other countries) had to be written in the first place.

The debate about the Bill of Rights went like this:

For: Let's enumerate some rights, just in case future generations are stupidly literal about things and get confused because it's not all written down for them.

Against: Bad idea! By writing some down, we might create the impression that those are the ONLY rights.

For: Well then we'll make the 10th Amendment a catch-all, so it's crystal clear that rights exist beyond those we've enumerated so far.

------

So did the 10th Amendment work? It seems like probably not, since people so frequently refer to the Bill of Rights as proof that the Constitution "grants" rights--rather than the intended effect, which is that the Bill of Rights limits government power over rights that already (and always) exist.

"The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. "

I can change this paragraph only slightly to come up with an absurdity.

"The fundamental right to vote does not include a right to make a State change its definition of suffrage. And a State’s decision to maintain the meaning of suffrage (to be those related by blood to the historically dominant culture taking part in the political process) that has persisted in every culture throughout human history can hardly be called irrational."

States are not free to define away your rights, it's that simple.

Scalia says striking down campaign finance laws passed by congress and supported by the people was vital but striking down discriminatory marriage laws is extreme judicial overreach. There's no principle there, it's just the politically expedient argument for his ideological battles.

It's surprising that a person with such a strong bias is part of supreme court panel. I'm not saying all judges must be atheists but are people ok with a fundamentalists types from any religion in the supreme court panels?

Scalia is a devout traditionalist Catholic, and his son, Paul, is a Catholic priest.[109] Uncomfortable with the changes brought about following Vatican II, Scalia regularly attends the Tridentine Latin Mass in both Chicago and Washington, and has driven long distances to parishes that he felt were more in accord with his beliefs.[110] In a 2013 interview with Jennifer Senior for New York magazine, Scalia was asked if his beliefs extended to the Devil, Scalia stated, "Of course! Yeah, he's a real person. Hey, c'mon, that's standard Catholic doctrine! Every Catholic believes that". When asked if he had seen recent evidence of the Devil, Scalia replied, "You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He's making pigs run off cliffs, he's possessing people and whatnot … What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way".[111] In another 2013 interview, Scalia stated that "In order for capitalism to work, in order for it to produce a good and stable society, traditional Christian virtues are essential".[112]

In 2006, Scalia, approached by a reporter upon leaving church, was asked if being a traditionalist Catholic had caused problems for him. He responded by asking, "You know what I say to those people?", and with a gesture, cupping his hand under his chin and flicking his fingers out. The gesture, which was captured by a photographer, was initially reported by the Boston Herald as obscene.

> I'm not saying all judges must be atheists

So your saying you don't mind if people are a little bit religious as long has they are not fully devout to the principles of their religion?

Lets be open-minded, and allow religious people to perform their public duties without consciously projecting their religion on everybody else. Read Jimmy Carter on the subject. He was as devout as they come, but understood the separation of his own beliefs from his public trust.

I believe the issue is that by passing a law prohibiting granting a marriage license to a same-sex couple, a State is violating that couple's Fourteenth Amendment right to life, liberty, and equal protection, among other things.

I will admit that there were a lot of high-soaring words that might have covered up the legal basis, but to me, the legal component of the ruling was simply:

1) The court finds that marriage is an inherent part of life and liberty (arguably the shakiest part)

2) A State passing a law prohibiting marriage by one specific group of people is taking away their rights of life and liberty

3) Therefore, said law is found to violate the Fourteenth Amendment which grants life, liberty, and equal protection under the law to all United States citizens, and is thus unconstitutional.

I think that's the Best TL;DR; of the ruling I've found so far.

#1 was found by the court almost 80 years ago in Loving vs Virginia[1]. What the court found was that this applied to the rights of same sex couples.

The court has been building the legal framework for this for about a decade. They found that Civil Unions must not be legally different from Marriage. From there it was a simple matter of ruling that existing civil rights rulings did in fact apply to LGBT folks.

[1] - https://en.wikipedia.org/wiki/Loving_v._Virginia

Marriage is a legally-binding contract. Since it is in the domain of public law, allowing religious beliefs to support or interfere with it would, in essence, allow the religion to be intertwined with the state itself. So, in my humble opinion, separation of church and state alone would require it to be legal for all people. In addition, just as states can't pass a law to allow for racial segregation of contracts, they can't pass a law to allow for class-based segregation of contracts.

Of course, I am far from a lawyer, and this is a pure layman's point of view.

I totally agree with this. Once the Government became the granter of marriage it moved the whole argument over to the SECULAR realm.

The same reason that the Civil Rights act had to be passed in the courts and the first students in integrated schools in the south had to be marched in with armed guard.

"Democracy" is frequently used interchangeably with freedom, but never underestimate the power of a close-minded majority to rule with tyranny and impose their will and discrimination on a minority - racial, sexually-orientatated, or otherwise.

"the Civil Rights act had to be passed in the courts"

What?

https://en.m.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._Un...

OP should have written: "The same reason that the Civil Rights act had to be UPHELD in the courts".

IANAL. FYI, this is a constitutional issue that goes back to the early days of the court. See e.g. https://en.wikipedia.org/wiki/Judicial_review_in_the_United_...

The essential response from Kennedy et al. was two-fold:

1. Marriage is a Right because the due process and equal protection clauses were designed to be interpreted broadly as society came to "understand" liberty in new ways. I think this is actually pretty damn accurate -- I have no doubt that some of the founding fathers had slavery on their minds, even though at the time the amendments we're interpreted in that way.

2. Rights are not subject to the "vicissitudes" of public opinion -- the democratic process doesn't get to take away rights.

Roberts and Scalia mostly disagreed with (1), but there was very little substance to their argument. Read through the four justifications given by Kennedy. Roberts and Scalia doesn't respond to these. They just sort of complain about a slippery slope to tyranny. But this court is by far less activist than previous courts and we have yet to devolve into a dictatorship-by-SCOTUS. So I'm sceptical of the veracity of their slippery slope argument. It would have been more compelling if that had talked more about this specific case.

Roberts and Scalia also made some more practical arguments, e.g. that democratically selected policies are more robust protections because they can hash out the details. I mostly believe that's a false dichotomy because there's very little evidence that courts conferring Rights upon groups of people actually shuts down legislative action or debate on either side of the question. Look at abortion or civil rights. Ultimately, I find this argument extremely ahistorical and massively empirically denied.

(As an aside, I think Scalia's "o'weening pride will be our fall" thing was a pretty dickish thing to say, given the overloaded connotations associated with pride in this case.)

Sorry, but as a lawyer totally in favor of gay marriage, Roberts, at least, is completely right on the legal theory.

There has been basically nothing, in the history of our country, considered more of a state right than defining marriage.

The supreme court is not a ruling council. Our constitution is about freedom from government intervention, not guaranteed government benefits.

The debates over everything in the past that led to amendments looked roughly the same as the debate over same sex marriage. The only difference is this time a court ended it by deciding to change the constitution.

> There has been basically nothing, in the history of our country, considered more of a state right than defining marriage.

Care to explain Loving v Virginia?

> In brief, their view was that resolving this issue in the courts erodes the democratic process.

Basic human rights should not be subject to the "democratic process".

Wow. I just read it (for the interested, it starts on page 69 and is well worth the read for anyone even the slightest bit interested in constitutional law), and it brings up some very good points.

My counter would be this: Of course it would be hubris to think that SCOTUS can "create 'liberties.'" But that is not what SCOTUS is doing in this case. There's a clear reading of the Bill of Rights where it is up to SCOTUS to clarify the definition of "liberty" or "equal protection" in the 14th Amendment as the general human understanding of human rights expands - as ambiguous language in the amended Constitution, it is very much in the federal judiciary's domain.

Now, if the states or the citizens feel strongly that this interpretation oversteps what should be the judiciary's domain, then there's a process for the other branches and the citizenry to tighten the limits of the judiciary's domain. That is the process of a Constitutional amendment. But to say, as Scalia implies, that SCOTUS should wait for an amendment or legislation before being able to expand the interpretation of ambiguous language in the amended Constitution, is counter to the very mandate SCOTUS was given in the first place - it should not wait or falter when a reasonable case is presented to the body, and where constitutional language is ambiguous. I applaud the Court's courage in living up to that mandate today.

...

And at the end of the day, Mr. Scalia, when it comes to bodies-not-representative-of-the-human-citizenry broadly interpreting ambigous language in the fundamental Laws, we should truly be glad that this is what we're seeing, not https://en.wikipedia.org/wiki/The_Evitable_Conflict ... :)

Scalia is the same clown who opinionated that corporations are people and politicians can accept all the money lobby throws at them anonymously. When he gave this ruling, he never thought his Court was a threat to the democracy or he grossly misinterpreted constitution or completely disregarded founders original intent or violated deeply held belief of most Americans. But apparently gay marriage does all of that for him. His other dissents includes things ranging from teaching creationism in schools (yes, he supported that) to environmental law cases. In all of those dissents he openly accused his colleges for relying on their "private" opinion instead of actually adhering to their job of interpreting constitution. If you look at how he himself did his job so well to interpret constitution so that corporations have same rights as people even years before gay people can dream of, you see how his twisted view of the world is.

Overall, I would expect justices in supreme court have display some level of courtesy, dignity and respect to their own colleges on the same bench. Accusing them as being unprofessional, incompetent and even intentionally so malign to declare them threat to nation every time they disagree with him - all these is clear indicator that Scalia is not fit for the bench. Unfortunately people have to suffer through him because of the rule that he can't be replaced til life.

Should the courts have waited for the state legislatures in the deep south to desegregate schools? https://en.wikipedia.org/wiki/Brown_v._Board_of_Education#/m...

Should the courts have waited for the state legislatures in the deep south to legalize interracial marriage? https://en.wikipedia.org/wiki/Interracial_marriage#/media/Fi...

The court needs the power to overrule legislatures because democratic majorities have consistently failed to protect the rights of minorities.

You could apply that to a lot of other situations. What about the right to own slaves? Southern states certainly preferred if that was handled at the state and not federal level.

Sure, marriage is a "license" but you could make "negro ownership" a license thing and it wouldn't change things.

> In brief, their view was that resolving this issue in the courts erodes the democratic process.

That the issue made it to the supreme court shows that it is following the democratic process laid out in the constitution. If it has to be decided on by SCOTUS, the issue has already been through a number of other checks and balances. SCOTUS decisions are part of the American democratic process, and it's incredibly disingenuous of Scalia to complain about it.

Basically the "this is not democratic process!" is a standard dog-whistle cry put forward when conservatives lose a vote. Progressives have their own cries, of course, but "this isn't democratic, and the proof is that I didn't win" is a standard losing conservative trope.

The best argument is: that's the way we do it in the US. We've never waited for complete agreement among the states before acting on the Federal level, regardless of whether it is a Constitutional Amendment or a SCOTUS decision.

This article shows the number of states that have reached consensus on Women's Suffrage, Interracial Marriage, Prohibition and a few other issues. Same-sex marriage has actually had more consensus than many of those other issues did before SCOTUS jumped in.

http://www.bloomberg.com/graphics/2015-pace-of-social-change...

> In brief, their view was that resolving this issue in the courts erodes the democratic process.

Sounds like an argument against their existence. They didn't have to take up the case...

I agree with them in a sense -- it's not democratic. Neither was desegregation. As the saying goes: democracy is two wolves and a sheep voting on dinner.

Scalia's opinion is that, effectively, the courts should be judging based on Scalia's personal opinion of the "legal culture’s conception of constitutional interpretation". He thinks the culture no longer interprets the constitution in, well, "the right way".

In the previous paragraph he points out how, effectively, any majority-leaning set of judges can just invent new rights to assign to the country and they will be permanent [or at least, until a later court overturns them]. And he's right. But this is not news. Presidents have been trying to assign judges that lean their way on issues since... a long-ass time. The judges are human, moral, and they change their minds about how to interpret the law as the mob's mood changes.

And he's right that the majority simply shoving it's way down the minority's throat is unjust and is going to breed contempt. When the North defeated the South, racial tension didn't just disappear overnight. Those in the South kept a grudge and an ignorance that persists to this day. We may be using the power of the majority to force the removal of the flag, but those people who find that force offensive will not forget it. We didn't convert them, convince them, or make them understand; we held the proverbial Public Relations gun to our leadership's heads.

You ask why the states shouldn't have resolved the issue over time. Should the federal government have allowed some states to continue slavery? We all know it's a crime against humanity now, but what actually makes it a crime? Is it some old english scribbled on some parchment centuries ago? Or is it merely an intangible, unwritten law that reversed itself naturally as society changed over time?

The truth is, human civilizations have been morphing and evolving for thousands of years and they aren't going to stop doing so because some old farts had an idea a couple hundred years ago and we're trying to stick to their idea as hard as we can. Never changing, no matter how hard our society demands it, becomes simple fundamentalism, and our country was not founded on fundamentalism. Our country was founded - no matter how trite this sounds - on the idea of liberty over tyranny. We're always going to lean more towards liberty than tyranny.

We have a pretty good track record so far of not letting the states or federal government erode our liberty just because of the color of our skin, or our gender, or sexual identity, or religion. We protect people, always. But we don't limit people just because we don't like them or are afraid of them. Any time a state is asking to do that, we will eventually push back hard enough that the state will lose.

As a point in examining history the supreme court I thought was usually the case where issues like this bubble up. i.e. Abortion Women Voting (I think?) Corporate Entities etc.

What happens when a member of a gay couple gets sick in a state that doesn't recognize gay marriages? What do gay couples do when they file their federal taxes?

Currently, you can file your federal taxes as "married" if you got married in any state that recognizes marriage equality. This right does not end when you move to a different state, so there are couples who have to file as two singles in Alabama but as married to the federal government because they got married in Vermont. So, the answer to your second question is: status quo.

The first question would probably decided by a judge.

They file with different statuses on the different tax forms.

If there were a constitutional right to easy income tax filing, we'd be in violation for a long time now :-p

They don't get to see their loved one in the hospital as a "family member". As has happened countless times.

Can you imagine if the repeal of Jim Crow laws had been left to the states? How long would it have been before Mississippi integrated?

Essentially, the question is whether marriage is a right, or is it a privilege.

If it is a right, then it should not be subject to the democratic process in the first place, so taking it out does not count as erosion. If it is a privilege, then it can be granted (or not) through the democratic process. The Court held today that it is a right.

Disclaimer--I have not finished reading all the opinions yet.

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