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.
Rights of a minority should not be left to the democratic process.
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?
Persecution had nothing to do with it.
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?
> 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.
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.
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.
Bullshit [1].
http://www.genetics.edu.au/Publications-and-Resources/Geneti...
Etc.
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.
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.
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.
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?
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".
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.
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?
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.
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.
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.
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.
There are enough cases to realise this is something of a problem, although protections can probably be built into the system.
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 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).
Should be "Current western and developed/modern civilization's legal framework of consenting age"...
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.
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.
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'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.
Personally I was married in a religious ceremony and then had to submit paperwork for it to be recognized civilly.
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.
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?
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 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.
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."
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
Although, I'm a vegetarian and I'm salivating at the thought of a perfectly cooked and seasoned steak. :)
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.
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 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.
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 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.
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.
'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?
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.
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?
https://en.wikipedia.org/wiki/Age_of_marriage_in_the_United_...
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 link I posted earlier deals with this.
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).
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).
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.
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.
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'.
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.
I think the best analogy here is, people tend to think of them as code.
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.
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.)
A constitutional amendment was necessary for women's suffrage because the constitution already spoke on the issue
(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..."
In my mind, the correct solution to this issue should have been legislative (that is, add an amendment to the constitution), not judicial.
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.
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.
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.
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 think the important bits are: the 14th Amendment wouldn't have been considered to allow this when it was written, but now it is.
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.