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Comment by DannyBee | Hacker News Reader

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.

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>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.

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

" 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.

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.

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.

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.

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?

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

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?

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