Uh Oh. The Supreme Court is Losing Legitimacy. Again.

Stop me if you’ve heard this one before: If the Supreme Court rules the way the Christian right doesn’t want them to, that will destroy their legitimacy. Yes, this is a repeat from Lawrence v Texas. And Griswold v Connecticut. And Texas v Johnson. And Roe v Wade. And…

Liberty University’s Matt Barber took anti-gay activists’ vow to disobey a Supreme Court ruling for marriage equality to its extreme yesterday, telling Iowa radio host Steve Deace that if the court strikes down bans on same-sex marriage, it will “no longer be legitimate” as a court.

Saying that such a ruling would be the “Dred Scott of marriage,” Barber told Deace that if the justices “presume to redefine the institution of marriage, thereby destroying the institution of natural marriage, this Supreme Court will no longer be legitimate.”

Barber said that there “would be no rationale” for such a decision. “There’s no constitutional rationale,” he said, “there’s no historical rationale, there’s no biological rationale, there simply is no rationale other than that they want it so very badly, ‘they’ being homosexual activists and other cultural Marxists, leftists, people who are seeking to undermine the institution of natural marriage and ultimately God’s design for human sexuality.”

I’m sure Justice Kennedy is terribly worried that Barber thinks the court will lose its legitimacy if it treats gay people as human beings with equal rights. Incredibly worried. And I’m sure that will sway his decision.

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  • eric

    there simply is no rationale other than that they want it so very badly

    That’s a perfectly good rationale considering the 5th and 9th amendments. Seems to me Staver’s got it exactly backwards: the government needs a rationale to stop citizens from doing what they want to do, the citizens do not need a legal rationale before they are allowed to do things.

  • John Pieret

    There’s no constitutional rationale

    Well, lets see … the state gives certain rights, benefits and responsibilities to married people. It then takes one class of people and denies them those same rights, benefits and responsibilities based on the religious beliefs of some people and on “tradition.” Now, where have I heard that before? Oh, yeah … ‘It is God’s will that the races remain separate’ and it has always been the tradition in the US that blacks and whites cannot marry. Not so fast!

    So it seems there is a constitutional rationale … it’s just one that bigots don’t like.

  • Doug Little

    IANAL but I read the oral arguments and it was pretty cut and dried as to what the constitutional rationale for marriage equality was, so much so I believe even a 6 year old could understand it.

  • Freedonian

    Somebody wake me up whenever Barber actually passes the BAR Exam.

  • gshelley

    I haven’t read in detail, but it seemed to me that several of the justices were trying out the “well it’s always been that way” argument, and the states were pushing the “marriage is for procreation so children can be with their genetic mother and father”, but without making any effort to show there is any link between the marriage laws and this, or why allowing some people who can’t procreate as a couple, but not others is reasonable. Or even that this was the reason for the laws, or the reason it is so vitally important to keep them.

    I know it’s unlikely, but it would be amusing if someone on the court cited the many amicus briefs railing against homosexuality to demonstrate that the laws come from religious based animus to homosexuals.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    …and ultimately God’s design for human sexuality.

    I’ve seen His blueprints. Dude designed some pretty freaky shit.

  • Carl

    Ed, your last couple of Soundcloud embeds don’t seem to have worked correctly. I’m just seeing the markup rather than the Soundcloud widget.

  • eric

    @5:

    without making any effort to show there is any link between the marriage laws and this

    They did make a linkage, but it was so lame your brain probably edited it out. It goes like this:

    1. Allowing gay marriage will imply to people that marriage is about two adults loving each other, not about two adults having/raising kids.

    2. That means that more married couples with kids will get divorced if/when they stop loving each other. Because before SSM made marriage all about spousal love, they would’ve stayed married because they would’ve accepted that marriage was about the kid’s sake. Now they won’t (accept that and stay married)

    3. This will result in more kids being raised by divorced parents, which is bad for the kids.

    Yes, I know, there are all sorts of problems with every single one of those three points. Have at it if you will, I suspect Kennedy is aware of the flaws and doesn’t think much of the argument either.

  • eric

    it would be amusing if someone on the court cited the many amicus briefs railing against homosexuality to demonstrate that the laws come from religious based animus to homosexuals.

    Yeah, that’s the unmentioned elephant in the courtroom. Its highly unsatisfying to see the courts at all levels ignore blatant evidence as to the motives for these laws. Hopefully this will work out in our favor: SCOTUS saying the bans are unconstitutional period – regardless of motive – is much stronger than SCOTUS making a Lemon-like argument that these particular bans are unconstitutional because they don’t have a secular purpose.

  • gshelley

    @8

    As I said, I didn’t read/listen to the full thing, but I had read numerous summaries, and a couple of live blogs.

    I must have missed that. So, I will amend my statement to “They didn’t try to make any serious, rational or even sensible link”

  • whheydt

    Re: eric @ #9….

    That’s an issue that may make CJ Roberts join a 5-4 majority and assign writing the opinion to himself. In that way, he can write as narrow an opinion as possible, leaving the door ajar for states that still want to find a way to put bans back in place. Personally, if that happens, I would expect one or more of the liberal wing of the court to write concurring opinions expressed in much broader terms.

    The other point that I’ve been mulling over concerns the second question the court asked to be addressed. *If* the majority rules that states have to permit SSM, but that states *don’t* have to recognize out-of-state SSMs, *then* I could see some states putting restrictions around SSM that might survive challenges in the current SCOTUS. Consider that at least one of the states involved in the appeal permits first cousin marriages, but only if the couple are too old to have any real chance of having a child on their own. Thus, states might decide that, yes, SS couples can marry, but only if both are (say) over 50 and unless that condition is met, they won’t recognize a SSM from out of state, either.

    (With a bit of luck, Mr. Pieret will be along to tell me whether my analysis is in any way possible, let along plausible. as IANAL.)

  • gshelley

    @Eric, 8

    As you seem to have picke dup on some subtleties I missed, did you notice if the States explained why the specific interest in encouraging family stability was only for when the children were the biological offspring of both the parents?

  • Chiroptera

    One thing that I always like to do when someone complains about “judges legislating from the bench” and “not respecting the Consitution” is to ask them whether they’ve read the decision and exactly where they disagree with it. I get a lot of “Huh?”

    (And, yes, I often complain about court rulings myself without having read the decisions first. Make of that what you will.)

  • John Pieret

    states might decide that, yes, SS couples can marry, but only if both are (say) over 50 and unless that condition is met, they won’t recognize a SSM from out of state, either.

    I concur that loony state legislators might try just about anything with respect to SSM. As to this particular possibility, I can’t see how it could stand up in court. If the majority rules that states have to permit SSM, then it has ruled that same-sex and opposite-sex couples have to be treated the same. So, unless the legislature raises the age of marriage for everyone, it is, on its face, discriminatory. I don’t know if any law re 1st cousins has been challenged but, at least, they have a colorable claim for a state interest in preventing children being born with genetic defects from inbreeding.

  • whheydt

    Re: John Pieret @ #14…

    Thanks…good to know that such an attempt is unlikely to succeed…at least for very long.

  • eric

    That’s an issue that may make CJ Roberts join a 5-4 majority and assign writing the opinion to himself. In that way, he can write as narrow an opinion as possible, leaving the door ajar for states that still want to find a way to put bans back in place. Personally, if that happens, I would expect one or more of the liberal wing of the court to write concurring opinions expressed in much broader terms.

    IANAL or SCOTUS watcher, but I thought about that the other night and I think that’s unlikely. I think Roberts would be aware of the likely course of events he would kick off: another round of legislation using whatever language in the decision the more liberal justices objected to, another round of cases percolating up to the court, a SCOTUS case focused on the weasel language he put in the first opinion, and another 5-4 liberal victory. That’s a possibility: he might want to go that route, metaphorically fight a rear-guard action. But we talk a lot about Roberts being aware of his legacy and I don’t think that sort of rearguard obstinate fight gives it to him. If he’s going to join the winning side on his one, I think he’s going to want credit for the history-making win, not just credit for grudgingly let the minimum necessary happen. But, I could be wrong.

  • eric

    gshelley:

    did you notice if the States explained why the specific interest in encouraging family stability was only for when the children were the biological offspring of both the parents?

    They say its a different issue: that the state has an interest in not breaking up biological families (which SSM will supposedly cause), separate from the state’s interest in promoting nonbiological ones (which it does by allowing single gays to adopt).

    I’d try and give you a better answer but FTB’s ads are playing hell with my MSExplorer right now. And I think they tried to infect my computer yesterday. They really are getting intolerable. In any event, the discussion you’re looking for is on pages 65-70 of the part 1 transcript (which John Pieret linked to on an earlier page), with the “money shot” discussion being on pages 68-70.

  • D. C. Sessions

    Those speculating over Roberts’ motives for becoming the sixth in a 5-4 supporting SSM:

    Never underestimate the dude — he’s sneaky. He might well take the writing of the ruling to insert some time bombs that he can use later in an apparently-unrelated States’-rights case. It’s happened before: his appeal to “equal State sovereignty” in Shelby County cited an earlier reference to that in dicta that looked benign at the time. Prior to that, “Equal State Sovereignty” was an apparently-discredited antebellum doctrine.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @DC Sessions:

    I’m just geeky enough that I might, at one time, have delved deeply enough into Shelby County to have read that, but if so, it was completely gone from my mind long before I had a chance to read your comment.

    Okay, now I got it (not that i remember, just that I’m up to speed having done a little opinion reading).

    Northwest Austin, really? And the cases it cites beyond that are 1845 and 1869?

    I don’t know much about equal state sovereignty (frankly, I thought it went out with the Articles), but I’d at least heard of it. The fact that it was discussed at all after the civil war might be reasonably construed as a sign of life for the doctrine, but nothin for 90 years, a blip in 1960 (if I read that right) and then 50 more to get to Northwest Austin? Wow, it really looks like Roberts was pulling a Bill Frist:

    I have examined the patient, and have detected a bit of life in the entity known as Equal State Sovereignty Schiavo. Therefore we must keep it alive at all costs.

    Wow, doesn’t congress even get the benefit of a legislative desuetude?