Justice Kennedy’s Reasoning in Upholding Marriage Equality

Unless you’ve been vacationing in the jungles of Suriname, you know by now that the Supreme Court ruled 5-4 on Friday that the 14th Amendment requires states to recognize same-sex marriage on equal par with opposite-sex marriages. I want to highlight some of the reasoning and language Justice Kennedy used in his opinion.

First, the basis for the ruling. Justice Kennedy bases the ruling on both the Due Process Clause and the Equal Protection Clause of the 14th Amendment, and it’s interesting to see how this ruling builds on Kennedy’s three previous rulings on gay rights. Here is how the ruling is summed up in its syllabus:

(b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex.

(1) The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal

stricture, a claim to liberty must be addressed.

Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving v. Virginia invalidated bans on interracial unions, and Turner v. Safley held that prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship involving opposite-sex partners, as did Baker v. Nelson, a one-line summary decision issued in 1972, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question. But other, more instructive precedents have expressed

broader principles. In assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. This analysis compels the conclusion that same-sex couples may exercise the right to marry.

(2) Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. Decisions about marriage are among the most intimate that an individual can make. This is true for all persons, whatever their sexual orientation.

A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception and was acknowledged in Turner. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense.

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent

protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.

Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to

lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.

(3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive,

yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause; and in Zablocki v. Redhail, where the Court invalidated a law barring fathers delinquent on child-support payments from marrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions

that once passed unnoticed and unchallenged, this Court has invoked equal protection principles to invalidate laws imposing sex based inequality on marriage, and confirmed the relation between liberty and equality.

The Court has acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. This dynamic also applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.

(4) The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from

civil marriage on the same terms and conditions as opposite-sex couples.

(5) There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain and humiliation in the interim,

and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment.

The petitioners’ stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions. Respondents’ argument that allowing samesex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have

protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.

(c) The Fourteenth Amendment requires States to recognize samesex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex

character.

I’ve omitted the references to earlier cases, but a lot of them are references to Kennedy’s own previous rulings in Romer v Evans, Lawrence v Texas and Windsor v United States. His language has been consistent in speaking about the stigma and humiliation felt by gay couples and their children to be locked out of one of the country’s most important and enduring institutions. So too, the language of the fundamental right to liberty, to control one’s own most intimate associations and decisions free from state prohibitions and the judgments of others. Finally, I want to reproduce the closing paragraph of the ruling, which is beautifully written:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.

Thank you, Justice Kennedy, not only for advancing the cause of equality but for doing so on the basis of the shared humanity and equal dignity of LGBT people. It isn’t just a powerful legal ruling, it’s a powerful statement of compassion and recognition of the value of those who have for so long been marginalized, demeaned and oppressed.

You can read the full ruling here.

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  • robertfaber

    I imagine you’re going to be quite busy next week with the right wing head explosions. I’m looking forward to that.

  • Cuttlefish

    I’ve read the majority opinion, the first dissent, and am on the second (Scalia’s) dissent. My goodness, there are people with blinders welded on–the very language differs (“marriage” as an old institution to extend to a new population vs “same sex marriage” as an entirely new thing never ever seen before in all of human history). I’ve followed these arguments for years, but I really do think that if I had landed on earth just yesterday, I’d be able to see through this.

    And Scalia should be asked whether his decision today means he regrets his decision putting W in the presidency. Some things are meant to be dealt with by the voters, after all…

  • ‘smee

    I can only contrast some of the language in the dissents (summarized simply as “it’s unnatural” and “I just don’t like it”) with these same Justice’s commentary on Hobby Lobby and Citizen’s United. I will then point and laugh at their blatant hypocrisy and dishonesty.

  • cptdoom

    I was moved by Kennedy’s reference to love that can last even beyond death. The story of the lead plaintiff, Jim Obergefell, is a true testament to that (he lost his husband to ALS and was fighting to be listed as his widower), but I also remembered August 18, 2012, when I phoned my Dad on what would have been his 50th anniversary. Ma died in ’97, but the day was still meaningful because of the 35 years they did share. Just one reason why I was weeping most of today.

  • RickR

    Scalia’s dissent was…..amazing? Incredible? I don’t really have an adjective for it.

    His whole schpiel boiled down to “I don’t know why I have a job. I don’t know why there’s a Supreme Court.”

    Of course I’ve known for a long time that he was a complete jackass, but this was a new low. He has utter contempt for the intelligence of anyone with the gall to disagree with him.

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

    I’m happy the decision has come down. When I was first contemplating this ruling in the 1990s (thinking that was kickstarted by Hawaii), I thought that (based on a back-of-the-envelope calculation starting with ([Loving v Virginia] – [Perez v Sharp]) and adding that value (19) to 1996, (which was the most closely relevant year I could find in Baehr v Lewin, a procedurally and dispositionally complex case) we couldn’t possibly get this SCOTUS ruling before 2015. Later with the passage of Constitutional Amendment 2 and the developments in Massachusetts, I figured it was a safe bet we would get this ruling by Goodridge v. Department of Public Health + 19 (which would be 2022). This rested on the idea that in an information age it would be easier to change legal opinion than it was in the 50s and 60s. As a hedge, I had said that although I thought it was a safe bet for 2022, it wasn’t really guaranteed, given the vagaries of political appointments, until 2030. At other times, I said 2015 – 2025 was the window to watch (more rounding off than believing that 2022 was unjustified, but rounding up, not down, because of those vagaries).

    I gave it a ton of thought. I actually put a bunch of argument behind why I thought this was a reasonable comparison and a reasonable timeline.

    And damn if my thinking wasn’t entirely too pessimistic the entire time. I could easily have picked 1997 instead of 96 for my starting point and this decision would have been entirely outside my window.

    I have had a few months to get ready for this. Since they took the case, I couldn’t see them creating too bad a precedent (Kennedy just wasn’t going to write something harmful, though I still believed then that he might have begged off on some important aspects of this or written a weak opinion). I thought it was very likely that SCOTUS would come down in favor of a queer-Loving.

    And yet, this was the earliest year I would have even allowed myself to hope. I’m finding myself overwhelmed. There are plenty of people out there who will do and say terrible things – are doing and saying terrible things at this exact moment – and justify them based on this decision.

    But I’m gratified. The US came through on the most optimistic timeline I could reasonably imagine.

    Yes, we’re fucked up in a ton of ways – Dylan Stormfront Roof can be our little exemplar this week – but keep putting out truthful information, keep working to establish and expand the ties of humanity, and we get better.

    Now my only regret is that we didn’t get as good a name as Loving v Virginia.

    Although that was awesome, it still didn’t get at the heart of the fucked-uppedness of the opposition. Maybe we should have held out for a plaintiff “Bond” to give us Tribbing v Bond?

    Eh, fuck it. Loving v Virginia will always be simply iconic. Today we get the justice. Though it goes by the name Obergefell it smells as sweet.

  • John Pieret

    One interesting factoid: three of the four major Supreme Court cases on LGBT rights, today’s Obergefell v. Hodges, United States v. Windsor and Lawrence v. Texas, were all handed down on June 26th.

    I wonder if Kennedy arranged that Obergefell be handed down today instead of yesterday or Monday.

    President Obama’s remarks on the decision were quite touching:

    http://www.washingtonpost.com/news/post-nation/wp/2015/06/26/transcript-obamas-remarks-on-supreme-court-ruling-on-same-sex-marriage/

  • John Pieret

    The best part of Obama’s speech:

    We are people who believe every child is entitled to life and liberty and the pursuit of happiness. There is so much more work to be done to extend the full promise of America to every American. But today, we can say in no uncertain terms that we’ve made our union a little more perfect.

    That’s the consequence of a decision from the Supreme Court, but more importantly, it is a consequence of the countless small acts of courage of millions of people across decades who stood up, who came out, talked to parents, parents who loved their children no matter what, folks who were willing to endure bullying and taunts, and stayed strong, and came to believe in themselves and who they were.

    And slowly made an entire country realize that love is love.

    What an extraordinary achievement, but what a vindication of the belief that ordinary people can do extraordinary things; what a reminder of what Bobby Kennedy once said about how small actions can be like pebbles being thrown into a still lake, and ripples of hope cascade outwards and change the world.

    Those countless, often anonymous heroes, they deserve our thanks. They should be very proud. America should be very proud.

  • theDukedog7 .

    Here’s Kennedy’s reasoning– “because we can.”

    As Justice White said about Roe–this is an exercise in raw judicial power, unmoored in tradition, the constitution, reason, or law.

    The definition of marriage in our country has now been proclaimed by one man. The dissenting opinions are eloquent and correct.

    This is not democracy. It is oligarchy. It is a moment of great shame for our nation.

  • Michael Heath

    I was disappointed with the NYTs lead article at lunch time. It focused exclusively on Kennedy’s rhetorical flourishes rather than the lead words in the ruling, which I quote here:

    Held: The Fourteenth Amendment* requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

    Following is the relevant section of the 14th Amendment which has always been the obvious basis of the gay marriage debate and the section avoided by the media and denied by the bigots, including the bigots on the SCOTUS. Here it is:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Of course we can expect at least a few more generations of bigots to continue to abuse gay children in their churches, synagogues, and mosques. But this ruling will hasten the demise of these sects. And not by violence or the law, but instead by decreasing demand for their particularly virulent hatred.

  • John Pieret

    Egnor, would you really want the rights of Catholics voted on 100 years ago or in many parts of America today or would you want there to be a Bill of Rights and 14th Amendment to protect you?

    And the Court did not “define” marriage. It simply said that if governments bestow rights, benefits and privileges on one group but deny them to another group, that violates the Due Process and Equal Protection requirements of the Constitution. If you and other fanatics want to do away with SSM, then simply strip all relationships of those rights, benefits and privileges. No more tax breaks, no more automatic right to visit and make medical decisions for spouses without a healthcare proxy or children without a formal adoption, no survivor’s benefits, no healthcare coverage under a spouse’s plan, etc., etc.

    Put your money where your mouth is.

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

    Okay, it just hit me, and I had to come here to pop the question:

    Does anyone see Justice Kennedy retiring this summer? Or very, very soon, no later than next summer?

    He gets to write Obergefell, he retires during the presidency of someone unlikely to appoint the justice to be the deciding vote in overturning Obergefell, and there he’s got a legacy of some certainty that he couldn’t have if he waited til after the next presidential election. I think he might like to go out on this note, though who knows? Power does effectively tempt. He might want to stay as long as he can and screw the uncertainties of presidents, their terms, and their appointments.

    But seriously, after Marshall=>Thomas he’s got to wonder if hanging around too long risks too much.

  • pixiedust

    It is always gratifying to watch overreaching government get smacked down.

  • http://www.clanfield.net janiceintoronto

    Lookie here! We got us a troll!

    Tell us more Duke!

  • http://www.clanfield.net janiceintoronto

    Oh, that was for message 9

  • RickR

    Egnorance’s tears are delicious. Anyone else find them delicious?

  • John Pieret

    Crip Dyke:

    Does anyone see Justice Kennedy retiring this summer? Or very, very soon, no later than next summer?

    I doubt it. While his legacy on the Court is secure (even if Obergefell should be overturned … which I think is unlikely … what with the rise of the Millennials and their overwhelming support for SSM, including the Republicans among them), he is still healthy and, more importantly, on most issues still conservative, I don’t think he’d turn his seat over to Obama to fill. And doing so during an election cycle would be particularly messy.

  • theDukedog7 .

    @17:

    [Egnor, would you really want the rights of Catholics voted on 100 years ago or in many parts of America today or would you want there to be a Bill of Rights and 14th Amendment to protect you?]

    SSM has nothing to do with the 14th amendment. Gay people can marry heterosexually, just as straight people can, and in fact millions of gay people have married heterosexually.

    What the “justices” ruled is that the American people cannot define marriage as heterosexual under law.

    [And the Court did not “define” marriage. It simply said that if governments bestow rights, benefits and privileges on one group but deny them to another group, that violates the Due Process and Equal Protection requirements of the Constitution.]

    What a stupid thing to say. The government bestows benefits unequally all of the time– to veterans, the handicapped, the elderly, etc. Law is the process of bestowing unequal benefits and impediments–benefits to law-abiding citizens, impediments to people who break the law.

    The 14th Amendment was written to protect blacks from Democrats who denied them equal application of the law. The Republicans who ratified it would have thought it insane that anyone could think that it meant that two men could marry.

    Defining marriage as heterosexual no more denies gays equal protection than it denies pedophiles or siblings or polygamists equal protection.

    [If you and other fanatics want to do away with SSM, then simply strip all relationships of those rights, benefits and privileges. No more tax breaks, no more automatic right to visit and make medical decisions for spouses without a healthcare proxy or children without a formal adoption, no survivor’s benefits, no healthcare coverage under a spouse’s plan, etc., etc.]

    I presume you would classify Obama and Hillary among the “fanatics”, as they have only recently seen the light of SSM.

    In our democracy, citizens have the right to define marriage through legislation. There is no constitutional basis whatsoever for SSM–the constitution is silent on marriage, and there is no problem with equal protection.

    As Roberts and Scalia and Thomas and Alito said, this is an illegitimate ruling that degrades our democracy.

  • Michael Heath

    I’ve been reading the comment threads at sites dominated by conservative Christians. This has led to me to realize that God must exist. My wife and I are the benefactors of a miracle; what else can explain this?!? Our marriage survives!

  • theDukedog7 .

    And of course none of this is really about gay marriage per se. Few gays want to marry, and fewer actually marry.

    The purpose of the SSM movement (aside from the nauseating moral preening) is to drive Christians from the public square. This illegitimate ruling will be used to blackmail Christians in the business world–recognize gay marriage or be legally ruined, and will be used to deny tax exemption to churches who don’t worship at the SSM altar.

    Christians will resist. This is the beginning of a considerably hotter version of our culture war.

  • RickR

    Few gays want to marry, and fewer actually marry.

    You don’t get out much, do you Egnor?

    No, you’re not ignorant, not even willfully so. You’re a liar.

  • colnago80

    Hey Schmucknor, how does the rug taste?

  • theDukedog7 .

    @22:

    It tastes like judicial oligarchy.

  • theDukedog7 .

    @21:

    71,000 gays have married, out of 12 million or so gays (4%).

    http://www.pewresearch.org/fact-tank/2013/06/26/how-many-same-sex-marriages-in-the-u-s-at-least-71165-probably-more/

    Prevalence of gay marriage: 0.6%.

    As I said, few gays want to marry, and fewer actually marry.

  • tfkreference

    Oh, dukey, you couldn’t wait longer to bring up persecution? Out of arguments that quickly?

  • EnlightenmentLiberal

    @theDukedog7

    In this country, the majority do not have the right to oppress the minority. The courts have recognized this for blacks w.r.t. interracial marriage, and now they have recognized it for gays w.r.t. same-sex marriage.

    Christians will resist. This is the beginning of a considerably hotter version of our culture war.

    Christians lost interracial marriage. Christians lost on gay marriage. I hope that this trend continues, and that proper secular humanist values continue to trounce Christianity and drive it into the sewer where it belongs.

    You are nothing but hot air. You lost. It will not be reversed. The young people are on the side of basic human decency. Your generation of bigots will die, and the better youth will inherit the Earth.

  • John Pieret

    Gay people can marry heterosexually, just as straight people can, and in fact millions of gay people have married heterosexually.

    Ah, right! So, if a state passed a law that Catholics couldn’t marry Catholics, then you would be fine with that … after all, you would have an equal right to marry Protestants, or Muslims or Mormons … and to boot, being Catholic is just a behavior, not an “inherent trait,” right?

    The government bestows benefits unequally all of the time– to veterans, the handicapped, the elderly, etc.

    But it can’t bestow them unequally to gay (or, for that matter female or black) veterans, gay (or, for that matter female or black) handicapped people, gay (or, for that matter female or black) elderly people. It has to treat similarly situated people the same. Whether you like it or not, gay people who want to enter into a legal relationship that bestows rights, benefits and privileges are similarly situated to opposite couples who want the same things.

    The 14th Amendment was written to protect blacks from Democrats who denied them equal application of the law. The Republicans who ratified it would have thought it insane that anyone could think that it meant that two men could marry.

    The framers who wrote the 2nd Amendment would have thought it insane that the right to bear arms would cover automatic pistols or assault rifles, much less “arms” such as chemical and nuclear weapons. Does that mean we can’t interpret the Constitution to let us take an A-bomb from the nice gentleman in a headscarf who just arrived at at an airport on a flight from the Mideast? “Original intent” is, and has always been major bullshit applied only when people like Scalia like the outcome.

    Whether or not they thought all the ramifications out, they left us with a broad principle:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    The only way to deny LGBT people of those rights, privileges, life, liberty, property and equal protection of the law is to deny that they “persons.” As much as I despise your political beliefs, are you really such a monster as to do that?

    Defining marriage as heterosexual no more denies gays equal protection than it denies pedophiles or siblings or polygamists equal protection.

    Oh, bullshit! Pedophiles are seeking sexual relations with people who society has determined can’t give informed consent … hint to the clueless, that’s why we have minimum ages for marriage. Our basis for disapproving incest is the possibility of genetic disease from inbreeding. Interestingly, there are jurisdictions in the US that permit marriage of close relatives if they can shoe they are sterile. As to polygamy, you mean all those “holy” people in the Bible, like Abraham, Issac, David and Solomon? As a civil matter, we’d have to work out some practical problems … who, exactly, in the family would get tax breaks, automatic right to visit, make medical decisions for spouses and children, survivor’s benefits, etc., etc. But the idea of polygamy doesn’t particularly scare me … why would it scare a Bible believer?

    I presume you would classify Obama and Hillary among the “fanatics”, as they have only recently seen the light of SSM.

    I would classify them as quite ordinary political cowards. But the thing they didn’t do was actively attempt to harm gay people, which few, if any. Republicans can claim.

    In our democracy, citizens have the right to define marriage through legislation.

    Then citizens have the right to define what is a “religion” under the 1st Amendment, right? You do know that more than a few of your right wing compatriots claim that Islam is not a “religion” under the Constitution, right? Can Catholicism be far behind?

    Few gays want to marry, and fewer actually marry.

    And you base this on what? Estimates are that hundreds of thousands of gays who have already or will soon marry But what does that matter? What if the Lovings were the only interracial couple in the US who wanted to get married, Would that have justified denying them their Constitutional rights?

  • Hoosier X

    So, is judicial oligarchy the same thing as “judicial activism” and “legislating from the bench”?

    I.e., any court decision that conservatives don’t like?

  • abb3w

    Of the quartet of dissents, I’d give Thomas the highest marks. While I find him completely unpersuasive, he seemed to be actively avoiding using arguments that could have equally been used to dissent from Loving v Virginia.

  • RickR

    Christians will resist. This is the beginning of a considerably hotter version of our culture war.

    You just keep telling yourself that. Public Martyrbation is perfectly legal. Stupid and funny, but legal.

    What will be the actual result of this decision? Some gay couples will get married.

    We’ve heard all of your dire warnings before, most recently when Loving v. Virginia made interracial marriage legal. Bigots have had almost 50 years to come up with new lyrics to the same old tune they sing when an advance in legal equality threatens their hegemony. But it’s all just the same sorry song, with the racism replaced with homophobia. Just a shoddy search-and-replace, y’know, like the Discovery Institute did when they changed “creationism” to “intelligent design” in Of Pandas and People. You remember that one, don’t you Egnor?

    Anyway, this is all just a smokescreen. I know what you’re really afraid of. It’s not “governmental tyranny” or the limitless power of the “Gaystapo” or any loss of religious freedom. No. What you’re really afraid of is the people in your own subculture. Your neighbors. Families. The people in the next pew.

    Because as they came to see that, in the wake of Loving when the sky didn’t fall, casual racial bigotry began to fall out of fashion. It was no longer automatically acceptable. The bigots realized that their hateful views weren’t the social norm anymore, even within their own bubble. Sure, there were some holdouts. Even today some religious bigots will still freakout over an interracial wedding within their own church. But nowadays, those people are called out and forced to endure the spotlight of criticism. By their own peers.

    That’s what has really got you so pants-wettingly afraid.

  • theguy

    ShitDog’s idea of “persecution” is that he can’t put gay people in prison, people can’t be fired for being gay, and society can’t turn the other way when gay people are lynched. Oh, and homophobes might be criticized or boycotted for saying stupid shit.

    Also, the idea that gay people are involved in some agenda to persecute Christians is horseshit. Doesn’t matter how many or how few gay people are getting married at the current time. There will be more gay couples in the future, once gay people (especially teenagers from fundie families) learn to ignore the lies ShitDog and others like him spew.

  • Hoosier X

    Dukedog,

    Help me out here.

    I’ve read the whole bible. The whole thing. The more I read, the more atheist I became. It’s a stupid book. A stupid stupid book. If I was ever somehow confronted with undeniable proof that the bible was real and that its horrifying and evil and cruel deity was real, I would still think it a stupid book with a horrifying and evil cruel deity.

    But where does it say that merchants must shun homosexuals and refuse to cater their weddings? I’ve read the whole thing and I never saw that anywhere. Yes, I know that some passages are rather hostile to homosexual acts. You’re supposed to murder men for homosexual acts. But you don’t do that. (And I want to thank you and your fellow fanatic christians for not taking THAT part of the bible literally and killing them yourselves. Good job!)

    But nothing in the bible says that merchants must shun homosexuals.

    The bible has a lot of harsh punishments for various acts. And yet you single out homosexuals. I’ve never heard of anyone refusing to cater a wedding for a divorced person, for example. I just don’t see why some christians are singling out homosexuals for this kind of treatment. It is most definitely not supported by scripture, as far as I can see.

    I’ve asked this question numerous times and no christian has ever taken the time to respond. So please take a moment to explain why you’ve singled out homosexuals for rude and unkind treatment that would make Jesus ashamed.

  • llewelly

    cdesign proponetists

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

    @ the Duke Dog 7

    In our democracy, citizens have the right to define marriage through legislation. There is no constitutional basis whatsoever for SSM–the constitution is silent on marriage, and there is no problem with equal protection.

    Can you possibly be this dirt-ignorant?

    citizens have the right to define marriage through legislation

    but courts don’t have the authority to review legislation for constitutionality?

    As soon as “citizens have the right to …[legislate]” on an issue, SCOTUS has the authority to rule on an issue.

    So SCOTUS gets its authority from wherever the hell you think citizens get their right to legislate.

    Boom.

  • llewelly

    First fact to note about those 71,000 marriages is that they come from only 9 states. Second is, 22,406 come from a single state – the state which has had marriage equality longest.

    There is also this:

    First, there are significant lags in most of the states’ data. Many states have yet to compile marriage statistics for 2012, and only a few have counts for any part of 2013. New York City, which keeps marriage records separately from the rest of New York state, counted 7,184 same-sex marriages in the year after they were legalized in July 2011, but the city hasn’t released any figures since.

    How many will marry now that it’s legal in all 50 states?

    Among the large majority of LGBT respondents who were unmarried or separated at the time of the survey, 52% said they would like to get married in the future, while 15% said they would not want to get married and a third (33%) were not sure.

    http://www.pewresearch.org/fact-tank/2015/06/26/half-of-unmarried-lgbt-americans-say-they-would-like-to-wed/

    theDukedog7 is wrong again.

  • sigurd jorsalfar

    A brain surgeon AND a constitutional scholar? Zowie!

  • matty1

    “Tastes like judicial oligarchy ”

    I can’t believe no one else has claimed that band name yet. I’ll have it.

  • dingojack

    Hoosier X – “Divorced? No problem. Prawn cocktails? No worries. Pork ribs? Not a issue. Polycotton formal wear? No probs. Hair cut and shave? Easiest thing in the world…

    Gay!!! OMG that’s SO IMMORAL! I’m not gonna be part of that biblical SIN!!!”

    @@

    Dingo

    ——–

    Wasn’t Tastes Like Judicial Oligarchy one of Nirvana’s ‘B-sides’?!?

  • Nick Gotts

    MIchael Egnor, slanderous liar, egregious hypocrite, and Malthusian*,

    Christians will resist. This is the beginning of a considerably hotter version of our culture war.

    Yeah, yeah. What are you going to do, other than whine and sulk?

    *Egnor, like Malthus, believed there was a limit to how many people the earth could support (we established this on an earlier thread), was a devout Christian, a creationist, against abortion and contraception in all cases, opposed to welfare and, I don’t doubt for a moment, would have been horrified by same-sex marriage.

  • Nick Gotts

    Sorry – “Egnor, like Malthus”@39 should read “Malthus, like Egnor”. Just shows how hard it is to distinguish between them!

  • http://www.gregory-gadow.net Gregory in Seattle

    @theDukedog7 #9 – Let me break it down for you:

    1. The job of the courts is to interpret the law. When laws conflict, the court must decide which law has precedence, and therefore which law will go into effect and which one is made invalid.

    2. The United States Constitution is the Supreme Law of the Land (Article VI, clause 2, United States Constitution.) As such, the Constitution has precedence over all other laws in the United States, no matter who passed them or how.

    3. The Fourteenth Amendment of the United States Constitution states in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Amendment 14, Article 1, clause 2.)

    4. The majority of the United States Supreme Court has ruled that the 14th Amendment’s guarantees of equal protection and equal access were being violated by laws that forbade same-sex couples from the same legal rights as different-sex couples. For this reason, the Supreme Court held that the Fourteenth Amendment takes precedence and the other laws are invalid.

    I hope this lesson in grade school civics helped. If not, I can try again with smaller words.

  • cptdoom

    How many will marry now that it’s legal in all 50 states?

    As a gay man who has some years of experience with the same-sex dating scene, I have no doubt that the marriage rate for gays and lesbians – particularly for gay men – is going to always be lower than for the straight population, even in a society free of anti-gay prejudice. It’s basically a numbers problem. Even in a city like Washington, DC, where I live, that has a large LGBT population, there might be 1/5 men who are gay, at the most. Factor in issues like age, interests, sexual compatibility, and you see the problem – the chances I’ll find someone with whom to make a commitment are going to be lower than for a straight person who has 90 – 95% of the population from which to find a mate.

    Doesn’t mean we shouldn’t have the right to marry, it just means I’m still looking for the right guy.

  • dingojack

    Uh – why are the number of marriages even an issue? A human right applies in exactly the same way to two persons as it does to 2 billion persons.

    Dingo

  • alanb

    llewelly @35

    Also, according to the Census Bureau’s American Community Survey the number in 2013 was 251,695 SSM couples (i.e. 503,390 people), not the 71,000 estimated marriages (142,000 people) that theDukedog7 uses and is from a considerably earlier effective time period. Even so, in 2013 large numbers of people had no access to SSM, and, no doubt, there were a large number of couples who had recently been given that right who were still planning their weddings.

  • Al Dente

    Egnor,

    “Original intent” means “a court made a decision conservatives don’t like.” Mike Huben, in his Critiques of Libertarianism FAQ discusses original intent:

    It is well documented that the Constitution and Bill of Rights are compromises amongst them [writers of the Constitution]: few agreed wholeheartedly with any particular part. Thus, looking to the founders for “original intent” is silly: it will vary amongst them. Not to mention that “original intent” (or original understanding) is just as open to interpretation as the Constitution itself because while there is lots of explicit data, it is from many contradictory sources.

  • Al Dente

    Egnor and his fellow bigots are unhappy because a group he and his ilk have an irrational hatred of are now allowed to do something that they weren’t allowed to do previously. What Egnor and other fanatical Christians fail to realize is that “God thinks what gays do in bed is icky” is not a good reason to deny human beings rights.

  • David C Brayton

    One comment that Egnor made was that states are (were) free to define marriage by legislation. That assertion isn’t completely true as several states changed their Constitution so as to require a super-majority to change the definition.

  • Childermass

    theDukedog7,

    So you are saying that Churches that do not recognize SSM will lose their tax exempt status? That is a very strong claim since churches don’t lose it today for failing to recognize interracial marriages. The decision has no effect on how any church conducts its internal affairs unless it itself decides otherwise. In most contexts churches are exempt from anti-discrimination laws. They are legally free to have all the “God hates fags” signs on their private property that they wish. They are free to put up a sign that says “no n*****s” on the front door. They can say no crippled or lame if they wish. The primary exception to this is that if they buy or form a for-profit operation then the normal laws will apply to that business as well as any contractors they hire i.e. even a Church can’t tell a construction company it hired not to hire workers are Latinos though it is free to deny all Latinos the right to worship in its property.

    To put it bluntly, the pressure for a church to recognize SSM will come primarily from the willingness of ordinary people to join and/or donate to the church and the desire of the church not to look bad to the outside world.

    If it is your contention that churches will lose their tax-exempt status for refusing to conduct a SSM, maybe you should propose a wager. I am sure that there are those who would be willing to take you up on it.

  • jonathangray
  • Nick Gotts

    You always know when jonathangray can’t even find an argument he thinks is worth anything; he provides a link to something without giving any clue as to why it is relevant. (No, I haven’t clicked on it – I know him well enough to refuse to take his bait.)

  • John Pieret

    Nick Gotts:

    You were wiser than I. It is some illustration of a King Cobra encircling the world with a caption “Yes, we shall.” I haven’t a clue what that has to do with the subject … but, then again, that makes me even with jonathangray.

  • Al Dente

    At least jonathangray is a little brighter than his fellow bigoted Catholic (admittedly something not too difficult). jonathangray is just tossing out a non sequitur to show his displeasure with the SCOTUS ruling rather than making whiny arguments and using bad statistics.

  • tfkreference

    A reference to the snake in Eden? You know, the only character in that story who didn’t lie.

  • http://timgueguen.blogspot.com timgueguen

    jonathangray apparently thinks marriage equality is a plot by COBRA, the bad guys from GI Joe, given the picture he linked to. Linking to the logo of Hydra or SPECTRE would make as much sense.

  • Reginald Selkirk

    theDukedog7 . #18: interracial marriage has nothing to do with the 14th amendment. people of a non-white race can marry with their own race, just as white people can, and in fact millions of non-white people have married within their own race.

    What the “justices” ruled is that the American people cannot define marriage as uniracial under law.

    The parallel construct applies perfectly, and lays your bigotry bare.

  • jonathangray

    I thought the reference was obvious …

  • theDukedog7 .

    @55:

    A Democrat lectures a Republican about bigotry? My sides ache.

    http://spectator.org/articles/63244/will-democrats-apologize-slavery-and-segregation

  • Pierce R. Butler

    Nick Gotts @ # : … “Malthus, like Egnor”. Just shows how hard it is to distinguish between them!

    Au contraire – Malthus produced an important (if incomplete) insight into ecological/economic population dynamics. theDukedog7 . has produced only rather unconvincing assertions that his other identity is that of a Ben Carson clone without the public speaking chops.

    Even if somehow DukeDogDot substantiates his claim, I will cheerfully bet that no-one two centuries from now will debate Egnorian principles, as we still see with the Reverend Tom.

  • jonathangray
  • Hoosier X

    Are you having trouble finding the scriptures that justify your bigotry, dukedog?

  • Reginald Selkirk

    theDukedog7 . #57: @55: A Democrat lectures a Republican about bigotry?

    I know that you have no affinity for facts, but just for the record I am not a Democrat and have never been a member of the Democratic Party. How you leapt to that conclusion is of no interest to me.

  • http://timgueguen.blogspot.com timgueguen

    jonathangray@59 your point of linking to that article is what, exactly?

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

    Reginald Selkirk “I know that you have no affinity for facts, but just for the record I am not a Democrat and have never been a member of the Democratic Party.”

    That’s even worse! Pick a side; either feckless but well-meaning party or malevolent nihilism party!

     

    timgueguen “jonathangray@59 your point of linking to that article is what, exactly?”

    That gayhomos are ruining marriage by being as bad at is as Moral Americans® are!

  • John Pieret

    johnathangrey @ 56:

    I thought the reference was obvious …

    I think the word you are reaching for is “oblivious.” Although he came late to the party, President Obama had almost nothing to with the success of marriage equality.

    But he did give a nice speech after it happened.

  • sabrekgb

    Scalia’s dissenting opinion is hilarious!

    If you haven’t read it, go do so.

    The man is a hypocrite and intellectually dishonest in his jurisprudence (original intent…but not for loving…), but i was literally laughing out loud while reading his opinion. It’s not long, only a few pages.

  • Nick Gotts

    Pierce A. Butler@58,

    Your point is well taken. And although unpleasant, to say the least, in many of his views, Malthus was as far as one can tell, intellectually honest .

  • rory

    I’m pretty sure that upholding the legality of same sex marriage wasn’t intended to drive Christians out of the public square, but if it means hearing less from people like Egnor, I’m okay with it. Love some of that judicial oligarchy.

  • Rick Pikul

    @theDukedog7 #24, @llewelly #35:

    I ran the math, normalizing those numbers of gay weddings to a single year, (assuming that they represent full years), then comparing them to the total population of those states (using the 4% homosexual rate the pooch used):

    Per year, about 1.85% of the homosexual population of those states got married, (~33k marriages, so 66k people out of 4% of 89M).

    So a touch higher than claimed.

    More importantly, the US has about 2 million weddings a year out of a population of 319 million, meaning that only about 1.25% of the population gets married each year. IOW: Gays are getting married significantly more often than straights! So Egnor, are you going to retract your claim that few gays want to marry[1], or are you going to extend it to simply say that few people, gay or straight, want to marry?

    [1] Leaving aside that your own source flat out proves it to be false.

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

    Rick Pikul “More importantly, the US has about 2 million weddings a year out of a population of 319 million.”

    To be fair, a bunch of those were mine.

  • magistramarla

    My daughter and her husband refused to get married until it was legal for their gay friends to do so. Therefore, after marriage equality became possible in New York, they started planning their wedding.

    I expect that we will see a temporary rise in the number of all kinds of weddings for a while, as gay couples and their straight allies like my daughter and son-in-law begin to celebrate all of their relationships.

  • Anri

    timgueguen @ 62:

    jonathangray@59 your point of linking to that article is what, exactly?

    It was to demonstrate the inescapable logical conclusion that because some gay men are interested in open relationships, we should deny any gay person the right to get married.

    I mean, one just follows from the other, doesn’t it?

    Because if that person over there does something that’s not any of my business, but that I don’t like, I have to make sure that this other person over here loses out on an important part of their basic rights. It’s obvious.

    (Note, the above post attempts to support jonathangray’s opinion and is therefore highly unlikely to be internally consistent.)

  • jonathangray

    Interesting tidbit from the article:

    But [psychotherapist] Malpas also says that, increasingly, the straight couples he sees are discussing polyamorous or open arrangements, or the possibility of such. This suggests that, perhaps as much as traditional marriage is conservatizing some gay couples, the increasing visibility of gay relationships is turning more straight couples on to the idea of some degree of openness, or at least of alternate ideas of what marriage can look like.

    Meanwhile

  • jonathangray
  • jonathangray
  • jonathangray
  • jonathangray
  • jonathangray
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  • jonathangray
  • Spew

    theDukedog7: “This is the beginning of a considerably hotter version of our culture war.”

    This time, the culture will win.

  • zenlike

    jonathangray,

    If LGBT people experience higher levels of psychological issues, it is because of bigoted pieces of shit like you who make life hard for them.

    The bigots (eg you) have lost today. The future is a little bit brighter.

  • http://timgueguen.blogspot.com timgueguen

    The Independent article he links to makes mention of that, that some gay people turn to substance abuse due to issues like homophobic bullying.

  • http://timgueguen.blogspot.com timgueguen

    In fact, let’s be blunt. Tell us what you really mean, johnnyboy. Stop beating around the bush and state openly and clearly what you want done with gay people.

  • dingojack

    I think this was the kind of thing Lil Dookie was really aiming for in his #49…

    Dingo

  • dingojack

    [totally OT — persistence of bad arguments].

    Dingo

  • Anri

    timgueguen @ 83:

    In fact, let’s be blunt. Tell us what you really mean, johnnyboy. Stop beating around the bush and state openly and clearly what you want done with gay people.

    As far as I can tell, it’s just what I said up above. Some gay people do things jonathangray doesn’t approve of, therefore no gay people can get married.

    I could be wrong in this, of course. In my experience, getting jonathangray to take a stand is like trying to nail marmalade to an oak tree.

  • Azkyroth, B*Cos[F(u)]==Y

    theDukedog7 . says

    …that’s right. Ed never takes out the trash around here…