Chief Justice Roberts’ Dissent

The marriage case was a rare one in which every single justice in the minority wrote their own dissent, then joined in the other dissents as well. It seems they really wanted to get their views on the record. I want to take a look at some of those dissents and the sometimes laughable arguments they present, starting with the primary dissent from Chief Justice Roberts.

Roberts frames his entire dissent in the language of judicial discretion, acknowledging that there are strong arguments for allowing same-sex couples to marry but saying that these are arguments for legislators to decide on, not judges. His dissent begins:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.

If your irony meter just exploded, it may be because the language he uses here is virtually identical to the language Justice Scalia used just one day earlier in his dissent in the Obamacare case, arguing that Roberts was ignoring such judicial discretion to legislate from the bench rather than to merely interpret the Constitution. Of course, this language is notoriously slippery and hypocritical. Everyone is in favor of judicial discretion and an opponent of judicial activism when they support the policy in question, and everyone demands the exact opposite when they disagree with the policy in question.

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make

a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has

persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex

couples, or to retain the historic definition.

This is where his argument goes off the rails. Every single claim in that paragraph was also used against the ruling in Loving v Virginia, which I guarantee you CJ Roberts would not dispute was an absolutely correct ruling (even Scalia thinks it was rightly decided, though he has to engage in massive hypocrisy to reach that conclusion, as Roberts does here). If the “fundamental right to marry does not include a right to make a State change its definition of marriage,” then Loving has to be wrong because it did, in fact, make the states change their definitions of marriage. If the “people of a State are free to expand marriage to include same-sex

couples, or to retain the historic definition,” then Loving has to be wrong because it refused to allow the people of a state to retain their historic definition of marriage as solely between those of the same race.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Again, let’s look at the comparison to Loving. Prior to that ruling, the federal courts had repeatedly refused to overturn state laws banning interracial marriage. And in the 25 years or so leading up to it, a couple dozen states had repealed their bans through the democratic process. Only 16 states still had such bans in 1967. But did the court striking down the remaining bans “make a dramatic social change that much more difficult to accept”? No. In fact, it spurred even faster change in public opinion. This ruling will do exactly the same. The notion that court rulings lead to entrenchment because people feel their democratic rights have been violated simply is not supported by history. Court rulings both react to and spur on changes in public opinion, as they did not only in Loving but in Brown v Board of Education and many more important advances in social justice and equality.

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  • John Pieret

    Supreme Court Justices don’t have to be consistent because … um … that would require them to keep re-reading their own decisions, which would take too much time.

    But failing to remember your position on a case decided in the same term …

  • Al Dente

    Everyone is in favor of judicial discretion and an opponent of judicial activism when they support the policy in question, and everyone demands the exact opposite when they disagree with the policy in question.

    “Legislating from the bench” is conservative-speak for “this is a decision I don’t like.”

  • hunter

    There’s one huge hole here, as there was in Judge Sutton’s opinion for the 6th Circuit, here overturned: if Roberts is going to honor Supreme Court precedent, marriage is a fundamental right, and so appeals to the “democratic process” are irrelevant: neither the people nor their elected representatives have the right to vote to abrogate the civil rights of minorities.

  • theDukedog7 .

    Is Affirmative Action a denial of equal protection?

  • doublereed

    He addresses Loving in the opinion:

    As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. ROBERTS, C. J., dissenting Loving, 388 U. S., at 6–7. The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.”

    They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured.

    I was confused by this part, because it sounds like he’s saying that Loving was decided that way because it was racist, but not because of any inherent right to marry. Like whether Loving is based on racist ideas is much more of a policy decision, therefore shouldn’t it be dealt with at the legislature? It only becomes wrong if you believe that people have a right to marry.

  • Larry

    It appears Justice Roberts has taken to using a Magic 8 Ball for making his decisions.

  • Reginald Selkirk

    Chief Justice Roberts.

    Henceforth to be known as The Dread Bigot Roberts.

    I suggest that in twenty years time, he be forced to sit through a public reading of his dissent, with his grandchildren present.

    The fundamental right to marry does not include a right to make a State change its definition of marriage.

    Since he is conceding that marriage is a “fundamental right,” then it would be difficult to conceive of the grounds for withholding it. And that is clearly what he means by “definition,” the withholding of that fundamental right from some segment of the population.

    Five lawyers have closed the debate…

    I’ve got to love some good lawyer-bashing, especially from the top lawyer in the land. Did the Dread Bigot Roberts show any concern that Citizens United was being decided by lawyers? Or any other of the bad decisions he has participated in?

  • http://skepticink.com/backgroundprobability/ Damion Reinhardt

    The notion that court rulings lead to entrenchment because people feel their democratic rights have been violated simply is not supported by history.

    True, but Roe v. Wade might be the exception here. Sometimes political entrenchment really does follow from controversial rulings.

  • theDukedog7 .

    @5:

    Roberts was referring to the fact that both SSM and anti-miscegenation laws are perversions of the institution of marriage, which ante-dates our legal system and our nation.

    Marriage is the union of a man and a woman. The imposition of racial categories on marriage is illegitimate, as is the imposition of SSM.

    I repeat my question: is Affirmative Action denial of equal protection?

  • The Very Reverend Battleaxe of Knowledge

    I really thought this decision was going to be 6-3, like the ACA one. Roberts undoubtedly heard loud and clear from the insurance industry that they wanted Obamacare to continue, and younger, healthier people to enroll, so that was a no-brainer.

    It seemed that Big Business had nothing to gain from denying SSM—quite the reverse—and therefore I assumed he would find for it. He must be trying to mend fences with the wingnuts, but I don’t think it’s going to help.

  • The Very Reverend Battleaxe of Knowledge

    Marriage is the union of a man and a woman.

    Oh, really, you nematode? I Command-F’ed the whole fucking Constitution, and the word “marriage” doesn’t appear. (Neither does the word “woman”.) Game over—thanks for playing! (Not really. Eat a bag of salted dicks.)

  • theDukedog7 .

    @10:

    I think the ACA decision was wrongly decided, but I have more sympathy for Roberts than many of my conservative friends.

    Robert’s opinions in both ACA decisions reveal his willingness to bend over backwards to accommodate the legislature’s decisions. He is saying: “You (Americans) elected the legislators who made this law, and we (the Court) aren’t going to save you from it. You elected it, you got it. Solve the problem yourselves.”

    I agree with his perspective. The Court should almost always defer to the Legislative branch, unless there is a clear Constitutional violation.

    Despite my sympathy for his view, I disagree with both ACA decisions as a matter of fact. The ACA was specifically advertised by its proponents as “not-a-tax”, and the clear unequivocal language “established by the states” was deliberately inserted, in order to pressure the states to set up their own exchanges (a point that was publicly made by Jonathan Gruber, the ACA’s principal architect.)

    http://www.forbes.com/sites/michaelcannon/2014/07/25/obamacare-architect-jonathan-gruber-if-youre-a-state-and-you-dont-set-up-an-exchange-that-means-your-citizens-dont-get-their-tax-credits/

  • theDukedog7 .

    I repeat my question, for you folks who impose SSM on this country outside of the democratic process based on the 14th Amendment:

    Is Affirmative Action denial of equal protection?

    I just want to see if you really believe in equal protection, or if you just use it as an expedient tool to circumvent democracy.

  • Reginald Selkirk

    The Scalia dissent is probably going to take you a while, there’s a lot to laugh at.

  • colnago80

    I get the impression that Roberts really isn’t opposed to the idea of same sex marriage, he just wants somebody else to take the heat (e.g. state legislatures or voter referendums).

  • Al Dente

    Is Affirmative Action denial of equal protection?

    No. You got any more non sequiturs you want to bring out? Or are you just whining because you hate the idea of “leveling the playing field?”

    Look, Egnor, we understand that as a conservative Catholic you’re required to be a racist, homophobic, misogynist bigot. So we’ll just take it as a given that you hate everyone who isn’t you or your political masters. You don’t have to continually advertise the fact.

  • busterggi

    Roberts is afraid of being lynched after the ACA decision – he’s desperate to keep the cons from storming his house.

  • theDukedog7 .

    @Al:

    So you believe that Affirmative Action, which is an explicit denial of equal protection–it mandates unequal treatment under law, is not a violation of equal protection? The mind boggles.

    Ignorance is Strength. War is Peace. Freedom is Slavery.

  • Al Dente

    Egnor,

    As I said, the idea of leveling the playing field, of trying to cancel the kind of bigotry you’re an exemplar of, is anathema to you. Of course you pretend it’s a “violation of equal protection.” Just because you hate blacks, LGBTs, women, and everyone who isn’t you and your political masters doesn’t mean your hatred should be legal.

  • theDukedog7 .

    @AL:

    “Leveling the playing field”? Nice metaphor. What it has to do with Constitutional law is unclear.

    You are making the bizarre claim that a law that explicitly denies equal protection–Affirmative Action–is not a violation of equal protection.

    Orwellian.

  • Al Dente

    Egnor,

    Affirmative action was established as part of society’s efforts to address continuing problems of discrimination; it has had some positive impact on remedying the effects of discrimination. Whether such discrimination lingers today is a central element of an analysis of affirmative action. The conclusion is clear: discrimination and exclusion remain all too common. Minorities and women remain economically disadvantaged: the black unemployment rate remains over twice the white unemployment rate; 97 percent of senior managers in Fortune 1000 corporations are white males; in 2010 33.3 percent of blacks and 29.3 percent of Hispanics lived in poverty, compared to 11.6 percent of whites. In 2013, Hispanic men were half as likely as white men to be managers or professionals; only 0.4 percent of senior management positions in Fortune 1000 industrial and Fortune 500 service industries are Hispanic.

    Blatant discrimination is a continuing problem in the labor market. Perhaps the most convincing evidence comes from “audit” studies, in which white and minority (or male and female) job seekers are given similar resumes and sent to the same set of firms to apply for a job. These studies often find that employers are less likely to interview or offer a job to minority applicants and to female applicants.

    It’s obvious that you, a straight white male with a graduate degree and a high status job, aren’t effected by discrimination. However many of your fellow citizens (whether or not you despise them, they are your fellow citizens) don’t have the social privilege that you do. Affirmative action is an attempt to make equal opportunity possible. Your hatred of non-straight non-white, non-males blinds you to justice, but normal people disagree with your bigotry.

  • footface

    To “War is Peace” (et al), we can add “The Supreme Court imposed SSM on me!” The Supreme Court’s ruling on SSM doesn’t do anything to opponents of SSM, except not allow them to decide which other people have to right to marry.

    The only harm that was done to opponents—the only imposition on them—is that they no longer get to exclude people.

    You’ll get over it, hon.

  • theDukedog7 .

    Come on, legal eagles. I asked an obvious question for libtards who believe that defining marriage as heterosexual violates equal protection:

    Does Affirmative action deny equal protection?

    Why so reluctant to answer? Surely you can concoct some obscenities and historical blindness and idiot metaphors and post an answer?

  • Bruce

    Roberts said he wants to:

    “maintain the meaning of marriage that has

    persisted in every culture throughout human history”.

    So doesn’t that mean he supports traditional marriage as recorded in the bible? So doesn’t that mean that now in 2015 he basically just said that polygamy, polyandry, and polyamory should now all be legal? Or is it that polygamy is ok but not the others?

    Or is polygamy now constitutional only for veterans who bring a captured new wife back from the battlefield to join his existing wife?

    Or is polygamy now REQUIRED, as it traditionally has been, if your brother dies without impregnating his wife?

    Of course, all these are just referring to one specific bronze-age culture (although free of lawyers), not to all cultures worldwide. How can we follow every conflicting idea that ever existed?

    It’s just a good thing that we’re not obligated to follow the bible on polygamy.

  • theDukedog7 .

    @AL:

    I am uninterested in your juvenile talking points on AA (a policy started by Republicans).

    I challenge you: why isn’t AA a denial of equal protection under the law, given that AA is an explicit denial of equal protection under the law?

    How can you square laws that mandate unequal treatment under law of citizens based on race with the 14th Amendment?

  • Juniper

    I am going to be sorry for taking bait from a person more interested in derailing a thread about same-sex marriage and lecturing Ed’s commenters in the manner of a king to his servants than in anything else, but here goes:

    Is Affirmative Action denial of equal protection?

    My answer: Depends. Are you talking about university admissions, for example? Are you talking about race-based “affirmative action”? Sure, get rid of “affirmative action” (which schools are already doing). However, simultaneously get rid of sports scholarships (75% of which go to white students), legacy admissions, income-based affirmative action (which does not exclude white students), affirmative action that equates average to good grades earned at wealthy schools to good to excellent grades earned at poor schools, and affirmative action that effectively requires students at poor schools to take more honors classes, take a higher course load, and participate in more extracurriculars than students at wealthy schools in order to get into Ivy Leagues and their equivalents. And omit names and zip codes from college applications, since people can often guess the race of an applicant from them.

  • Al Dente

    Egnor @25

    I am uninterested in your juvenile talking points on AA

    In other words, you can’t rebut my comments about Affirmative Action so you’re dismissing them as “juvenile.” Damn, boy, your bigotry just keeps shining through all you bleat.

  • abb3w

    @25ish, theDukedog7

    I challenge you: why isn’t AA a denial of equal protection under the law, given that AA is an explicit denial of equal protection under the law?

    An actual lawyer like John Pieret might be able to give a better answer than a non-lawyer such as myself; however, I suggest you examine the ruling in University of California Regents v. Bakke.

  • theDukedog7 .

    @Al:

    “your bigotry just keeps shining through’

    I oppose all laws (and private actions) that treat people differently according to race.

    You support laws and private actions that discriminate on the basis of race.

    I belong to the political party that opposes slavery, segregation, lynching and the KKK.

    You belong to the political party that supported slavery, segregation, lynching and the KKK, and that still supports laws that discriminate on the basis of race.

    And I’m the bigot?

    Ignorance is strength… freedom is slavery… Republicans are bigots… Democrats oppose bigotry….

  • theDukedog7 .

    @28:

    We the People own the Constitution, not lawyers.

    Answer the question yourself: why isn’t AA a denial of equal protection under the law?

  • StevoR

    @theDukedog7 .; Yes Dogshit you are indeed a bigot and we all know it even you. Face it, think about it, own it and then change it if you can.

  • Reginald Selkirk

    If the Dread Bigot Roberts believes that a panel of unelected lawyers (i.e. the Supreme Court) shouldn’t be deciding this issue, then isn’t the honorable course of action to recuse himself?

  • velociraptor

    @21

    What ‘graduate degree’ and ‘high-status job’ does this asshat possess? Cleaning the toilets of his masters?

  • Reginald Selkirk

    theDukedog7 . #29: I belong to the political party that opposes slavery, segregation, lynching and the KKK.

    You are apparently unfamiliar with proper use of the past tense.

    Tennessee Republican: If state stops honoring KKK founder, US will be like ISIS

    GOP leadership stands by Scalise after white supremacist speech

  • theDukedog7 .

    @Al:

    “In other words, you can’t rebut my comments about Affirmative Action so you’re dismissing them as “juvenile.””

    No. You merely spat out talking points, perhaps apropos to private action to address racial imbalances.

    I’m talking about laws that mandate racial discrimination–AA laws. I’m making the argument because you’ve argued that the equal protection clause of the 14th Amendment must be construed so radically that it mandates redefinition of marriage.

    Yet you ignore the 14th Amendment in your support for AA.

    How do you square that? It seems to an objective observer that you are a cafeteria interpreter of the 14th Amendment. Radical interpretation to circumvent democracy and impose policies you like, throw it in the trash for policies you like that violate it.

  • theDukedog7 .

    @34:

    I find it reprehensible that any Republican would support a Democrat KKK’er (Nathan Bedford Forrest) or that any Republican (Scalise) would speak in front of a Democrat organization.

    I remind you that the Democrat party has the distinction of being the largest White Supremacist organization in world history.

  • dingojack

    So lil dookie what rights, specifically, are being denied by granting marriage equality?

    Dingo

  • The Very Reverend Battleaxe of Knowledge

    I remind you that the Democrat party has the distinction of being the largest White Supremacist organization in world history.

    AGAIN: What is this “Democrat Party”? I am unaware of the existence of any such organization.

  • theDukedog7 .

    @37:

    No rights are violated when SSM is enacted by a legislature. I disagree with SSM laws, but the laws are perfectly legitimate.

    The right of every citizen to vote on legislative issues was abridged by the Kennedy SSM decision. The right to decide on SSM belongs to American citizens, not to five unelected judges.

    The dissenting justices were right. This decision is a slap in the face to American democracy.

  • kantalope

    The comment section is much shorter if you dont submit yourself to Dukedogs crap. Who knew?

  • theDukedog7 .

    @38:

    You’re unaware of quite a few things.

  • RickR

    I can’t wait for Ed to get to Scalia’s mess.

    Egnor, are you still here, trolling for pain? Pathetic. You LOST. Run along, now.

  • StevoR

    @ ^ The Very Reverend Battleaxe of Knowledge : Also citation really needed!

  • Michael Heath

    In his dissent Justice Roberts concedes the existence of the equal protection clause of the 14th Amendment and therefore court’s obligation to protect gay people equally. But right after conceding this point, he starts making arguments that effectively denies gay people equal protection.

    I find it near impossible to observe a conservative who can cogently argue on nearly all matters that separate American conservatives from the rest of the population. They all make the most rudimentary critical thinking errors. One exception is Pat Buchanan on certain matters, though Pat is still well known for also going off the rails.

  • doublereed

    Uhm… is theDukedog7 for real? If no, then kindly go away.

    If yes, then I have no idea what AA has to do with anything. Whether it is or is not equal protection has nothing to do with Gay Marriage. How is it related? Are you trying to imply the 14th Amendment is entirely illegitimate or something? Are you just trying to score rhetorical points with legal misunderstanding? The topic is gay marriage.

  • StevoR

    @38.

  • theDukedog7 .

    @40:

    You’re right. How odd that a blog about the culture war would be a forum for disagreement.

  • StevoR

    & #36 more.

    ..the Democrat party has the distinction of being the largest White Supremacist organization in world history.

    Is an extraordinary claim requiring extraordinary evidence as per Sagan’s law.

    Aside from the getting the name of party I think Dogshit is meaning to refer to wrong.

    Is it just me or is a certain stinky troll who comes from a dogs’ arse and whose “arguments” fail to reach even that exalted level actively trying to get banned here?

  • theDukedog7 .

    @45:

    [The topic is gay marriage.]

    The topic is whether the SSM decision was rightly decided, and that hinges on interpretation of the 14th amendment.

    I’m trying to understand your interpretation of the 14th amendment.

    Does the 14th amendment prohibit Affirmative Action?

    In other words, do you have an honest consistent interpretation of the 14th amendment, or do you just invoke it to get the results you want?

  • theDukedog7 .

    @StevoR:

    [Is an extraordinary claim requiring extraordinary evidence]

    From 1820 to 1964, the Democrat Party was a white supremacist organization. It was during that epoch an organization of (total) several hundred million members.

    Can you name a larger white supremacist organization?

  • StevoR

    @ 45. doublereed : “Uhm… is theDukedog7 for real?”

    Sadly it seems so. Apparently this Dogshit clump is actually a”famous” (very vaguely and for a certain loose value of the word) called Egnor or something. Been trolling here for the last month or three. What a sad piece of dogshit it is indeed -time for it to be scraped off our collective shoes maybe Ed Brayton?

  • The Very Reverend Battleaxe of Knowledge

    Egnorance @ 41:

    ORLY? Well, if there is such a thing as the “Democrat Party” they must have a website. Would you mind linking to it? I’ll accept a Wikipedia entry even. Alternatively, you could fuck right the hell off.

  • StevoR

    @50. Dogshit : Burden of proof – its yours not mine here.

    But okay the Nazi party in 1930’s Germany.

  • StevoR

    Also :

    From 1820 to 1964, the Democrat Party was a white supremacist organization.

    That’s another unsupported and extraordinary claim right there. Citation! Sources and supporting evidence for that?

  • Reginald Selkirk

    Arnold Schwarzenegger: Supreme Court’s Gay Marriage Ruling Was ‘the Right Decision’

    Arnold Schwarzenegger, action star and former California governor, said in a press conference that the U.S. Supreme Court’s ruling legalizing same-sex marriage nationwide was “the right decision” – and he rebuffed those politicians “not having the balls” to lead.

    Ahnold says the DukeDoggieStyle7 has no balls.

  • garnetstar

    hunter @3, I thought that too. I thought that this case was about people petitioning for constitutionally-guaranteed rights under the 14th amendment. So, the states laws, or the people voting, were irrelevant.

    Did Roberts just *completely* evade the issue? His opinion seems not to address the case at all.

    One would have thought that, by the time someone became Chief Justice of the Supreme Court of the United States of America, he would have thought about what to do when the Constitution clearly points to a decision that his beliefs or feelings or emotions or biases or religion opposes. Apparently not. So he had to fall back on what I’ll call the Scalia Manuever, “the court shouldn’t decide this, let people vote on it.”

  • http://www.facebook.com/profile.php?id=1159674804 robertbaden

    Equal protection under the law is an unachievable goal. But we are closer to it with affirmative action than we would be without it. Without it the only people who could get redress for discrimination would be those who could afford to sue over it in the courts.

  • http://www.ranum.com Marcus Ranum

    It appears Justice Roberts has taken to using a Magic 8 Ball for making his decisions.

    SIGNS POINT TO YES

  • theDukedog7 .

    @53:

    [But okay the Nazi party in 1930’s Germany.]

    Nazi Party membership maxed out at about 6 million in the late 1930’s. Perhaps ten million total 1924-1945.

    Democrats 1824-1964 probably a couple of hundred million.

    “Largest White Supremacist organization in history”

    By the way, when you argue in your defense that the Nazi’s were a bit worse than your own party, you’ve lost the debate already.

  • Reginald Selkirk

    I have failed in two attempts to link a Wikipedia article entitled “Indiana Republican Party.” You can search it out yourself.

    Staunchly anti-immigrant, anti-Catholic, antisemitic, and of course prejudiced against African Americans, the new Klan spread into Indiana in the 1920s under the Grand Dragon D.C. Stephenson.[8] The second KKK was almost exclusively Republican in Midwestern states like Indiana as well as northern and western states like Maine and Colorado, although the KKK remained exclusively Democratic in the South.

    In the 1924 Republican primary elections in Indiana, almost all candidates nominated for statewide office were Klansmen. One African American newspaper stated “the Ku Klux Klan has captured boot and breeches, the Republican party in Indiana and have [sic] turned what has been historically an organization of constitutional freedom into an agency for the promotion of religious and racial hate…”

  • Al Dente

    Egnor,

    The Supreme Court has considered Affirmative Action on several occasions. Racial and gender quotas for collegiate admission has been ruled unconstitutional in Gratz v. Bollinger, 539 U.S. 244 (2003). However Affirmative Action for college admissions was upheld by Grutter v. Bollinger, 539 U.S. 306 (2003). Justice O’Connor, writing for the majority, held that a race-conscious admissions process that may favor “underrepresented minority groups,” but that also took into account many other factors evaluated on an individual basis for every applicant, did not amount to a quota system.

    The majority opinion said that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Court held that the law school’s interest in obtaining a “critical mass” of minority students was indeed a “tailored use”. Public universities and other public institutions of higher education across the nation were allowed to use race as a plus factor in determining whether a student should be admitted. While race may not be the only factor, the decision allowed admissions bodies to take race into consideration along with other individualized factors in reviewing a student’s application. O’Connor’s opinion answers the question as to whether “diversity” in higher education is a compelling governmental interest. As long as the program is tailored to achieve that end, then Affirmative Action is constitutional.

    In other words, suck it, asshole. Affirmative Action is not against the 14th Amendment. So take your fucking bigotry and whine somewhere else.

  • dingojack

    Wait now – these people are the largest White Supremacist organisation in history? Who knew? (I’d be news to Don Chip).

    If marriage equality isn’t causing you harm, or indeed affecting your life in any way, why do you get to vote on it? What standing do you have?

    You want to vote on the meaning of ‘timely manner’ in a Tort-case, or what ‘provisional discretionary loading’ means? You don’t get a vote in any other case of legal professionals interpreting the arcana of law, why start now?

    Dingo

  • Reginald Selkirk

    Indiana Magazine of History

    During the 1920s, five million Americans joined the Ku Klux Klan. Hoosiers turned out in record numbers, making Indiana ‘s Klan the largest, most enthusiastic, and most politically powerful Klan in the country…

    In 1924, Klan numbers overwhelmed the state’s Republican Party and elected the governor (Ed Jackson), a majority in both houses of the legislature, and nearly all of the state’s thirteen congressmen.

  • Nihilismus

    I was disappointed with the majority’s opinion. Not because I don’t think they reached the right result — they did. But there was very little analysis of the equal protection argument, which I think is much stronger than the due process argument. Because they didn’t really analyze the equal protection argument, which other lower courts have done much more thoroughly, none of the dissenting opinions really address it either.

    A few, like John Robert’s dissent, point out that there was not much of a standard equal protection analysis done by the majority — but then he doesn’t actually argue much why equal protection doesn’t apply. He just makes a cursory statement that the a definition of marriage limited to one man and one woman is rationally related to a legitimate government interest. The worst, most illogical legal arguments made in the marriage cases leading up to this Supreme Court decision were when marriage equality opponents tried to actually articulate how denying marriage to gay people advanced any legitimate interest. I started to wonder if John Roberts specifically asked Kennedy to not do a traditional equal protection analysis so that Roberts could dissent without sounding like a total idiot, but if that were the case, why would Roberts then fault the majority for not doing the analysis? Plus, Roberts used the disingenuous argument that Dukedog uses — that Loving was different because marriage at its core was always “one man and one woman” as opposed to “one man and one woman of the same race”, even though he mentions how early marriage had sometimes included more than two people, and even though one could just as easily say that marriage at its core has always been about “two people joined together”, without any reference to gender at all. In other words, Roberts is not much of a thinker.

    Although I disagree with Thomas on whether there is such a thing as substantive due process, I do agree with a point he made that, at least under a due process analysis, the government is only prevented from denying rights — it is not required to give benefits (government benefits are not a right). This is why the majority shouldn’t have focused on due process, but on equal protection, because then Thomas would have had to explain why, even if government benefits aren’t a right, why would it be okay to bestow them only on straight couples and not gay couples. Plus, if an equal protection analysis had been done, perhaps the majority could have pointed out the inherent gender discrimination (as opposed to sexual orientation discrimination) in not letting a woman A marry woman B even though a man could marry woman B. An equal protection analysis would have also established what the proper standard is (rational basis, intermediate, strict scrutiny), which would impact other laws treating gay people differently, not just marriage laws.

    Thomas brought up how under a due process analysis, the inquiry is about whether the government denied rights, and then mentioned how in Loving, the Lovings were actually arrested for trying to marry, they didn’t simply argue that it was unconstitutional for them to be denied marriage. Plus, some anti-miscegenation laws actually made it illegal for churches to perform marriage ceremonies even if the participants weren’t trying to be civilly married. Loving discussed equal protection more thoroughly then this case, which is unfortunate, because these current marriage cases did not arise from the plaintiffs having been arrested for trying to get a marriage. Thomas, correctly in my opinion, points out that this is an important distinction. However, he then goes off the rails when he wonders if pastors will now be forced to perform same-sex marriages. Even though he just got done pointing out that there wasn’t even a law that criminalized a gay couple who tried to be married within their own religion, he then wonders if a different religion that didn’t want to perform religious marriage ceremonies for gay couples will now be arrested. WTF, follow your own reasoning, dude.

    Alito tries to summarize the majority’s reasoning regarding equal protection, and I think he actually makes it clearer than the majority did. He builds it up to try to attack it, but I think he made the point clearer as to why equal protection requires marriage equality. When he then tries to argue against his summarized version of the majority’s equal protection argument, his point is really only against a due process analysis again, not an equal protection analysis.

  • http://www.facebook.com/chris.rhetts Chris Rhetts

    I too was a little mystified by Justice Roberts’ dissent. It seemed to me he started off by hitting a great looking drive off the tee – but wound up in the wrong fairway. The rest was him just scrambling to get down in three over par.

    “Loving” aside, he went out of his way to explain that the court has no right to change the definition of marriage. Well, maybe so, but this slight of hand ignores the fact that the court was NOT being asked to change this definition. Society has already done that. Actually, the court was being asked to decide if same sex married couples constitute a class of citizens eligible for protection under the “equal protection” clause. This is the crucial point which renders the rest of his argument irrelevant.

  • doublereed

    @50 theDukedog7

    From 1820 to 1964, the Democrat Party was a white supremacist organization. It was during that epoch an organization of (total) several hundred million members.

    Can you name a larger white supremacist organization?

    Uhm… aren’t you admitting yourself that it is no longer a white supremacist organization by putting an end year on that first phrase?

  • garnetstar

    Thanks for that discussion, Nihilismus. Because to me, a complete legal ignoramus, when I think of the 14th amendment and marriage, what stands out is that gay people are prevented from equal protection of laws about inheritance and children and medical care and taxes, etc. And not having to testify against each other, that’s an important protection. I think that most people would understand that, whereas the meaning of due process is somewhat more vague to them (as it is to me)>

    So, am I right in that Roberts just bailed on addressing the constitutional rights question? His opinion that this should be voted on isn’t even relevant, because that doesn’t apply?

  • Anri

    theDukedog7 @ 50:

    From 1820 to 1964, the Democrat Party was a white supremacist organization. It was during that epoch an organization of (total) several hundred million members.

    Can you name a larger white supremacist organization?

    Good point.

    And given that 1964 was only 10 20 30 40 50 years ago, we can use it as the current situation, because nothing has changed in that timeframe. Japan is a war-torn country being rebuilt with a limited technological base, Germany is divided into two countries, the USSR is a major player in world politics, and the world’s primary hotspot militarily is Southeast Asia.

    Because it’s totally still 1964, right?

    I’d ask why conservatives insist on viewing the world through a half-century old lens, but I already know the answer: because the current world doesn’t match up with what they believe.

    @ 30:

    Answer the question yourself: why isn’t AA a denial of equal protection under the law?

    In detail, it is.

    In overall effect, it seeks to oppose a much larger, longer-lasting, systemic violation of equal protection – that is to say, the overarching white privilege that is exerted pretty much whenever possible.

    It’s like asking if cutting someone with a knife, dosing them with poison, and blasting them with radiation isn’t a violation of a Doctor’s Hippocratic Oath. The answer is yes, of course – unless they’re trying to cure the patient’s cancer.

    AA is a clunky, imperfect, often in detail unfair solution to a far, far worse problem.

    But if you believe that Judicial ruling on the Constitutionality of law is a moot point against a referendum, why bother asking the question? Just say that you consider the court system null and void and ask for it’s removal. If the only test of the Constitutionality of any given law is of a majority of citizens are willing to say it is, why have a Supreme Court at all?

    Of course, that would mean that you believe that black people weren’t actually full human beings until a majority of citizens decided they were, which might be a bit awkward for you.

    And getting back to the point @9:

    Marriage is the union of a man and a woman. The imposition of racial categories on marriage is illegitimate, as is the imposition of SSM.

    (emphasis added)

    Citation needed.

    At what point during the marriage process should the parties wishing to get married be examined to determine if their gender meets your criteria? When first announced? When the certificate is issued? Just before the ceremony?

    I assume you and your wife gave sufficient proof of your gender to whomever married you to satisfy them you weren’t getting them into trouble, yes?

  • footface

    The “changing definition” argument is an absurdity. Every new law “changes” the “definition” of something. Such-and-such action wasn’t legal before, but now it is. This other thing was legal before, but now it’s not. The Supremes changed the definition of “person.” Laws have changed the definition of “property.”

    It is the nature of change that things, um, change. Times change. Societies change. Laws change. Things change. It’s nothing new.

  • gshelley

    @dukedog

    It is amazing that anyone could claim the “state” language was inserted to prevent Federal exchanges. Not only does this make no sense, it is contradicted by the history.

    And Gruber being the “principal architect” is just laughable

    These claims are so far from reality anyone making them has to be deliberately lying.

  • sabrekgb

    I’m really kinda sad that none of the dissents addressed the Full Faith and Credit question. To me, that was the more interesting (and, i thought, more likely to garner a better than 5-4 ratio) question. The majority punted, just saying in effect, well, we think all the states have to allow SSM, so of course the answer to the second is by default yes. There was no analysis of the legality of it. I think that handling that question would have been very important precedent for the future (for example, when polyamory cases start getting going. It would be nice to have SSM precedent to guide when you have a triad that is married in Connecticut suing to have their marriage honored when they move to Alabama).

    Anyone else notice this almost complete lack of addressing the second question? Thoughts? John Pieret?

  • D. C. Sessions

    Robert’s opinions in both ACA decisions reveal his willingness to bend over backwards to accommodate the legislature’s decisions.

    As in, for instance, Shelby County? Never mind Citizens United, I want to see the majority in Shelby County reconcile that decision with their dissents from this case.

  • Nihilismus

    @67 garnetstar

    So, am I right in that Roberts just bailed on addressing the constitutional rights question? His opinion that this should be voted on isn’t even relevant, because that doesn’t apply?

    Well, Roberts “bailed” on the equal protection argument, but arguably that is because the majority mostly focuses on due process to explain why marriage is a fundamental right with a very short part about how due process and equal protection often go together and why denying a fundamental right to one group of people winds up violating equal protection as well. So Robert arguably gets a pass for not separately addressing equal protection.

    But he didn’t exactly bail on the due process argument. While a large part of beginning and end of his opinion is about letting the policymakers decide this issue instead of the courts, he does try to explain in the middle why this is a policy issue vs. a constitutional issue. He knows that a denial of a fundamental right is a constitutional issue, so he tries to explain why the fundamental right here is a “right to traditional marriage” as opposed to a “new” right to gay marriage.

    Basically, because “traditional” marriage is so, well, “traditional” (or historic), it is deeply rooted and thus a fundamental right, but the concept of gay marriage is too new to be considered in the definition of marriage as “traditionally” understood. He simultaneously combines various ideas of marriage over history (multiple partners, contract, union into one with the man at the head, love-based, etc.) to make “traditional” marriage more historic, but ignores those other changes to say that this change (to allow same-sex unions) cannot fall under the definition and must therefore be a “new” right that is too new to be fundamental. ….. Well, he sort of does address the earlier changes, only to say that at its core marriage was always about “one woman and one man” and all the other things that were then traditional were just unnecessary add-ons, conveniently not just describing the core as a “union of people”.

    So, as his argument goes, since gay marriage is a new concept and not a fundamental right, it is not a denial of due process for state governments to only recognize straight marriages. Since this is no longer a due process issue, it is then not a constitutional issue, but rather, a political one that should be decided by lawmakers. Of course the equal protection issue still makes it a constitutional issue even if “gay marriage” is not a fundamental right, but as explained above, he got a pass on addressing this.

    @71 sabrekgb

    Anyone else notice this almost complete lack of addressing the second question?

    Since the dissenting opinions didn’t really address the equal protection issue, probably because the majority didn’t really address it, I am of the opinion that the same thing is going on with the Full Faith and Credit issue. That is, the majority didn’t need to address it, so the dissent did not either. Better justices, when dissenting, explain why the majority’s reasoning is wrong but also go ahead and address the other alternative issues brought up by the parties. It’s not enough to say, “I disagree, due process is not violated by a definition of marriage limited to one man and one woman” and then say “Therefore, such a definition is constitutional.” A good justice would have to move onto the other issues (equal protection and Full Faith and Credit) before saying that no constitutional violation occurred. By ignoring these issues, the dissenters are revealing a preference of what they wished the constitution to say about the matter but can’t articulate. By not doing the required constitutional analysis and saying it should be an issue for lawmakers instead, the dissenters are trying to do what they accuse the majority of doing — legislating from the bench.

  • Nick Gotts

    I remind you that the Democrat party has the distinction of being the largest White Supremacist organization in world history. – Michael Egnor, slanderous liar, egregious hypocrite, blatant racist, and Malthusian

    You’re forgetting a much larger organization: the Roman Catholic Church. With a total membership running well into billions, the bigots running this international conspiracy authorised the division of the non-European world between the white supremacist powers of Spain and Portugal, leading to the enslavement and genocide first of millions of American Indians, and then of even more black Africans. At the same time, it mandated the persecution of Jews and Muslims. In the 20th century it collaborated extensively with the white supremacist ideologies of fascism and Nazism: the Popes signed concordats with both Mussolini and Hitler, the Cathlic Center Party gave Hitler the Reichstag majority to become dictator, the German Catholic bishops issued a fawning statment of support for Hitler, a Catholic priest was Hitler’s puppet ruler of Slovakia, no fascist or Nazi was ever excommunicated or threatened with excommunication for racist poliices up to and including genocide, nor was any call to resist fascism or Nazism ever issued by the Church. In the USA, the Catholic hierarchy did nothing to end slavery (which of course persisted even later in overwhelmingly Catholic Cuba and Brazil), and stood aside from the struggle for Civil Rights.

  • Nomad

    Well Duke, I await your demonstration of good faith participation in this discussion by responding to the answers that you eagerly, repeatedly requested. I’m sure you weren’t interested in the question only so long as you thought people couldn’t answer it, because that would be dishonest.

    But in the mean time, I feel like there’s an obvious reference that no one has pulled yet. Regarding this part of the post:

    The notion that court rulings lead to entrenchment because people feel their democratic rights have been violated simply is not supported by history. Court rulings both react to and spur on changes in public opinion, as they did not only in Loving but in Brown v Board of Education and many more important advances in social justice and equality.

    In terms of public opinion, it took 30 years for the public opinion to catch up to Loving. I’m not sure that can be called “spurring”. In fact I’ll go further then that. Notice this graph:

    https://xkcd.com/1431/

    See any apparent influence of the SC decision on the majority approval line? Unless the cartoonification of the survey data was so sloppy that it altered the data significantly, it seems that as far as public opinion went, the SC decision might as well have happened on another planet.

  • sabrekgb

    @73 Nihilismus

    Indeed. I’m just very disappointed that none of the opinions substantively addressed it. Not only was i very interested in that question (for the precedential value), but I thought it might be a possibility that some of the dissenters would have dissented in part; saying “No” to the first question and “Yes” to the second. That would have made this ruling a much more satisfying one than the 5-4 split.

    Majority dropped the ball in not actually addressing the question (and slacking on Equal Protection), and it would have been a very interesting read for a dissent in part. Even if we take some of the dissenters at face value (roberts or thomas, for instance), their dissent really only speaks to the first question. They could write the same thing, but answer “yes” to the second. I just don’t see how they get away from the Full faith and Credit argument. It doesn’t get much more constitutional than that, even if you think there is no inherent right to SSM…once a state lets you marry, you’re married. See: Cousins. I really wanted to hear a discussion of that.

    Ah, well…

  • tomh

    @ #71

    The Full Faith and Credit Clause has never been read to require one state to recognize another state’s marriages. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The “public policy doctrine” has been applied to marriages between cousins, persons too recently divorced, persons under the age of consent in a different state, and other cases. Courts have always treated judgments, which are entitled to full faith and credit, differently from marriage licenses. Until Loving, of course, which presented a constitutional question. And now, SSM. But these are the only two cases where the federal government has stepped in. Unless a constitutional issue arises, marriage is still a state matter, and there is no requirement that states recognize other states’ marriage laws.

  • D. C. Sessions

    For those who missed it, the Catholic Canine also pulled a classic misdirection by claiming that the “Democrat Party [1]” was, as a whole, a “white supremacist” organization and counted all of the members as “white supremacists.” Including the rather large contingent of high-melanin individuals, Civil Rights activists, etc. who belonged.

    I realize that basic doctrine for the Right is denial of history as well as science, but it is occasionally worth noting that Democrats in other parts of the country were unable to forbid the South from electing Yellow Dogs for the better part of a century, and only managed the trick when Johnson tricked them into letting the Civil Rights Act and Voting Rights Act from being filibustered. Which is why, today, it was a 100% contingent of Team Republican Justices who gutted the Voting Rights Act.

    [1] One wonders when inability to spell joined innumeracy as a right-wing virtue.

  • theDukedog7 .

    @74 Nick:

    This should help clear up your confusion about the Church’s condemnation of slavery, with the first papal bull explicitly demanding the freeing of slaves in 1432.

    https://www.ewtn.com/library/ANSWERS/POPSLAVE.HTM

    As to you little anti-Catholic hate screed, I assure you I could write a much longer one about atheism in power (people already have (http://www.amazon.com/The-Black-Book-Communism-Repression/dp/0674076087)), with the difference being that mine would be true.

    I can’t help being reminded of the KKK–Democrats who hated Catholics as much as they hated blacks. “Separation of church and state” was a phrase from the Alabama KKK initiation oath, administered by Hugo Black, later Supreme Court justice who wrote the Everson decision.

    You’re just a bigot who hates Catholics. Like your Democrat KKK forbearers. The apple doesn’t fall far from the tree.

  • garnetstar

    Thanks again, Nihilismus. I understand!

    Well, he tried then, I’ll let him live, but there is still some kind of flawed thinking there. Maybe the “gay marriage is too new!” thing was the best he could think of. Still, I wish justices could put aside their personal beliefs and examine the questions they’re asked to and the constitution. Hey, I know it’s hard for any human, but really, do your job. It’s kind of important.

  • Reginald Selkirk

    theDukedog7 . #79: I can’t help being reminded of the KKK–Democrats…

    Still rattling on. That is one of the many severe flaws of modern day conservatism, the inability to admit that one was wrong. It severely detracts from the claims of some conservatives to be intelligent.

  • Matt G

    The majority based their decision, in part at least, on the 14th Amendment. Does Roberts address that at all? His closing remarks say the majority decision had no connection to the Constitution.

  • Matt G

    George W. Bush benefitted from affirmative action at Yale. This is the kind of affirmative action conservatives ignore: legacy admissions. Then we have other forms of affirmative action in employment such as nepotism, cronyism, revolving doors between regulatory agencies and the companies they regulate, no-bid contracts, etc.

  • longship

    @36 thedukedogGOPTROLL:

    It is the Democratic Party, you ignorant buffoon.

  • theDukedog7 .

    @84:

    If you’re “Democratic”, why don’t you want voters to decide on SSM, instead of an unelected judicial oligarchy?

  • D. C. Sessions

    I realize that there’s no point in reasoning with someone whose idea of “discussion” involves urination, but the answer is simple: for the same reason we don’t have slavery any more. Or, for that matter, that he’s allowed to piss on this board.

  • Reginald Selkirk

    theDukedog7 . #85: If you’re “Democratic”, why don’t you want voters to decide on SSM, instead of an unelected judicial oligarchy?

    Dear clueless gobshite: there are different varieties of democracy. Mob rule is one of them. Apparently that is what you would prefer. Instead, we live in a constitutional democracy, where individuals are guaranteed certain rights regardless of the sentiment of the majority. After all, the majority may include a substantial number of fuckwits like you.

  • Trebuchet

    For the benefit of the egnorant, a huge copy-pasta from Wikipedia on voting for the Civil Rights Act of 1964:

    Vote totals[edit]

    Totals are in “Yea–Nay” format:

    The original House version: 290–130 (69–31%).

    Cloture in the Senate: 71–29 (71–29%).

    The Senate version: 73–27 (73–27%).

    The Senate version, as voted on by the House: 289–126 (70–30%).

    By party[edit]

    The original House version:[20]

    Democratic Party: 152–96 (61–39%)

    Republican Party: 138–34 (80–20%)

    Cloture in the Senate:[21]

    Democratic Party: 44–23 (66–34%)

    Republican Party: 27–6 (82–18%)

    The Senate version:[20]

    Democratic Party: 46–21 (69–31%)

    Republican Party: 27–6 (82–18%)

    The Senate version, voted on by the House:[20]

    Democratic Party: 153–91 (63–37%)

    Republican Party: 136–35 (80–20%)

    By party and region[edit]

    Note: “Southern”, as used in this section, refers to members of Congress from the eleven states that made up the Confederate States of America in the American Civil War. “Northern” refers to members from the other 39 states, regardless of the geographic location of those states.

    The original House version:

    Southern Democrats: 7–87 (7–93%)

    Southern Republicans: 0–10 (0–100%)

    Northern Democrats: 145–9 (94–6%)

    Northern Republicans: 138–24 (85–15%)

    The Senate version:

    Southern Democrats: 1–20 (5–95%) (only Ralph Yarborough of Texas voted in favor)

    Southern Republicans: 0–1 (0–100%) (John Tower of Texas)

    Northern Democrats: 45–1 (98–2%) (only Robert Byrd of West Virginia voted against)

    Northern Republicans: 27–5 (84–16%)

    Note that the bill was pretty overwhelmingly supported by both parties, so the Democrats overall were not the party of racism in 1964. Southern Dems, a minority of the party, voted against the bill, then supported George Wallace for pres in 1968 and by 1972 were pretty much all Republicans. So the Republic Party Is pretty much the largest racist organization of TODAY. Isn’t that more important?

  • Anri

    theDukedog7 @ 85:

    If you’re “Democratic”, why don’t you want voters to decide on SSM, instead of an unelected judicial oligarchy?

    Because you don’t get to vote on other people’s basic rights. Civilized adults know that.

    …unless, of course, you’d support a Protestant majority in a given location outlawing Catholicism. You’d support that, because it’s democracy in action, right? You certainly wouldn’t appeal to the court system to have them support the idea that you can’t enforce the tenants of your religion on anyone else, right?

    Under those circumstances, you’d stop being a Catholic, because the majority told you to… right?

  • theDukedog7 .

    @88:

    [Democrats overall were not the party of racism in 1964]

    Bullshit. Most Democrats were no longer voting for racist policies (although this was a recent change), but all Democrats slept with their racist southern bedfellows for at least a generation after 1964. Northern Democrats and Southern Democrats were joined at the hip, and the Democrat party in the House and Senate was run by segregationists well through the 1970’s (eg Sam Ervin, Fritz Hollings, etc).

    Bill Clinton gave a laudatory eulogy for senator J. William Fullbright in 1996, who Clinton knew well and had as a mentor when he was young. Fullbright was a signatory of the Southern Manifesto (along with a hundred or so other democrat racists and two racist republicans), and was a committed segregationist for much of his life. Clinton kissed his ass and worshiped the guy (compare the reaction to Clinton’s bootlicking of Fullbright to Trent Lott’s brief comments about Strom Thurmond).

    The Democrat party depended desperately on the South up through the 1990’s, and it wasn’t until the mid 1990’s that the majority of elected offices in the South weren’t Democrat.

    Basically, when the South ceased to be racist and segregationist, it ceased to be Democrat.

    Your “history” of Wallace’s presidential campaigns is deeply uninformed. Wallace ran as an independent in 1968, and his entire support came from Southern Democrats.

    He ran in the Democrat primaries for the Democrat nomination in 1972 (before he was shot), and he obviously had no real support from Republicans, given that he was running only in the Democrat party.

    Why are you, as a Democrat, so scared to admit your past?

  • Anri

    Per my 89:

    “tenets”, rather… drat.

    Reminder to self: spellcheck is not the same as proofread.

  • D. C. Sessions

    Basically, when the South ceased to be racist and segregationist, it ceased to be Democrat.

    Uh — the latter has already been the case for a generation, the former has yet to happen. Not the usual rule for causal relationships.

  • theDukedog7 .

    Oh, and Wallace was one of yours, progressive Democrats:

    “Wallace in his early political life was a progressive, a liberal, a populist, some even thought a socialist”

    http://blog.al.com/wire/2013/09/gov_george_c_wallace_a_progres.html

    Segregation–the sifting of people by race and the control by government of the most intimate aspects of people’s lives–was a Progressive project extraordinaire. Progressives were at the forefront of Jim Crow and segregation–that’s actually why you assholes changed your name to “Liberals” at mid-century, because the Progressive label meant racism and eugenics. Now you have ruined the label “Liberal” with your idiot policies, and you are reclaiming “Progressive”, knowing that Americans are too uninformed to know what Progressives really were (and are).

    Southern racists and Progressive Democrats were basically the same folks.

  • The Very Reverend Battleaxe of Knowledge

    One rarely sees ignorance so totally comprehensive. That’s why the word “Egnorance” needed to be coined.

  • EnlightenmentLiberal

    theDukedog7 must be a habitual liar with absolutely no sense of shame. The lies he repeats and the flagrantly dishonest arguments he makes are astounding. Are we sure he’s not a troll?

    Anywho, to break with convention here, I’ve never been the biggest fan of affirmative action for some of the reasons you stated, and others. I think that the proper approach is to start funding schools at the state or federal level, and end all local funding of schools. That should help a lot. I recall PZ Myers mentioning that the did this for a long time in his local state, and it helped a lot. Oh, how I can dream.

  • http://motherwell.livejournal.com/ Raging Bee

    Roberts said he wants to: “maintain the meaning of marriage that has persisted in every culture throughout human history”.

    This factual error alone pretty much sinks Roberts’ credibility once and for all. I’ve heard even conservative Christians admit that marriage wasn’t always the same all over the world. They certainly didn’t deny there was polygamy, in either the Bible or under Islam; nor did they deny the existence of concubines.

    What kind of childlike fantasy is Roberts stuck in?

  • http://motherwell.livejournal.com/ Raging Bee

    Basically, when the South ceased to be racist and segregationist, it ceased to be Democrat.

    So you’re saying that racism got voted out of the South just like the Democrats?

    I asked Dukedog that same question the last time he repeated that laughable bit of bullshit, and he never acknowledged it. All he does is repeat the same bullshit and falsehoods over and over — he clearly can’t handle the truth.

  • dingojack

    And what did Lee Atwater have to say about ‘The REPUBLICAN’S use of the Southern Strategy’, Lil Dookie?

    Dingo

  • John Pieret

    sabrekgb @ 71:

    Sorry … yesterday was my birthday and Justice Kennedy insists on giving me presents (Lawrence, Windsor and Obergefell were all decided on my birthday eve). I was busy yesterday forcing Christian bakers to bake cakes with rainbow flags on them. Strangely, not a one of them objected when I handed them the money. Now I’m gorged on cake.

    The “full faith and credit” clause is a terrible jumble and I can’t blame the Court for avoiding it … though, during the oral arguments, Roberts seemed to hint he’d accept a compromise where states could keep their same-sex marriage bans but be required to recognize out-of-state marriages. The result would have been much the same except that gays would have been forced to travel to one of the 14 or so jurisdictions which were immune to the outcome in Obergefell to get married. But given the outcome, the full faith and credit argument was irrelevant.

  • doublereed

    @theDukedog7

    I must once again call your motives into question. Why are we talking about Affirmative Action and Democrats/Republicans and racism at all? This has nothing to do with the case. Why did you come in here and start yammering about all this other stuff? What the hell is going on?

    It just sounds to me like you’re attempting to score some rhetorical points using blatantly dishonest tactics for purely egotistical reasons. Even if you believe us to be hypocrites (not that you seem to hold any consistent positions yourself), what exactly is your point? Why are you here? Why did you pick this thread to start yammering?

    I have no idea why you’re here, and frankly I don’t think you do either.

  • doublereed

    @theDukedog7

    Justice Kennedy, the justice who wrote the opinion of the court for ruling on same-sex marriage, was appointed by Reagan. Justice Roberts wrote the opinion of the court for the Obamacare ruling, and he was appointed by Bush.

    I don’t even understand how you’re bringing party politics into this at this particular time. If anything, this is great opportunity for you to be dishonest once again and claim that Republicans were in favor of both of those two things because of these two rulings!

  • John Pieret

    doubleree:

    you’re attempting to score some rhetorical points using blatantly dishonest tactics for purely egotistical reasons

    That pretty well describes Egnore. After a decade or so of following/debating him, his intentions are twofold. To overwhelm those he disagrees with a patina of expertise and/or with highly charged accusations (like the Democratic party is the source of all racial discrimination and the Republicans are pure as driven snow) and just trying to get liberal’s goat. Naturally, the first is deployed in service of the second.

    My own response is to (for the most part) avoid name-calling and concentrating on the “arguments” (or lack thereof) he makes. He is rather bad at responding to that. He lives for our vituperation, which he is rather expert in returning in spades. Calmly respond to him and you have won half the battle.

  • Nick Gotts

    Michael Egnor, slanderous liar, egregious hypocrite, blatant racist, and Malthusian@79,

    This should help clear up your confusion about the Church’s condemnation of slavery, with the first papal bull explicitly demanding the freeing of slaves in 1432.

    Did you ever hear the saying “Actions speak louder than words”? Or as your religion puts it: “Ye shall know them by their fruits”? “Demanding” the freeing of slaves is of no use unless you follow it up with whatever action you have available to you. How many slave-traders or slave-holders were actually excommunicated for their crimes? Why did the Pope divide the extra-European world between Spain and Portugal, when both were already holding and trading in slaves, and continued to do so? Moreover, your link itself concedes that the Popes only condemned “unjust slavery” – as if there was such a thing as just slavery! Pope Gregory IX, in the early 13th century, incorporated slavery into Canon Law:

    provided for four just titles for holding slaves: slaves captured in war, persons condemned to slavery for a crime; persons selling themselves into slavery, including a father selling his child; children of a mother who is a slave.

    More broadly, the Catholic Church clearly supported European imperialism – as long as it was carried out by Catholics – and therefore bears heavy responsibility for all aspects of it, including white supremacism, slavery and genocide. You are a conscious, shameless hypocrite, Egnor, as you continually attempt to distract from the current racism of the Republican Party by attacking the past of the Democrat [sic] Party, yet the past of your Church is replete with crimes including racism and the support of slavery, fascism and Nazism.

    I assure you I could write a much longer one about atheism in power (people already have (http://www.amazon.com/The-Black-Book-Communism-Repression/dp/0674076087)), with the difference being that mine would be true.

    I notice that with the exception of slavery, you make no attempt whatever to specify what I have said that it untrue. That’s because you can’t. And since I am not and have never been a member or supporter of any Communist Party, your link is simply another dishonest attempt to distract from the vile historical record of an organization of which you are a member.

    You’re just a bigot who hates Catholics.

    I hate the Catholic Church for its authoritariansim, misogyny and homophobia, and its illimitable pretensions to moral authority in the face of its vile historical record – although my attacks on it in the context of arguments with you have been simply a response to your gross – and has become clear, conscious and deliberate – hypocrisy. And I hate lying, hypocritical Catholic bigots, such as you. Many individual Catholics were and are fine people.

    Like your Democrat KKK forbearers.

    I’m not an American, you gormless numpty, let alone a member of the Democratic Party or a descendant, literally or metaphorically, of the KKK. But it is typical of particularly stupid bigots, such as yourself, that they pick some target(s) – in your case the Democrat [sic] Party and “Malthusians” – and claim that everyone who disagrees with you bears allegiance to them.

  • D. C. Sessions

    All he does is repeat the same bullshit and falsehoods over and over — he clearly can’t handle the truth.

    DERP == Determined Exponent(s) Repeating Priors (yeah, it’s a backronym but it works. Especially in economic “discussions.”)

    Another term to remember is “Gish Gallop.” Which is what we’re seeing here — spew a host of bullshit points at a rate pretty much guaranteed to suck the bandwidth out of the medium.

  • zenlike

    Ah I see dishonest hack dukiedog has resorted to the time honoured Authoritarian tradition of equating condemnations of the policies of the catlick church with bigotry against it’s members.

    For the rest, I’m not going to start debating with someone who is so divorced from reality that xe thinks “the GOP has never been a racist party.”

    Just going to say that I’m risking diabetes from all the sweet, sweet tears from bigots like dukie here over this ruling. Om, nom, nom!

  • Nomad

    Duke, I get it, I really do. You’re running full speed away from your opening arguments because they were just garbage.

    But the subject, dear boy, is same sex marriage. And on that front, your arguments fail immediately.

    Roberts was referring to the fact that both SSM and anti-miscegenation laws are perversions of the institution of marriage, which ante-dates our legal system and our nation.

    Do you really think that using “ante-date” makes the argument from tradition work? Don’t you know how quickly this falls apart? Slavery ante-dates our nation. So was it a big mistake to abolish it?

    On the other hand, interestingly, same sex marriage ante-dates nation as well. So does that make that okay?

    Try again when your argument rises to a level of sophistication above “but we’ve always done it that way”. Especially when people have always been doing the thing that you insist has never been done before.

  • Al Dente

    Egnor,

    There have been many atheists, like Nick Gotts and me, who have had no connection with the Communist Party in any way, shape or form. While supposedly Communist = atheist, this equation is not commutative so atheist ≠ Communist. On the other hand Egnor = Catholic. Since your church is officially homophobic, misogynist, anti-sex, and anti-humanist, it’s reasonable to infer that you practice all of these qualities. In other words, the accusations of you being a bigot are well supported.

  • colnago80

    Re Schmucknor

    Just for your information, Mr. Gotts is British.

  • theDukedog7 .

    @107:

    [There have been many atheists, like Nick Gotts and me, who have had no connection with the Communist Party in any way, shape or form.]

    Right. You’re pure as the driven fuck*ng snow. No accountability for you. Just because State Atheism has been the most murderous ideology in human history (100 million deaths and counting), and no atheist nation has ever been a democracy and no atheist nation has ever respected human rights, it’s unfair to ask atheists about what invariably happens when atheism becomes the governing metaphysical perspective of a nation.

    Sh*t, why should atheists have to account for atheism? Atheism began this morning, and it has no history at all.

    I, in the other hand, will be apologizing for eternity for the Crusades, the suppression of the Albigensians, the Inquisition, Galileo, slavery, Nazi collaboration, pedophilia, etc.

    Atheism means, unlike Catholicism, never having to say you’re sorry.

  • dingojack

    Lil Dookie — you are aware that democracy is an idea that is the antithesis of Christian political philosophy right? That those that invented democracy were not even considered ‘religious’ by your church’s standards? That no theocratic democracy has ever existed?

    And if we want to speak of mass murder shall we speak of the French Wars of Religion, The Thirty Years War and even the various Pogroms held in Germany and Russia…

    I don’t think that’s an argument you really want to bring up.

    So, back to the actual argument:

    a) What harm or burden does Marriage Equality impose on you?

    b) How would you demonstrate such harm or burden?

    c) If you can’t demonstrate these harms or burden, why do you think you have standing?

    d) What new laws or statues have been created by this ruling?

    e) Why should every new interpretation of the application of the law be put to a plebiscite?

    f) What form should this plebiscite take?

    That’ll do for now — answer those questions (if you dare) Lil Dookie

    Dingo

  • Reginald Selkirk

    theDukedog7 . #109: I, in the other hand, will be apologizing for eternity for the Crusades, the suppression of the Albigensians, the Inquisition, Galileo, slavery, Nazi collaboration, pedophilia, etc.

    You forgot the KKK, their entanglement with the Republican Party having now been established and entered into the conversation.

    doublereed #100: I have no idea why you’re here, and frankly I don’t think you do either.

    To judge from performance, his goal is to prove that he is poorly informed, intellectually impaired, recalcitrant and angry; and to discredit every cause with which he links himself. He’s been wildly successful at all of those things.

  • Reginald Selkirk

    dingojack #110: d) What new laws or statues have been created by this ruling?

    Well that’s a good question. This is certainly a momentous incident in the history of gay rights. If someone wanted to commemorate it with a statue, who/what would be the subject of the statue? One of the plaintiffs? Justice Kennedy? All five sane justices? Justice Scalia with jackass ears melting into a puddle of bile?

  • Al Dente

    Egnor @109

    You’re pure as the driven fuck*ng snow.

    Oh look, Egnor is a prude as well as a fucking asswipe.

    Actually, asshole, all I said was that Gotts and I are not Communists. Is this concept too hard for your idiot brain to work around? Should I use smaller words?

    Just because State Atheism has been the most murderous ideology in human history (100 million deaths and counting), and no atheist nation has ever been a democracy and no atheist nation has ever respected human rights, it’s unfair to ask atheists about what invariably happens when atheism becomes the governing metaphysical perspective of a nation.

    Just because the Catholic Church failed to kill quite as many people as Communism has (this lack was purely because of inadequate technology, not from want of effort) is no reason for you to pretend that atheists are Communists. Learn about the 30 Years War, a religious conflict during which one-third of the population of what’s now Germany and the Czech Republic were killed. In 1631, the Catholic army under Count Tilly sacked Magdeburg. In a week the population of the city went from over 30,000 to about 5,000. Aren’t you proud your coreligionists were able to kill so many Protestants, Jews and other Catholics?

    Sh*t, why should atheists have to account for atheism? Atheism began this morning, and it has no history at all.

    Since I haven’t killed a single theist, I decline to be responsible for what other people who happen to share my opinion on the existence of gods have done. Besides, Stalin et al were not killing people in the name of atheism. Stalin had people killed because he was a paranoid megalomaniac, a trait he shared with Pol Pot. Mao was a narcissistic sociopath who didn’t think of other people as human beings. None of them killed because of atheism. Nice try on using this old and well-discredited canard. Are you also going to tell me that atheists hate the gods we don’t believe in or do you want to use some other cliche?

    I, in the other hand, will be apologizing for eternity for the Crusades, the suppression of the Albigensians, the Inquisition, Galileo, slavery, Nazi collaboration, pedophilia, etc.

    I didn’t accuse you of complicity in the Crusades, Inquisition, etc. I accused you of homophobia, misogyny, and being anti-sex and anti-humanist. These traits are official RCC dogma and, as a good Catholic, you should subscribe to them.

    Atheism means, unlike Catholicism, never having to say you’re sorry.

    Actually I was raised as a Catholic and I have a Jewish mother. That gives me twice the guilt. (That’s a joke, in case your feeble mind doesn’t recognize it as such.)

  • dingojack

    *statute*

    :) Dingo

  • doublereed

    @109 theDukedog7

    I don’t remember people here advocating for State Atheism. We want a secular democracy like the one we have and will continue to have. People aren’t allowed to dictate others to follow their religion, like how you can’t tell gays whether or not they can get married because of your bizarre religious hangups. There have been plenty of secular and nonreligious democracies, like the one we have.

    However, this seems like another deliberate non-sequitur to avoid a coherent topic of discussion. Just constant evasion.

    Which makes me reiterate my previous statement:

    Even if you believe us to be hypocrites (not that you seem to hold any consistent positions yourself), what exactly is your point? Why are you here? Why did you pick this thread to start yammering?

    I have no idea why you’re here, and frankly I don’t think you do either.

  • colnago80

    Re Al Dente @ #113

    Just because the Catholic Church failed to kill quite as many people as Communism has (this lack was purely because of inadequate technology, not from want of effort) is no reason for you to pretend that atheists are Communists.

    Correct. One can only shudder to think what the result would have been if Adolphus, Wallenstein, and Tilly had had access to 20th Century weapon systems (probably Central Europe would have been depopulated). In addition, the number of people available to be killed was a small fraction of the population in the 1st half of the 20th Century. The percentage of the population in Central Europe that was killed during the 30 Years War was greater then the percentage of the population of the same area that was killed in WW1 and WW2 combined.

  • Reginald Selkirk

    DoofusDog7 #109: I, in the other hand, will be apologizing for eternity for the Crusades…

    The Holy Roman Catholic Church is the exact same organization which was responsible for those past atrocities. They actually use this as a selling point. They consider the unbroken(ish) line of papal succession to be the source of their authority to proclaim on matters of faith and morals. No one blames Hindus for the Crusades, even though Hindus are also theists.

    .

    Compare this to your poorly-founded attack on atheists. I doubt that any of the atheists commenting on this blog are members of a Soviet-style Communist Party. They are too busy not collecting stamps for that.

  • llewelly

    It is worth noting that when Egnor finds it useful to do so, he is happy to point out that “Atheism is otherwise a cacophony of political and personal viewpoints.” ; namely, that many atheists are not communists.

    He’s happy to return to the cold war rhetoric of Senator Joseph McCarthy (another Catholic Republican, anti-gay bigot, hm) when it’s useful against atheists, but he knows his favored association between atheism and communism is untrue.

  • Trebuchet

    Crappe, blockquote fail again. We can haz edit function please?

    Also, I was going to point out that he’s a neurosurgeon. Like Ben Carson.

  • sabrekgb

    @99 John Piret

    Yes, definitely a good present. It was a hot topic of conversation for my fellows and I as well…Scalia’s especially.

    I’m curious about your thoughts on what a FF&C ruling (or at least some damn dicta) would have set up, precedent-wise for the eventual polyamorous marriage cases that will come down the pipe some day. That’s really the reason why I wish it had been addressed. Not because it would have practically affected this case, but for the future. I’m aware that there are some odd knots tied up with past FF&C doctrine, and I really thought this would have been a great opportunity to untie some of them.

  • Nick Gotts

    Sh*t, why should atheists have to account for atheism? Atheism began this morning, and it has no history at all.

    I, in the other hand, will be apologizing for eternity for the Crusades, the suppression of the Albigensians, the Inquisition, Galileo, slavery, Nazi collaboration, pedophilia, etc.

    Atheism means, unlike Catholicism, never having to say you’re sorry. – Michael Egnor, slanderous liar, egregious hypocrite, blatant racist, Malthusian, and master of false equivalences@

    As far as I recall, on every thread in which you have appeared here, you have attacked people on the grounds – often false – that they are members or supporters of an organization you dispprove of, the Democratic Party, and primarily, on the grounds of what that organization, or members of it, did in the past, irrespective of subsequent changes in its policies and practices. Now you whine and whinge because you are given a dose of your own medicine, like the shameless hypocrite and moral and intellectual coward you are. If you want to attack atheists for the activities of atheist organizations of which they are not members, then you will need to apologise not just for the crimes of the Catholic Church – of which you choose to be a member – but of every Abrahamist organization* in history. I suggest you begin writing out a full apology now, covering the activities of every officially Christian, Jewish or Muslim state, every officially constituted sect or activist group of these religions (so don’t miss out Al Qaeda and ISIS), the LDS and its various offshoots, the Tàipíng Tiānguó, the Bahai Faith, the Mandeans, and any other group I’ve forgotten which traces, or claims to trace, its tenets to those of the god of Abraham. Come back and tell us when you’ve finished, and we’ll go over it to make sure you haven’t left anything out. Once we’re satisfied, you will be entitled to go back to blaming all atheists for Stalin and Pol Pot. Alternatively, you could try focusing on the specific issues relevant to the thread – but I suspect you know you come off very badly when you try that, and that’s why you constantly revert to the dingy past of the Democrat [sic] Party.

    Incidentally, lackwit, writing “Sh*t” instead of “Shit” doesn’t mean you have not used a profanity, it just means you are too much of a moral coward to admit you are doing so.

    *I’m being generous here – I could have included all theistic organizations, bringing in Hindu, Sikh, Shinto, Graeco-Roman paganism and Emperor worship, etc., etc.

  • StevoR

    @59. The deliberately and willfully Egnorant piece of Dogshit : So, Egnor is the current Rethugliklan (aka Republican but the current party has disgraced its former incarnations too badly to deserve that name)party just a bit less awfully racist & bigoted than the Nazis or are they as racist and bigoted or more so than them? 😉

  • Nomad

    Hey Duke, any chance you’ll actually return to the subject of same sex marriage? Or are you still running full tilt, legs pumping and lungs burning, fearful that the second you stop you’ll realize how completely bankrupt your position is?

    I mean, fucking communism? Really? I’d ask why you didn’t go straight to Nazism, but oh yeah, that’s right, the Catholics got there first.

  • StevoR

    @ ^ 122 & 110. Dingojack :

    So, back to the actual argument:

    a) What harm or burden does Marriage Equality impose on you?

    b) How would you demonstrate such harm or burden?

    c) If you can’t demonstrate these harms or burden, why do you think you have standing?

    d) What new laws or statues have been created by this ruling?

    e) Why should every new interpretation of the application of the law be put to a plebiscite?

    f) What form should this plebiscite take?

    That’ll do for now — answer those questions (if you dare) Lil Dookie

    Dingo

    (Bolding original spacing added.)

    I bet y’all the cowardly, vile piece of Dogshit doesn’t answer running away to troll the same ole shit another day and run away again then too.

    FWIW. My answer to the question @ 122 is that whilst the Rethuliklan party pushed ever further to the Sednan Far Reich by the Teablaggards is about equally bigoted. (Or not too far off it.) They may not have killed as many as the Nazis did but given their rhetoric and constant frothing at the mouth* hatred as exposed on , oh, say, this blog since, well, how long has this blog been going – and before – that sure isn’t for lack of desire or vile hatefulness on their part. Thank fuck they have been kept out of power or who knows how much harm they’d have done already.

    PS. Hey Duke’s Dog’s Shit : For someone who constantly fecally vomits excrement out your fingertips here ya sure have a weird aversion to typing out swear words! What do you think it proves and do you also do the same thing with the n-word in public in Real Life &online for that matter?

    ——————————————————————————

    * Plus frothing out from other areas eh, Mr “Frothymix” Santorum!

  • colnago80

    Re llewelly @ #118

    He’s happy to return to the cold war rhetoric of Senator Joseph McCarthy (another Catholic Republican, anti-gay bigot, hm)

    McCarthy’s closest aide, Roy Cohn, was a closeted gay man, who eventually died of AIDS and McCarthy himself was reputed to be a switch hitter. This in addition to being an alcoholic who eventually died of complications due to excessive drinking. Historian Allen Weinstein has pointed out that all the alleged Communists in the State Department had been removed before McCarthy’s hearings began so that his claim that there were 120 Communists (the number varied from speech to speech) employed there at the time of the hearings, or, in fact, any at all, is completely fictional. At the time, reporters for the lamestream media palled around with McCarthy as drinking buddies and printed his claims with little or no critical thinking (sounds familiar).

  • dingojack

    Stevo – I’m not seriously expecting Lil Dookie to answer any questions, for obvious reasons. No doubt he’ll do his usual gish-gallop posting of a number of irrelevant memes and links to Stormfront (or the equivalent), call me a liberal, commie, pinko Democrat* and smugly contend his work is done.

    And then I’ll ask him again (if only to further highlight his mental and moral bankruptcy) …

    Dingo

    ———

    * Although what he’s got against Don Chipp, Natasha Stott Despoja et al. I’ve no idea…

  • StevoR

    Still no answers to the questions asked of him above here from the cowardly piece of Dogshit thought to be Dr Egnor – how very predictable from that worthless unChristian coward who makes every cause and claim he supposedly supports look even worse than it already is by associating his vile hateful shit and drivel with it. Nice job fuckwit Dogshit, whoever you really are.