Post #402,901
6/26/15 12:39:31 PM
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Meh.
From the Opinion of the Court: Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Id., at ___ (slip op., at 15). Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id., at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity. Fundamental rights of everyone need to be protected, independent of restrictive laws and regulations passed by legislatures. That you see this as similar to Bush v. Gore is, er, weird. Roberts writes: In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. Says he who gutted the Voting Rights Act. Yeah, sure, Roberts is the go-to guy when it comes to modesty and restraint. [rolls eyes] Cheers, Scott.
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Post #402,903
6/26/15 1:29:10 PM
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I think you just made my point.
The clip of the decision you quoted speaks of "the rights of persons" being violated, but as Roberts properly points out in his dissent, this "right of same-sex marriage" is purely conjecture, or will, on the part of the majority. That "right" has no basis in law - the majority assumed it without explaining from whence it came. They assumed the existence of a right in order to prove that right was violated. I have one criticism of Roberts' dissent, though. He writes: Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015).
I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal
analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either. It's most emphatically not difficult to see how this court could fail to make the baby step after making the giant leap. You see, the rule of law no longer applies. They're making this up as they go, so anything they want to say becomes law.
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Post #402,911
6/26/15 2:13:28 PM
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You (and Roberts) don't acknowledge the "right to marry" for those who 'don't fit'.
That's what it comes down to.
Marriage isn't, contra-Roberts, about the state saying which couples are worthy. Marriage is a fundamental right that two adults can share.
It's not about procreation, it's not about keeping blood lines pure, it's not about not offending Chuthlu or Odin or Zeus or the FSM.
It is, in the USA in 2015, about two adult people (not any other hypothetical set) making a commitment to each other that is recognized by the state and conferred with certain rights and responsibilities.
See my other reply below in the thread.
Society isn't static. The interpretation of the law isn't static either. SC justices decide what the law means - that's their job.
FWIW.
Cheers,
Scott.
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Post #402,913
6/26/15 2:15:27 PM
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Re: Marriage is a fundamental right that two adults can share.
I agree with you, now. That right was just created out of thin air by the majority.
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Post #402,946
6/26/15 4:37:24 PM
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Finally figured out how to put this
Gay marriage and interracial marriage are equivalent. Multiple marriage is not. Here's why.
There are three people, Alex, Chris and Jordan. None has ever been married.
Alex wants to marry Jordan. The state agrees that Alex may do that.
But what if Chris wants to marry Jordan? If Alex is allowed, by what law can you deny Chris the same right that Alex has? Try to answer without naming a protected class.
Now, what if Alex already has married Jordan? The state says that Chris is not allowed to marry Jordan. The reason why is simple: Jordan is already married. Jordan has taken a voluntary action that has legal consequences.
If you say that Alex can't marry Jordan because of who Jordan is - gender, color, age, etc. - then you're discriminating. If you say that Alex can't marry Jordan because of what Jordan has done - already got married - then it's fair game for legislation.
Note that this doesn't say anything about whether gay marriage, interracial marriage or multiple marriage are good things, or what position the state should take with regards to any of them. Simply pointing out that there is a very clear difference between prohibiting marriage on the basis of gender (or race) and prohibiting marriage on the basis that you are already married.
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Post #402,954
6/26/15 5:29:49 PM
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Good! I wonder if Alito got an answer like that (but am too disinterested now to check. ;-)
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