18 ms·

I'm glad that my LBG friends can now marry anywhere. But damn, Scalia's counter opinion (and Roberts' opinion) strike me as well-considered and well-argued in t

I'm glad that my LBG friends can now marry anywhere. But damn, Scalia's counter opinion (and Roberts' opinion) strike me as well-considered and well-argued in the 2nd half of http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf . In brief, their view was that resolving this issue in the courts erodes the democratic process. Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? Why is this class of license inequity different than other classes, where the states' right to license something is not resolved by SCOTUS?

gibsonje 11y ago
This is a case of states violating the constitution of the united states. It's a pretty clear violation of equal protection. It's not up to the states to decide this. Rights of a minority should not be left to the democratic process.
- elmin 11y ago
  If that's how the equal protection clause works, why was it necessary to pass the Civil Rights Act as a law or Woman's Sufferage as an amendment? Based on the state of civil rights at the time, it's clear that the founding fathers did not intend the constitution to provide universal equality for all peoples. I agree with this decision, but not because I think it's justifiable under the constitution. I see it as acceptable because I believe one of the unspoken roles of the Supreme Court is to be a group of 9 people who are a bit more wise than the average American.
  - hackuser 11y ago
    > the founding fathers did not intend the constitution to provide universal equality for all peoples In fact, they agreed that some people should be slaves to others and only landholding white males should vote. But the founding fathers intentions are not decisive or necessarily even important (and relying on grasping their intentions is, as I understand it, is not a legal principle but just one philosophy of many). To emphasize the difference in perspectives: This is not a religion; the Founding Fathers are not gods, and they did not hand down scripture to us. They were the citizens of their day, they did what they did (I think they did very well), and we are the citizens of our day, to do what we think best. That's the essence of democracy; the Constitution and country are now ours, not the property or responsibility of 18th century or 19th century or any other ancestors; they belong to the people, to make of it what we will. If you think about it, it's a very conservative and pessmistic idea to say we must appeal to these ancient authorities to decide things for us, that we can't do it ourselves just as well (and if you read about the people and politics of that era, you will see they were no different than us). A more optimistic and I think democratic point of view is to say (it's a well-known idea but I don't know who I'm quoting ...), "We are the ones we've been waiting for'.
    - chc 11y ago
      The point is not that the Founding Fathers were mortal incarnations of the divine. The point is that the law has to have a meaning or else it is literally meaningless. If we use the law like tea leaves and just read in whatever meaning we want, whether or not it's what the law is actually supposed to mean, that puts us in a precarious position. Maybe today "equal protection" means that gays should be allowed to marry, but tomorrow it means that everyone should be equally protected from being hit on by gays. That's not a good footing for our society to be on.
      - drivingmenuts 11y ago
        > That's not a good footing for our society to be on. That's actually very good footing for our society to be on. It means that the law can change as society changes over time. Future societies will not be bound to outdated precepts established by people who have never lived in their world. We tend to think of laws as these unchanging concepts, perfectly created, but they are not. Ultimately laws are created by mankind and interpreted by the same. We may believe that they derive from a higher power, but we have no absolute proof of that higher power and thus, the law must begin and end with Man. If some deity is willing to descend to the mortal plane and lay down The Law, then he/she or it welcome to do so. Until then, we are stuck with the best that we ourselves can do.
        hackuser 11y ago
        > We tend to think of laws as these unchanging concepts ... I think the best analogy here is, people tend to think of them as code.
        sfeng 11y ago
        It's the job of the legislature to change the laws, not the courts.
        hackuser 11y ago
        > It's the job of the legislature to change the laws, not the courts. Not according to our system of laws. The courts are empowered to change laws that conflict with others, particularly with laws superior to the one in question; in this case the laws in the Constitution overrule state laws. Also, the courts are responsible for interpreting laws, and therefore can change them in that way too.
  - themartorana 11y ago
    There's an often referenced and interesting argument from the TV show The West Wing where a republican woman argues against the ERA (Equal Rights Amendment) based on the same question - passing an amendment saying women are equal somehow implies they weren't under Article 14 of the Constitution. https://www.youtube.com/watch?v=PQIkLTLf_IQ https://www.youtube.com/watch?v=PQIkLTLf_IQ
  - steego 11y ago
    The Civil Rights Act was not a prerequisite for interracial marriage. It was decided in Loving v. Virginia. (http://www.oyez.org/cases/1960-1969/1966/1966_395 http://www.oyez.org/cases/1960-1969/1966/1966_395) A constitutional amendment was necessary for women's suffrage because the constitution already spoke on the issue
  - ddoolin 11y ago
    Even though Scalia probably agrees with your unspoken rule, he doesn't reach the same conclusion because of it: (Scalia, I): "...Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers, who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation..."
- quizotic 11y ago
  Yes, but why this minority? Why not allow 12 year olds to marry as a consititutional right? Why not allow brothers and sisters to marry? I'm not trying to make a slippery slope argument. I'm really asking. States license things all the time, and the conditions of their licenses block certain people from doing certain things. Why are the courts blocking the right of states to license this activity (marriage) in this particular case? Again, I'm personally happy with the outcome. It feels as wrong to me to say the LGBT can't marry as it would to say an interracial couple can't marry. But Scalia asks what the legal reasoning is, not whether it's the right outcome. What's different about this minority or this situation?
  - hackuser 11y ago
    12 year olds, and brothers and sisters, are not oppressed minorities facing a long history of brutal discrimination.
    - MajorLOL 11y ago
      Pre-requisite for protections under law; "long and brutal history of discrimination" - hackuser Sorry white people, you can't be protected under law, you haven't been brutally oppressed for long enough, just a couple more years than we can protect you.
    - chralieboy 11y ago
      The opinion very specifically did _not_ provided any protected status to gays and lesbians. Persecution had nothing to do with it.
    - MBlume 11y ago
      >12 year olds [...] are not oppressed minorities facing a long history of brutal discrimination. No, they absolutely are -- not in a way that really bears on whether they should get married, but seriously, have you been 12? Ever spent five minutes inside a Jr. High?
      - mgkimsal 11y ago
- netfire 11y ago
  Can you specify what part of the constitution is being violated here? There are amendments that protect race, color, gender, etc. Protection based on sexual orientation doesn't seem to be covered, at least not specifically. In my mind, the correct solution to this issue should have been legislative (that is, add an amendment to the constitution), not judicial.
  - sremani 11y ago
    That is correct. Change in attitude can be reflected by due legislative process, but some of the liberal victories always believed in Fiat, either from the POTUS or SCOTUS.
  - mikeash 11y ago
    This really has nothing to do with sexual orientation. It's not gay marriage, it's same-sex marriage. This is a subtle but extremely important distinction. Gay people have always been allowed to marry. They haven't been allowed to marry the people they want, but a gay man was allowed to marry a gay woman in every state in the union. Similarly, straight people were not allowed to marry other straight people of the same sex. Marriage is just a matter of straight-up sex discrimination. Bob can marry Jane but Susan can't, because Bob is a man and Susan is a woman. That's clearly discrimination based purely on the sex of the participants (and not the sexual orientation, which is merely the thing that might cause Susan to want to do this, but not relevant to whether it's allowed) and IMO a clear violation of the equal protection clause. Laws are supposed to be sex blind. If a man can legally do something, a woman should be able to legally do it as well. That was not the case with marriage before this decision.
    - netfire 11y ago
      I should have phrased my earlier comment more specific to same-sex marriage, that's true. I don't think your second argument that marriage is sex discrimination is valid though. As you point out, both men and women have been allowed to enter into non same-sex marriages, regardless of their orientation or gender. What's in question here is whether its discriminatory to not allow same-sex marriages to occur and whether states should be able to determine what marriage means and restrict it accordingly. Marriage has traditionally been between a man and a woman and certainly wasn't intended to be part of the 14th amendment when it was added to the constitution in 1868. To add it more than 100 years later seems like a case of the judicial branch legislating and adding to the law, more than interpreting existing law in the context and intent of which it was passed.
- netfire 11y ago
  Rights of a minority should not be left to the democratic process. If the constitution and the its amendments, which protect minority rights (and people's rights in general) aren't the result of a democratic legislative process, what are they a result of? The question is whether the current constitutional legislation provides these minority rights. The court's role is to interpret existing laws, not add to them because it thinks its the right thing to do. That's the legislature's role.
lisper 11y ago
> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? For the same reason that slavery couldn't be resolved by the states. For the same reason that racism can't be resolved by the states. Because these things haven't gotten resolved by states. The United States of America, sadly, has a significant minority of people who Just Don't Get It, and there are enough of them that if (when) they congregate they can form majorities in a number of states. And so the federal government needs to step in and dope-slap these people from time to time.
- madmax96 11y ago
  I think that gay marriage should be legal, but I disagree with this. Beware of the fallacy of analogy! There is no economic incentive for a state not to allow gay marriage, there was an economic incentive for states to keep slaves. Also, it wasn't the supreme court that ended up freeing the slaves...
  - lisper 11y ago
    There was no economic incentive to ban interracial marriage either. That didn't stop many states from doing it. And there are economic disincentives to racial discrimination. That didn't stop it from being institutionalized for decades. And I didn't say the supreme court needs to step in, I said the federal government needs to step in.
    - madmax96 11y ago
      I could agree with the federal government stepping in, just not the court.
  - borski 11y ago
    I agree with this being a fallacy of analogy, but yours is the wrong point. There is absolutely economic reason to prevent gay marriage - lower taxes for married couples, for one thing.
- angersock 11y ago
npinguy 11y ago
The same reason that the Civil Rights act had to be passed in the courts and the first students in integrated schools in the south had to be marched in with armed guard. "Democracy" is frequently used interchangeably with freedom, but never underestimate the power of a close-minded majority to rule with tyranny and impose their will and discrimination on a minority - racial, sexually-orientatated, or otherwise.
- jrs235 11y ago
  "the Civil Rights act had to be passed in the courts" What?
  - edent 11y ago
    https://en.m.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._United_States https://en.m.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._Un...
    - jrs235 11y ago
      OP should have written: "The same reason that the Civil Rights act had to be UPHELD in the courts".
tych0 11y ago
What happens when a member of a gay couple gets sick in a state that doesn't recognize gay marriages? What do gay couples do when they file their federal taxes?
- SilasX 11y ago
  They file with different statuses on the different tax forms. If there were a constitutional right to easy income tax filing, we'd be in violation for a long time now :-p
- giaour 11y ago
  Currently, you can file your federal taxes as "married" if you got married in any state that recognizes marriage equality. This right does not end when you move to a different state, so there are couples who have to file as two singles in Alabama but as married to the federal government because they got married in Vermont. So, the answer to your second question is: status quo. The first question would probably decided by a judge.
- FireBeyond 11y ago
  They don't get to see their loved one in the hospital as a "family member". As has happened countless times.
shepardrtc 11y ago
Marriage is a legally-binding contract. Since it is in the domain of public law, allowing religious beliefs to support or interfere with it would, in essence, allow the religion to be intertwined with the state itself. So, in my humble opinion, separation of church and state alone would require it to be legal for all people. In addition, just as states can't pass a law to allow for racial segregation of contracts, they can't pass a law to allow for class-based segregation of contracts. Of course, I am far from a lawyer, and this is a pure layman's point of view.
- sigzero 11y ago
  I totally agree with this. Once the Government became the granter of marriage it moved the whole argument over to the SECULAR realm.
discardorama 11y ago
> In brief, their view was that resolving this issue in the courts erodes the democratic process. Basic human rights should not be subject to the "democratic process".
mhurron 11y ago
> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? Why should the States have the rights to prevent the exercise of a citizens civil rights granted by the US Constitution? The Constitiution, and the Bill of Rights explicitly, exists because there are things that are just not left up to 'the majority' to come to a democratic decision over. They are rights that were recognized to be inalienable rights. Time and again, courts have had to step in to once again assert that these rights already belong to all citizens because the States have used the democratic process to trample and curtail them even though the highest law of the land already should have put such questions to rest. The Courts ruling says this. "the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." Their dicision is not based on new law, it is simply stating that the US Constitution already recognized these rights. Letting the States decide is letting the States pick and choose what parts of the Constitution they feel like following.
- th0waway 11y ago
  holy crap! "granted by the US Constitution" - wow, where to begin? Here, how about this: our 'rights' are not granted by the Constitution, they are emphasized, publicly proclaimed. The Constitution delineates the rights and responsibilities of the GOVERNMENT. Anything granted can be taken away.
  - pyre 11y ago
    The Constitution 'grants us rights' in the way that it prevents the government from infringing upon them.
  - mhurron 11y ago
    Rights that are not backed by Law do not materially exist. That is why the Bill of Rights (and related documents in other countries) had to be written in the first place.
    - snowwrestler 11y ago
      The debate about the Bill of Rights went like this: For: Let's enumerate some rights, just in case future generations are stupidly literal about things and get confused because it's not all written down for them. Against: Bad idea! By writing some down, we might create the impression that those are the ONLY rights. For: Well then we'll make the 10th Amendment a catch-all, so it's crystal clear that rights exist beyond those we've enumerated so far. ------ So did the 10th Amendment work? It seems like probably not, since people so frequently refer to the Bill of Rights as proof that the Constitution "grants" rights--rather than the intended effect, which is that the Bill of Rights limits government power over rights that already (and always) exist.
hackuser 11y ago
> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? Why is this class of license inequity different than other classes, where the states' right to license something is not resolved by SCOTUS? Certainly with all the imagined legal expertise on HN, someone will answer. I have no expertise, but here's a shot at least from a moral point of view and based on some limited legal and political principles: 1) It can't wait because people are suffering now, today. Read Martin Luther King's 'Letter from a Birmingham Jail', where he points out that people who are not suffering always helpfully advise the oppressed to wait until later, 'until a more convenient time'. After I read that, I began to notice that pattern often. 2) We're not a democracy; we are, and this is essential, a constitutional democracy. Democracy is mob rule, or as someone said (Isaac Asimov?), 'democracy must be more than two wolves and a sheep voting on what's for dinner'. The Contitution, the Bill of Rights in particular, protects minority rights. It's not up to legislatures or the majority to grant or take away those rights. Civil rights are purposely excluded from the democratic process. 3) It's disingenuous to describe an issue of civil rights and the long-time oppression of millions as a dispute over licensing. Was segregation about hotel accommodations? Slavery and women's rights about employment disputes?
- themartorana 11y ago
  We're not a democracy; we are, and this is essential, a constitutional democracy Or even a Constitutional Republic - as you say, we're not a mob-rule democracy.
- Roodgorf 11y ago
  I think your third point is what's most striking about the dissenting opinion. Not providing marriage licenses to couples based on the arbitrary criteria of sex is a deliberate act of denying a specific group of people access to marriage. The women's and civil rights movements went against the traditions of plenty of millennial old cultures such as the "Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs"[0] as well. [0]http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf#page=42 http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf#p...
  - 11y ago
jodah 11y ago
> In brief, their view was that resolving this issue in the courts erodes the democratic process. Sounds like an argument against their existence. They didn't have to take up the case...
tptacek 11y ago
Scalia's argument isn't that marriage equality is an issue for the states. It that it's an issue for the legislature; that is, that the people should decide on it, rather than an interpretation of our secular scripture. It's helpful to remember that the balance of powers were carefully designed, with an overarching purpose of not centralizing power into a monarchy or aristocracy. We are by design not a nation governed by a panel of philosopher-kings. Because the Supreme Court has lifetime tenure --- a design feature intended to isolate the justices from politics, not embed them in it --- there's a lot of tension involved in their powers. Unlike politicians, they can't easily be removed if there's a popular outcry against their decisions. They're the guardians of the Constitution. But the Constitution is first and foremost a document of procedural safeguards: it is most coherently and powerfully understood as a mechanism to ensure that all citizens have open channels to the decision-making of their own governance. The procedures of US government are meant to be zealously protected, but the substance is supposed to be left to the people. So a lot of the dissent in today's result is best read as, "regardless of what we think of marriage equality, who are we to override the decisions of the people?" And further militating against today's substantive intervention by five pro-equality justices is the fact that marriage equality isn't really a process right. Whether or not your marriage is recognized has actually not much bearing on whether you're capable of making your voice heard. Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records. To allow Mississippi to reject a Massachusetts same-sex marriage is to contravene the process set up in the Constitution directly. That can happen, but probably not when the conflict is animated entirely by discrimination against a class of people. All this is just to say: don't be too quick to discard the intellectual argument against Supreme Court-enforced marriage equality. There will be times in your life where the same arguments are going to make a lot more sense, applied to other issues.
- worklogin 11y ago
  >Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records. It's not clear cut as you imply. If it were, Concealed Carry Licenses for handguns would have reciprocity everywhere.
kraig911 11y ago
As a point in examining history the supreme court I thought was usually the case where issues like this bubble up. i.e. Abortion Women Voting (I think?) Corporate Entities etc.
btown 11y ago
Wow. I just read it (for the interested, it starts on page 69 and is well worth the read for anyone even the slightest bit interested in constitutional law), and it brings up some very good points. My counter would be this: Of course it would be hubris to think that SCOTUS can "create 'liberties.'" But that is not what SCOTUS is doing in this case. There's a clear reading of the Bill of Rights where it is up to SCOTUS to clarify the definition of "liberty" or "equal protection" in the 14th Amendment as the general human understanding of human rights expands - as ambiguous language in the amended Constitution, it is very much in the federal judiciary's domain. Now, if the states or the citizens feel strongly that this interpretation oversteps what should be the judiciary's domain, then there's a process for the other branches and the citizenry to tighten the limits of the judiciary's domain. That is the process of a Constitutional amendment. But to say, as Scalia implies, that SCOTUS should wait for an amendment or legislation before being able to expand the interpretation of ambiguous language in the amended Constitution, is counter to the very mandate SCOTUS was given in the first place - it should not wait or falter when a reasonable case is presented to the body, and where constitutional language is ambiguous. I applaud the Court's courage in living up to that mandate today. ... And at the end of the day, Mr. Scalia, when it comes to bodies-not-representative-of-the-human-citizenry broadly interpreting ambigous language in the fundamental Laws, we should truly be glad that this is what we're seeing, not https://en.wikipedia.org/wiki/The_Evitable_Conflict https://en.wikipedia.org/wiki/The_Evitable_Conflict ... :)
woodchuck64 11y ago
"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. " I can change this paragraph only slightly to come up with an absurdity. "The fundamental right to vote does not include a right to make a State change its definition of suffrage. And a State’s decision to maintain the meaning of suffrage (to be those related by blood to the historically dominant culture taking part in the political process) that has persisted in every culture throughout human history can hardly be called irrational." States are not free to define away your rights, it's that simple.
guelo 11y ago
Scalia says striking down campaign finance laws passed by congress and supported by the people was vital but striking down discriminatory marriage laws is extreme judicial overreach. There's no principle there, it's just the politically expedient argument for his ideological battles.
- sytelus 11y ago
  It's surprising that a person with such a strong bias is part of supreme court panel. I'm not saying all judges must be atheists but are people ok with a fundamentalists types from any religion in the supreme court panels? Scalia is a devout traditionalist Catholic, and his son, Paul, is a Catholic priest.[109] Uncomfortable with the changes brought about following Vatican II, Scalia regularly attends the Tridentine Latin Mass in both Chicago and Washington, and has driven long distances to parishes that he felt were more in accord with his beliefs.[110] In a 2013 interview with Jennifer Senior for New York magazine, Scalia was asked if his beliefs extended to the Devil, Scalia stated, "Of course! Yeah, he's a real person. Hey, c'mon, that's standard Catholic doctrine! Every Catholic believes that". When asked if he had seen recent evidence of the Devil, Scalia replied, "You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He's making pigs run off cliffs, he's possessing people and whatnot … What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way".[111] In another 2013 interview, Scalia stated that "In order for capitalism to work, in order for it to produce a good and stable society, traditional Christian virtues are essential".[112] In 2006, Scalia, approached by a reporter upon leaving church, was asked if being a traditionalist Catholic had caused problems for him. He responded by asking, "You know what I say to those people?", and with a gesture, cupping his hand under his chin and flicking his fingers out. The gesture, which was captured by a photographer, was initially reported by the Boston Herald as obscene.
  - lukeholder 11y ago
    > I'm not saying all judges must be atheists So your saying you don't mind if people are a little bit religious as long has they are not fully devout to the principles of their religion?
DannyBee 11y ago
Sorry, but as a lawyer totally in favor of gay marriage, Roberts, at least, is completely right on the legal theory. There has been basically nothing, in the history of our country, considered more of a state right than defining marriage. The supreme court is not a ruling council. Our constitution is about freedom from government intervention, not guaranteed government benefits. The debates over everything in the past that led to amendments looked roughly the same as the debate over same sex marriage. For example, people beat each other on the floor of the senate chamber over slavery. The only difference to this debate is that a court ended it by deciding to change the constitution. This is not how the process is supposed to work. The fact that the majority of the US may be tired of a broken political system does not change this.
- techpeace 11y ago
  As a lawyer, could you explain how denying over 1,000 federal marriage benefits to same-sex couples would be offering them equal protection under the law?
  - yourapostasy 11y ago
    For others who were also interested, the "over 1,000 federal marriage benefits" figure comes from a United States General Accounting Office report to Congress, updated as of 2004. http://www.gao.gov/new.items/d04353r.pdf http://www.gao.gov/new.items/d04353r.pdf
  - DannyBee 11y ago
    First, this is not what laws were challenged. The laws that were challenged are very specific. As roberts says, "petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically" Had they challenged benefits laws, that would change the equal protection analysis significantly. But in this lawsuit, given what they've actually challenged, the normal precedent would be to apply the rational basis test, and nothing stronger. Again, i'll quote roberts, who quotes lawrence: "In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.”" Lawrence, 539 U. S., at 585. (Now, you could argue this isn't a legitimate state interest, but that's a pretty resolved question at this point, and would require overruling about 200 years of precedent on the issue :P) The majority doesn't even bother to argue otherwise. Second, the vast majority of the opinion does not rest on any equal protection claim, and not even the majority takes that argument seriously on these facts given the above. In fact, the majority doesn't even explain how their argument that this is correct works. They don't even spend a paragraph explaining it, just make a conclusory statement. So to answer your question, i don't claim what you are stating would in fact, be offering equal protection, but will point out A. This isn't actually the case before the court B. Resolving that case does not require declaring states must issue same sex marriage licenses. It would probably require that those validly marriage be given the same benefits. SCOTUS is supposed to go out of it's way to not resolve questions not before it, and when they do resolve questions, they generally resolve them in the least sweeping way possible.
aclimatt 11y ago
I believe the issue is that by passing a law prohibiting granting a marriage license to a same-sex couple, a State is violating that couple's Fourteenth Amendment right to life, liberty, and equal protection, among other things. I will admit that there were a lot of high-soaring words that might have covered up the legal basis, but to me, the legal component of the ruling was simply: 1) The court finds that marriage is an inherent part of life and liberty (arguably the shakiest part) 2) A State passing a law prohibiting marriage by one specific group of people is taking away their rights of life and liberty 3) Therefore, said law is found to violate the Fourteenth Amendment which grants life, liberty, and equal protection under the law to all United States citizens, and is thus unconstitutional.
- ticviking 11y ago
  I think that's the Best TL;DR; of the ruling I've found so far. #1 was found by the court almost 80 years ago in Loving vs Virginia[1]. What the court found was that this applied to the rights of same sex couples. The court has been building the legal framework for this for about a decade. They found that Civil Unions must not be legally different from Marriage. From there it was a simple matter of ruling that existing civil rights rulings did in fact apply to LGBT folks. [1] - https://en.wikipedia.org/wiki/Loving_v._Virginia https://en.wikipedia.org/wiki/Loving_v._Virginia
DannyBee 11y ago
Sorry, but as a lawyer totally in favor of gay marriage, Roberts, at least, is completely right on the legal theory. There has been basically nothing, in the history of our country, considered more of a state right than defining marriage. The supreme court is not a ruling council. Our constitution is about freedom from government intervention, not guaranteed government benefits. The debates over everything in the past that led to amendments looked roughly the same as the debate over same sex marriage. The only difference is this time a court ended it by deciding to change the constitution.
- cjbprime 11y ago
  > There has been basically nothing, in the history of our country, considered more of a state right than defining marriage. Care to explain Loving v Virginia?
api 11y ago
I agree with them in a sense -- it's not democratic. Neither was desegregation. As the saying goes: democracy is two wolves and a sheep voting on dinner.
deleted 11y ago
[deleted]
snowwrestler 11y ago
Essentially, the question is whether marriage is a right, or is it a privilege. If it is a right, then it should not be subject to the democratic process in the first place, so taking it out does not count as erosion. If it is a privilege, then it can be granted (or not) through the democratic process. The Court held today that it is a right. Disclaimer--I have not finished reading all the opinions yet.
nmrm2 11y ago
IANAL. FYI, this is a constitutional issue that goes back to the early days of the court. See e.g. https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States https://en.wikipedia.org/wiki/Judicial_review_in_the_United_... The essential response from Kennedy et al. was two-fold: 1. Marriage is a Right because the due process and equal protection clauses were designed to be interpreted broadly as society came to "understand" liberty in new ways. I think this is actually pretty damn accurate -- I have no doubt that some of the founding fathers had slavery on their minds, even though at the time the amendments we're interpreted in that way. 2. Rights are not subject to the "vicissitudes" of public opinion -- the democratic process doesn't get to take away rights. Roberts and Scalia mostly disagreed with (1), but there was very little substance to their argument. Read through the four justifications given by Kennedy. Roberts and Scalia doesn't respond to these. They just sort of complain about a slippery slope to tyranny. But this court is by far less activist than previous courts and we have yet to devolve into a dictatorship-by-SCOTUS. So I'm sceptical of the veracity of their slippery slope argument. It would have been more compelling if that had talked more about this specific case. Roberts and Scalia also made some more practical arguments, e.g. that democratically selected policies are more robust protections because they can hash out the details. I mostly believe that's a false dichotomy because there's very little evidence that courts conferring Rights upon groups of people actually shuts down legislative action or debate on either side of the question. Look at abortion or civil rights. Ultimately, I find this argument extremely ahistorical and massively empirically denied. (As an aside, I think Scalia's "o'weening pride will be our fall" thing was a pretty dickish thing to say, given the overloaded connotations associated with pride in this case.)
haberman 11y ago
Should the courts have waited for the state legislatures in the deep south to desegregate schools? https://en.wikipedia.org/wiki/Brown_v._Board_of_Education#/media/File:Educational_separation_in_the_US_prior_to_Brown_Map.svg https://en.wikipedia.org/wiki/Brown_v._Board_of_Education#/m... Should the courts have waited for the state legislatures in the deep south to legalize interracial marriage? https://en.wikipedia.org/wiki/Interracial_marriage#/media/File:US_miscegenation.svg https://en.wikipedia.org/wiki/Interracial_marriage#/media/Fi... The court needs the power to overrule legislatures because democratic majorities have consistently failed to protect the rights of minorities.
zzleeper 11y ago
You could apply that to a lot of other situations. What about the right to own slaves? Southern states certainly preferred if that was handled at the state and not federal level. Sure, marriage is a "license" but you could make "negro ownership" a license thing and it wouldn't change things.
golemotron 11y ago
The best argument is: that's the way we do it in the US. We've never waited for complete agreement among the states before acting on the Federal level, regardless of whether it is a Constitutional Amendment or a SCOTUS decision. This article shows the number of states that have reached consensus on Women's Suffrage, Interracial Marriage, Prohibition and a few other issues. Same-sex marriage has actually had more consensus than many of those other issues did before SCOTUS jumped in. http://www.bloomberg.com/graphics/2015-pace-of-social-change/ http://www.bloomberg.com/graphics/2015-pace-of-social-change...
TheBeardKing 11y ago
Can you imagine if the repeal of Jim Crow laws had been left to the states? How long would it have been before Mississippi integrated?
peterwwillis 11y ago
Scalia's opinion is that, effectively, the courts should be judging based on Scalia's personal opinion of the "legal culture’s conception of constitutional interpretation". He thinks the culture no longer interprets the constitution in, well, "the right way". In the previous paragraph he points out how, effectively, any majority-leaning set of judges can just invent new rights to assign to the country and they will be permanent [or at least, until a later court overturns them]. And he's right. But this is not news. Presidents have been trying to assign judges that lean their way on issues since... a long-ass time. The judges are human, moral, and they change their minds about how to interpret the law as the mob's mood changes. And he's right that the majority simply shoving it's way down the minority's throat is unjust and is going to breed contempt. When the North defeated the South, racial tension didn't just disappear overnight. Those in the South kept a grudge and an ignorance that persists to this day. We may be using the power of the majority to force the removal of the flag, but those people who find that force offensive will not forget it. We didn't convert them, convince them, or make them understand; we held the proverbial Public Relations gun to our leadership's heads. You ask why the states shouldn't have resolved the issue over time. Should the federal government have allowed some states to continue slavery? We all know it's a crime against humanity now, but what actually makes it a crime? Is it some old english scribbled on some parchment centuries ago? Or is it merely an intangible, unwritten law that reversed itself naturally as society changed over time? The truth is, human civilizations have been morphing and evolving for thousands of years and they aren't going to stop doing so because some old farts had an idea a couple hundred years ago and we're trying to stick to their idea as hard as we can. Never changing, no matter how hard our society demands it, becomes simple fundamentalism, and our country was not founded on fundamentalism. Our country was founded - no matter how trite this sounds - on the idea of liberty over tyranny. We're always going to lean more towards liberty than tyranny. We have a pretty good track record so far of not letting the states or federal government erode our liberty just because of the color of our skin, or our gender, or sexual identity, or religion. We protect people, always. But we don't limit people just because we don't like them or are afraid of them. Any time a state is asking to do that, we will eventually push back hard enough that the state will lose.
vacri 11y ago
> In brief, their view was that resolving this issue in the courts erodes the democratic process. That the issue made it to the supreme court shows that it is following the democratic process laid out in the constitution. If it has to be decided on by SCOTUS, the issue has already been through a number of other checks and balances. SCOTUS decisions are part of the American democratic process, and it's incredibly disingenuous of Scalia to complain about it. Basically the "this is not democratic process!" is a standard dog-whistle cry put forward when conservatives lose a vote. Progressives have their own cries, of course, but "this isn't democratic, and the proof is that I didn't win" is a standard losing conservative trope.
sytelus 11y ago
Scalia is the same clown who opinionated that corporations are people and politicians can accept all the money lobby throws at them anonymously. When he gave this ruling, he never thought his Court was a threat to the democracy or he grossly misinterpreted constitution or completely disregarded founders original intent or violated deeply held belief of most Americans. But apparently gay marriage does all of that for him. His other dissents includes things ranging from teaching creationism in schools (yes, he supported that) to environmental law cases. In all of those dissents he openly accused his colleges for relying on their "private" opinion instead of actually adhering to their job of interpreting constitution. If you look at how he himself did his job so well to interpret constitution so that corporations have same rights as people even years before gay people can dream of, you see how his twisted view of the world is. Overall, I would expect justices in supreme court have display some level of courtesy, dignity and respect to their own colleges on the same bench. Accusing them as being unprofessional, incompetent and even intentionally so malign to declare them threat to nation every time they disagree with him - all these is clear indicator that Scalia is not fit for the bench. Unfortunately people have to suffer through him because of the rule that he can't be replaced til life.

gibsonje 11y ago

This is a case of states violating the constitution of the united states. It's a pretty clear violation of equal protection. It's not up to the states to decide this. Rights of a minority should not be left to the democratic process.

elmin 11y ago
If that's how the equal protection clause works, why was it necessary to pass the Civil Rights Act as a law or Woman's Sufferage as an amendment? Based on the state of civil rights at the time, it's clear that the founding fathers did not intend the constitution to provide universal equality for all peoples. I agree with this decision, but not because I think it's justifiable under the constitution. I see it as acceptable because I believe one of the unspoken roles of the Supreme Court is to be a group of 9 people who are a bit more wise than the average American.
- hackuser 11y ago
  > the founding fathers did not intend the constitution to provide universal equality for all peoples In fact, they agreed that some people should be slaves to others and only landholding white males should vote. But the founding fathers intentions are not decisive or necessarily even important (and relying on grasping their intentions is, as I understand it, is not a legal principle but just one philosophy of many). To emphasize the difference in perspectives: This is not a religion; the Founding Fathers are not gods, and they did not hand down scripture to us. They were the citizens of their day, they did what they did (I think they did very well), and we are the citizens of our day, to do what we think best. That's the essence of democracy; the Constitution and country are now ours, not the property or responsibility of 18th century or 19th century or any other ancestors; they belong to the people, to make of it what we will. If you think about it, it's a very conservative and pessmistic idea to say we must appeal to these ancient authorities to decide things for us, that we can't do it ourselves just as well (and if you read about the people and politics of that era, you will see they were no different than us). A more optimistic and I think democratic point of view is to say (it's a well-known idea but I don't know who I'm quoting ...), "We are the ones we've been waiting for'.
  - chc 11y ago
    The point is not that the Founding Fathers were mortal incarnations of the divine. The point is that the law has to have a meaning or else it is literally meaningless. If we use the law like tea leaves and just read in whatever meaning we want, whether or not it's what the law is actually supposed to mean, that puts us in a precarious position. Maybe today "equal protection" means that gays should be allowed to marry, but tomorrow it means that everyone should be equally protected from being hit on by gays. That's not a good footing for our society to be on.
    - drivingmenuts 11y ago
      > That's not a good footing for our society to be on. That's actually very good footing for our society to be on. It means that the law can change as society changes over time. Future societies will not be bound to outdated precepts established by people who have never lived in their world. We tend to think of laws as these unchanging concepts, perfectly created, but they are not. Ultimately laws are created by mankind and interpreted by the same. We may believe that they derive from a higher power, but we have no absolute proof of that higher power and thus, the law must begin and end with Man. If some deity is willing to descend to the mortal plane and lay down The Law, then he/she or it welcome to do so. Until then, we are stuck with the best that we ourselves can do.
      - hackuser 11y ago
        > We tend to think of laws as these unchanging concepts ... I think the best analogy here is, people tend to think of them as code.
      - sfeng 11y ago
        It's the job of the legislature to change the laws, not the courts.
        hackuser 11y ago
        > It's the job of the legislature to change the laws, not the courts. Not according to our system of laws. The courts are empowered to change laws that conflict with others, particularly with laws superior to the one in question; in this case the laws in the Constitution overrule state laws. Also, the courts are responsible for interpreting laws, and therefore can change them in that way too.
- themartorana 11y ago
  There's an often referenced and interesting argument from the TV show The West Wing where a republican woman argues against the ERA (Equal Rights Amendment) based on the same question - passing an amendment saying women are equal somehow implies they weren't under Article 14 of the Constitution. https://www.youtube.com/watch?v=PQIkLTLf_IQ https://www.youtube.com/watch?v=PQIkLTLf_IQ
- steego 11y ago
  The Civil Rights Act was not a prerequisite for interracial marriage. It was decided in Loving v. Virginia. (http://www.oyez.org/cases/1960-1969/1966/1966_395 http://www.oyez.org/cases/1960-1969/1966/1966_395) A constitutional amendment was necessary for women's suffrage because the constitution already spoke on the issue
- ddoolin 11y ago
  Even though Scalia probably agrees with your unspoken rule, he doesn't reach the same conclusion because of it: (Scalia, I): "...Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers, who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation..."
quizotic 11y ago
Yes, but why this minority? Why not allow 12 year olds to marry as a consititutional right? Why not allow brothers and sisters to marry? I'm not trying to make a slippery slope argument. I'm really asking. States license things all the time, and the conditions of their licenses block certain people from doing certain things. Why are the courts blocking the right of states to license this activity (marriage) in this particular case? Again, I'm personally happy with the outcome. It feels as wrong to me to say the LGBT can't marry as it would to say an interracial couple can't marry. But Scalia asks what the legal reasoning is, not whether it's the right outcome. What's different about this minority or this situation?
- hackuser 11y ago
  12 year olds, and brothers and sisters, are not oppressed minorities facing a long history of brutal discrimination.
  - MajorLOL 11y ago
    Pre-requisite for protections under law; "long and brutal history of discrimination" - hackuser Sorry white people, you can't be protected under law, you haven't been brutally oppressed for long enough, just a couple more years than we can protect you.
  - chralieboy 11y ago
    The opinion very specifically did _not_ provided any protected status to gays and lesbians. Persecution had nothing to do with it.
  - MBlume 11y ago
    >12 year olds [...] are not oppressed minorities facing a long history of brutal discrimination. No, they absolutely are -- not in a way that really bears on whether they should get married, but seriously, have you been 12? Ever spent five minutes inside a Jr. High?
    - mgkimsal 11y ago
netfire 11y ago
Can you specify what part of the constitution is being violated here? There are amendments that protect race, color, gender, etc. Protection based on sexual orientation doesn't seem to be covered, at least not specifically. In my mind, the correct solution to this issue should have been legislative (that is, add an amendment to the constitution), not judicial.
- sremani 11y ago
  That is correct. Change in attitude can be reflected by due legislative process, but some of the liberal victories always believed in Fiat, either from the POTUS or SCOTUS.
- mikeash 11y ago
  This really has nothing to do with sexual orientation. It's not gay marriage, it's same-sex marriage. This is a subtle but extremely important distinction. Gay people have always been allowed to marry. They haven't been allowed to marry the people they want, but a gay man was allowed to marry a gay woman in every state in the union. Similarly, straight people were not allowed to marry other straight people of the same sex. Marriage is just a matter of straight-up sex discrimination. Bob can marry Jane but Susan can't, because Bob is a man and Susan is a woman. That's clearly discrimination based purely on the sex of the participants (and not the sexual orientation, which is merely the thing that might cause Susan to want to do this, but not relevant to whether it's allowed) and IMO a clear violation of the equal protection clause. Laws are supposed to be sex blind. If a man can legally do something, a woman should be able to legally do it as well. That was not the case with marriage before this decision.
  - netfire 11y ago
    I should have phrased my earlier comment more specific to same-sex marriage, that's true. I don't think your second argument that marriage is sex discrimination is valid though. As you point out, both men and women have been allowed to enter into non same-sex marriages, regardless of their orientation or gender. What's in question here is whether its discriminatory to not allow same-sex marriages to occur and whether states should be able to determine what marriage means and restrict it accordingly. Marriage has traditionally been between a man and a woman and certainly wasn't intended to be part of the 14th amendment when it was added to the constitution in 1868. To add it more than 100 years later seems like a case of the judicial branch legislating and adding to the law, more than interpreting existing law in the context and intent of which it was passed.
netfire 11y ago
Rights of a minority should not be left to the democratic process. If the constitution and the its amendments, which protect minority rights (and people's rights in general) aren't the result of a democratic legislative process, what are they a result of? The question is whether the current constitutional legislation provides these minority rights. The court's role is to interpret existing laws, not add to them because it thinks its the right thing to do. That's the legislature's role.

lisper 11y ago

> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? For the same reason that slavery couldn't be resolved by the states. For the same reason that racism can't be resolved by the states. Because these things haven't gotten resolved by states. The United States of America, sadly, has a significant minority of people who Just Don't Get It, and there are enough of them that if (when) they congregate they can form majorities in a number of states. And so the federal government needs to step in and dope-slap these people from time to time.

madmax96 11y ago
I think that gay marriage should be legal, but I disagree with this. Beware of the fallacy of analogy! There is no economic incentive for a state not to allow gay marriage, there was an economic incentive for states to keep slaves. Also, it wasn't the supreme court that ended up freeing the slaves...
- lisper 11y ago
  There was no economic incentive to ban interracial marriage either. That didn't stop many states from doing it. And there are economic disincentives to racial discrimination. That didn't stop it from being institutionalized for decades. And I didn't say the supreme court needs to step in, I said the federal government needs to step in.
  - madmax96 11y ago
    I could agree with the federal government stepping in, just not the court.
- borski 11y ago
  I agree with this being a fallacy of analogy, but yours is the wrong point. There is absolutely economic reason to prevent gay marriage - lower taxes for married couples, for one thing.
angersock 11y ago

npinguy 11y ago

The same reason that the Civil Rights act had to be passed in the courts and the first students in integrated schools in the south had to be marched in with armed guard. "Democracy" is frequently used interchangeably with freedom, but never underestimate the power of a close-minded majority to rule with tyranny and impose their will and discrimination on a minority - racial, sexually-orientatated, or otherwise.

jrs235 11y ago
"the Civil Rights act had to be passed in the courts" What?
- edent 11y ago
  https://en.m.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._United_States https://en.m.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._Un...
  - jrs235 11y ago
    OP should have written: "The same reason that the Civil Rights act had to be UPHELD in the courts".

tych0 11y ago

What happens when a member of a gay couple gets sick in a state that doesn't recognize gay marriages? What do gay couples do when they file their federal taxes?

SilasX 11y ago
They file with different statuses on the different tax forms. If there were a constitutional right to easy income tax filing, we'd be in violation for a long time now :-p
giaour 11y ago
Currently, you can file your federal taxes as "married" if you got married in any state that recognizes marriage equality. This right does not end when you move to a different state, so there are couples who have to file as two singles in Alabama but as married to the federal government because they got married in Vermont. So, the answer to your second question is: status quo. The first question would probably decided by a judge.
FireBeyond 11y ago
They don't get to see their loved one in the hospital as a "family member". As has happened countless times.

shepardrtc 11y ago

Marriage is a legally-binding contract. Since it is in the domain of public law, allowing religious beliefs to support or interfere with it would, in essence, allow the religion to be intertwined with the state itself. So, in my humble opinion, separation of church and state alone would require it to be legal for all people. In addition, just as states can't pass a law to allow for racial segregation of contracts, they can't pass a law to allow for class-based segregation of contracts. Of course, I am far from a lawyer, and this is a pure layman's point of view.

sigzero 11y ago
I totally agree with this. Once the Government became the granter of marriage it moved the whole argument over to the SECULAR realm.

discardorama 11y ago

> In brief, their view was that resolving this issue in the courts erodes the democratic process. Basic human rights should not be subject to the "democratic process".

mhurron 11y ago

> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? Why should the States have the rights to prevent the exercise of a citizens civil rights granted by the US Constitution? The Constitiution, and the Bill of Rights explicitly, exists because there are things that are just not left up to 'the majority' to come to a democratic decision over. They are rights that were recognized to be inalienable rights. Time and again, courts have had to step in to once again assert that these rights already belong to all citizens because the States have used the democratic process to trample and curtail them even though the highest law of the land already should have put such questions to rest. The Courts ruling says this. "the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." Their dicision is not based on new law, it is simply stating that the US Constitution already recognized these rights. Letting the States decide is letting the States pick and choose what parts of the Constitution they feel like following.

th0waway 11y ago
holy crap! "granted by the US Constitution" - wow, where to begin? Here, how about this: our 'rights' are not granted by the Constitution, they are emphasized, publicly proclaimed. The Constitution delineates the rights and responsibilities of the GOVERNMENT. Anything granted can be taken away.
- pyre 11y ago
  The Constitution 'grants us rights' in the way that it prevents the government from infringing upon them.
- mhurron 11y ago
  Rights that are not backed by Law do not materially exist. That is why the Bill of Rights (and related documents in other countries) had to be written in the first place.
  - snowwrestler 11y ago
    The debate about the Bill of Rights went like this: For: Let's enumerate some rights, just in case future generations are stupidly literal about things and get confused because it's not all written down for them. Against: Bad idea! By writing some down, we might create the impression that those are the ONLY rights. For: Well then we'll make the 10th Amendment a catch-all, so it's crystal clear that rights exist beyond those we've enumerated so far. ------ So did the 10th Amendment work? It seems like probably not, since people so frequently refer to the Bill of Rights as proof that the Constitution "grants" rights--rather than the intended effect, which is that the Bill of Rights limits government power over rights that already (and always) exist.

hackuser 11y ago

> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? Why is this class of license inequity different than other classes, where the states' right to license something is not resolved by SCOTUS? Certainly with all the imagined legal expertise on HN, someone will answer. I have no expertise, but here's a shot at least from a moral point of view and based on some limited legal and political principles: 1) It can't wait because people are suffering now, today. Read Martin Luther King's 'Letter from a Birmingham Jail', where he points out that people who are not suffering always helpfully advise the oppressed to wait until later, 'until a more convenient time'. After I read that, I began to notice that pattern often. 2) We're not a democracy; we are, and this is essential, a constitutional democracy. Democracy is mob rule, or as someone said (Isaac Asimov?), 'democracy must be more than two wolves and a sheep voting on what's for dinner'. The Contitution, the Bill of Rights in particular, protects minority rights. It's not up to legislatures or the majority to grant or take away those rights. Civil rights are purposely excluded from the democratic process. 3) It's disingenuous to describe an issue of civil rights and the long-time oppression of millions as a dispute over licensing. Was segregation about hotel accommodations? Slavery and women's rights about employment disputes?

themartorana 11y ago
We're not a democracy; we are, and this is essential, a constitutional democracy Or even a Constitutional Republic - as you say, we're not a mob-rule democracy.
Roodgorf 11y ago
I think your third point is what's most striking about the dissenting opinion. Not providing marriage licenses to couples based on the arbitrary criteria of sex is a deliberate act of denying a specific group of people access to marriage. The women's and civil rights movements went against the traditions of plenty of millennial old cultures such as the "Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs"[0] as well. [0]http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf#page=42 http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf#p...
- 11y ago

jodah 11y ago

> In brief, their view was that resolving this issue in the courts erodes the democratic process. Sounds like an argument against their existence. They didn't have to take up the case...

tptacek 11y ago

Scalia's argument isn't that marriage equality is an issue for the states. It that it's an issue for the legislature; that is, that the people should decide on it, rather than an interpretation of our secular scripture. It's helpful to remember that the balance of powers were carefully designed, with an overarching purpose of not centralizing power into a monarchy or aristocracy. We are by design not a nation governed by a panel of philosopher-kings. Because the Supreme Court has lifetime tenure --- a design feature intended to isolate the justices from politics, not embed them in it --- there's a lot of tension involved in their powers. Unlike politicians, they can't easily be removed if there's a popular outcry against their decisions. They're the guardians of the Constitution. But the Constitution is first and foremost a document of procedural safeguards: it is most coherently and powerfully understood as a mechanism to ensure that all citizens have open channels to the decision-making of their own governance. The procedures of US government are meant to be zealously protected, but the substance is supposed to be left to the people. So a lot of the dissent in today's result is best read as, "regardless of what we think of marriage equality, who are we to override the decisions of the people?" And further militating against today's substantive intervention by five pro-equality justices is the fact that marriage equality isn't really a process right. Whether or not your marriage is recognized has actually not much bearing on whether you're capable of making your voice heard. Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records. To allow Mississippi to reject a Massachusetts same-sex marriage is to contravene the process set up in the Constitution directly. That can happen, but probably not when the conflict is animated entirely by discrimination against a class of people. All this is just to say: don't be too quick to discard the intellectual argument against Supreme Court-enforced marriage equality. There will be times in your life where the same arguments are going to make a lot more sense, applied to other issues.

worklogin 11y ago
>Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records. It's not clear cut as you imply. If it were, Concealed Carry Licenses for handguns would have reciprocity everywhere.

kraig911 11y ago

As a point in examining history the supreme court I thought was usually the case where issues like this bubble up. i.e. Abortion Women Voting (I think?) Corporate Entities etc.

btown 11y ago

Wow. I just read it (for the interested, it starts on page 69 and is well worth the read for anyone even the slightest bit interested in constitutional law), and it brings up some very good points. My counter would be this: Of course it would be hubris to think that SCOTUS can "create 'liberties.'" But that is not what SCOTUS is doing in this case. There's a clear reading of the Bill of Rights where it is up to SCOTUS to clarify the definition of "liberty" or "equal protection" in the 14th Amendment as the general human understanding of human rights expands - as ambiguous language in the amended Constitution, it is very much in the federal judiciary's domain. Now, if the states or the citizens feel strongly that this interpretation oversteps what should be the judiciary's domain, then there's a process for the other branches and the citizenry to tighten the limits of the judiciary's domain. That is the process of a Constitutional amendment. But to say, as Scalia implies, that SCOTUS should wait for an amendment or legislation before being able to expand the interpretation of ambiguous language in the amended Constitution, is counter to the very mandate SCOTUS was given in the first place - it should not wait or falter when a reasonable case is presented to the body, and where constitutional language is ambiguous. I applaud the Court's courage in living up to that mandate today. ... And at the end of the day, Mr. Scalia, when it comes to bodies-not-representative-of-the-human-citizenry broadly interpreting ambigous language in the fundamental Laws, we should truly be glad that this is what we're seeing, not https://en.wikipedia.org/wiki/The_Evitable_Conflict https://en.wikipedia.org/wiki/The_Evitable_Conflict ... :)

woodchuck64 11y ago

"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. " I can change this paragraph only slightly to come up with an absurdity. "The fundamental right to vote does not include a right to make a State change its definition of suffrage. And a State’s decision to maintain the meaning of suffrage (to be those related by blood to the historically dominant culture taking part in the political process) that has persisted in every culture throughout human history can hardly be called irrational." States are not free to define away your rights, it's that simple.

guelo 11y ago

Scalia says striking down campaign finance laws passed by congress and supported by the people was vital but striking down discriminatory marriage laws is extreme judicial overreach. There's no principle there, it's just the politically expedient argument for his ideological battles.

sytelus 11y ago
It's surprising that a person with such a strong bias is part of supreme court panel. I'm not saying all judges must be atheists but are people ok with a fundamentalists types from any religion in the supreme court panels? Scalia is a devout traditionalist Catholic, and his son, Paul, is a Catholic priest.[109] Uncomfortable with the changes brought about following Vatican II, Scalia regularly attends the Tridentine Latin Mass in both Chicago and Washington, and has driven long distances to parishes that he felt were more in accord with his beliefs.[110] In a 2013 interview with Jennifer Senior for New York magazine, Scalia was asked if his beliefs extended to the Devil, Scalia stated, "Of course! Yeah, he's a real person. Hey, c'mon, that's standard Catholic doctrine! Every Catholic believes that". When asked if he had seen recent evidence of the Devil, Scalia replied, "You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He's making pigs run off cliffs, he's possessing people and whatnot … What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way".[111] In another 2013 interview, Scalia stated that "In order for capitalism to work, in order for it to produce a good and stable society, traditional Christian virtues are essential".[112] In 2006, Scalia, approached by a reporter upon leaving church, was asked if being a traditionalist Catholic had caused problems for him. He responded by asking, "You know what I say to those people?", and with a gesture, cupping his hand under his chin and flicking his fingers out. The gesture, which was captured by a photographer, was initially reported by the Boston Herald as obscene.
- lukeholder 11y ago
  > I'm not saying all judges must be atheists So your saying you don't mind if people are a little bit religious as long has they are not fully devout to the principles of their religion?

DannyBee 11y ago

Sorry, but as a lawyer totally in favor of gay marriage, Roberts, at least, is completely right on the legal theory. There has been basically nothing, in the history of our country, considered more of a state right than defining marriage. The supreme court is not a ruling council. Our constitution is about freedom from government intervention, not guaranteed government benefits. The debates over everything in the past that led to amendments looked roughly the same as the debate over same sex marriage. For example, people beat each other on the floor of the senate chamber over slavery. The only difference to this debate is that a court ended it by deciding to change the constitution. This is not how the process is supposed to work. The fact that the majority of the US may be tired of a broken political system does not change this.

techpeace 11y ago
As a lawyer, could you explain how denying over 1,000 federal marriage benefits to same-sex couples would be offering them equal protection under the law?
- yourapostasy 11y ago
  For others who were also interested, the "over 1,000 federal marriage benefits" figure comes from a United States General Accounting Office report to Congress, updated as of 2004. http://www.gao.gov/new.items/d04353r.pdf http://www.gao.gov/new.items/d04353r.pdf
- DannyBee 11y ago
  First, this is not what laws were challenged. The laws that were challenged are very specific. As roberts says, "petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically" Had they challenged benefits laws, that would change the equal protection analysis significantly. But in this lawsuit, given what they've actually challenged, the normal precedent would be to apply the rational basis test, and nothing stronger. Again, i'll quote roberts, who quotes lawrence: "In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.”" Lawrence, 539 U. S., at 585. (Now, you could argue this isn't a legitimate state interest, but that's a pretty resolved question at this point, and would require overruling about 200 years of precedent on the issue :P) The majority doesn't even bother to argue otherwise. Second, the vast majority of the opinion does not rest on any equal protection claim, and not even the majority takes that argument seriously on these facts given the above. In fact, the majority doesn't even explain how their argument that this is correct works. They don't even spend a paragraph explaining it, just make a conclusory statement. So to answer your question, i don't claim what you are stating would in fact, be offering equal protection, but will point out A. This isn't actually the case before the court B. Resolving that case does not require declaring states must issue same sex marriage licenses. It would probably require that those validly marriage be given the same benefits. SCOTUS is supposed to go out of it's way to not resolve questions not before it, and when they do resolve questions, they generally resolve them in the least sweeping way possible.

aclimatt 11y ago

I believe the issue is that by passing a law prohibiting granting a marriage license to a same-sex couple, a State is violating that couple's Fourteenth Amendment right to life, liberty, and equal protection, among other things. I will admit that there were a lot of high-soaring words that might have covered up the legal basis, but to me, the legal component of the ruling was simply: 1) The court finds that marriage is an inherent part of life and liberty (arguably the shakiest part) 2) A State passing a law prohibiting marriage by one specific group of people is taking away their rights of life and liberty 3) Therefore, said law is found to violate the Fourteenth Amendment which grants life, liberty, and equal protection under the law to all United States citizens, and is thus unconstitutional.

ticviking 11y ago
I think that's the Best TL;DR; of the ruling I've found so far. #1 was found by the court almost 80 years ago in Loving vs Virginia[1]. What the court found was that this applied to the rights of same sex couples. The court has been building the legal framework for this for about a decade. They found that Civil Unions must not be legally different from Marriage. From there it was a simple matter of ruling that existing civil rights rulings did in fact apply to LGBT folks. [1] - https://en.wikipedia.org/wiki/Loving_v._Virginia https://en.wikipedia.org/wiki/Loving_v._Virginia

DannyBee 11y ago

Sorry, but as a lawyer totally in favor of gay marriage, Roberts, at least, is completely right on the legal theory. There has been basically nothing, in the history of our country, considered more of a state right than defining marriage. The supreme court is not a ruling council. Our constitution is about freedom from government intervention, not guaranteed government benefits. The debates over everything in the past that led to amendments looked roughly the same as the debate over same sex marriage. The only difference is this time a court ended it by deciding to change the constitution.

cjbprime 11y ago
> There has been basically nothing, in the history of our country, considered more of a state right than defining marriage. Care to explain Loving v Virginia?

api 11y ago

I agree with them in a sense -- it's not democratic. Neither was desegregation. As the saying goes: democracy is two wolves and a sheep voting on dinner.

deleted 11y ago

[deleted]

snowwrestler 11y ago

Essentially, the question is whether marriage is a right, or is it a privilege. If it is a right, then it should not be subject to the democratic process in the first place, so taking it out does not count as erosion. If it is a privilege, then it can be granted (or not) through the democratic process. The Court held today that it is a right. Disclaimer--I have not finished reading all the opinions yet.

nmrm2 11y ago

IANAL. FYI, this is a constitutional issue that goes back to the early days of the court. See e.g. https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States https://en.wikipedia.org/wiki/Judicial_review_in_the_United_... The essential response from Kennedy et al. was two-fold: 1. Marriage is a Right because the due process and equal protection clauses were designed to be interpreted broadly as society came to "understand" liberty in new ways. I think this is actually pretty damn accurate -- I have no doubt that some of the founding fathers had slavery on their minds, even though at the time the amendments we're interpreted in that way. 2. Rights are not subject to the "vicissitudes" of public opinion -- the democratic process doesn't get to take away rights. Roberts and Scalia mostly disagreed with (1), but there was very little substance to their argument. Read through the four justifications given by Kennedy. Roberts and Scalia doesn't respond to these. They just sort of complain about a slippery slope to tyranny. But this court is by far less activist than previous courts and we have yet to devolve into a dictatorship-by-SCOTUS. So I'm sceptical of the veracity of their slippery slope argument. It would have been more compelling if that had talked more about this specific case. Roberts and Scalia also made some more practical arguments, e.g. that democratically selected policies are more robust protections because they can hash out the details. I mostly believe that's a false dichotomy because there's very little evidence that courts conferring Rights upon groups of people actually shuts down legislative action or debate on either side of the question. Look at abortion or civil rights. Ultimately, I find this argument extremely ahistorical and massively empirically denied. (As an aside, I think Scalia's "o'weening pride will be our fall" thing was a pretty dickish thing to say, given the overloaded connotations associated with pride in this case.)

haberman 11y ago

Should the courts have waited for the state legislatures in the deep south to desegregate schools? https://en.wikipedia.org/wiki/Brown_v._Board_of_Education#/media/File:Educational_separation_in_the_US_prior_to_Brown_Map.svg https://en.wikipedia.org/wiki/Brown_v._Board_of_Education#/m... Should the courts have waited for the state legislatures in the deep south to legalize interracial marriage? https://en.wikipedia.org/wiki/Interracial_marriage#/media/File:US_miscegenation.svg https://en.wikipedia.org/wiki/Interracial_marriage#/media/Fi... The court needs the power to overrule legislatures because democratic majorities have consistently failed to protect the rights of minorities.

zzleeper 11y ago

You could apply that to a lot of other situations. What about the right to own slaves? Southern states certainly preferred if that was handled at the state and not federal level. Sure, marriage is a "license" but you could make "negro ownership" a license thing and it wouldn't change things.

golemotron 11y ago

The best argument is: that's the way we do it in the US. We've never waited for complete agreement among the states before acting on the Federal level, regardless of whether it is a Constitutional Amendment or a SCOTUS decision. This article shows the number of states that have reached consensus on Women's Suffrage, Interracial Marriage, Prohibition and a few other issues. Same-sex marriage has actually had more consensus than many of those other issues did before SCOTUS jumped in. http://www.bloomberg.com/graphics/2015-pace-of-social-change/ http://www.bloomberg.com/graphics/2015-pace-of-social-change...

TheBeardKing 11y ago

Can you imagine if the repeal of Jim Crow laws had been left to the states? How long would it have been before Mississippi integrated?

peterwwillis 11y ago

Scalia's opinion is that, effectively, the courts should be judging based on Scalia's personal opinion of the "legal culture’s conception of constitutional interpretation". He thinks the culture no longer interprets the constitution in, well, "the right way". In the previous paragraph he points out how, effectively, any majority-leaning set of judges can just invent new rights to assign to the country and they will be permanent [or at least, until a later court overturns them]. And he's right. But this is not news. Presidents have been trying to assign judges that lean their way on issues since... a long-ass time. The judges are human, moral, and they change their minds about how to interpret the law as the mob's mood changes. And he's right that the majority simply shoving it's way down the minority's throat is unjust and is going to breed contempt. When the North defeated the South, racial tension didn't just disappear overnight. Those in the South kept a grudge and an ignorance that persists to this day. We may be using the power of the majority to force the removal of the flag, but those people who find that force offensive will not forget it. We didn't convert them, convince them, or make them understand; we held the proverbial Public Relations gun to our leadership's heads. You ask why the states shouldn't have resolved the issue over time. Should the federal government have allowed some states to continue slavery? We all know it's a crime against humanity now, but what actually makes it a crime? Is it some old english scribbled on some parchment centuries ago? Or is it merely an intangible, unwritten law that reversed itself naturally as society changed over time? The truth is, human civilizations have been morphing and evolving for thousands of years and they aren't going to stop doing so because some old farts had an idea a couple hundred years ago and we're trying to stick to their idea as hard as we can. Never changing, no matter how hard our society demands it, becomes simple fundamentalism, and our country was not founded on fundamentalism. Our country was founded - no matter how trite this sounds - on the idea of liberty over tyranny. We're always going to lean more towards liberty than tyranny. We have a pretty good track record so far of not letting the states or federal government erode our liberty just because of the color of our skin, or our gender, or sexual identity, or religion. We protect people, always. But we don't limit people just because we don't like them or are afraid of them. Any time a state is asking to do that, we will eventually push back hard enough that the state will lose.

vacri 11y ago

> In brief, their view was that resolving this issue in the courts erodes the democratic process. That the issue made it to the supreme court shows that it is following the democratic process laid out in the constitution. If it has to be decided on by SCOTUS, the issue has already been through a number of other checks and balances. SCOTUS decisions are part of the American democratic process, and it's incredibly disingenuous of Scalia to complain about it. Basically the "this is not democratic process!" is a standard dog-whistle cry put forward when conservatives lose a vote. Progressives have their own cries, of course, but "this isn't democratic, and the proof is that I didn't win" is a standard losing conservative trope.

sytelus 11y ago

Scalia is the same clown who opinionated that corporations are people and politicians can accept all the money lobby throws at them anonymously. When he gave this ruling, he never thought his Court was a threat to the democracy or he grossly misinterpreted constitution or completely disregarded founders original intent or violated deeply held belief of most Americans. But apparently gay marriage does all of that for him. His other dissents includes things ranging from teaching creationism in schools (yes, he supported that) to environmental law cases. In all of those dissents he openly accused his colleges for relying on their "private" opinion instead of actually adhering to their job of interpreting constitution. If you look at how he himself did his job so well to interpret constitution so that corporations have same rights as people even years before gay people can dream of, you see how his twisted view of the world is. Overall, I would expect justices in supreme court have display some level of courtesy, dignity and respect to their own colleges on the same bench. Accusing them as being unprofessional, incompetent and even intentionally so malign to declare them threat to nation every time they disagree with him - all these is clear indicator that Scalia is not fit for the bench. Unfortunately people have to suffer through him because of the rule that he can't be replaced til life.