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> 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

> 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...
- hackuser 11y ago
  > 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. Don't forget that liberal madness about replacing monarchs with elected government!
  - Roodgorf 11y ago
    The audacity! Europeans had feudalism for... as long as I can remember! Who do those colonists think they are?
    - igravious 11y ago
      https://en.wikipedia.org/wiki/Polish%E2%80%93Lithuanian_Commonwealth https://en.wikipedia.org/wiki/Polish%E2%80%93Lithuanian_Comm... 1569–1795 "The Union possessed features unique among contemporary states. Its political system was characterized by strict checks upon monarchical power. These checks were enacted by a legislature (sejm) controlled by the nobility (szlachta). This idiosyncratic system was a precursor to modern concepts of democracy, constitutional monarchy, and federation."
andreyf 11y ago
Legally, you are right. Morally and practically, I'm not so sure. Few hearts and minds are changed as a result of the supreme court's rulings, just the code powering the justice system. Convincing 5 of the top judges is easy compared to convincing the populace, and the latter is more important for the long term goals of equality. Federally legislated social change pushes back the more important goals of social equality and cultural integration. These are arguably more important, as our interactions with marriage laws are a relatively minor part of our lives when compared to our interactions with other people. The historical precedent here is clear, of course - there are no and have been no segregation laws in America for decades as a result of federal action, but you'd be silly to say that segregation does not exist in America.
- rayiner 11y ago
  On the flip side, SCOTUS rulings have the power to accelerate trends already happening in society. Making segregation in schools and in housing illegal does not eliminate racism. But it does lead to a generation of people that aren't raised in schools and neighborhoods that only have people of one race.
- dpark 11y ago
  > Convincing 5 of the top judges is easy compared to convincing the populace About 60% of US residents now support gay marriage and consider it a right, according to the polls. https://en.wikipedia.org/wiki/Public_opinion_of_same-sex_marriage_in_the_United_States#Polls_in_2015 https://en.wikipedia.org/wiki/Public_opinion_of_same-sex_mar...
  - andreyf 11y ago
    I'd be curious how that's distributed. Also, people lie on polls, for the similar reasons as they do if you ask them "are you racist?"
- hackuser 11y ago
  > Today's decision pushes back the more important goals of social equality and cultural integration. ... there are no and have been no segregation laws in America for decades as a result of federal action, but you'd be silly to say the result was that segregation does not exist in America. As a counterpoint: Since the civil rights era, the welfare and integration of the black-skinned Americans has improved dramatically. Some argue that desegregation alienated more hearts and minds than it helped, but I've yet to see any evidence. Certainly American opinions about blacks also have changed dramatically. (But I agree that we do have a long way to go.) > No hearts and no minds are changed as a result of the supreme court rulings, just the code powering the justice system ... I'm not sure no hearts and minds were changed -- I suspect many will reconsider, having seen the decision of a respected institution and the direction of society -- but I agree that you can't do that by court order. But there is a very substantive change: Gay Americans now can get married!
jrs235 11y ago
"The Contitution, the Bill of Rights in particular, protects minority rights"... "minority" should be replace with "individual". An individual is the greatest minority.
- nmrm2 11y ago
  No, "minority" is correct here. Individuals who happen to be members of a majority do not need a Bill of Rights. Individuals who are a member of a minority do. (edit: Holy cow this post got downvotes! If you think this is wrong please go read pretty much literally anything on the topic of the bill of rights by literally any of the founding fathers. Protecting the rights of democratic minorities was a very, very, VERY explicit goal of the bill of rights.)
  - dta5003 11y ago
    No way. As a member of the majority that disagrees with said majority on many issues, I'd like to keep my Bill of Rights please.
    - nmrm2 11y ago
      > that disagrees with said majority We typically call a person who disagrees with the majority a member of the minority. > the majority What majority? There are lots of majorities and lots of minorities -- one for each issue put forward to a group of citizens, and then a bunch of other cultural ones. I doubt anyone is a member of each of those majorities. So yes, everyone needs these individual rights. But the rights were designed to protect individuals when they find themselves in the minority. So saying that the issue is individual rather than minority rights is disingenuous, confusing, and massively ahistorical. Again, many of these rights were explicitly designed to prevent violent mob rule. This issue is not up for debate. It is an historical fact. Go read what the founding fathers wrote about the Bill of rights.
      - jrs235 11y ago
        What specifically can you point me to, what founding father, specifically wrote that the Bill of Rights was to protect minorities and not individuals? I agree the founding fathers drafted the Constitution to prevent mob rule. If a majority agrees we have freedom of speech, then we don't need the first amendment since it only protects minorities and minority opinions? The individual is the greatest minority, the Constitution protects individuals. Regardless of if an individual currently belongs to the/a majority or minority the Bill of Rights protects them. EDIT: In other words, whether or not an individual is in the majority or minority opinion on an issue, the Bill of Rights protects the individuals to freely express their opinion. It's not as if an individual holds the majority opinion than they no longer get 1st Amendment protections. The rights belong to individuals not "minorities" (except in the sense that an individual is the greatest minority). ADD: The founding fathers didn't care about minorities except themselves as individuals. They wrote the Bill of Rights to protect themselves individually.
kenjackson 11y ago
Sometimes an upvote isn't enough. This is probably the most thoughtful writing I've seen on the topic today. Well done for someone that is not an expert. :-)

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...

hackuser 11y ago
> 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. Don't forget that liberal madness about replacing monarchs with elected government!
- Roodgorf 11y ago
  The audacity! Europeans had feudalism for... as long as I can remember! Who do those colonists think they are?
  - igravious 11y ago
    https://en.wikipedia.org/wiki/Polish%E2%80%93Lithuanian_Commonwealth https://en.wikipedia.org/wiki/Polish%E2%80%93Lithuanian_Comm... 1569–1795 "The Union possessed features unique among contemporary states. Its political system was characterized by strict checks upon monarchical power. These checks were enacted by a legislature (sejm) controlled by the nobility (szlachta). This idiosyncratic system was a precursor to modern concepts of democracy, constitutional monarchy, and federation."

andreyf 11y ago

Legally, you are right. Morally and practically, I'm not so sure. Few hearts and minds are changed as a result of the supreme court's rulings, just the code powering the justice system. Convincing 5 of the top judges is easy compared to convincing the populace, and the latter is more important for the long term goals of equality. Federally legislated social change pushes back the more important goals of social equality and cultural integration. These are arguably more important, as our interactions with marriage laws are a relatively minor part of our lives when compared to our interactions with other people. The historical precedent here is clear, of course - there are no and have been no segregation laws in America for decades as a result of federal action, but you'd be silly to say that segregation does not exist in America.

rayiner 11y ago
On the flip side, SCOTUS rulings have the power to accelerate trends already happening in society. Making segregation in schools and in housing illegal does not eliminate racism. But it does lead to a generation of people that aren't raised in schools and neighborhoods that only have people of one race.
dpark 11y ago
> Convincing 5 of the top judges is easy compared to convincing the populace About 60% of US residents now support gay marriage and consider it a right, according to the polls. https://en.wikipedia.org/wiki/Public_opinion_of_same-sex_marriage_in_the_United_States#Polls_in_2015 https://en.wikipedia.org/wiki/Public_opinion_of_same-sex_mar...
- andreyf 11y ago
  I'd be curious how that's distributed. Also, people lie on polls, for the similar reasons as they do if you ask them "are you racist?"
hackuser 11y ago
> Today's decision pushes back the more important goals of social equality and cultural integration. ... there are no and have been no segregation laws in America for decades as a result of federal action, but you'd be silly to say the result was that segregation does not exist in America. As a counterpoint: Since the civil rights era, the welfare and integration of the black-skinned Americans has improved dramatically. Some argue that desegregation alienated more hearts and minds than it helped, but I've yet to see any evidence. Certainly American opinions about blacks also have changed dramatically. (But I agree that we do have a long way to go.) > No hearts and no minds are changed as a result of the supreme court rulings, just the code powering the justice system ... I'm not sure no hearts and minds were changed -- I suspect many will reconsider, having seen the decision of a respected institution and the direction of society -- but I agree that you can't do that by court order. But there is a very substantive change: Gay Americans now can get married!

jrs235 11y ago

"The Contitution, the Bill of Rights in particular, protects minority rights"... "minority" should be replace with "individual". An individual is the greatest minority.

nmrm2 11y ago
No, "minority" is correct here. Individuals who happen to be members of a majority do not need a Bill of Rights. Individuals who are a member of a minority do. (edit: Holy cow this post got downvotes! If you think this is wrong please go read pretty much literally anything on the topic of the bill of rights by literally any of the founding fathers. Protecting the rights of democratic minorities was a very, very, VERY explicit goal of the bill of rights.)
- dta5003 11y ago
  No way. As a member of the majority that disagrees with said majority on many issues, I'd like to keep my Bill of Rights please.
  - nmrm2 11y ago
    > that disagrees with said majority We typically call a person who disagrees with the majority a member of the minority. > the majority What majority? There are lots of majorities and lots of minorities -- one for each issue put forward to a group of citizens, and then a bunch of other cultural ones. I doubt anyone is a member of each of those majorities. So yes, everyone needs these individual rights. But the rights were designed to protect individuals when they find themselves in the minority. So saying that the issue is individual rather than minority rights is disingenuous, confusing, and massively ahistorical. Again, many of these rights were explicitly designed to prevent violent mob rule. This issue is not up for debate. It is an historical fact. Go read what the founding fathers wrote about the Bill of rights.
    - jrs235 11y ago
      What specifically can you point me to, what founding father, specifically wrote that the Bill of Rights was to protect minorities and not individuals? I agree the founding fathers drafted the Constitution to prevent mob rule. If a majority agrees we have freedom of speech, then we don't need the first amendment since it only protects minorities and minority opinions? The individual is the greatest minority, the Constitution protects individuals. Regardless of if an individual currently belongs to the/a majority or minority the Bill of Rights protects them. EDIT: In other words, whether or not an individual is in the majority or minority opinion on an issue, the Bill of Rights protects the individuals to freely express their opinion. It's not as if an individual holds the majority opinion than they no longer get 1st Amendment protections. The rights belong to individuals not "minorities" (except in the sense that an individual is the greatest minority). ADD: The founding fathers didn't care about minorities except themselves as individuals. They wrote the Bill of Rights to protect themselves individually.

kenjackson 11y ago

Sometimes an upvote isn't enough. This is probably the most thoughtful writing I've seen on the topic today. Well done for someone that is not an expert. :-)