Same-Sex Marriage Gets Its Day In Court

A big week at the Supreme Court.

Supreme Court Building

Starting tomorrow, the issue of same-sex marriage will be front and center at the Supreme Court. One case, Hollingsworth v. Perry, deals with the Constitutionality of California’s Proposition 8, the 2008 ballot initiative that reversed an earlier decision by the California Supreme Court declaring that marriage equality was a right under the state’s Constitution. The other other case, United States v. Windsor, is one of a number of cases challenging Section Three of the Defense of Marriage Act, a law passed in the 1990s that defines marriage for the purposes of Federal law as only being between one man and one woman.  In both cases the Courts below found that the laws in question were unconstitutional. Now, the fate of both laws will soon be in the hands of the Supreme Court:

The Supreme Court is poised to hear two blockbuster cases on gay rights this week, with historic implications for a cause that is advancing politically at lightning speed.

The cases to be heard on Tuesday and Wednesday involve the constitutionality of California’s Proposition 8, which defines marriage as between a man and a woman, and the federal Defense of Marriage Act, which bars married same sex couples from receiving federal benefits.

By the end of June, nine justices will either advance the cause of gay rights, set it back, or punt on the larger questions, as support for gay equality in various forms rises in the polls.

All eyes are on Justice Anthony Kennedy, who has a pro-gay-rights streak, and to a lesser extent Chief Justice John Roberts, whose legacy will be shaped by the ruling.

“There have been two decisions in American history expanding rights for gays and lesbians. … Anthony Kennedy wrote the opinion for the Court in both,” Erwin Chemerinsky, a constitutional law professor at UC-Irvine School of Law, told TPM recently. “He knows where history is going and that he faces the choice between writing the next Plessy v. Ferguson and the next Brown v. Board of Education. He wants to be on the right side of history.”

Among court watchers, the prevailing expectation is for DOMA to be struck down, an outcome supported by various corners of the legal and political spectrum. The decision is about whether or not to equalize federal treatment of married heterosexual and same-sex couples.

Prop 8 is harder to predict — and its implications trickier. The favored outcome among gay rights advocates is one where the Court recognizes a constitutional right to marry and overturns all state bans on gay marriage. The justices may also overturn Prop 8 on the particulars and leave other bans intact. Or they may decide that states are free to prohibit gay marriage. The first option would all but remove the issue from the political arena; the latter two would likely incite a series of long and contentious battles in states.

It is exceedingly difficult to predict how the Supreme Court will decide a case like this, especially before oral argument has taken place. Indeed, as last year’s litigation over the Affordable Care Act showed us, it’s often hard to predict what SCOTUS will do even after oral argument. Nonetheless, it does seem as though the hunches that DOMA is likely in trouble and that there’s at least a strong possibility that Proposition 8 will be struck down do seem to have some merit. At the center of both cases, as is usually the case in high profile cases, is Justice Anthony Kennedy. Kennedy is notable for being the author of the majority opinions in both Lawrence v. Texas, which struck down sodomy laws as unconstitutional, and Romer v.Evanswhich struck down a Colorado law that made it illegal for any political subdivision in the state to make sexual orientation a protected class under civil rights laws. Given that history, most Court watchers seem to think that Kennedy would at least be susceptible to being persuaded by the arguments being made by those challenging both laws.

There isn’t very much to say about these cases that hasn’t already been said. When oral arguments are over tomorrow and Wednesday,, we’ll be able to get at least some glimpse at what the Justices might be thinking. Keep in mind, though, that oral argument isn’t always the best guide to determining which way the Court will go in a given case. In the meantime, those interested in finding out more about the cases and the issues that will be argued this week can check out the overviews posted by SCOTUSBlog here and here, as well as this  excellent link-filled post by Walter Olson. What happens going forward is something only the Justices know at this point.

FILED UNDER: Law and the Courts, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Tsar Nicholas says:

    Should be quite interesting, indeed.

    Don’t know about that Kennedy meme. We all pretty much were saying the same thing last year, in connection with Obamacare. Turned out Roberts was the swing vote. Who knew?

    We do know, obviously, the four left-wing justices will vote across the board in favor of same-sex marriages. But that goes without saying.

    One thing we know with absolute certainty, though, is that once the decisions are announced, no matter how they go, there instantly will be a shotgun blast of extreme irrational hyperbole from whichever side feels aggrieved. If the Court strikes down DOMA and Prop. 8 on equal protection grounds, meaning that marriage must be afforded to same-sex couples, the evangelical Christian right will go info full meltdown mode, the likes of which never before have been seen, not even after Roe v. Wade and Planned Parenthood v. Casey. And if the Court upholds Prop. 8, even if simultaneously it strikes down DOMA, the liberal media-academe-Internet cabal will go into full DSM-level insanity mode. Even more so than after Heller, or Citizens United, or Bush v. Gore. Total, abject lunacy.

    For my money I think DOMA is a goner, which is a good thing. Prop. 8 is a tougher call. Kennedy is an old Catholic. Marriage strikes severe nerves with people of that ilk. Roberts appears to be drifting to the left as he goes along, so he again might provide that 5th liberal vote on a major issue. But it could go 5-4 the other way. Time will tell.

  2. Gromitt Gunn says:

    Man, I really hope that I am not being cocky about DOMA Section III being overturned. As I’ve noted here before, I can’t see a single good-faith argue for its constitutionality, but that doesn’t mean anything until the opinions are read.

  3. Spartacus says:

    Doug wrote:

    It is exceedingly difficult to predict how the Supreme Court will decide a case like this, especially before oral argument has taken place.

    But why do think this is the case? With both Prop 8 and DOMA, are the legal questions involved really that difficult to decide?

    There seem to be two or three different constitutional grounds for getting rid of Prop 8 and permitting SSM at least in California, but there doesn’t seem to be any constitutional ground at all for upholding it. So, why would the outcome at the SCt be hard to predict?

    And if it really is hard to predict, then if you assume all the justices are intelligent with solid reading comprehension skills, doesn’t that mean that those justices that vote to leave Prop 8 in place are doing so for reasons that have nothing to do with the constitution?

  4. edmondo says:

    In June, it will be interesting to watch how many times our “conservative” justices invoke “Judeo-Christian ideals” into their constitutional opinions

  5. Spartacus says:

    @edmondo:

    In June, it will be interesting to watch how many times our “conservative” justices invoke “Judeo-Christian ideals” into their constitutional opinions

    And it will be even more interesting to see how many of the ones who do have proposed laws prohibiting divorce.

    Their hypocrisy is truly unbelievable.

  6. stonetools says:

    Now here is an interesting tidbit:

    Jean Podrasky, 48, a lesbian who wants to marry her partner, will be at Tuesday’s U.S. Supreme Court hearing on Proposition 8 in seating reserved for family members and guests of Chief Justice John G. Roberts Jr.

    “I am so excited,” said Podrasky, an accountant and the first cousin of the chief justice on his mother’s side. “I feel quite honored and overwhelmed.

    I wonder if Roberts has evolved, a la Rob Portman. We don’t know exactly how the courts will decide, but let me toss my predictions out there:

    1. The Court will rule that DOMA is unconstitutional, on equal protection grounds, Roberts writing for a 6-3 majority.
    2. They will overturn Proposition 8 on equal protection grounds, but on California-specific grounds. The remaining state bans on gay marriage will remain untouched. The margin will again be 6-3 and Roberts.
    3. At least one Justice ( most likely Ginsburg) will go on to hold that all the state gay marriage bans should be struck down on equal protection grounds as well. History will conclude that this holding is the correct result.
    4. In oral arguments, Justice Scalia will say at least one thing that’s bigoted and nasty.
    5. Justice Sotomayor will lead the liberal Justices in spirited questioning of the pro DOMA, pro Proposition 8 team.
    6. Justice Thomas won’t say anything.

    Tune in Thursday to see how my predictions turn out.

  7. Surreal American says:

    @edmondo:

    Shorter Scalia, Thomas, and Alito: “Gay marriage makes Baby Jesus cry.”

  8. @Spartacus:

    The reason is because oral argument is only the final, and shortest, part of the litigation process. Before they take the bench tomorrow morning, each of these Justices will have read hundreds if not thousands of pages of briefs in both of these cases. That, in my experience, tends to be far more persuasive than what two lawyers happen to say during an hour long oral argument.

  9. OzarkHillbilly says:

    I predict a 6-3 decision in favor of gay marriage. Why? Because Kennedy has already tipped his hand and I am not afraid of being wrong…. I also think Roberts wants to be on the right side of history. You read it here, you read it now.

  10. edmondo says:

    4. In oral arguments, Justice Scalia will say at least one thing that’s bigoted and nasty.

    You severly underestimate the man.

  11. Spartacus says:

    @Doug Mataconis:

    I guess I misunderstood your original writing. I thought you were saying the outcome is hard to predict generally, but I now think you’re saying that predicting the outcome based on how oral argument goes is really hard. That, I understand.

  12. Anderson says:

    @stonetools: Sounds plausible, except that I doubt Roberts would write both opinions. If Kennedy wants to vote pro-gay-marriage, then he’s going to want his name on at least one op. If Roberts wants to join the Scalia side on one of the cases, then the pro side can tempt Kennedy by the offer to let him write.

  13. stonetools says:

    And the pressure builds – both Senators Claire MCaskill ( Missouri) and Mark Warner (Virginia) came out for marriage equality today. One is from a Red State and the other from a purplish state.That ‘s significant- Marriage equality isn’t just for blue state politicians any more.

  14. Laurence Bachmann says:

    @Tsar Nicholas: I would add Roberts to this one too. He was loathe to b on the wrong side of history with Health Care. Is he really likely to be on the wrong side of the Dred Scott decision of the 21st century?

    DOMA goes down 6-3; Prop 8 litigants are deemed to be without standing and the previous court ruling striking it down is left intact. Two catholic conservatives manage to be on the right side of history without endorsing gay marriage nationally. Liberals will tag along with an incremental approach with perhaps Breyer or Kagan writing separate opinions.

  15. Justinian says:

    As usual, I feel compelled to write a “minority opinion” on this blog.

    1. Virtually all the elected, representative parts of the governments in this country have come out against granting marriage to homosexuals: state legislatures, Congress, and now voter initiatives. Yet the Supreme Court is likely about to be to tell all these bodies to enact marriage for homosexuals against their will.

    2. The way this issues is being discussed, both by conservatives and by liberals, is completely out of touch with the established constitutional foundation of the Union. In the Declaration of Independence, we find these words:

    We, therefore, the representatives of the united States of America, . . . solemnly publish and declare, That these United Colonies are, and of Right ought to be, Free and Independent States, . . . that they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things with Independent States may of right do.

    Some of these States’ rights have been devolved upon Congress, but others haven’t. Also, it is clear that the meaning of a “State” is taken in a broader sense, not as some postal code, but as a “state of government”.

    States, as in the Roman Empire, France, Albania, etc., etc, ad nauseam, have always had the power to determine the particulars of what their government officials would recognize as marriage. For example, in the Rennaissance and at many other times, only men with property sufficient to raise a family could obtain a marriage licence. A vestige of this practice persists to this day, where people have to obtain a licence from the state in order to be legally married. The licence is the reminder that marriage is defined and administered by the state.

    And yet now the Supreme Court is poised to tell the States that they have not the power to set even the broadest parameters of what marriage may mean in their jurisdictions. The Court is treating the States of this Union in a manner more derogatory than it would ever dream of treating a state outside the Union, by saying that so important a matter is to be determined by judicial fiat rather than by any expression of popular sentiment or representative government.

    3. Several posts have written about being on “the right side of history.” There was a time when history was a study of the past, not prophecies of the future. The whole idea of homosexual marriage is alien to the whole history of the planet, from the earliest recorded history to only twenty years ago, alien to the historic cultures of China, India, Persia, Greece, and Rome, etc., etc., ad nauseam.

    Yes, several justices on the Supreme Court will flatter themselves with thinking they are doing something “historic” with their coming decision. In this and in many other instances, not only they, but also their professors in Law School, show that they have not even the slightest passing acquaintance with the Law of Moses, the Institutes and Pandects of Justinian, or the Napoleonic Code. That is judicial history, and those works are of an historic class of writing. Truly, these justices on the Supreme Court don’t know what judicial history even is.

    4. Still, the Court may yet make history with is likely coming decision. There was another decision utterly deragotory to the elected branches of the both the state and the federal government, many years ago. But for the war that came as consequence, the Dred Scott decision would merit only a footnote as a jurisprudential oddity that came out of the Taney Court. The coming, likely decision of the Supreme Court will require all the elected representatives of the people to bow down and accept the dicta the Court will issue. And if they don’t?

    In the debates on the Constitutional Convention, the point was raised that the Congress should not try to boss the States around, though it could boss individuals around, because an escalation to force between the federal government and an individual was a “done deal” for the government, whereas any escalation to force for bossing a state around would result in civil war.

    Perhaps the people and their elected representatives will abandon their own ideas on what marriage is and supinely accept the dicta of six of nine Supreme Court justices on this matter, even though it flies in the face of thousands of years of judicial precedent and the whole idea of representative government. Or maybe they won’t.

  16. michael reynolds says:

    @Justinian:

    Perhaps the people and their elected representatives will abandon their own ideas on what marriage is and supinely accept the dicta of six of nine Supreme Court justices on this matter, even though it flies in the face of thousands of years of judicial precedent and the whole idea of representative government. Or maybe they won’t.

    Nah. It’s over. We won, you lost. And five years from now you’ll be pretending you were with us all along. You guys? You got nothing.

  17. michael reynolds says:

    Here’s why states rights loses. This is a big secret, so shhh, don’t tell anyone. Here it is: the whole idea of states is fwcking stupid. It’s a silly idea left over from a time long ago. States are ridiculous. Delaware? Wyoming? I’m supposed to give a crap what these empty political non-entities have to say? I’m a Californian: we could buy Wyoming with the loose change in our corrections budget. We have counties that could absorb Delaware and no one would even notice.

    States. Good grief. Because this is the 18th century.

  18. Justinian says:

    @michael reynolds:

    In reply to michael reynolds, immediately above:

    I imagine you are referring ot the corrections budget of the State of California. I have often thought that Americans have trouble understanding the concept of states in the same manner that fish are reputed to have trouble understanding the concept of water.

  19. humanoid.panda says:

    @Justinian: Isn’t the essence of DOMA is that it tells states who had decided to have gay marriage that they pound sand as far as the federal government is concerned, exactly the kind of abrogation of states rights you pretend to care about?

  20. Gromitt Gunn says:

    @Justinian: As usual, the rest of us feel compelled to hit the “scroll down” button.

  21. Justinian says:

    @humanoid.panda:

    In reply to humanoid.panda:

    Isn’t the essence of DOMA is that it tells states who had decided to have gay marriage that they pound sand as far as the federal government is concerned, exactly the kind of abrogation of states rights you pretend to care about?

    Doug Mataconis, in the article at the head of this thread, describes the Defense of Marriage Act in these terms:

    a law passed in the 1990s that defines marriage for the purposes of Federal law as only being between one man and one woman. [Emphasis added.]

    Provided that that description is accurate, then the D.O.M.A. is careful not to step upon the rights of the States in this matter.

  22. Justinian says:

    @Gromitt Gunn:

    In reply to Grommitt Gunn, who wrote:

    As usual, the rest of us feel compelled to hit the “scroll down” button.

    Yes, and it would certainly be an oppression to be forced to read my posting, or anyone else’s for that matter. It would be even more of an oppression to be forced to accept the substance of my posting, or anyone else’s.

    If only the country could as easily scroll down past the dicta of the coming Supreme Court decision, but of course we lack that freedom.

  23. Latino_in_Boston says:

    It was pointed out this morning on twitter:

    “Interracial gay marriage is more popular now than interracial marriage was when the Supreme Court ruled on Loving v. Virginia.”

    I don’t know if this is absolutely true, but if it isn’t now, it will be in the very near future. The change at which this has become the majority position is absolutely astonishing.

  24. Latino_in_Boston says:

    @michael reynolds:

    Michael,

    I have never encountered anyone who finds states as anachronistic as I do. Certainly, no American. In fact, I think you find them even more so. For that, I salute you sir.

  25. James in LA says:

    @Justinian: If you are not a gay person, gay marriage does not affect you in the slightest. No one is forcing you to marry, much less a person of the same sex. No one is forcing you to attend weddings. You hoist the “state’s rights” flag only because your argument has come up completely empty.

    Anti-marriage people have had every opportunity in open court to show the horrible harm that will result. They have not done so. Instead, they put forward arguments based only on extreme dislike, mostly for kooky religious reasons.

    In 2013, that dog won’t hunt. When you insult gay people in our connected age, you pretty much immediately insult their families, friends, co-workers and teammates. It’s why the tide has turned so quickly. It turns out gay people pose no actual threat to anyone simply by being gay. Social media allows us to actually get to know people before we open our big fat mouths with the baseless epithets, and predictions of Utter Doom that never arrive.

    I see the great Commonwealth of MA is still with us…

    The greatest threat to straight marriage is straight people who insist on ending their marriages at least 50% of the time. Go judge your own and see how far you get before judging perfect strangers who are absolutely no threat to you whatsoever.

    And Reynolds is right: CA ought to absorb Wyoming and Deleware, just to pay off some debt.

  26. humanoid.panda says:

    @Justinian: DOMA says that some marriages conducted by the magistrates of the states of New York, Massachusetts, Maryland and so forth do not enjoy the same benefits other marriages conducted by the same magistrates. How is this not an imposition on states rights?

  27. An Interested Party says:

    Don’t know about that Kennedy meme.

    Well of course you wouldn’t, being the uninformed idiot that you are…his decisions in Lawrence v. Texas and Romer v. Evans give some indication as to how he’ll vote in these two cases…

    Virtually all the elected, representative parts of the governments in this country have come out the South came out against granting marriage to biracial couples homosexuals: state legislatures, Congress, and now voter initiatives. Yet the Supreme Court is likely about to be to tell told all these bodies to enact marriage for homosexuasl biracial couples against their will.

    Happy to be of help…

    And yet now the Supreme Court is poised to tell the States that they have not the power to set even the broadest parameters of what marriage may mean in their jurisdictions. The Court is treating the States of this Union in a manner more derogatory than it would ever dream of treating a state outside the Union, by saying that so important a matter is to be determined by judicial fiat rather than by any expression of popular sentiment or representative government.

    Oh look, the same states’ rights argument that was used by bigots in the South during the Civil Rights era…it didn’t work then and it won’t work now…

    The whole idea of homosexual marriage is alien to the whole history of the planet, from the earliest recorded history to only twenty years ago, alien to the historic cultures of China, India, Persia, Greece, and Rome, etc., etc., ad nauseam.

    Up to a certain point in history, the idea of having many laws protecting minorities and other persecuted groups was alien, until such laws were enacted and then were no longer alien…

  28. Justinian says:

    @humanoid.panda:

    In reply to humanoid.panda, who wrote

    DOMA says that some marriages conducted by the magistrates of the states of New York, Massachusetts, Maryland and so forth do not enjoy the same benefits other marriages conducted by the same magistrates. How is this not an imposition on states rights?

    States rights never extended to telling the federal government how to disburse federal money. These benefits are of federal money (coming or going, tax law or benefits). By the same token, the federal government has no power to twll states how to disburse state money. Your use of the word “benefits” without distinction as to state benefits or federal benefits shows that you still think of government as “one big blob”, whereas in a federal system, there are two separate and distinct “blobs” of this stuff called government.

  29. humanoid.panda says:

    @Justinian: Curiously enough, 15 states disagree with you. Of course, none of those states is in the South, so the concept of states rights doesn’t really apply to them, does it?

  30. michael reynolds says:

    @Latino_in_Boston:

    We will fight the lonely battle together, sir. Although I’m quite sure the battle will call for beer at some point.

  31. spartacus says:

    @Justinian:

    Yet the Supreme Court is likely about to be to tell all these bodies to enact marriage for homosexuals against their will.

    For a writer of such a long comment on historical jurisprudence you seem entirely unaware that the Supreme Court routinely overturns state laws that infringe upon a person’s U.S. constitutional rights. How else do you think state bans on interracial marriages were overturned?

    The way this issues is being discussed, both by conservatives and by liberals, is completely out of touch with the established constitutional foundation of the Union. In the Declaration of Independence, we find these words: . . .

    Sorry but the Declaration of Independence has got nothing to do with the constitutional rights a person has or the limitations that may be placed on either the federal or a state government. The constitution – and not the Decl of Indpendence – is the operative document.

    And yet now the Supreme Court is poised to tell the States that they have not the power to set even the broadest parameters of what marriage may mean in their jurisdictions.

    Again, see Loving v. Virginia.

    In this and in many other instances, not only they, but also their professors in Law School, show that they have not even the slightest passing acquaintance with the Law of Moses, the Institutes and Pandects of Justinian, or the Napoleonic Code.

    I'm pretty sure the well educated justices are familiar with these texts but unlike you they understand that the the Law of Moses, the Institutes and Pandects of Justinian, or the Napoleonic Code (except to a limited degree in Louisiana) are not and never have been applicable in these United States. We have a constitution and a legislature that pass laws.

    Perhaps the people and their elected representatives will abandon their own ideas on what marriage is and supinely accept the dicta of six of nine Supreme Court justices on this matter, even though it flies in the face of thousands of years of judicial precedent and the whole idea of representative government.

    If the S.Ct rules Prop 8 or DOMA unconstitutional and the people and their elected representatives still want to discriminate against gays, then maybe they will pass a constitutional amendment banning SSM as George Bush proposed.

    Until then, do you have any comments opposing the overturning of Prop 8 and DOMA that the rest of us should take seriously?

  32. anjin-san says:

    Yet the Supreme Court is likely about to be to tell all these bodies to enact marriage for homosexuals against their will that equal protection under the law applies to all Americans.

    FTFT

    Sorry Charlie, no second class citizens in America. Not in this century. The crackers and bigots will just have to deal with it.

  33. MarkedMan says:

    I appreciate Justinian sharing his point of view, despite the fact that I don’t agree with it. He took the time and effort to lay out his rationale and that is a valuable service because most people on either side don’t bother with that.

    Justinian, I’m curious: are you as against the Loving vs. Virginia decision as much as you would be against a pro-GM Supreme Court ruling in this case? If not, why not?

  34. Gromitt Gunn says:

    @Latino_in_Boston: Yes. Interracial marriage did not have majority opinion in the US until the early 1990s. Gay marriage is already nearing that.

  35. David M says:

    @Justinian:

    Virtually all the elected, representative parts of the governments in this country have come out against granting marriage to homosexuals: state legislatures, Congress, and now voter initiatives. Yet the Supreme Court is likely about to be to tell all these bodies to enact marriage for homosexuals against their will.

    This probably isn’t accurate, as public opinion has trended towards allowing gay marriage since most if not all those laws were passed.

  36. Justinian says:

    @spartacus:

    In reply to spartacus, who wrote:

    If the S.Ct rules Prop 8 or DOMA unconstitutional and the people and their elected representatives still want to discriminate against gays, then maybe they will pass a constitutional amendment banning SSM as George Bush proposed.

    Until then, do you have any comments opposing the overturning of Prop 8 and DOMA that the rest of us should take seriously?

    No, there is nothing I can write that you will take seriously.

    Already on this thread, we have seen people move and second the idea of California taking over Wyoming and Delaware, and so you certainly do not take Wyoming or Delaware seriously.

    We have seen in print how “the whole idea of states is fwcking stupid,” also moved and seconded, and so the entire establishment of the means of providing civil and criminal justice, public education, and the dispensation of public charity is not taken seriously.

    We have seen on this thread how people say that marriage between homosexuals is something whose time is come, because it has acceptance among a large and growing segment of the population, and yet these same people hold in contempt clear expressions of popular will on this topic, namely a voter initiative in California and an act of Congress. And so you have no respect for internal consistency, only getting your way on this one issue.

    The whole idea that societies have interests distinct from individuals, and that the Tenth Amendment is every bit as important as the Fourteenth, is not something I would expect you to take seriously.

    And, of course, many members of this thread dismiss those they disagree with as bigots, or as Southerners, but they repeat themselves. Clearly they have no respect for huges sections of this country and its population.

    And so, no, there is nothing I or anyone else can write on this subject that members of this thread (MarkedMan excepted) will take seriously.

  37. Rick DeMent says:

    @Latino_in_Boston:

    Add me to this list, the idea of states is a irrelevant by-product of 18th century agrarian \ mercantile economic politics. The whole idea was in it’s death rattle in the early 19th century when the federal government figured out how to get around constitutional mandates to limit the armed forces and was finally killed off later that century when they figure out how to get around state control of corporations.

  38. CB says:

    @Justinian:

    I think people here appreciate these types of comments more than you think.

    As for this…

    Clearly they have no respect for huges sections of this country and its population.

    IANAL, and cant contribute a whole lot to this discussion, but I can tell you that this is what drives me and other proponents crazy. Opponents of SSM demand respect for their traditions and morals in even the most abstract sense (the various slippery slope arguments, etc), while outright denying basic rights to a not insignificant portion of the population. Wheres the respect in that? Wheres the justice in that?

  39. Al says:

    @Justinian:

    Clearly they have no respect for huges sections of this country and its population.

    James Madison has a very good explanation of why no one should.

  40. HarvardLaw92 says:

    @Rick DeMent:

    I’d go a bit further and opine that the idea of states rights began to die the second that said states ratified a constitution with a supremacy clause.

    Obviously, DOMA is doomed. There is no way to get around the fact that the federal government recognizing SOME state validated marriages while invalidating OTHER state validated marriages (from the same states, no less) doesn’t violate equal protection.

    For that matter, telling states that they are allowed to do the same (Section II, which isn’t under review today) commits the same violation against EP.

    I’m still up in the air with regard to where they go on Perry, but my gut tells me to expect a less than sweeping ruling. Ginsburg, in light of her commentary on Roe, may not prove to be as willing to swing the axe as people believe. We may be reading too much into Kennedy’s reasoning in Lawrence. Of course I could be wrong on that, but I’m cautious by nature, never more so than when dealing with trying to predict what SCOTUS might do.

    In an odd way, I’m not sure that the ruling in Perry, if it is narrow, will matter. I see the next set of challenges coming against Section II of DOMA, and when that is struck down (as it is exceedingly likely to be), then a narrow ruling in Perry won’t matter much. It would be, for example, of little import if I’m a gay guy living in WY, and can’t get married there, if I can just hop a plane to NY, get married, and when I return WY has to recognize said marriage under full faith & credit (or else explain in court why its refusal to do so, while recognizing hetero marriages from NY, doesn’t violate EP.)

  41. Rob in CT says:

    @Justinian:

    You seem to be out of touch with the poll data here. It’s been moving very fast in favor. Even if the SC rules the way you’d like, the issue is a loser for your side, except perhaps in certain states (mostly Southern). For a while.

    My own state has already legalized gay marriage. So have a number of others. The trend is clear here. The conservative side had their moment to try and stop the tide, and they did their best: getting those state consitutional amendments through just in time to slow the whole thing down.

    As for the concept of states… federalism has its benefits and its costs. On the cost side, I think it’s important to note that much of the complexity of interacting with government in our society boils down to dealing with the multiple layers of government: town-state-federal. It may well be that this is a price worth paying to preserve the benefits of federalism. I tend to think it is, in fact. But I think it’s debateable.

    Incidently, “states rights” would be more popular if it wasn’t invoked time and time again to justify treating some minority group like second-class citizens.

  42. HarvardLaw92 says:

    @Justinian:

    The whole idea that societies have interests distinct from individuals, and that the Tenth Amendment is every bit as important as the Fourteenth, is not something I would expect you to take seriously

    God, another Tenther. The Tenth Amendment doesn’t mean what you think that it means. If you like, I’ll be glad to discuss exactly why.

  43. An Interested Party says:

    …and yet these same people hold in contempt clear expressions of popular will on this topic, namely a voter initiative in California and an act of Congress.

    Civil rights should not be dependent on the popular will…

    And, of course, many members of this thread dismiss those they disagree with as bigots, or as Southerners, but they repeat themselves. Clearly they have no respect for huges sections of this country and its population.

    Perhaps those who are opposed to SSM wouldn’t be mentioned in the same breath as Southern bigots if their arguments agaist SSM weren’t virtually the same as those used to argue against striking down anti-miscegenation laws…

  44. Andre Kenji says:

    States do not have rights, they have powers.The idea that states have “rights” leads to oligarchy;

  45. Al says:

    @HarvardLaw92:

    Please, go for it.

  46. Surreal American says:

    Why do people who argue for States’ Rights almost never argue for States’ Responsibilities?

  47. grumpy realist says:

    The only reason we have states (and the 10th Amendment) is a historical accident (mainly due to different colonies getting established in the New World from different locations and different countries) and because it’s easier to govern a chunk of land where all parts of it are reasonably accessible.

    As time as gone on, the increasing speed of commerce plus industrialization plus roads has meant that the boundaries of states are less and less important. Which has also meant that more and more transactions are likely to involve people from more than one state. Which means federalism.

    What the silly Tenthers don’t realize is that if the Constitution were interpreted the way they want, we’d be moving closer to Europe and all the messiness that implies. The first attempt to form a union of states in the US FAILED, remember!

  48. matt bernius says:

    @HarvardLaw92:

    If you like, I’ll be glad to discuss exactly why.

    Seconded!

    Plus I suspect there’s a lot in @justinian’s first post that’s worth addressing.

    It’s clear @Justinian clearly believes what he’s writing. But as with some other topics, his logic seems a bit tortured (though IANAL). And his continual looking back into far removed history strikes me as rather anachronistic for a host of reasons.

  49. anjin-san says:

    You seem to be out of touch with the poll data here.

    Dude, the polls are rigged. Didn’t you learn anything from all the rigged polls that said Obama was going to win last fall?

  50. James in LA says:

    @Justinian: “And so, no, there is nothing I or anyone else can write on this subject that members of this thread (MarkedMan excepted) will take seriously.”

    Good. You are beginning to catch on. The days when you can spew your kind of hate without consequence.

  51. Pharoah Narim says:

    I don’t think the idea of State government is dumb. If so, the idea of city government is also dumb. It is the means by which we decentralize power to keep a small cabal of people from hi-jacking the direction of th country. Think of it in terms of music quality. The more samples per second you take of a piece–the higher quality the sound. Local and State governments allows decision making at lower levels to make governace more responsive to the needs to that people. There is an art between what deciding what should be decided at state and local levels and what should be decided at the Federal level. That should always be vigourous debate and revisiting of those what level we make decisions upon to make sure we are geting the right responsive mix for our citizens. Has anyone work in an organization where all the decision were made at the top? Chances are it didn’t turn out too good in the long run because ultimately if forces people at the lower level not to think and just acquiesse to whatever the group in charge wants to implement. When people have ownership in decision making–they make better decision and put more thought into how to become more efficient/better performing.

  52. Justinian says:

    @CB:

    In reply to CB, who wrote:

    Opponents of SSM demand respect for their traditions and morals in even the most abstract sense (the various slippery slope arguments, etc), while outright denying basic rights to a not insignificant portion of the population. Wheres the respect in that? Wheres the justice in that?

    For myself, I do not believe that marriage is a basic right.

    There are women who have passed their child-bearing years without ever having children or being married or hitched in any way. They may worry over being considered “old maids” or “spinsters” by society. Do they have a right to be married just so that they my feel better about themselves?

    And men, who have been so unlucky in love as never to have “done it” with a woman: does society owe them the institution of marriage?

    And, as to the two lesbians who form the plaintiffs to the case, they can go about their lives just as so many other people do. I do not see how they are injured by not being allowed to be married. Certainly they are not injured any more than the other two cases just cited.

    Marriage is an institution defined by society for the purposes of its perpetuation through the process of generation. Not everyone gets to participate in it, for example the single (swinging or otherwise), the unfortunate, the celebate, and the homosexual.

  53. Mikey says:

    @Justinian:

    For myself, I do not believe that marriage is a basic right.

    Well, that’s a rather significant point of disagreement between you and the Supreme Court. The unanimous opinion in Loving v. Virgina states quite clearly: “Marriage is one of the basic civil rights of man.”

    Marriage is an institution defined by society

    Indeed. And today, the majority in American society wants to extend the institution to same-sex couples.

  54. swbarnes2 says:

    @Pharoah Narim:

    Local and State governments allows decision making at lower levels to make governace more responsive to the needs to that people.

    That’s a nice idea, but empirically, it doesn’t work like that. A hell of a lot of state/federal conflict these days is certain states wanting to treat certain members of their population like sh*t, when the rest of the country has already realized that’s not just.

    Has anyone work in an organization where all the decision were made at the top? Chances are it didn’t turn out too good in the long run because ultimately if forces people at the lower level not to think and just acquiesse to whatever the group in charge wants to implement.

    So you are saying that if the federal court strikes down gay marriage bans from the top, that will “not turn out too good in the long run”? That gay marriage opponents will not only stop talking about it, they will cease to think about it?

    Spouting platitudes is not an effective rhetorical technique. Not about polices that hurt innocent people.

    When people have ownership in decision making–they make better decision and put more thought into how to become more efficient/better performing.

    If you are congratulating me on “ownership” of prop 8, you can shove it. It was a terrible, cruel policy, I voted against it, I voted for politicians who opposed it. If you are trying to argue that the people who supported it were models of civic virtue, they weren’t.

  55. HarvardLaw92 says:

    @Al:

    There is a word missing from the 10th Amendment that Tenthers magically add back – the word is “expressly”.

    The 10th Amendment was based almost directly on a similar provision in the Articles of Confederation which DID contain that word, and which subsequently led to most of the problems which made the articles unworkable in practice and which led to their being replaced by the Constitution in the first place.

    The debate over the amendment makes it clear that the framers were well aware of the consequence of omitting the word, and chose to omit it anyway. The 10th Amendment is largely a truism, by design.

    Because the word “expressly” is missing, the 10th Amendment does not amend the Necessary and Proper clause, ergo Congress has both enumerated powers AND any & all implied powers which are necessary & proper for the exercise of the enumerated ones.

    In short, it is, and was, the death knell for anti-Federalism the second that it was ratified. States rightsers tend to be more the disaffected than those who genuinely believe that there is a rational basis for continuing to assert that states remain sovereign. That’s pretty much gone at this point.

  56. CB says:

    @Mikey:

    Exactly. I had a nice long retort written up, but you did it better with three sentences

  57. wr says:

    @Justinian: “There are women who have passed their child-bearing years without ever having children or being married or hitched in any way. They may worry over being considered “old maids” or “spinsters” by society. Do they have a right to be married just so that they my feel better about themselves? And men, who have been so unlucky in love as never to have “done it” with a woman: does society owe them the institution of marriage?”

    So you’re saying that you believe states should be able to prohibit these two classes of people from marrying? Because that’s all the SC is considering in regards to gay marriage — it’s not as if anyone is suing to force the government to operate as a matchmaker for them.

    But to answer your questions above: Yes, these people do have a right to marry should they find someone who wants to marry them. What’s your problem with that?

  58. Pharoah Narim says:

    The bottom line is the only argument against gay marriage is moral disapproval which the SC has ruled out as a legitimate grounds for which to oppose DOMA/ Prop 8. Advocates have created some trumped up, nuanced, grounds for their stance but its not going to take very many questions to expose the real reason of moral disaproval. DOMA/ Prop 8 is toast–and should be.

    However, isn’t moral disapproval the only thing we have to justify many, if not all, of the actions we’ve taken to form a more perfect union? Abolition was driven by moral disapproval and so was the civil rights movement. Under the law of the jungle, subjucated people deserved to be so because they weren’t the strongest. Statutory rape laws, Age of consent laws, marriage age prohibitions, etc are all built on moral disapproval. There is no constitutional or biological reason why a 47 YO can’t marry a 16 YO..other that society saying, “That’s wrong!”. What im interested in idelogical fairness, why do we discriminate against polygamists other than the public’s moral disaproval of the practice? What I think Im getting from many of the people that support gay marriage (which I do btw) is that we want no restrictions between unions between 2 consenting adults (as long as they aren’t cousins–another purely moral judgement). What limits us to only 2—besides moral disapproval? My point is you can’t on one hand say your moral values shouldn’t be imposed on my life while at the same time supporting the moral values you hold for different issues being imposed on others. Values are why we do or don’t do most of everything in our existence–whatever positon we hold we should walk a fine line in trying to be accomdating of opposing sentiments because what goes around… I guess what Im saying is that I wish there were different arguments being made to drive the train forward because saying people’s moral judgement is invalid is a double edge sword in my opinion.

  59. HarvardLaw92 says:

    @Justinian:

    For myself, I do not believe that marriage is a basic right.

    And on strictly constructionist terms, I would agree with you. Had the state never chosen to create the construct of civil marriage, there is no constitutional basis for asserting that it would have to do so. That said, it’s a moot point. The state DID create that construct, and in doing so it opened itself up to EP review.

    There are women who have passed their child-bearing years without ever having children or being married or hitched in any way. They may worry over being considered “old maids” or “spinsters” by society. Do they have a right to be married just so that they my feel better about themselves?

    This is specious. Said ladies can easily get married at their leisure simply by finding a willing mate. We do not predicate access to marriage on the ability to procreate.

    And men, who have been so unlucky in love as never to have “done it” with a woman: does society owe them the institution of marriage?

    No, it owes them the equal right to seek access to it if they are able to find a willing partner and choose to seek to avail themselves of marriage.

    And, as to the two lesbians who form the plaintiffs to the case, they can go about their lives just as so many other people do. I do not see how they are injured by not being allowed to be married. Certainly they are not injured any more than the other two cases just cited.

    Then you need to reanalyze the status quo with regard to preferential treatments afforded to married couples. The estate tax provision alone argues, as it does in Windsor, that the disparate treatment afforded to married couples with regard to taxation is patently problematic. After all, one need not be married to claim a child tax credit, but wade into the estate tax as an unmarried couple with substantial assets and the disparity will become very clear, very quickly.

    What you are effectively arguing is that their desires should take a back seat to your preferred viewpoint on morality. The purpose of the law is not to legislate morality.

    Marriage is an institution defined by society for the purposes of its perpetuation through the process of generation. Not everyone gets to participate in it, for example the single (swinging or otherwise), the unfortunate, the celebate, and the homosexual.

    Bullshit. Marriage has been, from the beginning, a property transaction dressed up in the poetry of love. People who CHOOSE not to avail themselves of marriage are well within their rights to do so, but “I just don’t like those people” is not a sufficient basis for asserting that equal protection doesn’t attach to them.

    SCOTUS takes a dim view, as it should, of laws predicated in animus. When you strip aside all the rhetoric being put forth by opponents, there is nothing left underpinning their arguments BUT animus. That just doesn’t fly with me, sorry.

  60. Pharoah Narim says:

    @swbarnes2: How about taking it down a notch? I don’t recall addressing you with insults especially on grounds that I disagree with your opinon. We all have a little inner-jerk that leaks out from time to time so I’ll ignore your ‘shove it’ retort. I expect that level of conversation over at Huffpo.

    To address your comment, many human inventions either don’t or stop working the way they’re designed. My 20 year old truck would be one of those things. Doesn’t mean the problem it was orginally designed to fix or solve is invalid or that its a bad thing now or was bad from the start. It just means it needs to be fixed or tweaked to be relevent to my lifestyle today. When it comes to legislation, they have a shelf life of several generations before they become outdated and need retweeking/reinvention. Our objective remains the same, but the formula for how we get there is changed to make it more current. State governent behaving badly isn’t an argument against states anymore than govenment fraud and waste is an argument against Medicare & SS.

    Untimately, my comments were in response to ideas earlier in the thread that state goverment were relics and serve no useful purpose. I didn’t communicate any ideas on the relationship between state and federal governments as it relates to specific questions of law or fairness. I gave my opinon of the 30K foot view of why State government IS important and what that might mean in general should the State reponsibility go away. I used a organizational model to illustrate my views and, for anybody that has experience in that arena knows, you don’t want corporate dictating what servers you use to network your department–and you don’t want your department dictating company health care policy. Each have their lane and completment each other. Good day.

  61. Justinian says:

    @MarkedMan:

    In reply to MarkedMan, who wrote:

    Justinian, I’m curious: are you as against the Loving vs. Virginia decision as much as you would be against a pro-GM Supreme Court ruling in this case? If not, why not?

    Since you asked, here is my analysis, though probably entirely in paradigms many people will believe to be out of date.

    If a power has not been vested in the federal government through the enumeration in the Constitution, it may still be asked whether a state has it. The plain meaning of the declaration of independence, quoted in my original post on this thread, is that if states outside the Union a particular right or power, then states inside the Union have the same right or power.

    Thus, in order to determine whether an American state has the power to forbid interracial marriage, one would look and see whether it is practiced elsewhere in the world. Marriage with foreigners is frowned upon in the Law of Moses, and it is very strongly forbidden in the caste system of India, at least at the time in question (1950s, I believe). The “caste” system is actually the “color” system in their language, and is actually a racial system. And so, by this analysis, if India can do it, so can Virginia. With the caste system of India itself no longer enjoying legal sanction in that country (so far as I know), the examples of laws prohibiting miscegenation dwindles to a very low number, and the case that states inside the union have this particular power becomes correspondingly weaker.

    As a practical matter, this method of analysis does not apply quite so simply and purely in the United States. For example, everyone grants Saudi Arabia to be able to dispense plural marriages, and yet Utah was denied the ability to grant plural marriages (another U.S. Supreme Court case, an interesting precedent, incidentally, to the subject of this thread). Of course, Congress was opposed to plural marriages, and so the Court was acting with at least some direction from an elected body, whereas, here, Congress has, through it’s D.O.M.A., expressed its disapproval of homosexual marriages.

    For the case at hand, laws prohibiting homosexuality outright are found in many states outside the Union, and once were prevalent with many states inside it as well, until the Supreme Court found what no one had had seen, or even suspected, earlier, a constitutional right to commit homosexual acts.

    The laws against homosexual acts are also cast in terms of abhorrence: “You shall not lie with a man as with a woman,” says Leviticus, “it is abomination.” Blackstone calls it “unspeakable.” Both the Law of Moses and the Lex Iulia de adulteriis specify death for those who engage in it. But we do not have to go to ancient law for this; many countries to this day have the same sensibilities, and laws to support them.

    To put it mildly, many, many states outside the Union do not grant the privilege of marriage to homosexuals. The case is very strong, then, that states inside the Union have the same ability to restrict marriage to heterosexuals only, and this is a much stronger case than for the assertion that they have a right to restrict miscegenation.

  62. anjin-san says:

    Not everyone gets to participate in it, for example the single (swinging or otherwise)

    Do you actually believe this crap? From 18-38, I was single, and I had quite a few (female) sexual partners. Some over a long period of time, some just once. I think by most people’s standards I lived a pretty swinging lifestyle.

    When I was 38, I got into a relationship that was more serious than any of the prior ones, and I got married when I was 40. Two decades of sex, drugs, and rock & roll presented no barrier to my getting married when I felt like it. Our society is very user friendly for people like me.

    Why am I a special class of citizen? Why are some folks, such as gays and lesbians, relegated to second class citizenship here in the “land of the free”?

  63. anjin-san says:

    The plain meaning of the declaration of independence

    Do you not understand that the relevant document in this case is the Constitution, not the Declaration of Independence?

  64. HarvardLaw92 says:

    @Justinian:

    I’m sorry, but did you actually just come back with an argument of essentially “other countries do it. so US states should be able to do it too?”

    You’ve just wandered right off the ledge of credibility. The Declaration of Independence has no force of law. It’s not even law in itself – it was a declaration of war.

    Sorry, but the only applicable authority with regard to what states in the US may and may not do is the US Constitution. Not Ghana. Not the Magna Carta.

    And most especially not the Bible. If you’re looking for a theocracy, I’d suggest heading to Iran. We don’t do that here.

  65. swbarnes2 says:

    @Pharoah Narim:

    However, isn’t moral disapproval the only thing we have to justify many, if not all, of the actions we’ve taken to form a more perfect union?

    Is it your intention to make an argument completely devoid of personal freedoms and rights? It’s nonsensical.

    Abolition was driven by moral disapproval and so was the civil rights movement.

    Slavery was opposed because even black people have a personal right to liberty. Civil rights were supported because black people had a right to be treated equally under the law to white people.

    This is not moral or legal rocket science. Why are you so confused about it?

    Statutory rape laws, Age of consent laws, marriage age prohibitions, etc are all built on moral disapproval.

    No. They are built on the premise that marriage is a legal contract, and there is such a thing as being too young to properly consent to such a contract. If we had an objective measure of who was fit to sign a contract, we would employ that, but we don’t have that, so we pick an age.

    What im interested in idelogical fairness, why do we discriminate against polygamists other than the public’s moral disaproval of the practice?

    Lots of people are fine with saying we shouldn’t. I’m all for polygamous people getting the legal protection they need for their families. As marriage was designed for two persons, it’s not clear to me that marriage as we currently have it is appropriate, but I would be fine for expanding it, or putting in tweaks that are suitable for marriage groups larger than two. But at least polygamous persons have the ability to marry one person they love. Gay people don’t even have that option. They are far more numerous, and the solution for them is far, far simpler. Just eliminate the penis check at the clerk’s office. There’s no reason, other than spitefulness, to delay fairness towards gay people, because the complicated situation of a much smaller number of people hasn’t been addressed yet.

    My point is you can’t on one hand say your moral values shouldn’t be imposed on my life while at the same time supporting the moral values you hold for different issues being imposed on others.

    Gay marriage doesn’t “impose” on you one bit. And your assessment of why we have certain laws is just comically, and I suspect intentionally wrong.

  66. HarvardLaw92 says:

    Not sure if anybody else has listened to the oral in Perry, but I got the distinct impression that they are desperately trying to find a way to punt based on jurisdiction. Hope I’m wrong.

  67. Pharoah Narim says:

    @HarvardLaw92:

    “The purpose of the law is not to legislate morality.?”

    I disagree. There wasn’t a manual waiting for mankind whenever and however he got to the face of the earth. Every direction we chose or chose otherwise to pursuit is the opinion and therefore moral judgement of an individual or group of individuals. At alternate times in history another ruler or legislative body has pursued the opposite course of action for better,equal, or worse results depending on what their objectives were. Even the right to life, liberty, and the pursuit of happiness is a moral judgement on what mankind has a right to. What make that moral judgement any more right than “only strongest survive”?–other than we agree with one and disagree with the other because of our personal values. At the end of the day SOMEONE’s moral value will be codified in the law. Lets not kid ourselves that there’s some pure principle out that that transcends humanity that we are ascribing to. We started out with an objective (life, liberty, equal protection) that was the opinion of the founders that we as a socitey accept and we are merely on the road to ensure all our citizens experience that objective without squelching someone else’s experience of it.

  68. HarvardLaw92 says:

    @Pharoah Narim:

    And you are free to disagree, but I stand behind the point. The purpose of the law is not to legislate subjective morality. It is to address objective harm.

    The opponents in this case have floated a multitude of arguments which all essentially devolve to “This makes me uncomfortable. It goes against my subjective view of morality.”

    Being made uncomfortable doesn’t rise to the definition of being harmed. Being denied equal protection most certainly does.

    Things like “life, liberty and the pursuit of happiness” aren’t moral imperatives. They are an expression of what we believe that the law should not deny to us. That’s a philosophical argument which I’m just not interested in further entertaining.

  69. stonetools says:

    @HarvardLaw92: 4

    The purpose of the law is not to legislate subjective morality. It is to address objective harm.

    Of course, this is itself a moral position.

  70. David M says:

    @Justinian:

    Are you arguing the death penalty is unconstitutional and a state-run socialized health care system is constitutional?

  71. HarvardLaw92 says:

    @stonetools:

    From a philosophical “smoke filled coffeehouse” perspective, I’m sure that it could be viewed as one. I’m not sure what COULDN’T be viewed as a moral position from that perspective.

    I’m a lawyer, not a philosopher.

  72. Justinian says:

    @HarvardLaw92:

    In reply to HarvardLaw92, who wrote:

    The Declaration of Independence has no force of law. It’s not even law in itself – it was a declaration of war. Sorry, but the only applicable authority with regard to what states in the US may and may not do is the US Constitution.

    The war had been raging for over a year when the Declaration was signed. No, it’s a Declaration of Independence, just as it says on top.

    Also, how are we to determine the applicable authority of the States, when all the discussion in Philidelphia was over the construction of the federal government? The U.S. Constitution is exactly that: a Constitution of the United States, not of the states individually. That document carefully lists the powers of Congress, but says precious little about the States, which were pre-existent entities. Consequently, we cannot discover the powers of states by looking at the U.S. Constitution, except for a few prohibitions (no titles of nobility, etc.).

    If we get right down to it, the authority of the states are found in their own constitutions, whose legitimacy, like that of the U.S. Constitution, rests upon the consent of the people, either a state constitutional convention or a plebiscite.

  73. Pharoah Narim says:

    @swbarnes2: My argument is that moral disapproval isn’t grounds for dismissing any argument because in most cases–moral judgements are the only thing backing up either side. In the case of gay marriage, there is a case to be made that the goverment is being unfair to individual tax filers by rewarding one group for their choice of mate and punishing others but the bottom line is moral disapproval (which was the barrier that prevented gay marriage before yet is dismissed ) is lessening which paves the way for this change..game set match.

    (Insert any group) people deserve rights, liberty, happiness, etc is a moral judgement held by our founders which even they weren’t able to implement to its fullest. Its an opinon which I ascribe to and hope over the course of my life to co-opt as many people as possible to ascribe to and practice. However, I don’t kid myself…It’s not written in the sky or even seen in nature and there are quite a number of people in this country and throughout the world who don’t agree with that opinion. They are more along the lines of all this for me–none for thee and because many of them are wealthy sociopaths they have managed to use their money and power to advance their moral judgement to varying degrees across the planet. Its not a right or wrong issue, its a numbers game. The more can be swayed to ascribe to a certain world view–the more a society will mirror those views.

  74. HarvardLaw92 says:

    @Justinian:

    The war had been raging for over a year when the Declaration was signed. No, it’s a Declaration of Independence, just as it says on top.

    You are splitting hairs to no useful purpose here. The point remains. The D of I is not an expression of law. It is a justification for war.

    Also, how are we to determine the applicable authority of the States, when all the discussion in Philidelphia was over the construction of the federal government? The U.S. Constitution is exactly that: a Constitution of the United States, not of the states individually. That document carefully lists the powers of Congress, but says precious little about the States, which were pre-existent entities. Consequently, we cannot discover the powers of states by looking at the U.S. Constitution, except for a few prohibitions (no titles of nobility, etc.).

    I would suggest rereading the 10th Amendment in the context of the necessary & proper clause, then reading the supremacy clause. The states essentially ceded sovereignty in practice when they ratified the US Constitution. They ceded it in fact when they ratified the 14th Amendment. Anti-federalism lost, as it was always going to lose once the Constitution as it exists was ratified. If they’d intended to preserve their sovereignty, they would have kept the Articles of Confederation.

    If we get right down to it, the authority of the states are found in their own constitutions, whose legitimacy, like that of the U.S. Constitution, rests upon the consent of the people, either a state constitutional convention or a plebiscite.

    No, again, reread the supremacy clause and the 14th Amendment. State constitutions are no less inferior to federal laws and the US Constitution than state statutes are.

    Case in point: when Loving v. Virginia was handed down, 16 states still had statutes on their books banning miscegenation. Several of those had state constitutional amendments banning it. All fell due to an assertion of federal power based on the US Constitution.

    Had the issue been left up to a popular vote, it would overwhelmingly have been supported, arguably in a majority of the states. That didn’t matter. Constitutional rights, AS DETERMINED BY SCOTUS, supersede the will of the people.

    What is the broader point, you ask? That states essentially have the powers which the federal allows them to have.

  75. swbarnes2 says:

    @Pharoah Narim:

    My argument is that moral disapproval isn’t grounds for dismissing any argument because in most cases–moral judgements are the only thing backing up either side.

    No one is arguing like that. You keep saying so, but that’s not true.

    The 19th amendment does not say “We morally disapprove of other people morally disproving of women voting, so women can now vote”. You know perfectly well that it says

    The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

    Those are the grounds on which gay marriage will be upheld; because gay people, as citizens of the country, have the same rights as everyone else, and rights trump moral squeamishness.

    Honestly, real people, innocent people are hurt by anti-gay laws. Treating it as an exercise in showing off your 8th grade ethics class rhetoric is childish, and harmful. I think you know that.

  76. Pharoah Narim says:

    @HarvardLaw92:

    The purpose of the law is not to legislate subjective morality. It is to address objective harm.

    I can cosign this with the qualifiers added. Cheers.

  77. Pharoah Narim says:

    @swbarnes2: Actually I think that people that give their opinion the weight of some sort of human transcendence are more dangerous than a eight-grade ethics class bone head. Those are the sort who blaze off and do things fueled by moral conviction they are convinced are superior to anyone else’s conviction for the simple fact that they agree with it–not much different than the Jesus Freak mindset. At various times in history, those that operate that way mentally have accomplished both very noble and destructive changes for humanity depending on the issue at hand. I’ll let your comments stand as the last word and we’ll agree to disagree.

  78. stonetools says:

    I get PM’s point. He is saying (correctly) is that what we have here is a clash of conflicting moral positions. We liberals are uncomfortable with that. We like to argue that what we are doing is fighting for the forces of “secular law”, founded on “reason and science” against those blinded by appeals to “antiquated”, biblical morality.
    Makes for great rhetoric, but its wrong. Neither reason or science tells us that all human beings deserve to be treated equally before the law. That’s a moral judgment, which has been codified in the US Constitution. We are now trying to work out whether that right now extends to human beings who are homosexual, specifically with regard to their right to marry. Its a moral conflict all the way down, really, but a moral conflict expressed as a clash of differing legal positions.

    Honestly, real people, innocent people are hurt by anti-gay laws.

    True. And it the idea that innocent people shouldn’t be hurt by the operation of unjust laws is a sound moral position, which I agree with wholeheartedly.

  79. swbarnes2 says:

    Actually I think that people that give their opinion the weight of some sort of human transcendence

    You just don’t understand, and I don’t think you want to. It’s not about one opinion arbitrarily trumping someone else’s. It’s about rights. Women ought to have the right to vote. People ought to have the right to get married without the clerk imposing a penis check.

    Sorry, but if your moral opinion says that I don’t have the right to vote because I don’t have a penis, your opinion is morally and legally wrong. Not because my opinion is superior to yours, but because I have rights, and your pouting doesn’t change that.

    You want to say I don’t have that right? Then say it. But don’t keep transparently dodging the argument.

    No one who sincerely cared about the rights of others would keep arguing in the fashion that you are.

    Those are the sort who blaze off and do things fueled by moral conviction

    By all means, tell us all the stories of horrible things that happened when people went off in a blaze and acting while keeping the rights of all people in mind.

  80. matt bernius says:

    @Justinian:

    The [Revolutionary] war had been raging for over a year when the Declaration was signed. No, it’s a Declaration of Independence, just as it says on top.

    Correct, but this has no baring on HarvardLaw’s point — the Declaration of Independence has no direct bearing on the laws and rights set out within the Constitution. At best it can be used *to help interpret* the “original intent” of the founders. But that’s it.

    The fact that you keep making appeals to the Declaration of Independence as somehow being legally binding, or cherry picking material out of the Bible and other cultures that matches your arguement doesn’t mean that any of those things have a directly effect our laws.

    Further, trying to pull from Leviticus is a terrible proposition, because if you accept that it’s an authorative word on belief about homosexuality, then let me also remind you that Leviticus also gives permission for the people of God to take slaves (25:44-5) and that blasphemers and unbelievers should be put to death (24:16), not to mention the generally dim view it takes of everything from tatoo’s to shellfish.

    You also conveniently ignore all of the societies, including Ancient Greece and Rome (which you have invoked to bolster your arguements in your previous posts) where homosexuality was accepted, if not celebrated.

  81. Ebenezer_Arvigenius says:

    Makes for great rhetoric, but its wrong. Neither reason or science tells us that all human beings deserve to be treated equally before the law. That’s a moral judgment, which has been codified in the US Constitution.

    Nope. Equal rights are a demonstrably superior and beneficial position even when looked at in a theoretical moral vacuum. See this for example (an example of the so called “institutional economics”).

    So reason and science are firmly on our side (not to mention that the other side wants to discard 200+ years of moral and legal philosophy and the greatest legal achievement of our time).

    “Law is justice. And it would indeed be strange if law could properly be anything else! Is not justice right? Are not rights equal? By what right does the law force me to conform to the social plans of Mr. Mimerel, Mr. de Melun, Mr. Thiers, or Mr. Louis Blanc? If the law has a moral right to do this, why does it not, then, force these gentlemen to submit to my plans? Is it logical to suppose that nature has not given me sufficient imagination to dream up a utopia also? Should the law choose one fantasy among many, and put the organized force of government at its service only?” Frédéric Bastiat

  82. Justinian says:

    @matt bernius:

    In reply to matt bernius, who writes:

    You also conveniently ignore all of the societies, including Ancient Greece and Rome (which you have invoked to bolster your arguements in your previous posts) where homosexuality was accepted, if not celebrated.

    I have not written it before, but to me that one observation clinches the matter. Neither ancient Greece nor Rome, where homosexuality was practiced, ever dreamed of conferring marriage to homosexual relationships. These form, in my mind, the strongest examples against the institution of homosexual marriage: it was not practiced even by those societies most tolerant, even friendly, to homosexuality in general.

    * * * * *

    I realize that Leviticus is quite a mixed bag, and I certainly do not take it, or any ancient law, as binding authority. It does, though, form a legal precedent: something to look at and think about. But so much of Leviticus is so utterly inapplicable to the present day that you are probably right that quoting any of it may be of little worth.

  83. An Interested Party says:

    That states essentially have the powers which the federal allows them to have.

    Exactly right…anyone remember that little argument called the Civil War? That should of settled once and for all that the federal government has supremacy over state governments…

    I have not written it before, but to me that one observation clinches the matter. Neither ancient Greece nor Rome, where homosexuality was practiced, ever dreamed of conferring marriage to homosexual relationships. These form, in my mind, the strongest examples against the institution of homosexual marriage: it was not practiced even by those societies most tolerant, even friendly, to homosexuality in general.

    Whistling past the grave yard…much like Maggie Gallagher, among many others, you are fighting a losing battle…

  84. Spartacus says:

    @Justinian:

    And so, no, there is nothing I or anyone else can write on this subject that members of this thread (MarkedMan excepted) will take seriously.

    I’m confused. After rebutting your each of your arguments in what I thought was a respectful manner, you claim that I won’t take any new arguments of yours seriously because others on this thread have responded to you in a way you find ridiculous or disrespectful. I believe that is what people call a “non sequitur.”

    If you have any argument as to why my takedown of your points is empirically wrong, I’d be interested in hearing it. Otherwise, I agree that you shouldn’t be taken seriously, but for different reasons than you believe you shouldn’t be taken seriously.

  85. James in LA says:

    @Pharoah Narim: “Every direction we chose or chose otherwise to pursuit is the opinion and therefore moral judgement of an individual or group of individuals.”

    There is no absolute morality, so there can be no sound judgement of it.

    What you must do is show actual harm. Not possible harm in the future. Not deep personal dislike. Actual harm. Anti-marriage people have not done this because there is no actual harm being caused. Only irrational alarm from those who have spent CENTURIES denigrating often to the point of death not just for homosexuals, but any violators of that relative moralism called religion.

    That time is ending, and quickly. Please try to keep up.

    Because if you just stop and take a breath, what you are being offered a rare opportunity to set down your intense dislike without consequence. That window will not be open long. You will derive no benefit from bashing gay people in the future. None whatsoever.

  86. anjin-san says:

    And so, no, there is nothing I or anyone else can write on this subject that members of this thread (MarkedMan excepted) will take seriously.

    Write something serious. Claptrap about the relevance of the Declaration of Independence being relevant to the topic at hand and putting forth the notion that because other nations allow repression we should allow it here – not serious stuff.

    So, play the victim card. It’s one conservatives turn over a lot.

  87. Pharoah Narim says:

    @Stonetools: Thanks for a cliffs note version of my views. That pretty much hit it on the head. I may agree with someone on a position but I still believe we have to use good logic and make good arguments to come to those positions–else you’d operate no different than the Tea Party.

    @Justinian: For someone that purports to have studied the Law of Moses as a historical document relevant to legal precedent, I find it hard to believe you missed the fine print that the covenant ONLY APPLIED TO THE PEOPLE PRESENT ON THAT MOUNTAIN TO ACCEPT IT, THEIR BLOOD DESCENDENTS, AND THOSE WHO WOULD VOLUNTARILY ACCEPT THAT COVENANT. For 2000 years, Christians have tried to convince people (and successfully) that all mankind was under the auspices of the Law of Moses. They were and are not–so arguing that anyone is bound by anything contained in it is a moot point and misleading.

    @James in LA: Im not sure what thread you were reading buddy but if you take my disagreement with the one particular argument liberals make to dismiss the conservative point of view to mean Im bashing anyone or anti-this or that—you have a maturity issue. I don’t have to agree with anything anyone does and they don’t have to agree with what I do–why devolve that stance into some sort of commentary how one person views the other qualitatively? We withhold real bigots, racists, and bashers their deserved due by desensitizing the public to those terms by overusing them. Who cares about being called a socialist or communist anymore? Right wingers robbed those labels of their power by using them too often in circumstances they weren’t called for.

  88. Pharoah Narim says:

    @swbarnes2: I was hoping to end our conversation with you having the last word but will continue in the spirit of vigorous debate–which never hurt anyone.

    Actually I do understand but understanding doesn’t have to equal agreement. I can’t agree with your framing of the argument because I don’t share the paradigm through which you framed them. What you don’t comprehend is the founders created a paradox. So on one level, you are right–you do have “rights”. However on a deeper level, those “rights” emanate from the direct opinions of the founders about how life in their newly created country should be. Since then, rights have been defined by our leaders interpretations of those original opinions and enforced though the ability of those leaders to deprive non-compliers of life, liberty, and property. In that light, the legal invention known as “rights” don’t come down to any higher level transcendent principle…its writing on paper. No more, no less. It comes down to consent–which Americans have agreed to transfer to government in exchange for a civil society and responsive governance–and finally it comes down to who has the ability to enforce their point of view (The Confederacy being the last group of people who felt strongly enough about their opinions to try and compel the Union to recognized it as law).

    At the level of citizens, instead of investing undue emotion in determining who’s making an argument from “higher ground” (which is where everyone believes they are making an argument from), its more productive to simply invest energy in converting others to your point of view using non-emotionally charged arguments and avoiding language that closes down open minds. Everyone won’t always see things our way on every single issue but they may on other issues so agree to disagree and move on. I don’t hold that my opinions have any more intrinsic value that the next persons—what I do hold is that for most of my opinions I can co-opt more people to view the world my way than people that hold the opposite opinion. THAT is the only thing that makes one’s opinion more powerful that opposing opinions in this political system.

  89. James in LA says:

    @Pharoah Narim: ” I don’t have to agree with anything anyone does and they don’t have to agree with what I do”

    Who asked you to? The choice is completely yours. I don’t care what choice you make.

    You are free to say anything you like.

    What is ending is for you to use your intense dislike — and only that — to rob others of their rights.

    That you insist on your epic, baseless complaining means the immaturity belongs to you, which I think you realize or you would not be trying to project it onto me, e.g., “buddy.”

    Meanwhile, gay marriage is going to happen. Up to you what you make of that reality. If you are not a gay person wanting to get married, it does not affect you in the slightest. To say otherwise makes you look foolish, sorry.

  90. swbarnes2 says:

    @Pharoah Narim:

    At the level of citizens, instead of investing undue emotion in determining who’s making an argument from “higher ground” (which is where everyone believes they are making an argument from), its more productive to simply invest energy in converting others to your point of view using non-emotionally charged arguments and avoiding language that closes down open minds.

    Everyone who was willing to be reasonably convinced has already been so. All your talk about the framers and pieces of paper, you keep refusing to say the plain truth: anti marriage policies and laws hurt innocent people. People who willfully, knowingly hurt gay people aren’t going to be reasoned out of doing that.

    And I’m sorry, but I bet if a bunch of people were willing, knowingly hurting you, and explaining to you that your moral preference to not be hurt was no more valid than their moral preference to hurt you and hurt you, you’d be emotional too. Why the hell shouldn’t people who have been hurt, people who continued to be hurt by cruel policies say they are hurt! Why the hell shouldn’t pointless cruelty be pointed out as such?

    Honestly, what purpose do you think it serves to be on team “Pointless cruelty is just another preference”?

    Everyone won’t always see things our way on every single issue but they may on other issues so agree to disagree and move on.

    Let’s say that your spouse was not an American citizen, and tomorrow she was deported. And you can’t marry her to get her a green card, it’s illegal for you (but totally legal for me for me to marry mine) and I take actions to keep things that way. Well, I don’t see the problem, I just don’t see things you way, so just move on, right? You’d do it, just like that?

    I don’t hold that my opinions have any more intrinsic value that the next persons

    So if my opinion is that your spouse should stay deported forever, but I can marry mine to get a green card, you think my opinion is just as good as yours? I mean, really stop and think about what it would be like to live like that, going months without seeing your spouse, and living like that for years, with no end in sight, and then tell me that you think my opinion about your situation is just as good as yours. No vague generalities, no references to 200 year old Founders, just answer about this one specific situation, that happens to thousands of American couples every day.

  91. matt bernius says:

    @Justinian, thanks for taking the time to respond.

    Neither ancient Greece nor Rome, where homosexuality was practiced, ever dreamed of conferring marriage to homosexual relationships. These form, in my mind, the strongest examples against the institution of homosexual marriage: it was not practiced even by those societies most tolerant, even friendly, to homosexuality in general.

    Again, I’ll note that (a) there are other societies were same sex marriage was allowed (or rather there were ways that, through ceremony, a man would ritually become a woman), and (b), more importantly, this makes a common anachronistic mistake of assuming that marriage as we understand it today was the same as then.

    In Rome and Greece — as with other cultures you’ve mentioned in the past — marriage was about the *paid* transfer of property (the woman as property from family of origin to the husband). Modern concepts such as single spouses or fidelity, let alone the notion of the woman being an equal partner in the relationship, were not present in many “traditional” forms of marriage.

    In that respect there was no need for “homosexual marriage” as, generally speaking, the two men were theoretically equal in the relationship (neither being the property of the other, unless we’re getting into the complex issue of slave/master relations).

    More so, what you are basing your entire argument on is “tradition.” And while it’s important to recognize tradition, it’s also important to note that a lot of evils have been protected under the guise of “tradition” – slavery, absolute hereditary monarchies, systemic discrimination.

    Since you like referring back to the Declaration of Independence, it’s important to note that the overthrow of tradition is fundamental to the DNA of our society. In fact, Jefferson wrote the following on the subject:

    “I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” –
    Jefferson to H. Tompkinson (AKA Samuel Kercheval), July 12, 1816
    [emphasis mine]

    I realize that Leviticus is quite a mixed bag, and I certainly do not take it, or any ancient law, as binding authority. It does, though, form a legal precedent: something to look at and think about.

    You really don’t understand legal precedent if you think Leviticus forms any sort of legal precedent.

    But so much of Leviticus is so utterly inapplicable to the present day that you are probably right that quoting any of it may be of little worth.

    This is the issue with your general style of argumentation: you throw out a lot of initially scholarly sounding evidence. However upon closer inspection, much of your evidence is “utterly inapplicable to the present day” because of the profound transformations of society that have taken place since then.

    I have no issue with returning to the past to bolster an argument, but you need to contextualize what you are writing. Otherwise your presentation of the evidence undercuts the evidence itself.*

    * – Perhaps the best example of this with regards to Leviticus is the old testament “scholar” who was so homophobic as to have Leviticus 18:22 tattooed on his arm (in direct violation of Leviticus 19:28).

  92. Pharoah Narim says:

    @James in LA: Keep tilting at windmills “buddy”. You don’t know what I like or dislike as I never stated it– Im grounded enough to understand not many people are going to care about my personal preference for what they do or do anyway so I just don’t waste much time thinking about it. I certainly don’t care how their preferences apply to my behavior. As long as it doesn’t cramp my style it all good with me. I do care about how we come to decisions about the laws we’ve consented to govern us all and that’s why I come here to engage in vigourous debate. Anyone that proposes to know what someone over the internet feels (without that person stated it) is either psychic or a fool—neither of whom yield much value in debating with. Please find an actual bigot or hater to debate with…it’d be a more productive expenditure of your time because its getting no play with me. I can go to redstate or huffpo to mix it up this those kinds of small, presumptuous minds. Good day.

    @swbarnes2: For the last time yes–your opinion would be of no value of mine. The only thing that matters is whether I could pursuade enough people and the authorities to give my opinion the force of law. Everyone feels strongly about something—strong feelings about something do not equate into value. There’s no harm in agreeing to disagree and moving on. This is where I unplug. Good day.

  93. Pharoah Narim says:

    @swbarnes2: I somehow missed your request for an answer to your hypothetical. First I will say your request reveals our misunderstanding. I didn’t join this thread to address the ground floor practicality of why Gay Marriage should be upheld. I wanted to debate the logic of the arguments used to support our point of view. To recap: The Supreme Court ruled that moral disapproval is not a grounds from with to uphold DOMA and Prop 8. If moral disapproval cannot be used to oppose DOMA and Prop 8—it can’t be used to oppose almost anything because moral disapproval or approval is the major driver of most socially targeted legislation. Is hypocritical to dismiss moral disproval on one issue and then turn around and say “my moral disapproval is sufficient to justify my opposition on another issue” That’s having it both ways. There are other economic, societal, and psychological elements to any argument that provide support for progressive postion that would be consistent with their self-title mantra of being the side of reason and science.

    Placed in your scenario from a first-person perspective. I would: (1) seek to address my grevances to those in authority. If you were in authority with your perspective, I would seek to go over your head for relief. (2) If exhausting all legal means without satisfactory relief (unlikely but this is hypothetical so I’ll play it out), I would then weigh my options to join my spouse in her country. If THAT isn’t possible (3) I then decide to devote my energy to engaging in civil disobediece by breaking the law–taking all steps to minimize our chances of getting caught and formulating a plan for what we do if we are caught. Rinse repeat. Adapt and thrive is how I play it when it comes to being on the wrong side of someone opinion that happens to have the force of law.

  94. swbarnes2 says:

    @Pharoah Narim:

    For the last time yes–your opinion would be of no value of mine.

    You seem to have missed a key word which totally defeats the purpose of having you explicitly say what you mean. So you are saying that my opinion that you should be a second class citizen is just as good and valid as your opinion that you should not?

    Really?

    The only thing that matters is whether I could pursuade enough people and the authorities to give my opinion the force of law.

    And how would you do that, when your second-class citizenship status is treated as a lighthearted academic debate, and the real pain that people cause to you by denying you your rights is treated as an acceptable, unquestionable moral preference?

    Let me put this another way. Putting the basic human rights of other people up for some kind of academic discussion is disgusting, and only vile people would do that.

    And since you think that my opinion is just as good as yours, I don’t see how you can argue against it.

  95. James in LA says:

    @Pharoah Narim: “Please find an actual bigot or hater to debate with…it’d be a more productive expenditure of your time because its getting no play with me.”

    With respect, your own comments on this thread reveal you as an angry bigot who thinks “morality” is some kind of card that trumps actual harm caused.

    You are simply angry this is no longer the case.

    Good luck with that.

  96. Justinian says:

    @Spartacus:

    In reply to the post of Spartacus (and this is pretty technical and unlikely to be of interest to others than Spartacus):

    You worded your original post against my original miniature essay in these terms :

    Until then, do you have any comments opposing the overturning of Prop 8 and DOMA that the rest of us should take seriously?

    I answered the question you asked. You talked about “the rest of us”, meaning “the rest of us on this thread.” I consequently drew from the writings of “the rest of you” to form my reply.

  97. Justinian says:

    @matt bernius:

    In reply to matt bernius: Thank you for your thoughtful response. The quotation you brought to bear is beautiful and memorable.

    You might wish to know that the Romans had several different forms of marriage, which, true to the idea of progress, were different at later times in its history than in former. Marriage was indeed originally a purchase, and the woman became a “family-daughter”, and the man had the same power over her as he had over a daughter.

    Later, though, the woman became recognized as a “family mother” and became recognized as sui iuris, “in her own right,” and not in the power of her husband. The Romans, in fact, had a range of choice available to them as to which form of marriage they would enter into. We might say that they had a choice of the older forms or the new forms available to them.

    One later form of a Roman marriage ceremony was very symmetrical and congenial to the current times. The woman turned to the man and said, “Do you agree to become family-father?”. The man would say “I do.” The man then turned to the woman and said, “Do you agree to become family-mother?” And the woman said “I do.”

    I don’t know about you, but to my mind that is perfectly applicable to the current day.

    * * * * *

    I also have dug up the following quotations on the subject, from The Insitutues of Justinian. Others may disagree, but to me it is just as applicable today as it ever was:

    The law of nature is that which she has taught all animals; a law not peculiar to the human race, but shared by all living creatures, whether denizens of the air, the dry land, or the sea. Hence comes the union of male and female, which we call marriage; hence the procreation and rearing of children, for this is a law by the knowledge of which we see even the lower animals are distinguished. — Institutes of Justinian, Title II, Section 1.

    Call me a paleoconservative, but when a man and a woman “hitch up together” (in today’s parlance), I consider it “natural law marriage,” as would many jurisconsults of a former age.

    * * * * *

    Those of conservative religion are, of course, the ones who are most vexed by any conception of homosexual marriage. My own opinion is that they have brought this problem on themselves. In the 1800s, they (religious conservatives) sought to have no marriage recognized except that which was sanctioned by the state, and worked, mostly successfully, to outlaw or banish common-law marriage (the English equivalent of the natural-law marriage above). They succeeded in most jurisdictions, but, by divorcing marriage from any natural-law basis, they opened the way for an “anything goes” form of marriage, which we are seeing some of today.

  98. matt bernius says:

    @Justinian:
    In regards to your quoting of the Laws of Justinian, while the section is indeed poetic, it’s understanding of “natural law” has very little to do with the “laws of nature.”

    Most species are not monogamous. At best they form a limited bond for only a single breeding season. Even in species that form a longer bond — i.e. many birds of prey — the bond will dissolve if the pairing is unsuccessful in breeding after multiple seasons, or if another, stronger mate appears.

    Further, as there is significant evidence, same sex couplings occur throughout animal species. Justinian, for understandable reasons, chooses to ignore that particular “natural” occurrence. Which get’s to the larger problem with most “natural” arguments — they are more interested in “nature” as a powerful metaphor than in “nature” as it actually occurs.

  99. matt bernius says:

    @Justinian:
    Please note: I’ve made a similiar post about the problems with your invocation of Justinian (the Elder’s) use of natural law on the other DOMA thread (link to follow). If you want to continue this conversation, let’s do it there rather than here:

    https://www.outsidethebeltway.com/doma-under-fire-at-the-supreme-court//