Marriage

For those of you who'd like to read the decision instead of the commentary. The ruling is that no state may prohibit same-sex marriages; as a natural consequence, each state must recognize same-sex marriages authorized by other states. The right to same-sex marriages is ruled a fundamental right, with which (under the 14th amendment) the states cannot interfere without due process of law. (The Fifth Amendment places the equivalent restriction on the federal government.)

I would call it a privacy-penumbra case, squarely in line with Griswold v. Connecticut, which forbad the state to interfere in a married couple's decision to use contraception.  That is, it seems to be based less on identity politics than on limiting the government's right to interfere in intensely private intimate relations--but maybe that's just the part of the reasoning that resonates best with me.  Bear in mind also that it is a restriction on state power, not a prohibition of individual discrimination, which is a creature of statute.  That is a controversy that will continue to rage, especially since this decision neither expressed nor disavowed a First Amendment ground for refusing to participate in a wedding ceremony that violates one's religious convictions.  The Court did say that religious institutions have a first amendment right to advocate against same sex marriage. Roberts is leery of protections that are limited to advocacy: "The First Amendment guarantees, however, the freedom to 'exercise' religion. Ominously, that is not a word the majority uses." What will happen, he wonders, "when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples"?  Alito echoed these concerns, but mostly in terms of a fear of branding opponents as bigots unless they confined their opposition to private whispers.

Roberts read aloud a dissent in which he appeared to welcome gay marriage but deplore the decision to get there by judicial fiat rather than democratic process. (Those of us with memories extending beyond 24 hours may be amused by this comment from Justice Roberts: "But this Court is not a legislature.") In contrast, the majority opinion stated "While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right." Roberts also makes the slippery-slope argument: "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage."

Scalia read aloud a dissent that was dripping with contempt for the legal reasoning of the majority:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
Thomas balked at including homosexuality within "life, liberty, or property," and scoffed at the sloppy grafting of due-process on equal-protection jurisprudence by means of the dreaded "synergy."

8 comments:

Grim said...

As usual, Alito's reasoning strikes me as soundest. His separate dissent on the threat of the Court to American democracy resonates.

Grim said...

Here is the core of that dissent, for those who haven't seen it:

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ” One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us."

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Emphasis added.

Eric Blair said...

Jeeebus, I wish I was a divorce lawyer right now.

Grim said...

There's still time. Law schools are begging for applicants at the moment, and even a short marriage lasts a few years on average.

Dad29 said...

Shakespeare wuz right

Assistant Village Idiot said...

Tex, this is the best comment I have read today, and I have read many.

Texan99 said...

Why, thank you, AVI! I appreciated yours at Maggie's Farm.

Jason said...

Do they actually bother to provide a definition of the word "marriage" anywhere in any of the documentation of this case?

They evidently don't think it's a "legally and socially recognized, sexually exclusive relationship between one man and one woman for the purpose of producing and raising children (ie: starting a family)", which is what I've always thought marriage was.

I suppose the two gay men I've known who married and father children on their respective wives weren't *really* married because...um...