Today was a pivotal day in American history: the day that the issue of gay marriage was finally argued before the Supreme Court. In only 2.5 hours of oral argument about four consolidated cases, the Court debated two issues: whether same-sex couples can marry under the U.S. Constitution (the biggie) and whether states must recognize gay marriages that are legal in other states. If they reject the Constitutional argument, then it’s up to the states; if they accept it, banning gay marriage can’t occur anywhere, for it would be unconstitutional.
As the New York Times reports, the justices were divided, with Kennedy the swing vote but with Chief Justice Roberts showing more sympathy than I would have expected.
On the evidence of his words, he seemed torn about what to do. But Justice Kennedy’s tone was more emotional and emphatic when he made the case for same-sex marriage. That, coupled with his earlier judicial opinions, gave gay rights advocates reason for optimism by the end of the arguments, which lasted two and a half hours.
. . . Justice Kennedy said he was concerned about changing a conception of marriage that has persisted for so many years. Later, though, he expressed qualms about excluding gay families from what he called a noble and sacred institution. Chief Justice John G. Roberts Jr. worried about shutting down a fast-moving societal debate.
The liberals, of course, were sympathetic, and the conservatives dubious (as usual, Thomas didn’t say anything).
Justice Samuel A. Alito Jr. asked whether groups of four people must be allowed to marry, while Justice Antonin Scalia said a ruling for same-sex marriage might require some members of the clergy to perform ceremonies that violate their religious teaching.
Jebus, I wonder why Alito didn’t ask whether men could marry goats!
Here’s my prediction: the vote on both issues will come down 6-3, with Alito, Scalia, and Thomas dissenting. The reason I think both Kennedy and Roberts will vote for legalization on both issues is because the tide of sentiment in the U.S. is swinging strongly toward gay marriage, and they don’t want to be on the wrong side of history. Alito is just an obstinate conservative, while the originalists Thomas and Scalia can argue that there’s nothing in the Constitution or most of U.S. history supporting same-sex marriage.
Your prediction?
You can hear the oral arguments at CNN. (It’s time the Supreme Court allowed television; I suppose they’re worried that we’ll catch Clarence Thomas sleeping.)
There will come a time when being against gay marriage will be frowned upon as much as racism is frowned upon today. It’s simply a matter of time.
The same way air is frowned upon…
I have the same 6-3 prediction.
I read the arguments and the plaintiff side was very good. The defense side seemed to have little.
One thing I saw as a mistake (mistrake, for Ben) – Scalia asked “why should marriage change after it has been that way for thousands of years”.
The plaintiffs had great answers for that but I thought they could have mentioned that a long time ago, marriage was between a man and a woman and a woman, and a woman… Harems were used by the elite and the common people didn’t even marry at all.
and Native American tribal groups allowed same-sex marriages, until the Europeans told them it was bad and made jesus cry. Some Inuit groups, when families failed to have a son, chose a daughter to raise as a son, doing traditional “male” roles in hunting and the like, including marriage to a woman. history isn’t as anti-gay as the fundy christians and muslims would have us believe; they’ve just attempted to hide or erase the past. Spirit and the Flesh: Sexual Diversity in Native American Culture” by Walter L. Williams is a good place to start for some non-christian, non-european history.
this was of course what I was screaming at the radio, but nobody heard me…
Also, marriage has changed.
It used to be for procreation.
As Justice Scalia helpfully pointed out in
Lawrence v Texas (2003), we let “the sterile and the elderly are allowed to marry.” as well as purposely childless couples. He said after Lawrence, gay marriage would be a reasonable outcome!
Marriage also provides a stable home for the adopted children from careless hetero reproduction.
The opponents were reduced to saying that bigots might not get married if gays left their cooties on the institution. In other words, bigots can hold rights hostage by empty threats that the bigots will screw it up for everyone if gays are allowed.
It is amazing how you can take so many of the arguments and replace “gay” with “interracial” and how many times states rights is invoked. Rewind to 1967.
No way will it be a clean 6-3. There will be concurring opinions. I predict Roberts will only concur in Part II, regardless of the illogic of it.
I see the same 6-3.
Alito, Scalia, and Scalia’s hand puppet.
Do you know how often judges vote together? S and T are not the top pairing. Not even close really.
Well known, but not the issue. Gotta get down further in the data.
I agree. 6-3. My take on this issue and many others over the past 238+ years has been that the unfortunately ambiguous statement in the the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Or to the people? What does that mean?
What happens when the States are the problem and usurp powers that belong to or infringe on the rights of the people? Including but not limited to: Slavery, Segregation, Civil Rights, Marriage equality, LGBT rights, Abortion, Womens Rights, Church/States issues. In these the Federal Goverment has HAD to step in. Seems that the battle ground of conservatives has been to interpret the 10th amendment so that the States not the People should have the ultimate authority, even if that is enforced with the tyranny of the majority. I disagree. I would like to see the day that this Amendment is adjusted to reflect that the States should have the right to only that which should only belong to the State such as Law Enforcement (legit use of force), lawful detainment, taxation, non-Federal jurisprudence, etc., but that the States are HANDS OFF social/personal issues as those rights belong exclusively to individual people. Any Constitutional Lawyers in our readership that can help refine my arguement/proposal?
‘the problem is the unfortunately ambiguous statement’
Not a lawyer at all but I think the confusion is wrapped around that word sovereignty. The constitution and that tenth amendment left us with a duel sovereignty and that has been the battle since they finished the meeting in Philly. I don’t think there is any other country that has this mess the way we do. It is why we have had, almost from day one — two parties. The first two were the federalist and the republican-democrats or anti-federalist. You can thank Jefferson for that one.
Kind of funny but Madison was really upset when the meeting in Philly was over because he thought at that time, the federal government should have power over the states and did not get it. Later he did a 180 and turned into a Jefferson toad.
OH, it would be 228 years of confusion or actually 225 since the bill of rights.
The 14th Amendment superseded much of state’s rights.
I would agree some but not much. They have tried to hang minority rights/discrimination on this Amendment but look at gay and lesbian rights. So far its been banging around state by state. Some states are almost out of abortion rights. Control of school education and we could go on and on. The 14th which came shortly after the Civil War was specifically suppose to help the X slaves but all they got was another 100 years of Jim Crow.
Historically the states have not been “lawful’! and the federal is slow to step in and injustices go on for many decades. The states have been insulated with this approach and peolple suffer, and suffer!
The clergy aren’t forced to marry anyone. It’s not like any clergy would officiate my marriage with me being an atheist. I’d have to do what they wanted (ie: convert to their faith) and go through some religious equivalent of the labours of Hercules for them to marry me. So, how exactly does allowing gay marriage force clergy to marry people they don’t want to? It would be no different than it is today.
The plaintiff answered this by saying that no clergy was ever penalized for not marrying someone outside their faith.
Could a preacher be sued like a cake maker? Yes. Presently he would win. A precedent here would at least complicate the issue.
IANAL, but (when does any other word ever follow?) it seems pretty clear cut that a preacher or rabbi or any other clergy member could cite the First Amendment in refusing to perform a religious ceremony. It is explicitly a religious ritual and the Government cannot dictate what a religion’s rules are, with the usual caveat about secular purposes and impeding the rights of others. A religious ceremony carries no secular purpose though it is usually coupled with the secular oath of marriage. I got married in the Catholic Church and had to jump through a few hoops to get the priest to do the ceremony. I think it’d be pretty farfetched to bring a case to court claiming a priest should have to perform the secular part of the marriage and not the religious one.
Not to be difficult, but this suggests the idea of people getting ordination of some kind just so they can discriminate.
(“I’m not just a baker, I’m a _holy baker_, confirmed by the church of thus and so and it is a religious obligation to… ” etc.)
This is precisely the problem with any human language as well as a problem with the general idea of separation of Church and State combined with freedom of religion; it invites all kinds of attempts at finding loopholes since the two ideas bump up against each other.
Your example is not too different from what Principal Lowery attempted to do in Missouri last year, following the letter of the law but trying to skirt around the spirit of the law. I would hope anyone trying to claim that baking a cake is now a religious ceremony would be laughed out of court, but this is a perfect example of the problems with laws protecting “sincerely held beliefs.” Sure, you can believe anything, but freedom of religion has to be halted at actions that trample on other people’s rights.
A parallel example to a “holy baker” would be someone trying to sue the Catholic Church for denying Communion because they are discriminating based on religion and not providing everyone the food. I don’t think anyone would claim that those bland wafers are being handed out as meals rather than as a religious ritual, but at what point is the line drawn? As for the marriage issue, I’ve always felt that marriage ceremonies should be left as religious rituals and have no secular meaning, but somehow we’d have to avoid putting a double burden on the large percentage of society that likes to kill two birds with one stone in front of a priest. Frankly, I’m surprised this issue doesn’t come up much more often with gay couples filing suits against clergy who are authorized to perform secular ceremonies but refuse to. It may be the big next court case if the current one passes.
Wasn’t there a case relatively recently of a Vegas Wedding Chapel owner/operator being run out of business because they wouldn’t permit gay weddings?
I think there will be some (albeit very rare) cases. I think the general take away is that the more for-profit-business-like your “church” is, the more the government is going to hold it to for profit business standards. If you want to turn away anyone you want based on your religion, open a regular nonprofit chapel that operates on voluntary donations: do not open Weddings A Go-Go, LLC.
I wouldn’t be shocked if they punt the Constitutional issue on some technical ground. No matter, ultimately the Court will definitely recognize the rights of people to marry whomever they choose
I am also fully confident that history will view Scalia harshly, reflecting that his rulings are almost always based on his personal religious views and not on Constitutional jurisprudence. He is, in my view, the most intellectually bankrupt Justice to sit on that Court since the Dred Scott era.
No way will they punt. They wouldn’t have taken these cases if that was the intent. And they have intent from the start, regardless — especially these days — of all the preliminaries, and briefs, and amicus briefs, and oral argument.
IIRC they kinda had to, because two circuit courts disagreed on the constitutional issue and that’s one of the primary purposes of having the supreme court, so that different portions of the country don’t operate under different rules about what is constitutional.
So, I think you’re right that they will rule on the constitutional issues, but Mark is probably right in spirit that the court would’ve preferred to not rule on the constitutional issues at all. The circuit courts kinda forced their hand on this one.
A Big Plus One – and the worst kind of intellectually bankrupt Justice: one who holds himself out as a deep thinker and whom the opinionators take at his word.
Whatever intelligence Scalia is supposed to possess is nullified by his unbounded arrogance. He long ago passed the point that the latter quality shut down his ability to learn or think anything new.
You don’t think perhaps Clarence Thomas edges Scalia out for the title? In any case they are both examples of the absolutely worst kind of catholic.
I agree that Roberts will protect his legacy and vote on the “right side” of history.
Agree, he will be there for a long time yet, it will still be the Robert’s court, even when other members change, and I’m sure doesn’t want to end up reversing himself. He manages to at least be internally consistent, and has come out ion the right side (or the left side) of some issues where I wasn’t expecting his vote. Notably re the ACA.
Don’t forget that as Chief Justice, if Roberts is on the majority side, he gets to decide who writes the opinion. He’ll vote with the 5 to make it 6-3 so that he can write the opinion.
If its too outrageous, this would just cause Sotomayor etc. to issue concurring opinions.
I would agree either 5-4 or 6-3. I don’t think Roberts is a clear lock at this point but on odds, I would agree he’s probably going to put his legacy ahead of any personal opposition he feels towards SSM.
The questioning that occurred in part II could’ve been conservative jockeying to get Kennedy to ‘split the baby:’ find against SSM as a constitutional right but find that states must recognize other states’ marriages, since in practice that means gays can get married somewhere and have their rights recognized everywhere. But from what I’ve heard just with brief scanning of punditry, SCOTUS watchers don’t think the court is likely to split on the two issues. So, its a low probability play but the one they may have had to make.
So, there were two questions asked, as noted. On the first, I think it’s a loss, 5-4 along the usual lines. On the second question, I think it’s a win, 7-2. And get this: I think Scalia writes the decision (Alito and Thomas dissenting). Scalia goes rogue every once in a while (Texas v. Johnson, Kyllo). I think he’s going to see this as a big boost to his constitutional bona fides in upholding the full faith and credit clause. I think Roberts and Kennedy basically tell themselves they’re staying out of the democratic process while still in a way acknowledging gay rights I hope I’m wrong on question 1, but there’s my prediction.
“. . . Justice Kennedy said he was concerned about changing a conception of marriage that has persisted for so many years.” Very worrying that a Supreme should be concerned about righting a wrong just because it had been a wrong for a long time.
If the supremes adjudicate this on the constitution as it stands then it must be 9 – 0 for same-sex marriage based on the 14th amendment. But I think it’ll be 5 -4.
I wish I could be as confident as others, but I don’t trust any of the conservative justices. They appear to me to be highly prone to self justification and rationalizing, especially Chief Justice Scaly.
I think he shouldn’t have any choice but to rule in the affirmative if he were to follow his own previous rulings/opinion, where he stated the a previous ruling would lead to these court cases. I’d outline it better, but I’m falling asleep and I just can’t get it together.
He will rule against same sex marriage and rationalize his decision in some grizzly twisted fashion, as he has so many others.
Unfortunately, or otherwise, the SCOTUS is one court that is never bound by its own precedents. Which is how the fascists on the court were able to reinstate capital punishment for instance..and they’ll overrule themselves on Roe v Wade one of these fine days – if the american people make the wrong presidential choice.
Which is chilling!
My prediction?
Legalization of gay marriage will lead to, well, I see a slippery slope: PCC mentioned goats, others have thought of ducks …
LinkText
Please don’t ask how I feel about this.
Reposting the link (my first time doing this):
Oates & Garfunkel’s heart-rending song Sex With Ducks
I just don’t see how the Court can strike down gay marriage at this point. They’d have to invalidate countless thousands of existing marriages…and how’s that supposed to work, exactly? They’re going to mass-divorce all the married gays? Let them stay married but not let anybody else get married?
They’re certainly going to have to require states without gay marriage to recognize the marriages of those in other states…and, once you’v gone that far, you really can’t justify permitting any remaining discrimination.
The time for the Court to have put a stop to gay marriages was a couple years ago. They didn’t. It’s waaaaaay too late now.
At the same time, I wouldn’t be too terribly surprised if there’s some behind-the-scenes negotiations to both ensure that it gets formally validated and that somebody-or-other dissents just for the sake of dissenting. That is, it’ll definitely be at least 5-4 in favor of marriage, but I wouldn’t be as certain about 6-3. Scalia for certain will write an idiotic and especially flaming dissent, but he’s likely to be the only one to sign on to it; be interesting to see what the other dissenters write, if anything….
b&
I propose a wager Ben. If you give me 3 to 1 odds I bet you are wrong about Scalia’s opinion. $1 to be donated by me to a local charity if I lose, $3 by you if you lose. Your win happens if Scalia dissents, the dissent is flaming, and you can cite a law prof identifying a clear error in the dissent. Mere opinion is not enough: an idiotic dissent would hVe a clear error.
(I think there is a decent chance Scalia joins )
Are we on?
Much too complicated. How ’bout simply whether Scalia votes in favor or against same sex marriage?
b&
Well my wager was to see if you would walk back your assertion. Which this counter offer seems to do. So I ‘ll take it, even though I rate the chances he will join as about 20%. He respects precedent, and dissented from one.
I don’t remember the source but some wonk pointed out that Kennedy and the liberal Justices did not ask the state’s attorney about what happens to all these currently married gays in states that have since passed bans. Given that this would be a pretty important issue if they (or Kennedy) thought Kennedy was planning to vote conservative, the fact that they ignored the issue altogether means they think Kennedy won’t vote that way. Moreover, the fact that Kennedy didn’t ask about the issue may mean his mind is already made up to vote on the liberal side, and he didn’t ask about it because it isn’t a problem that’s going to actually occur.
Hehe. Now were doing he thought that they thought that she thought that he thought they thought?
Reminds me of Kremlinology, or Alan Greenspan’s briefcase….
b&
My predictions?
1 Gay marriage wins.
2 Not 5-4
3 Any dissenting opinions will be misrepresented outrageously and dishonestly.
4 In 5 years nearly everyone will find gay marriage obvious and a good idea. Many will forget their opposition to it.
Should four people be allowed to get married? Sure, if it is consensual between all four and they spell out the terms of property and inheritance rights. Of course, Alito’s question is really intended as a non sequitur to shut the argument down. There aren’t millions of polygamists being locked out of societal privileges. This does open a whole other can of worms with Healthcare though. With our convoluted system, polygamy could open the doors to all kinds of “marriages” in the name of finding financial loopholes.
The lawyers gave a good answer to Alito: there are enough open questions about whether its truly informed consent (especially given the most common past and present practices of polygamy, which has lots of women running screaming from it and then writing books about the social coercion involved the first economic opportunity they get) that its a completely different issue.
You are right. In practice, polygamy plays out largely as a misogynistic institution with a handful of brainwashed women and one man. In principle, four people could consent to marriage (think a couple married couples who are into swinging). But, I’d think the number of people this sort of polygamy is a concern for is certainly approaching zero.
Those that practice Islam or are Mormona do not agree with you. They promote and advocate polygamists.
Yes, I’m aware of those groups and that there are in fact fringe groups in those religions practicing what amounts to polygamy, even if they aren’t legally married. It is far from the mainstream practice in either religion.
As I said, there aren’t millions of people being oppressed over this issue, the number is far likelier in the hundreds, maybe thousands. But throw in the caveat that most of these are not truly consensual living situations, and the number plummets significantly. Still, in principle, I don’t see why it shouldn’t be allowed given free consent of all parties.
This just sent me on a tangent looking for stats on this. The number is apparently somewhat higher than I guessed. it does seem at least anecdotally that the women aren’t exactly entering these arrangements freely. But, this is clearly an entirely separate issue than two gay people being married as there would need to be much discussion as to whether changes in the law would help or hurt women in these matriages. I’m inclined to think it may help if it at least gives them one less reason to fear coming out of hiding.
Sure, plenty of people promote and advocate polygamy. Plenty of people promote and advocate misogyny, too. They all seem to come with a pair of…of…unmatched sex chromosomes.
+ 1
…and har har har!
Although I see this a a clear legal decision regarding the rights of joint property ownership, taxes, inheritance and so on, I can visualize SCOTUS punting this back to the states and we’ll be back to more or less square one.
Texas will vote no on the marriage and no on the recognition and we’ll have the same disorganized state-by-state mess.
A thought I’ve had that I haven’t read anything about is the situation where two straight people of the same sex decide to get married, like the Odd Couple, Felix and Oscar. Suppose they wanted to combine households and incomes and file taxes jointly and establish inheritance to (supposedly) their kids from a previous marriage.
In this case it’s a legal contract, really, detached from religious implications.
Any thoughts other than I’m nuts? (which I’m willing to entertain)
There would be no IRS form at that time that the two could fill out. Not sure there is one now.
Wait, I am wrong. There is such a way to do that.
Just not sure how they would be able to be at each other’s bedside at death at a Catholic Hospital.
Felix and Oscar got married? I must’ve dosed off during the second act of Neil Simon’s play, or missed that episode on the tube.
I don’t think you’re nuts, but do find your example fanciful. Far as I know, there’s no glut of straight folks looking to get hitched. For one thing, marriage comes with responsibilities and obligations that outweigh the rather meager potential benefits you cite (which almost certainly can be accomplished through some less drastic means anyway). Marriage also comes with other inherent disabilities — for instance, foreclosing you from getting married to someone you might meet and fall in love with (not to mention the hassle of getting out of the straight-to-straight wedded bliss, if things don’t pan out).
I mean, I like my poker buddies as much as Felix and Oscar liked theirs. But marriage to any of them is a longer shot than flopping a Royal Flush on the first hand of Texas Hold ‘Em.
“In this case it’s a legal contract, really, detached from religious implications.”
In modern times, marriage is and has been only a secular legal contract. The religious union is Matrimony (or whatever other term the church decides to use).
Years ago, out of convenience and custom, a religious ceremony of Matrimony was also allowed to substitute for the civil ceremony.
If you ask me, churches should be completely out of the marriage business, be completely IN the matrimony business, and all the issues about gay marriage would disappear.
Don’t overlook that Roberts has strong institutional interests in being in the majority on cases such as this. Where the Chief Justice is in the majority, he gets to assign the writing of the majority opinion to a particular Justice — or to keep the writing assignment himself. This is how a Chief Justice limits the breadth of a controversial case’s holding, how he can keep it out of the hands of an associate justice he fears may write too broadly.
In addition, the Chief may not want to have a legacy case such as this decided by the Court that bears his name on a 5-4 basis, since such decisions tend to be viewed as more political, leaving the impression that a single change in Court membership could have changed (and might someday still change) the outcome. (For just such institutional reasons, Justice Potter Stewart had a policy, IIRC, of never supplying the fifth vote to reverse a Court precedent, following a change in Court membership, where he had sat on the original decision — including even where he was in the minority in the original case and, thus, wanted the case decided the other way.) Also worth noting in this regard is that, when Earl Warren was Chief, he pushed hard to ensure that the key desegregation cases, such as Brown v. Board of Education, were decided unanimously, 9-0 — even though he was brand new in his tenure as Chief and presided over an unruly group of associate justices with strong personalities (including Black, Douglas, Frankfurter, and Jackson) — so as to forestall any hope the South might harbor that the outcome might be changed with a change in Court personnel. Such 9-0 unanimity is unlikely in the extreme here, regardless how Roberts votes or what influence he may wield with the other Justices.
In addition, Roberts undoubtedly would like to make good on his confirmation-hearing pledge to bring more unanimity to the Court. (And the fact of the matter is, there are fewer 5-4 decisions now than there were years ago — although that is partially a function of the Court granting certiorari in relatively fewer cases, and of fewer of the cases it does hear presenting the type of clear-cut, controversial policy issues that tend to fracture the Court along political lines, generating 5-4 decisions as well as multiple concurring and dissenting opinions.)
I really hope that they will make the right decision and declare that marriage a constitutional right.
In an era of supreme courts looking at other counties’ decisions, this one is of great global importance.
I am confused. I thought that in the late sixties it was finally okay to marry someone outside of their race.
We are still even talking about this now?
No, that one was put right as you say. The issue now is just gay marriage, but the parallel is inescapable.
Rather insulting to compare polyamory to bestiality like that. Why shouldn’t a loving and committed relationship between three or four people (they do exist) be recognized in a similar way that couples are? How can it be so obvious that gender doesn’t matter, but the number of people does? I understand why gay marriage proponents shut down that argument as quickly as they can, but doing so always smells of its own sort of prejudice to me.
GP – See my comment below about the “slippery slope.” Just as the Loving decision striking down anti-miscegenation laws eventually opened the way for SSM arguments, success in the SSM case argued before the Court today may open the way to arguments in favor of polyamory — if it turns out in time that there is a groundswell of sincere desire for people to enter into such relationships under the aegis of matrimony.
That’s the thing about such slippery slopes: they open the way to arguments; they do not guarantee those arguments’ success. If the pro-polyamory proponents can make a persuasive case in its favor, can demonstrate its benefits and show that it would not be detrimental to society’s interests, then they should be able to carry the day.
They may have a harder time of it, however, demonstrating that their arguments are constitutionally cognizable. There is no gainsaying the long history of invidious discrimination in the U.S. based on the immutable characteristics of race and sexual orientation. Laws denying members of such groups the rights and privileges enjoyed by others are, therefore, deserving a special scrutiny by the courts.
There is no reason, on the other hand, to think that the individuals who wish to mate in odd and even numbers have themselves labored against any societal bias. Accordingly, there would seem to be no reason why, if their arguments are meritorious, they cannot succeed through the democratic processes — by appealing to the voters or to the voters’ representatives in the legislatures.
This site seems to indicate the way things are changing
http://polyinthemedia.blogspot.co.uk/
Although 2.5 hours may seem like a short time for oral argument, it is 2.5 times longer than the standard one-hour SCOTUS arguments — one-half hour per side, to be divided among the parties where there are multiple petitioners and/or respondents in a case.
It is correct that, if the Court rejects SSM as a constitutional right, the issue will be left up to the states. In those states where the voters, the legislatures, or the state courts acting on the basis of state law have declared SSM lawful, it will remain lawful. In those states, however, where federal courts have overturned state bans on SSM on federal constitutional grounds, those decisions would no longer be good law. (This raises the question of the status of marriages performed in those states while the lower court rulings striking down the SSM bans were in place — which was what the issue regarding whether those lower court decisions should be stayed pending the Supremes’ decision was all about. I think that the validity of those marriages would be left to the authority of each affected state — and I think that most of those states would leave those previously performed marriages intact in the interests of finality.)
As to the second issue regarding the recognition by other states of SSM marriages performed in states where it is legal — I have a hard time seeing how, given the rationale of the Court’s decision in Windsor, the Court could find that the Constitution’s “full faith and credit clause” doesn’t require such recognition (which is to say, given Justice Kennedy’s previously expressed concern over affording dignity to gay people and their families, that he would fail to join the four more-liberal members of the Court in requiring the nationwide recognition of SSM performed in states where it is legal).
With regard to Justice Alito’s question concerning multiple-partner marriages, it bears noting that, at the time the Supreme Court struck down anti-miscegenation laws in the 1967 Loving v. Virginia decision, those defending such laws argued that taking such authority away from the states would create a slippery slope that would eventually lead to homosexual marriage.
Some slippery slopes are in need of a mudslide. It’s a shame this one took nearly half a century, though encouraging to see how quickly it gained momentum in its last decade.
I have often thought over the past 25 years or so that we have been reliving the arguments against equal rights for African Americans, as if the “anti” side did a global search-and-replace on their positions, substituting “homosexual” for “black.” Same references to bestiality, same references to corrosion of the status quo.
I’ve read op-eds that make the same comparison, I can’t understand why the comparison hasn’t been made in every “pro” editorial. It’s the M.O. of the polemicist to wave scary strawmen, but conservatives are especially, laughably, obvious in the way they do it. It’s as if the “states’ rights” crowd has never gotten over losing the Civil War. And by “as if,” I mean, that’s exactly what they’re about.
The states’ rights crowd won’t even call it “the Civil War”; it’s the “War of Northern Aggression” for them.
You’re right about their arguments. It’s the typical “parade of horribles” technique — a round up of the usual strawmen and slippery-slope suspects.
As always, I think PCC has the right of it.
I rejoice that every American will soon have the right to divorce a person they used to love. To me, as important as is the legitimization of committed relationships, it’s all the other rights (as noted above) that go with marriage that are most important: inheritance, child custody, health benefits, joint assets, and, yes, divorce. No bespoke contract or “civil union” was ever going to provide the built-in rights and privileges that come with state-recognized marriage.
And a grand irony is that my fellow Californians lit the fuse by voting for the LDS-sponsored Proposition 8 (Prop H8 in the vernacular). Some thought they could reverse the arc of Justice, some thought they were only delaying the inevitable – in the end, they provided an accelerant. Awesome!
It’s astounding that, in a nation founded on the noble principle of freedom of conscience and which has a constitutional ban on any religion becoming ‘established’, the Supreme Court is having to decide whether Christianity owns the institution of marriage or not.
By what right did Christians claim ownership of it in the first place?
Excellent “framing!”
Thing is, religions were in the business of marrying people — including in the English colonies on the North American continent — long before Mr. Madison ever proposed a First Amendment to the U.S. Constitution, before Mr. Jefferson wrote its precursor, the Virginia Statute of Religious Liberty. Consequently, by historical contingency, the religious sacrament of matrimony is intertwined with the secular institution of marriage. If we could decouple the two, it would clarify and simplify some of these nettlesome issues.
There must be a night shift on this site. I should go back and look at the day before more often.
I believe the 1st Amendment was simply saying the federal govt. was neutral in any religion you want to practice. It should also be noted that Madison was against all of these Amendments in the Bill of Rights and the boys in Philly voted no on having it. Later, during the ratification process they promised to put some in after the first Congress was created. So it was an after-thought to get the thing ratified. The way people go on today, you’d think they wrote the bill of rights and then went to Philly to do the rest.
Regarding the Virginia Statute, what Jefferson and Madison were attempting to do was get rid of the idea of taxing citizens for the church. The state would tax the people and then give the money to whatever religion was their preference. It took them several years but I think it finally got through in 1786.
Kind of what countries like Italy have been doing forever. Guess who gets most of the money?
See #25, Rosa.
The BBC has an excellent series on this, available now on iPlayer: Sex and the Church. This links to the first episode, which is the only one I’ve completely watched so far. Links to the other two episodes are on this site. At the beginning of episode 2 it is explained that up until the eleventh century marriage was nothing to do with the Christian church. To get married, all you had to do was make a declaration and have a shag. In 1073, Pope Gregory VII changed all that. Well worth watching.
This was a reply to Rosa #24: “By what right did Christians claim ownership of it in the first place?”
Seems like with the growth of the Baby Mama/Baby Daddy phenomenon, we’re about 270º into a full circle back to the pre-1073 “have a shag and a declaration” days.
In regard to the usual view that Christian Tradition has always and implacably opposed same-sex unions I would like to remind readers of the work of John Boswell, particularly ‘Same Sex Unions in Premodern Europe’ and ‘Christianity, Social Tolerance, and Homosexuality’
There are outliers, as always. But they are outliers.
From the Wikiness:
“The Marriage of Likeness: Same-Sex Unions in Pre-Modern Europe (New York: Villard, 1994) argues that the adelphopoiia liturgy was evidence that the attitude of the Christian church towards homosexuality has changed over time, and that early Christians did on occasion accept same-sex relationships.” [emphasis added]
This seems a pretty slender reed. As noted, outliers.
When the Xians had the reins of power, being gay was typically punished with death. All those theocracies in Europe (kings by “divine right”). Certainly social death.
Homosexual acts were illegal in the UK (under the CoE) until 1967. Although civil unions are now legal in the UK (and marriage in England, Scotland, and Wales), the CoE still does not recognize them or allow its employees to partake.
The opposition in the USA is all coming from the religious (overwhelming majority is Xian).
I’d be curious to hear of a mainstream Xian denomination that came out publicly in support of same-sex marriage prior to the last 20 years. Can you name one?
Congratulations, Professor Ceiling Cat – this posting got a link from Mike’s Blog Round Up over at the Crooks & Liars news bl*g. Granted, WEIT wasn’t mentioned by name, but it should bring some traffic this way. Here is the text of the link:
Bark Bark Woof Woof: It was Gay Day at the Supreme Court, and things are looking promising.
The second link (“things are looking promising”) is the one that leads here. It’s unfortunate that the first link references a bl*g that takes its title from d*gs, but that’s the way it goes, sometimes.
I’ll put in a contrarian opinion, which if I’m wrong I’ll blame on being a Canadian and not having boots on the ground.
From reading the transcripts and looking at the arguments made, I believe the court is going to rule against making marriage a right, citing tradition, a lack of grounds for changing the institution at a constitutional level and the democratic process, and then rule in favour of the requirement to recognize marriages undertaken in other states.
This will be seen by the justices as a reasonable compromise, that preserves states’ jurisdiction over marriage, while creating a practical means for same sex couple to access the benefits of marriage, but will come to be seen as the equivalent of Dred Scott 2.0.
While the hope would have been that states resisting SSM would see the futility of their actions, instead it will become an opportunity for legal shenanigans, much like the regulation of women’s health clinics.
I truly hope I’m wrong, but there seemed to be so much effort to get points about democracy and the nature of society and societal change onto the record, that it feels like they are going to serve some purpose, and I can’t see a purpose for them in supporting the right to marriage equality.
Interesting view but I’m pretty certain that ship has sailed. Generally, after society has smacked the Supreme Court up side of the head they wake up and finally do the right thing. Look how quickly the military went from don’t ask and don’t tell stupidity to come one and all.
The 14th Amendment put the nail in Dred Scott and there is no room for 2.0 Gay marriage in a perfect world would never have been questioned if it were not for religion. Even that bunch of old Catholics in the Supreme court have to give it up.
This is one time I’d have no problem being wrong. I’ve got friends in two of the states represented who’d like to get married in their home cities and I’d like to fly down to celebrate with them.
I just came across this more articulate presentation of my prediction:
http://freethoughtblogs.com/singham/2015/05/01/how-will-the-supreme-court-rule-on-same-sex-marriage/
It does a very good job of explaining why the judges’ comments made me uneasy.
There are no remaining, rational arguments against gay marriage. I suspect this plays a role in the decision making processing.
It is no longer about gay marriage it is: Do I mind society viewing me as carrying beliefs which are bound by my personal faith or empathy for fellow humans?
I like your predictions, Jerry, though I might lean a bit more 5-4. (Though I think you hit the justices correctly — so maybe 6-3 is really the mark.)
I think SCOTUS took these cases with the intent of ruling in the manner you predict. They see the tide of history and (most of them) want to be on the right side of it, and on the record.
I am cautiously optimistic.
I worried a bit over Kennedy’s hand-wringing about changing the good old institution*.
(* Like segregation, slavery, prohibitions on interracial marriage, women lacking the vote, voting only for white, male, property owners, etc.)
I don’t wish to venture any predictions. However, I do regard it as monumental that this has even *made* it to the SC in the US. That itself is quite a major victory – just a few more needed!
I texted some friends on the day the Court was hearing the arguments with the same 6-3 split with a possible 7-2 if Alito should vote with the majority.