Samuel Alito Thinks There Has Been a Constitutional Right of Four People to Marry One Another at Once Since 1967. Interesting.
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 fastmoving societal debate.
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.
— Gay Marriage Arguments Divide Supreme Court Justices, Adam Liptak, New York Times, this afternoon.
A fun parlor game among some progressive pundits leading up to today’s gay-marriage arguments at the Supreme Court has been speculating about what would be the most ridiculous analogy to gay marriage offered by … well … Scalia, who has offered his share of silly analogies on such things before.
But early reports on the argument suggest that it was not Scalia but Alito who distinguished himself most on this front this morning. The constitutional issues in today’s six consolidated cases, called Obergefell v. Hodges, are essentially the same as the ones that were at issue in a 1967 case called Loving v. Virginia, in which the Court struck down as violative of the Fourteenth Amendment’s due process and equal protection clauses state laws that prohibited interracial marriage.
In fairness to Alito, I don’t know the specific context—the specific statement of counsel whom Alito was asking, perhaps, a follow-up question. But by mentioning Alito’s question in his short article written immediately after the argument, Liptak seems to suggest that Alito ‘s inquiry was pretty general.
So I’m guessing that Alito fears that a decision in favor of the gay couples who want to marry will remind people who want to marry three people at once—a.k.a., polygamy—that they have had a due process and equal protection right to do so since 1967. Or else he just forgot about Loving.
Which would make him a bedfellow, apparently, of Hillary Clinton, who last summer told NPR’s Terry Gross, “For me, marriage has always been a matter left to the states.” So, for her, it always has been, but for the interracial couple who challenged such a precept in Loving, it turned out not to be.
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Post edited slightly for clarity. 4/28 at 6:45 p.m.
“Justice Kennedy said he was concerned about changing a conception of marriage that has persisted for so many years.”
Why should he have such a concern being a Supreme? The word marriage as used by the State (including the Fed State) is now (and may always have been) a civil law term. It is not a religious term as used by the State, though I’m sure it is recognized as such. Which would mean the State should have no concern over this term as the State is not using it in the religious sense and thus not effecting anyone’s religious freedoms.
But this would mean the Supremes actually understand that to perform their job they have to check their religion at the door.
Justice Alito is asking the right questions, but that is irrelevant.
See: http://www.startribune.com/politics/national/301578461.html
The US Supreme Court Justices will make arguments in both directions and pretend frustration but in the end they will do what they have been doing for over half a century. They will dictate.
For thousands of years the vast majority of the population of the western world believed that marriage was the joining of one man and one women. The US Supreme Court will shred that definition in favor of a new one.
What will that mean?
Mormons were discriminated against until they gave up polygamy which violated the accepted marital norm. “In 1878, the U.S. Supreme Court ruled in Reynolds v. United States that religious duty was not a suitable defense for practicing polygamy, and many Mormon polygamists went into hiding; later, Congress began seizing church assets.”
See: http://en.wikipedia.org/wiki/Mormons
Marriage is a sacrament in the Roman Catholic Church. If that 1878 ruling could force the Mormon church to abide by the then marital norm then why can’t it be used to force the Roman Catholic Church to marry same sex couples? (The new accepted norm.)
http://en.wikipedia.org/wiki/Marriage_(Catholic_Church)
Or stated in reverse, if the government can not force the Roman Catholic Church to marry same sex couples than how can it prevent the fundamentalist Mormons from plural marriages today?
Hmm, Jim. I’d almost think you don’t know the difference between getting married and performing a marriage ceremony. And between being allowed to do something and being forced to do something. But I’d be wrong, because, of course you do!
And I’m not sure what polygamy has to do with the equal protection clause–with legal equality. But I guess you know.
Nice sleight of hand Jim.
What is at stake in the case is the civil status of marriage in which the state confers a set of preferences and privileges upon two people who are making a civil contract.
So the issue of Catholic sacrament doesn’t enter into it at all. For that matter the arguments regarding polygamy are also not germane since the issue is the set of civil rights the state confers on a contract between two people.
As the post makes clear the best analogy is Loving which overturned the idea that two people had to be of a particular race in order to qualify for the right attendant to civil marriage.
Now those who wish to be obtuse can raise red herrings like the idea that clergy would be forced to preside over same sex weddings – they wouldn’t unless their presence as a civil functionary e.g. performing marriages at the local courthouse. In that instance a clergyman would have every right not to volunteer if he was unwilling to perform civil ceremonies for all.
The polygamy argument fails to recognize that an individual’s civil rights are not abridged because they can’t have multiple marriage partners. That individual can still obtain the basic civil rights accorded under equal marriage. Since we’re entertaining foolish scenarios why couldn’t a Mormon seeking a polygamous relationship marry a wife and then have his two succeeding wives marry each and the whole group live in some form of conjugal bliss?
But then in an attempt at complete absurdity why not argue that this opens the door to man-dog marriage? Well, dogs aren’t people, although I might suggest that animals should have some civil rights.
Certainly someone (Rick Santorum?) will argue that the next step will be child brides and pederasty. Of course the law has long recognized the state’s compelling interest in protecting children.
Both Scalia and Alito were throwing out absurdities and they knew it. Their objections to marriage equality are based on religious not legal grounds. They checked their professionalism at the door with those questions. Their better argument might have been, Why have the state involve itself in marriage at all? Why confer any privilege or benefit for sanctioning the civil contract of marriage?
I thought the best question posed (and I forget who did so) was “what is the interest of the state in insisting on heterosexual marriage?” or words to that effect. The answer, of course, is there isn’t any except for preserving a religious tradition. And there’s that pesky first amendment.
Hi, Jack. I think it was Sotomayor who asked that question. Be sure to read Dahlia Lithwick’s article on the argument. Her account of Kennedy’s reactions to Michigan’s lawyer’s wack-job statements was hilarious.
So was her description of Breyer’s comment about the First Amendment when he’d finally had enough of the discussion about clergy being forced to perform religious wedding ceremonies. Apparently Scalia and Roberts think baking a wedding cake or doing a floral arrangement is religious sacrament, just like performing a religious wedding ceremony, and if bakers and florists can’t refuse to perform their trade for gay weddings, then obviously clergy couldn’t refuse, either.
These folks are geniuses.
Bev:
If you have been reading me on Michigan, you know I agree with your analysis of Michigan. Livingston Daily pulled their editorial after I suggested they were pandering to the fears of 96% white Livingston County about the less than 1% black citizens living there. Just put one up on Washington Monthly here: http://www.washingtonmonthly.com/political-animal-a/2015_04/we_havent_bothered_to_take_the055302.php “We Haven’t Bothered to Take the Bullet Out”
They are not geniuses and maybe bigots
Beverly Mann wrote: “And I’m not sure what polygamy has to do with the equal protection clause–with legal equality.”
So the only change will be equality for more of us? Like motherhood and apple pie, sure sounds good.
No one will be forced to substitute the moral beliefs of others for their own? No one will have to provide floral arrangements, cakes, or photographic services for ceremonies which violate some deeply held moral belief? Religious institutions will be protected but their congregational members should have no religious protection when acting in public?
Hobby Lobby, a for-profit commercial business, raised religious objections to the ObamaCare contraception benefit and the US Supreme Court ruled in their favor.
But moral objections to same sex marriage are somehow different?
And why are deeply held moral beliefs outside of established religions less important?
Before we are done the federal government will be splitting hairs.
But the worst of this is that 5 unelected US Supreme Court Justices will interpret the US Constitution and deliver their commands once more. Please remind me why we need the US Congress?
I thought a political process involving the majority of eligible voters was the gold standard of civil organization.
The claim is being made that the majority of Americans support same sex marriage, so why the end run around them?
Mark Jamison: ”For that matter the arguments regarding polygamy are also not germane since the issue is the set of civil rights the state confers on a contract between two people.”
But for at least a couple of thousand years we also believed that the two people would be one man and one woman.
The number 2 was sacrosanct when a marriage’s main purpose was the support for the biologically related children that resulted from the sexual reproduction of the married couple. Assumptions about biological parenthood, long term material support, and the inheritance of titles and property were all related to religious marriage.
Does “Henry VIII” remind you of how religious marriage impacted the civil authorities? The Roman Catholic Pope could have kept England in the Catholic church with a simple divorce, but he could not bring himself to do that.
With same sex marriages the stated purpose is the support of loving couples. But surely once we remove the biological imperative to reproduce, the support of loving unions of three or four are just as important.
We are not discussing civil unions here or any of the marital possibilities which you expand on.
well, i always thought that the obvious solution
would be to distinguish between “marriage,” a religious institution, and civil union (or “gmarriage”) a civil institution.
the government may have a legitimate interest in limiting civil unions, or refusing to limit them in the interest of “civil rights” whatever those are,
but it should have no interest in limiting, or not limiting, whatever any person or church calls its religious institution.
we could hope that priests won’t be called upon to perform religious ceremonies that violate their religious sensibilities. evenwhile we might insist that businesses that serve “the public” make no discriminations otherwise outlawed by law.
but we couldn’t be sure it would work out that way.
as for the irrelevance of “religion” to “government,” this is nonsense. the government is “of the people” and the people base the government they want on their fundamental beliefs, many of which are “religous” either explicity or just rooted in beliefs that had their origin in long forgotten religious “values” which may have had something to do with preservation of “the tribe”, or perhaps just the prerogatives of the rulers of that tribe.
it’s always dangerous, or futile, to dismiss someone else’s beliefs as “nonsense.”
because of course that is exactly how i feel about the “logic” asserted here by people who mean “what i believe.”
oh, and for those who think it is a tenant of their religion to deny gays the “right to marry,” citing, as they do, St Paul’s letter to the Romans.
it is reasonably clear that Paul did not like homosexual behavior.
but it is absolutely clear that he said “Therefore thou art inexcusable, O man, whosoever thou art that judgest: for wherein thou judgest another, thou condemnest thyself; for thou that judgest doest the same things,”
He gave a list of “the same things” : “Being filed with all unrighteousness, fornication, wickedness, COVETOUSNESS, MALICIOUSNESS; full of ENVY, MURDER, DEBATE, DECEIT, MALIGNITY; WHISPERERS, BACKBITERS, HATERS OF GOD, DESPITEFUL, PROUD, BOASTERS, INVENTORS OF EVIL THINGS, DISOBEDIENT TO PARENTS, WITHOUT UNDERSTANDING, COVENANT-BREAKERS , WITHOUT NATURAL AFFECTION, IMPLACABLE, UNMERCIFUL…
or as the last thing Jesus said on earth: What is that to you? Follow thou me.
well, of course, sorry for shouting. violation of blog protocol.
but i was quoting Paul, who was undoubtedly shouting.
didn’t do him any good. people calling themselves Christian went right on from there condemming and judging, implacable and unmerciful for the next 2000 years and counting.
i would offer quieter advice to my “religious” friends: just be quiet. go about your business, saving your own soul. what the gays do is none of your business, and when you stop shouting about it, the newspapers will go away and stop taking pictures of men kissing men and women kissing women [well, that’s not so bad. it’s traditional anyway.] and you can get on with your iife without imagining in your heart the wedding night.
as for my anti-religious friends, i’d suggest you examine your own religion. i think it’s probably Mammonism, but if you think it’s Reason, be my guest. There is no use talking to fundamentalists of any persuasion.
Coberly, You don’t have to talk to fundamentalist. In my mind the solution is simple. Religious marriage is a religious ceremony. Legal marriage is a marriage recognized by law. That way, the worse that can happen is that people married outside the legal marriage channels can petition for recognition for their religious (or self-vowed or …) marriage. But once a marriage is recognized as a legal entity, equality in all public matters would rule.
Or something like that. It occurs to me that if all that mattered was religious, then a license would not be necessary anyway. So it just a matter of licenses and access to petitions. The rest is just segments of the population acting as bullies.
I think it is time to bring back polygamy. The two income era appears to be coming to an end.
Anna Lee
I think in Nepal they recognized that polyandry was the way to go. One man can’t support a wife. And the balance of power is swinging that way.
Me, I talk to all kinds of fundamentalists. I just gave up expecting to change their minds.
as for “all that mattered”… it would be all that mattered to you, but those other fundamentalists think that there are other things that matter.
which is pretty much why i have been advocating the “both sides shut up” solution for a number of years. i am sure gays could get all the legal protection they need if they just lobbied quietly for specific changes in the law. and the “religious” fundies would probably stop screaming if they (the gays) just stopped making a public issue of it.
not at all sure i am right. it could be that the public issue is what is swinging support behind gay rights to be treated like human beings in general. and i am for that.
still, i’d like a little quiet.
” i am sure gays could get all the legal protection they need if they just lobbied quietly for specific changes in the law. and the “religious” fundies would probably stop screaming if they (the gays) just stopped making a public issue of it. ”
Having grown up in the American South at the end of American apartheid, I find myself substituting “negroes” for “gays” and “segregationists” for “The “religious” fundies.” It was obscene then. It’s obscene now.
As Anna Lee says, “marriage” has two different meanings: one religious and one civil. They sometimes get confused because of the lengthy period of history in which religion and government were intertwined (as the Henry VIII reference suggests). In the U.S. form of government, that is no longer true. The legal obligations and benefits flowing from marriage are civil in nature, not religious. Within the various religions and churches there may be additional meanings, obligations, and benefits but they are not enforceable in the civil courts. It is the civil law obligations and benefits that are at issue in the Supreme Court case, not the religious ones.
Joel
what happened to negroes in the south (and the north and in africa as far as that goes) was ugly and evil. i am not sure if the word obscene hasn’t come to have a new meaning that means what you mean, so i’ll guess you mean somethng like ugly and evil… and not what obscene used ot mean when i was growing up.
and what happened to gays in Wyoming that i know about, and I assume in other states that i don’t know about…was ugly and evil. But in hollywood where i grew up the only people who were obscene were… the gays. And that is not me being mean. My gay friends were obscene and proud of it.
That doesn’t change my opinion… not my moral opinion, but my believe about the climate of American law for the last twenty years… that the gays could have all the legal rights they need if they had “quietly lobbied.” Many lawyers, judges, and congressmen are gay and would have seen the point.
The “religious fundies” are nothing like the segregationists. They feel threatened by “gay marriage.” I think you are thinking of “gay bashers” the kind of guys who “go out and beat up a queer.” Those people were generally not religious fundamentalists as far as i could tell.
Meanwhile I am pretty sure what I just said, and said earlier, will be taken to mean exactly what i didn’t mean.
Nevertheless I still believe that
JackD
and as poor old coberly said, the solution is to separate the two meanings by using two words “marriage” for “religious” and “gmarriage (pronounced “marriage”) for civil marriage.
i don’t think this would stop the “fundies” from fainting at the idea, and it won’t stop the gays from wanting to be “accepted’ [they want a “real” marriage] but if it got the government out of the fight… out of the “marriage” business… it would be a great leap for mankind.
The lawyers will tell you that your desire to use two terms creates drafting headaches. In addition, of course, under the civil law, there is no difference at all in the legal obligations and benefits under the law between heterosexual and “gay” parties to a marriage and the only reason to use two terms is to placate people who wish the law to reflect their religious beliefs.
JackD
i think you are reading history backwards. the civil law has not yet reached that no distinction.
in any case EVERYONE wants the law to reflect their religious beliefs, including those whose religion is “no religion.”
all law and religion arise from the same place: the desire of people to protect themselves and their posterity. people only notice there is such a thing as religion or law when someone comes up with a new law or religion.
The aspects of marriage that are being discussed here have to do with property rights, taxation issues, inheritance, custody of children, and visitation and power of attorney rights in last illnesses and incapacitations. Once upon a time, when the church (or particular churches) were the civil law, those things were under their control. That was then. This is now. Law and religion are not the same thing at all. The desire of people to have law reflect their religion, if actually implemented, would lead, as it once did, to the Thirty Years War (you could look it up). Things changed radically when this country was created and developed. Did you know, I wonder, that our treaty with the Barbary States, following the war on the Barbary pirates, recited explicitly that the United States is not a Christian nation? But beyond all that, it is simply true that our courts will not enforce any religious strictures that are not otherwise enforceable as contracts and then only if they are not discriminatory religiously. That’s why black and whites can now marry, homosexuals can practice sodomy, women can own property and refuse sex when their husbands demand it and so forth.
Sorry people:
Like Beverly, Jack is an attorney and a good one at that. If you are going to argue law like some might out here with just opinion. you better have something like knowledge in hand.
JackD
Drafting issues are much easier to deal with than perceptions of human beings. Forty years after Roe v Wade, we still see vitriolic rants and the occasional deranged individual committing cold blooded murder.
My recollection is that homosexuals were initially seeking civil unions to resolve the issues that you mention. But apparently surprised by their growing success they changed the goal.
Civil unions would have avoided the need to change a definition that has been in place for thousands of years. The federal courts could have prodded state governments to deal with each of the civil rights issues that you mention and each of those could have been added to the rights assigned to those civil unions.
That political process would have allowed time for more and more of the population to accept that their world was not being threatened.
But that is not what we are going to get. We are going to get a gut wrenching shift in definition and law which freezes attitudes. Attitudes developed over years of training, and decades of refining a moral framework. Attitudes about sin and morality in general.
I have always considered myself more a liberal on social issues but I balk on same sex marriage. My children’s generation is much more open to change on this issue. This change will cause deeper conversations between the generations and in the process temper the attitudes of both. Think about what that implies.
When you change the legal definition for words in common use, you scare people. If a change like that can be made with the stroke of a pen then what other words can you change in the same way?
Jim,
I appreciate your point of view but just can’t share it. Polling indicates overwhelming acceptance of gay marriage in our country and it may well be, as you suggest, a generational thing but the fact remains that for the reasons previously cited marriage as an institution has been undergoing significant change for quite a while now. I think we’ll survive this one too, when it comes.
actually, however good a lawyer JackD is, he doesn’t seem to be open to considering ideas he has never thought about before, but which however have been thought about by anthropologists for over a hundred years.
i will continue to believe that law and religion come from the same place in the human mind. JackD can believe whatever he likes.
As for the lawyers here present in general, they seem to me to be very sure that the words they have learned are the “true words.” Until of course the next Supreme Court changes them.
In any case, I was not “arguing law”, I was talking about people.
To the extent that “the aspects of marriage that are being discussed here are…” well, i think i have seen this pattern before: we are only discussing what i want to discuss: what you want to discuss, however gernmane and necessary to understand what we are talking about, is “off topic.” And of course “I” (even you) “have the facts.” “You” (you other) “have only opinion.”
Never mind that “I” (even I) said that not everyone is discussing “civil marriage”…. everyone is discussing a word loaded with emotional connotations, which discussion could have been avoided if the “civil rights” were addressed quietly and carefully avoided the public hysteria about a word.
Because of course, that is not what “we” (even you) are discussing, and you can’t understand what the hell i (even i) am talking about anyway.
Meanwhile if, as JackD said, the civil law is already settled, what in the hell are you (even he) talking about here?
Let’s see, “the law is settled, so we have 36 states that allow civil marriage, called “marriage”, and 14 that don’t, and we are having a Supreme Court case of two to settle whether more or less of them will come to have this “settled” law.
enough (of me. even me.)
should had been “case OR two” not case of two..
and other rather difficutl to read passages because i let my anger get ahead of my typing.
Sorry JackD and “he who imposes gag rule and then violates his own rule” you cannot establish your credentials as “a good one” and “one who knows a good one” just by assertion. even good lawyers lose cases, and by the far the majority of lawyers are sophists at best.
you might have assumed that i am a religious person. far from it. but i can tell a bigot when i see one, even when he is pretending to be a worshipper of reason.
JackD wrote: “I think we’ll survive this one too, when it comes.”
I agree. In the same sense that we have survived Roe v Wade. The sky will not fall and the sun will come up in the morning.
You are citing polls, not an election which usually provokes a more considered choice.
But let’s have a referendum on the choice of civil unions or redefining marriage. Either way homosexuals end up with their civil rights protected.
If 60% of the population approves of same sex marriage that would leave about 127 million people who oppose it. And those will not be distributed evenly across the states. Not exactly reassuring.
Every law that is passed should have a final paragraph that states that it is understood that this law will be enforced by a peace officer who is permitted to use deadly force. And that warning should apply to federal court constitutional decisions too.
In the end, we submit to the law or die, because there will come that final confrontation with a peace officer enforcing a warrant. It can not end any other way, laws have to be enforced.
But we can use a little wisdom before enacting law. Or before changing the law by the federal courts ruling them as unconstitutional. Moderation is a virtue.
On a personal note, all my interactions with lawyers have been amicable, but I still laugh at the jokes. (Smiling here)
JimH,
I laugh at them too but it’s rare that I hear a new one.
I think the crucial legal (as opposed to emotional) question in the case is what state interest is served by discriminating. Michigan’s lawyer tried to answer that but ended up sounding foolish. Can you (or anyone else here) think of some legitimate state interest served by restricting marriage to heterosexual couples?
What I find interesting about this (and similar legal civil rights cases) and the way we go about it is that the assumption in the constitution is that all are equal and have the rights. Yet, to settle the issue, the assumption actually in play requires one to file a suit and obtain the rights. Why does one not have to file a suit to remove the rights of others in order to settle the legal question.
For a system that requires one to prove guilt, not prove innocence, having to sue to obtain already given rights because you are a human seem to suggest just how little we actually hold true to our constitution’s concept of inalienable rights. Should we not be defining who or what does not have the rights instead of who does? To define who or what does not have the rights would be simpler and a smaller list.
Also, if this is how we are going to do it, then why is the assumption that certain parties (say whites) never have to go through the challenge to their rights? If we are going to assure rights by deciding who or what has them instead of who or what does not, then the assumption logically would be no one or things has any rights until otherwise ruled. Again not really what we profess to be as a nation and according to what we are or were taught in civics.
JackD wrote: “Can you (or anyone else here) think of some legitimate state interest served by restricting marriage to heterosexual couples? “
Good question.
They short answer is that governments can not get too far out front of changes in the opinions of their populations. And that when governments tamper with deeply held moral beliefs, they are courting confrontation and backlash.
History shows that governments are oblivious of resentments building in their populations.
The French and Indian War left the English government deeply in debt. The English parliament tried some small taxes and finally settled on a small tax on tea. The result was the Tea Party which was the spark that lighted the American Revolution. But of course the problem was not that tax. The Declaration of Independence is a list of small offenses committed by the English government, none of them large enough to cause a breach. And there were subtexts not listed. But resentments had been building.
The king of France did not understood the resentments building in his country, and neither did the Tsar of Russia.
Could any Tunisian have predicted that the simple abuse by a policewoman would provoke a man to go to a government building, douse himself in gasoline, light a match, and set off a revolution? Not even remotely possible.
We will not have another revolution. Our constitution allows for amendments and the states can demand a constitutional convention to address grievances.
At the current moment, it appears unlikely that there will be a constitutional amendment restoring the traditional definition of marriage or curbing the power of the US Supreme Court to unilaterally declare that a law is unconstitutional.
The confrontations during the 40 years after Roe v Wade should be taken as a cautionary warning. I agree with the goals of Roe v Wade, but they should have been achieved through the political process. States are responding to the wishes of their voters and are still passing laws which patently violate the the letter of the Roe v Wade decision.
Change appears to come suddenly, but in retrospect the signs of building resentment were there.
Maybe that is it. As with Roe v Wade, a prayer group of devout Christians will picket the offices of authorized people who perform marriages and kill them if they can’t be intimidated into refusing to perform marriages according to rules established by mental case preachers with small flocks. So gradually no one will perform same-sex marriage even if they support it.
In other words, the decision of the courts will only matter if it is the one the forefathers meant to prevail but forgot to mention.
Um, but this didn’t happen with interracial marriage opposition. Maybe this was because of the Roe v. Wade contradiction since interracial marriage between a man and a woman produces pregnancies in many to most cases. If so, the analogy of same sex marriage to abortion might be a stretch but a possible stretch.
JimH,
You appear to be arguing that if a vociferous minority is sufficiently vocal, the court should defer to it whatever the principle in question. The same argument has been advanced in opposition to Brown v. Bd. of Ed. (“impeach Earl Warren!). I don’t really think that is a legitimate state interest when the question at issue is discrimination. The court isn’t ordering people to change their beliefs. They are free in their churches to treat marriage any way they wish. They just can’t insist that the government follow suit. As an example, the Catholic church forbids divorce but allows annulments and prohibits “artificial” birth control. Their parishioners either comply or they don’t but the government doesn’t enforce the Church’s rules and provides divorce to those who ask for it and prohibits states from banning sales of contraceptives.
Yeah, Jack, this guy’s claim that people are being forced to change their beliefs–as if that were even possible; people don’t change their beliefs upon command–is just really weird. I can’t even fathom what he’s even talking about, although he seems to be conflating allowing other people to do something with forcing him to believe in something. This nonsense is sort of par for the course for wingers, though. Huge numbers of them can’t seem to distinguish between two obviously entirely different things.
Bev,
Just because someone refers to the Boston Tea Party in history doesn’t make him/her a Tea Partier in the current political sense. The argument that change is better if it comes through the political process of legislation was common in the wake of Roe v. Wade in respectable constitutional law circles. The problem with it for me has always been the issue of how long those affected adversely can reasonably be expected to wait for substantial minorities to come around, particularly where the rule in question doesn’t adversely affect the objectors except that it conflicts with their opinions. In the marriage issue in particular it’s hard to see what the harm is to those espousing hetero only. It’s clear what the harm in maintaining the discriminatory treatment is to those discriminated against.
JackD wrote: “You appear to be arguing that if a vociferous minority is sufficiently vocal, …”
I do not believe that we are talking about a vociferous minority. Even the polling leaves 40% of the population opposed. We will find the true number of those in opposition, over the next few years.
JackD wrote: “The same argument has been advanced in opposition to Brown v. Bd. of Ed”
It is easy to see that Brown v Bd of Ed of 1954 was one case where the impact of the US Supreme Court overruling on constitutional grounds was a positive. But by 1957 the political system was starting to enact remedies into federal law and that would continue throughout the 1960s. Here are 3 links.
See: http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1957
See: http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964
See: http://en.wikipedia.org/wiki/Voting_Rights_Act_of_1965
Unfortunately if we accept that remedy of the Court then we have to accept the damage done by Citizens United v FEC. Our current system allows the US Supreme Court to make a decision in months that would take a decade or more to overturn by amending the constitution. That is assuming the politicians were cooperative but they like the Citizens United decision.
JackD wrote: “The court isn’t ordering people to change their beliefs.”
I have not said that anyone was going to be forced to change their beliefs. I did say “that when governments tamper with deeply held moral beliefs, they are courting confrontation and backlash.” Clarifying that, I meant that people are likely to disagree strongly when government action violates their own personal moral code. The disagreement after Roe v Wade has been loud and lasting. (40+ years)
JackD wrote: “They are free in their churches to treat marriage any way they wish.”
That was always understood.
And before someone accuses me of fomenting violence let me make another clarification. I don’t expect any violence to result from this US Supreme Court decision or from the public enforcement actions that will result throughout the country.
Enforcement actions that will happen when some small business runs afoul of the new law of the land. They have already happened in some states.
Each one of those enforcement actions will be a source of resentment in the 39 states that have had same sex marriage forced on them by some federal court. That seems obvious to me.
That is thirty nine states which will be under federal court order to allow same sex marriage, 39 states. That is truly breathtaking. Yet we are told that the majority of people agree with same sex marriage. Verify my number at this link.
See: http://gaymarriage.procon.org/view.resource.php?resourceID=004857
Governments need to have the approval of their populations. That seems obvious to me too.
JackD
you are a better man than your supporters, but where you go badly wrong is that you believe that what you think is “right” is what is “in fact” right. well, that’s what we all believe. including those who disagree with you in any given case.
law does not work by discovering the “right” that you know in your heart is right. it works, by discovering the will of the sovereign, which in this case is theoretically “the people.” though even dictators have to be careful about getting too far “ahead” of their people.
i would hazard that the “legitimate state interest served by restricting marriage to a man and a woman” is that that is what the people, through their representatives want.
now i might agree with you that there are cases where what the majority wants violates some “constitutional right,” something established by some previous, or larger, majority. or perhaps just slipped under the door. in any case the remedy is not standing up and declaing “I am right and you are wrong.” The remedy is convincing enough people to vote your way or to take arms and insist upon your way.
voting and “the law” are no more than means to reduce the occasions where people feel compelled to resort to arms.
I happen to agree with you that “gay marriage” does not harm anyone, and i would like to convince those who think it harms them to see that they are wrong. But ridiculing them, calling them names… or whatever it is that Beverly is doing… doesn’t work.
Even Brown v Board had to consider the feelings of the white southerner… not yield to them, but attempt to manage them. And did okay, I think until someone thought of bussing. Or the “fact” of the “inner city” created facts on the ground that make racism… both ways… inevitable.
But you, et al, go ahead and ignore the deep feelings of a lot of people, a lot, and see if you can keep on electing Republicans who pander to those feelings.
JackD said
“The problem with it for me has always been the issue of how long those
affected adversely can reasonably be expected to wait for substantial
minorities to come around, particularly where the rule in question doesn’t
adversely affect the objectors except that it conflicts with their opinions.
In the marriage issue in particular it’s hard to see what the harm is to those
espousing hetero only. ”
and this is the problem. Jack can’t see what harm it does to the people who feel harmed by “gay marriagge” so he can’t see any point in approaching the legitimate needs of gays by less “in your face” “who the hell cares what you think?” argumentation and rule of “law” (force).
I can’t remember the name of the football player who went to jail over animal abuse. No doubt he could argue that “what harm does it do to her (Beverly) other than it conflicts with her opinions.”
And no, Beverly, this does not mean I favor animal abuse. Seriously.
I would bet that at the time of “Loving” more people had heard of “four people marrying each other” than had heard of “gay marriage.”
So I don’t think Beverly’s ridicule of Alito is on point. And that hurts me, because I don’t like Alito. Even though he IS a lawyer and speaks only in facts, according to “one who knows about lawyers.”
Yeah, Jack, Ruth Bader Ginsburg a few years ago put her imprimatur on the argument that the Court should have left the abortion issue up to state legislatures. But Roe, of course, was only a substantive due process case, not also a discrimination case. The similarity between the two cases is that they’re both religious/cultural cases, but I don’t see how the fact that marriage is, for many people, a religious as well as a civil consummation justifies continued government discrimination.
Seriously, Dale? Seriously? You think my objection, and the law’s objection, to animal abuse is just a matter opinion, because, although it hurts, tortures and kills animals, it doesn’t hurt, torture or kill ME or any other humans? Repeal the laws criminalizing murder! After all, most people aren’t gonna be murdered. And why is virtually the entire world still repulsed at the Holocaust, when very few people alive today were survivors of it?
How asinine. There are a lot of laws and government policies that conflict with my opinion, Dale. But I don’t, and shouldn’t, have veto power over the enforcement of them simply because I disagree with the law or policy, nothing more.
Bev:
Law degree failing to find reason with the inane? Quit feeding the fire and just walk away Bev. You are getting nowhere with someone who does not know what they are talking about and will insist they do.
Beverly
you are quite hopeless, (is that as “ad hminem” as asinine?)
the point I was trying to make is that however strongly you feel (believe) that your opinion (feelings) are enshrined in the Absolute Reason seeable by all men of good will (and women), there are Other People who don’t see (feel) it your way. The American resolution of that fact (opinion) is called democracy. Everyone gets a vote (every real person, sub human and emotional minorities don’t…this is ironic reflectioin on some democratic practices i don’t agree with)…. subject to some restrictions, mostly those called The Bill of Rights, which Bill, however is subject to “interpretation” (opinion) by a few men chosen by people who thought they would guard the interests of the country, and of course the states and people, according to their own ideas. No one, except some, is (are) fooled into believing that the Supreme Court has a hot line to Supreme Reason, but it’s the best we could come up with … a kind of “balance… absent the millennium when Beverly and her friends will rule with justice, kindness, and courtesy for all forever. And everyone, at least everyone of good will, will agree with her.
And though I never tire of saying this, I agree with you for the most part on “substantive” issues. I just think your logic doesn’t rise beyond that of the average two year old.
run
you are violating the terms of your parole.
if a law degree is what separates those who know from the inane, i guess that makes Sam Alito knows better than you.
but how do you identify those who know who knows?
but yes, this conversation passed the inane mark long ago.
The tone of the last half of this thread is not even interesting because of the tone and such.
Dan
I would agree with that. And even regret my participation.
But in light of the note you sent me 0ff-blog, I’d suggest you go back to the beginning of this thread and perhaps for several months back and see where the first “ad hominems” came from.
Of course from my point of view i responded at first by trying to establish a basis for “reason” as opposed to the “reason” that everyone thinks they are true possessors of. I figure it generally takes me five or six gratuitous insults before I respond in kind.
Nevertheless, if I have learned anything from Angry Bear recently is that one does not dare disagree, or even seem to disagree, with any of the anointed. They will hound you to death just to prove to themselves that they were right. And at the end of the day it’s not ‘oo is right, but ‘oo your friends are. Blue hoodies or red?
It’s a common human trait. And I should know better than to subject myself to it.
JackD has forced me to spend more time considering my objection to same sex marriage.
This year the US Supreme Court will decide that the definition of marriage will have to change. For thousands of years marriage has been understood as the joining of a man as husband and a woman as wife. But going forward the term marriage will include the joining of homosexual men and women. From this year, a man can have a male wife and a women can have a female husband.
This is newspeak. The Merriam-Webster’s definition of newspeak is “speech or writing that uses words in a way that changes their meaning especially to persuade people to think a certain way”
George Orwell’s book “1984” was published in 1949. In that book the Ministry of Truth uses newspeak to manage the perceptions of the population. When I read “1984”, it was immediately apparent that newspeak was pernicious. It corrupted our best communication channel. It was abhorrent to me then and is abhorrent to me now.
I fail to see anything abhorrent about letting two adults of the same sex enjoy the same privilege historically accorded only two people of different sex.
That said, the best solution is for government to get out of the marriage business and to privatize marriage. Government has certain interest in recognizing civil unions, which should be available to same-sex couples and opposite-sex couples equally. But government should leave marriage to churches.
Funny thing is, Joel
I agree with you completely.
But it isn’t entirely a matter of what you and I think: in a democracy it matters what the other guys think too. However abhorrent you find them.
If you can convince a majority of voters, OR congressmen OR supreme court justices to agree with you (us) you’re good.
Still, it is a worthwhile exercise to care what other people think even you have a majority. Just in case, you know, you want them to care what you think when they have a majority.
Thanks, Dale, for the vote of confidence.
Like MLK and Gandhi, I don’t feel like I need the validation of others to advocate for what is right. Nor do I worry about whose feelings I hurt by advocating what is right.
YMMV.
well, Stalin and Hitler didn’t need the validation of others either.
while MLK and Gandhi certainly cared a great deal about white public opinion and British public opinion respectively.
I cannot attest that either of them cared about “love your neighbor as yourself,” but MLK was at least nominally a Christian. And, oddly, so was Dietrich Bonhoeffer who learned about Black Jesus from Adam Clayton Powell Sr.
But you know, those are just people who accomplished something in the world.
Joel
your declaration of “right” is one of the most chilling things i have ever read. i am sure you didn’t mean it. in any case it is NOT “like Gandhi.”
you might benefit by a careful reading of what he said:
“Conclusion: A Gandhian Ethics
Satyagraha is a dialogue; therefore, listening to the other, treating them as a reasonable and reasoning equal is essential. This is an extremely important consideration in conducting conflicts along productive lines – that is, along lines that help to ensure that the resolution of any dispute leaves all the parties satisfied with the outcome. If a party feels that they have been heard and understood, if they have not had to “lose face” and have not been threatened or coerced, this is far more likely. Because satyagraha is based on the aim of seeking the truth in any given situation and employs only nonviolent means to arrive at this goal, the probability of productive resolutions are greatly enhanced.
It appears that satyagraha “works” within this framework, but it also does far more – it gives the individual mastery over their own life, provides them with a mode of conflict resolution that does not rely on expert and institutional methods over which their control is lost. The legal system “takes over” the conflicting process and decreases the probability of productive outcomes.”
Yes, I remember many white people found Gandhi’s civil disobedience in the face of the rule of law chilling. Other white people found MLK’s civil disobedience in the face of the rule of law chilling. I’m sorry you are among those who find their assertions that they were right (they asserted the “truth”) to be chilling. I don’t. I’m old enough to have lived through the MLK time in the American South.
“Stalin and Hitler didn’t need the validation of others either.”
I see. A comparison of Stalin and Hitler to Gandhi and MLK. And you wonder why people get pissed off at your posts?
“But you know, those are just people who accomplished something in the world. ”
In the cases of Gandhi and MLK, they accomplished something good by forcing a reluctant society to confront injustice before they were ready to do it on their own, even though many white people had their feelings, and sense of entitlement, hurt. That’s why I admire them.
YMMV
“Cowardice asks the question – is it safe?
Expediency asks the question – is it politic?
Vanity asks the question – is it popular?
But conscience asks the question – is it right?
And there comes a time when one must take a position
that is neither safe, nor politic, nor popular;
but one must take it because it is right.”
~ Martin Luther King, Jr.
Joel
one takes a position because it is right
but one does not “not care about the feelings of others.”
the ugliness you found in my post came from your head,not mine.
if you read carefully what i quoted from Gandhi you will see that he says you must “care about the feelings of others” because it sets YOU free. it’s actually a bit tricky a concept because if you “care about others” in order to set yourself free, then you won’t be caring about others, and won’t be set free.
i was not comparing StalinandHitler to MLKandGandhi. I was noting that StalinandHitler didn’t care about the feelings of others… which is what you said about yourself. Then I tried to show that MLKandGandhi DID care about the feelings of others.
moreover, I was not “giving you a vote of confidence” I was noting the thing upon which we agreed so we wouldn’t waste time arguing about that, so I could try, again, to make the point I have been trying to make here which seems to be “pissing off” oll the rest of the people who know they are right and so don’t have to care about the feelings of others.
I am old enough to have worked for “civil rights” in the violence of the sixties. The black people I knew then were all Christians. The civil rights movement went bad when it became was taken over by the people who thought they didn’t have to care about the feelings of others.
So no, it wasn’t Gandhi’s civil disobedience that i found chilling. It was your assertion that “because I am right I don’t give a damn about the feelings of others.” That is exactly the ethics of Hitler and Stalin and Ayn Rand and …. practically everyone who is shouting about how right they are and impossibly ridiculous their enemies are.
It’s something I have to watch out for in myself.
” It was your assertion that “because I am right I don’t give a damn about the feelings of others.” ”
Dale Coberly, this is a baldfaced lie! If you can find a post from me with the line you put in quotations as my assertion, I will apologize. If you cannot, you owe me an apology, if you are man enough.
What I actually wrote was this:
“I don’t feel like I need the validation of others to advocate for what is right. Nor do I worry about whose feelings I hurt by advocating what is right. ”
That is not the same as saying “because I am right I don’t give a damn about the feelings of others.” And you know it.
And you wonder why people get pissed off at your posts. It is because you willfully distort the words of others. Shame on you.
I’m very tired of this thread and didn’t want to participate in it further, but I don’t feel comfortable just letting JimH’s claim about newspeak pass without response. Both courts (and certainly the Supreme Court) and statutes, state and federal, regularly define words within statutes, and the Supreme Court regularly defines words or redefines words within provisions of the Constitution.
I’m betting that you had no objection to the Supreme Court’s sudden and effectively spontaneous (the Court itself, not the petitioner to the Court, raised the issue) definition of “people” as including corporations in the Citizens United opinion and, for that matter, in the Hobby Lobby opinion.
But I’m wondering whether you also think it’s appropriate that the Supreme Court has redefined the word “freedom” to exclude actual physical freedom when it is state courts or local or state police and prosecutors that are, absolutely wholesale, running roughshod over even the most basic and clear constitutional rights in order to deny physical freedom, including walking or driving down a street, to huge swaths of people. And this removal of even the most basic constitutional protections extends to such civil matters as child-support orders and to the elderly in adult-guardianship-petition cases.
The Supreme Court has simply nullified constitutional rights that supposedly protect against the sort of complete or partial removal of actual physical freedom when the removal is carried out against individuals, routinely and incredibly flagrantly, by state or local courts or police, and the Court claims its wholesale redefinition of “freedom” is done in the name of—you guessed it—freedom. Just like slavery was enforced in the name of “freedom.”
I really, REALLY could not let stand without rebuttal your cavalier objection to the Court’s possible “redefinition” of civil marriage on the ground that it’s appalling that the Court would “redefine” a commonly understood word. In fact, that’s not what the Court will be doing if it does invalidate state bars to same-sex civil marriage. But it sure as hell is what it has done with the word “freedom”.
Bev:
As we both well know, a state court not answering to the constitutionality of a particular claim by a defendant does not mean they did not answer it or ignored it under the 1996 ADEPA. It is assumed they reviewed it by the Federal Courts. In order words no answer by the state courts is assumed to be an answer utilizing Vulcan Mind Melding. 1996 was just an affirmation of United States vs Cruikshank and the denial of protection by Federal Courts over state rights with regard to individual rights.
Joel
I tried to translate what you said into what it sounded like to me. I do not “know” what you meant. I only know what you said and what it sounded like to me.
I do not wonder why people get pissed off at my posts. I have been in the business of “studying” people’s misperceptions and self deceptions for over fifty years. Including my own.
Beverly
as I am sure you will agree, the Court redefines words all the time.
But as a matter of logic, JimH complaining about the court redefining the word “marriage” was NOT a claim either that the court never redefined other words, or that he had no objection when they did.
Joel
it would be instructive for me if you were to explain the exact difference between “nor do I worry about whose feelings I hurt”
and “i don’t give a damn about whose feelings I hurt”
and
if you would explain how you managed to get the exact opposite of what i meant from the two very careful comments i wrote.
i wouldn’t expect either of us to understand the other first go-around
but the essens of “reason” is finding out what you CAN agree about, and then go step by step with what you can agree about to see if you can agree about the original proposition, or find a new proposition you can agree about, or at least understand why you cannot agree,
instead of disagreeing to the point of “pissed off” without even knowing what it is you disagree about.
Beverly Mann wrote “I’m betting that you had no objection to the Supreme Court’s sudden and effectively spontaneous (the Court itself, not the petitioner to the Court, raised the issue) definition of “people” as including corporations in the Citizens United opinion and, for that matter, in the Hobby Lobby opinion.”
On 20 September 2014 at 12:08 JimH wrote in a comment “Personally, I would rather see an amendment which denied any personhood to corporations as far as the constitution is concerned. They should only have the rights that their government creators allow them.”
See: http://angrybearblog.strategydemo.com/2014/09/ted-olson-wants-congress-to-bar-the-koch-brothers-contributions-to-incumbents-i-say-good-idea.html
I have never argued in favor of Citizens United but I have complained bitterly about it. The lawyers explained the case in legalese so that it was difficult to say that newspeak was involved.
I can not find any online comments which I made about Hobby Lobby. I never liked the decision but I never saw it as obvious newspeak either.
The same sex marriage case is obvious newspeak.
The entire population has understood the definitions of marriage, husband, and wife. They are not legalese, they are words understood and used though out the entire population. Used with specific definitions in mind.
There are other solutions available. Civil unions avoid this problem and the federal courts have the power to prohibit states from depriving individuals of their individual civil rights.
Dan, too many of the participants to this thread have gotten bogged down in the parsing of minutia. They’re acting like the very SCOTUS justices that we all seem to agree make it their habit to put ideology before Constitutional expertise. Far too many words describing far too little of the issue that was the thread’s original intent. A little more monitoring of these discussions with an occasional editing out of an individual comment would go a long way to reducing the vitriolic debris building up under the weight of individual intellectual one-upmanship.
“The entire population has understood the definitions of marriage, husband, and wife.” JimH
But Jim, it’s not the definition of marriage that is the crux of the equal protection argument. It is the unique advantages and privileges, both social and economic, that is central to the argument. Also, that the vast majority has “always” defined marriage one way or another is not a sufficient argument to allow that definition to be always and forever embedded in the rule of law. There are many social and economic injustices that prevailed over long periods of time because the vast majority of Americans defined those injustices as part of some natural law or as resulting from the wisdom of their chosen concepts of God.
Black people are not entitled to full citizenship.
Women are the property of their fathers or husbands.
Jews have horns and tails and eat little Christian children.
And newly added:
Corporations have the rights of citizens, (until their charters are revoked?)
Jack…. the real Jack,
this time I can’t agree with you. I haven’t seen an intellectual argument on this thread. I certainly am not trying to be intellectual. I am trying to get certain people to examine the question of whether it is worthwhile treating their political enemies as if their opinion mattered.
And I think JimH’s point is not so much “intellectual” as similar to mine: you don’t want to “piss off” (to use Joel’s highly intellectual phrase) a lot of people if you don’t have to. I simply don’t accept that a “civil marriage” solution would materially hurt gay’s, and if handled off the front page it wouldn’t bother the “traditional marriage” people very much either.
on the other hand, I think the traditional marriage people will get used to calling “gay marriage” simply “marriage” over a very short period of time… if it gets off the front page, and the Holy Left quits helping the Insane Right milk the issue for votes.
Beverly makes a good point:
I’m very tired of this thread and didn’t want to participate in it further, but I don’t feel comfortable just letting JimH’s claim about newspeak pass without response. Both courts (and certainly the Supreme Court) and statutes, state and federal, regularly define words within statutes, and the Supreme Court regularly defines words or redefines words within provisions of the Constitution.
I’m betting that you had no objection to the Supreme Court’s sudden and effectively spontaneous (the Court itself, not the petitioner to the Court, raised the issue) definition of “people” as including corporations in the Citizens United opinion and, for that matter, in the Hobby Lobby opinion.
But I’m wondering whether you also think it’s appropriate that the Supreme Court has redefined the word “freedom” to exclude actual physical freedom when it is state courts or local or state police and prosecutors that are, absolutely wholesale, running roughshod over even the most basic and clear constitutional rights in order to deny physical freedom, including walking or driving down a street, to huge swaths of people. And this removal of even the most basic constitutional protections extends to such civil matters as child-support orders and to the elderly in adult-guardianship-petition cases.
The Supreme Court has simply nullified constitutional rights that supposedly protect against the sort of complete or partial removal of actual physical freedom when the removal is carried out against individuals, routinely and incredibly flagrantly, by state or local courts or police, and the Court claims its wholesale redefinition of “freedom” is done in the name of—you guessed it—freedom. Just like slavery was enforced in the name of “freedom.”
I really, REALLY could not let stand without rebuttal your cavalier objection to the Court’s possible “redefinition” of civil marriage on the ground that it’s appalling that the Court would “redefine” a commonly understood word. In fact, that’s not what the Court will be doing if it does invalidate state bars to same-sex civil marriage. But it sure as hell is what it has done with the word “freedom”.
Good for you, Jim. I didn’t actually say that you don’t object to the Supreme Court’s redefinition of “people” as including corporations; I said I’m betting that you don’t. But I lose the bet.
I certainly think that redefinition is newspeak as you defined it. But my real point about Citizens United and Hobby Lobby is that the Supreme Court redefines common words whenever it likes. Your comment that I was responding to seems to say that a redefinition of marriage would be a break from the Court’s norms. It would not be, and I can’t imagine a more Orwellian redefinition of a common word than the Supreme Court’s complete untethering of physical freedom from the word “freedom” or “liberty” if the physical freedom is being denied in bald violation of the Fourteenth Amendment, because, according to them, state courts and local police and prosecutors are exempt from enforced compliance with constitutional precepts because enforcement of constitutional precepts would trample upon the state’s sovereign dignity.
Funny, but the Fourteenth Amendment was ratified for the very purpose of removing a state’s sovereign right to violate individuals’ constitutional rights. Including the Fourth Amendment and including the Eighth Amendment’s excessive-fines clause. The Supreme Court’s view that what matters is the state’s freedom to violate individuals’ most basic constitutional rights, including physical freedom, is about as newspeaky as anything I can imagine.
“And newly added: Corporations have the rights of citizens, (until their charters are revoked?)”
The death penalty, Jack?
Yes, Beverly
makes a very good point. just that it has nothing to do with JimH’s statement, or his actual history. It’s what Run would call a non-sequitur.
Which brings up again my question about what Beverly thinks of the trial and imprisonment of John Walker Lindh by a federal court.
Okay folks, time to stop this thread. We are all going back comments 101.