Cara L. Gallagher, weekend contributor
History happened yesterday. Will you remember where you were when the same-sex marriage decisions came down? I will. I was inside the Court when we all sat up somewhat shocked to hear the first case of the day was Obergefell v. Hodges. Again, I am lousy at predicting what cases we’ll get decisions on each day. This fact is already entered into the record. But because it was a decision of such importance, for the first time, I stopped writing, listened, and looked around to see how the audience, the public, were not only hearing but experiencing what I was hearing.
It wasn’t obvious from the start of Kennedy’s reading of the majority (made up of the four liberal justices) decision that it would come out on the side of the same-sex couples, many of which were in the Court to hear their case. He started off referencing the “millennia” of the institution of marriage. Those who listened to the oral arguments back in March will recall Kennedy used this word a lot to question Mary Bonauto, the attorney for the same-sex couples, on why the definition of marriage should be expanded to include same-sex couples when, for so long, it has been reserved to one man-one woman.
Kennedy quickly addressed the legal justification for supporting the same-sex couples. The majority ruled same-sex couples have a fundamental right to marry, just as opposite sex couples do. The Due Process clause and Equal Protection clause of the 14th Amendment protect this right and states must recognize the marriage licenses of couples. To the majority, the definition of marriage is not static and has never been. It has evolved from a time when women were married off to men chosen by their parents for financial gain, where their rights were subsumed to men (coverture), to one that primarily served procreative purposes, and finally to the version that exists today – marry who you love for whatever reason you want. Such personal choice has been celebrated in a patchwork system where some states allow gay marriage while others do not. But today’s decision mandates uniformity in legal doctrine. According to the majority, “A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”
Emboldening the majority’s defense of their opinion is the belief that same-sex couples with children deserve the dignity and eradication of stigma that will flow from not simply social norms and practices, but legal acceptance of their unions from the states in which they live. Yes, a federal decision on this matter quashes public debate and takes the political decision-making power out of the hands of states, some moving faster on same-sex marriage legislation than others. On that point, the majority said, “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’” (The latter quote is cited in the decision from West Virginia Bd. of Ed. v. Barnette)
It was at this moment that I stopped and looked around at the faces in the Court. Listening with smiles and quiet tears were several people sitting near me. I saw the petitioners and a member of the clergy sitting, perhaps appropriately, on opposite sides of the aisle in the general public area. Justice Stevens was in the Court as well. In the seats of the Supreme Court bar, which are front and center inside the Court, was notable same-sex marriage advocate and U.S. Deputy Assistant Attorney General at the Department of Justice Civil Rights Division Pam Karlan, Mary Bonauto, and Solicitor General Donald Verrilli. The Court often feels like it’s in an unnecessary state of lock down – especially on decision days – so the security marshals ban celebrations, cheers, cries, or any other expression. But the feeling was jubilation, complete and total satisfaction. Once dismissed, many near me stood up, hugged, and wiped away tears.
As jubilant and electrified as some people were, the subsequent dissent read by Chief Justice Roberts killed any and all enthusiasm in the room. Roberts may have read his dissent – one of four dissents written by every member of the minority group – to remind everyone that yesterday’s Obamacare ruling is not the liberal pivot you may have thought you were getting from the Roberts Court. I wrote about the potential for this pivot just last night after the King case was announced. In his blistering dissent that lasted as long, if not longer, than the time it took Kennedy to read the majority opinion, he openly threw shine on his bench mates: “Today, five lawyers have ordered states to change their laws,””Just who do we think we are?”
The power to decide laws defining marriage has and should forever be a power held by the states, derived from the people, according to Roberts’ dissent. “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.” This is the default response the conservative justices often give in federalist cases like this one.
What stung the most and hit the people who’d just been told they are equal in the eyes of the law the hardest was his final paragraph: “Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.” Further, “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
The “acceptance” line read to a class of people for whom acceptance both socially and constitutionally is so seldom protected by the Federal government, was the hardest to watch wash over those sitting near me.
Roberts may have gotten the last word in, but the same-sex and LGBTQ members and allies gathered together in the biggest crowd of people I’ve ever seen outside the SCOTUS, got the last laugh. They have legal protections rooted in two fundamental Constitutional principles. This decision came down at the perfect time as some cities celebrate their Pride Day this weekend and thousands of others will spend their celebrations at wedding receptions and enjoying honeymoons.
Follow Cara as she spends one more day covering the final three SCOTUS cases this term. @SupremeBystandr
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
What I don’t understand is how anybody who claims to be in support of FREEDOM can be against this
ruling.
This is how EVERYBODY should be treated in a FREE society.
Dust Bunny Queen,
as for how you raised your daughter, YOU were smart.
I have a theory on children who’s parents are more open about sex
and who act responsibly.
My mother put me on birth control at 15 years of age.
ALLLL of my high school friends were having sex… I was the last virgin in my school
of our class and group of friends.
ALL the other parents were uptight and told their kids to not have sex.
the kids did not listen, they were having sex at a much too early age.
My mother on the other hand, she told me… I know you will have sex,
just make sure you are ready.
That gave me the confidence to chose when I was ready.
I did the same with my daughter.
and again, my daughter waited until she was older than her friends before she had sex,
and it was with a boy she had been with for a year.
she is still with this guy.. and he is the BEST boyfriend I have ever met.
He takes such good care of her… when she is sick, he comes over and takes care of her.
He is just an all around GREAT guy.
I think when parents are open with their kids about sex, the kids don’t feel the need
to run out and start having sex, they wait until they are truly ready.
You were a smart mom, and I admire that. 🙂
The Fourteenth Amendment did not grant blacks the right to vote.
The Fourteenth Amendment did not grant women the right to vote.
The Fourteenth Amendment did not grant women the right to practice law in Illinois.
But the Fourteenth Amendment granted same-sex couples the right to marry a member of the same-sex?
The law didn’t change. The Court did! The Court has become a legislative body of its own and dignity became a right.
Rejoice!!! You were all here to see the end of Democracy in the United States and the birth of a Third Legislative Branch. May a Court who only interprets the existing law forever rest in peace.
Nick Spinelli,
that doesn’t shock me at all.
You are not the run of the mill reactionary Far Right Republican.
You are a Liberal Conservative. a Moderate.
Squeeky, LOL, great joke… hehehehehehe….
by the way, LOVED your poem… You are the BEST at the Irish Poems that is
for sure. 😀
G. Smith,
how do they identify to their friends and other relatives which one of the “partners” is in the balanced breadwinner role of “Father” and who, then, is to be the nurturing “Mother”? This decision will rend the fabric of the traditional American family asunder before long…
———–
This is no longer the 1950’s.. There are plenty of women who
are the bread winners, and men who stay home with the kids.
There are many types of marriages, what works for ONE couple, may not work
for the next couple, it is up to them to decide what kind of family is
best for them.
Paul: G Smith’s insular diatribe (my term) was the following: “In the case of two males, are the terms now Pitcher and Catcher? And for the females, Slot A and Slot B? Far more challenging, disturbing, and planting a ‘time bomb’ of this unsupportable logic; especially for the adopted offspring of these unions, is, in their relationships with children of traditional households, how do they identify to their friends and other relatives which one of the ‘partners’ is in the balanced breadwinner role of ‘Father’ and who, then, is to be the nurturing ‘Mother’?”
Your question was “stevegroen – people are still anti-abortion. Do you think this decision is going to suddenly make them pro-same sex marriage?”
The answer to your question is ‘no,’ but you’ve made what appears to be a very good point, i.e., don’t expect people to agree with the decision to uphold a fundamental right for anyone with legal competence to marry. However, beliefs about abortion (your term for procreative privacy) and same-sex marriage are not manifested in the same manner. G Smith is not going to see a dead fetus running into the house with little Jimmy, but he might see Jimmy’s neighborhood friend do so, even though that friend is the “adopted offspring of these unions.” So, too, an LGBT couple might walk into G Smith’s place of business. How will he treat them and how will he instruct his children to treat them?
All of the beliefs G Smith has expressed in the quote above are his, but his actions toward other human beings are why I asked whether the dissenters will rise to the challenge or wallow in insular diatribe. Remember South Pacific, the musical? You’ve got to be taught to hate and fear. You’ve got to be carefully taught.
What has changed for the better IMO is the relaxing on who can perform marriages. I was recently asked by a couple I know in Colorado to officiate their wedding. I have known the woman since she was in diapers. The rules in Colorado are obviously quite liberal if a reprobate like me can officiate. I was tearful when they asked. I had no idea it was coming and I can think of few times I felt so honored. And to the folks here that have problems w/ me here, this is a very liberal couple who know me quite well.
Paul
And on the other hand, one cannot get a marriage license in Massachusetts for a wedding in Alabama.
Paul
‘Radical” is either a noun or an adjective. One can most certainly be a radical reactionary. Many here are reactionaries – only a few are radical reactionaries.
And some are simply stupid.
doctoreyes – when I took my classes radicals were on the left and reactionaries were on the right. To be a radical reactionary you have to be left of right.
BTW, I never mentioned the radical Commie Leonard Bernstein.
“But in the long run, perhaps this ruling, paired with its inevitable, messy consequences, will remind people that more government almost always equals more problems. Both sides of the political aisle need this reminder, by the way. It’s how we got into this mess in the first place.
Just ask the nearest hippie.”
http://thefederalist.com/2015/06/27/gay-marriage-is-here-now-what/?utm_source=The+Federalist+List&utm_campaign=51f5835d15-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-51f5835d15-79248369
“I wonder if Olly has any tapes available of his obsession one-note lecture on natural rights? Maybe if a few of us bought them, he’d move on to his next market.”
doctoryes,
I’m as tired of writing about them as you seem to be reading about them. Since I am in a “legal” blog and the chartered purpose for our government is to secure them, I’m going to keep writing about them. They are our republics canary in the coal mine. As we continue to lose them to this progressive, administrative state, we are marking the days when enough will be enough.
We have a shortage of people that actually understand natural rights and an abundance of experts on every other topic under the sun. We even have experts on religion; as a matter of fact most people in this blog are experts on religion and the existence (or non-existence) of God. Not everyone agrees of course which is not surprising since the entire subject relies on faith. The reality of a faith-based debate is there will be no settlement. On the other hand, a natural rights-based debate has only one side that can claim the truth; at least as far as it applies to the establishment of this nation and our constitution.
When JT posts a discussion I immediately consider how it is relevant to natural rights. If it has no direct impact then I might follow it depending on how much time I have to waste or if I want to see all the experts chime in. It can be humorous at times. Most of the time these threads are quite predictable though, especially when it involves finger-pointing. When the topic has a direct impact on rights I will not hesitate to participate and the reason is very simple.
This nation went to war with England because their rights were being infringed. They didn’t go to war (to use today’s problems) just because assets were being taken away without due process, or they had militarized police force in every town, or they were being forced to violate their conscience, or their personal weapons were being confiscated. It was all of that and then some and it all related to natural rights. We were founded on the principle that a government’s purpose is to secure, NOT INFRINGE natural rights and 239 years later hardly anyone gives a shi*. It is beyond ignorant that anyone would argue that inalienable rights do not exist. That is exactly the relationship the Master wants to have with his SLAVE. It is equally ignorant to argue for some aspect of natural rights (when it suits your purpose) but against them when it doesn’t. It’s an all or nothing deal. Because we have a nation that has no idea what the chartered purpose for government is, we get a government that reflects that ignorance and then we complain that they have no idea what they are doing. Because we have no unity on the one big thing government is supposed to be doing, we are easily divided by a myriad of small things that have no business doing in the first place.
So, I appreciate you asking but no, I don’t have any tapes. And I most certainly will not quit talking about the one thing that makes all this other shi* even matter.
The Baptist minister in Betty Lou Thelma Liz’s church refuses to take part in the ceremony or allow the new married couple into his church. Even with HumpinDog admitted as guide dog for the blind Betty Lou Thelma Liz. That is ok. Betty Lou Thelma Liz is converting to Eighth Day Dog Adventists Church and will be attending services here at the dogpac church with HumpinDog. For those of you new to the blog an Eighth Day Dog Adventist believes that God Created Dog On The 8th Day and Sent Him To Earth To Give Guidance To Mankind. God spulled backwards is Dog.
Nuff said.
Betty Lou Thelma Liz and HumpinDog have plans to adopt a blind human child after their wedding. Then HumpinDog can be both the father and the guide dog for the child and attend school functions and whatnot. This will be a three person family and whatnot. And if cows could, they would give Milnot.
Call me a moron if you want. But I advised HumpinDog and his fiance Betty Lou Thelma Liz to go over to Alabama and try to get a license and a preacher and get married there. It would save them a lot of airfare to Cuba tomorrow. It is amazing what one can learn on this blog.
So, now for the 800 Lb. Gorilla in the room, in the now hallowed “same sex” marriage, who, exactly, is the husband and who therefore is the wife in the “marriage” now allowed by the SCOTUS decision? In the case of two males, are the terms now Pitcher and Catcher? And for the females, Slot A and Slot B? Far more challenging, disturbing, and planting a “time bomb” of this unsupportable logic; especially for the adopted offspring of these unions, is, in their relationships with children of traditional households, how do they identify to their friends and other relatives which one of the “partners” is in the balanced breadwinner role of “Father” and who, then, is to be the nurturing “Mother”? This decision will rend the fabric of the traditional American family asunder before long…
G.Smith writes:
Parents with traditional family values will have some soul searching to do. Do you think they’ll rise to the challenge or wallow in insular diatribe as you have?
stevegroen – people are still anti-abortion. Do you think this decision is going to suddenly make them pro-same sex marriage?
https://twitter.com/splcenter/status/614499758439288832/photo/1
Mensa members – lest you think I am complimenting Mesa AZ – another reactionary state.
doctoryes – you have gone from calling them radicals to calling them reactionaries. They can only be one. Is it because you don’t know the difference?
Paul
Since you have proven yourself to be a very curious fellow, you may be interested in what Alabama and Mississippi and the other reactionary Republican states are considering about marriage licenses.
They are considering legislation which will eliminate the need for any license at all.
They are clever people, aren’t they! That should work out splendidly for them. I can see it now. Some Alabama moron will get some other Alabama moron to marry the Alabama moron and his pet pig. And then they will blame Obama.
I bet Toyota will just be dying to open another plant in that state. FULL of Mesa members!
doctoryes – that is Mensa to those who are not members.
Paul
So sorry for ‘prattling’ on, but I fear you are mistaken when you say:
“Again just get the license in another state and marry in Alabama, if that is what you want.”
Here is the law:
“You will need an Alabama marriage license if you plan to get married in Alabama, but if you are a resident of Alabama and plan to get married elsewhere, you should get a license from the state in which you intend to be wed”
http://www.wikihow.com/Apply-For-a-Marriage-License-in-Alabama
What’s odd is the insulting way you correct people when you have no idea of what you are talking about.
Do you think no one will be curious to check your assertions?
doctoryes – just as they refused to issue the licenses, that to may change. Not all things are set in stone. They may decide to accept licenses from other states. Although that is going to make a big mess. But, what the hell, SCOTUS started it, let them find the solution.