Below is my column today in the Washington Post on the ruling in Obergefell on the basis for the Court’s ruling in favor of same-sex marriage. Due to limitations on space, I could not go into great depth in the opinion which primarily dealt with the notion of the “right to dignity.” The Court did not pursue an equal protection analysis beyond the following highly generalized statement:
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.
Since the Court did not substantially address whether homosexuals are a protected class or the other Equal Protection line of cases, the opinion appears to craft a right around the inherent right of self-expression and dignity in intimate affairs. That is very appealing to many in the expansion of due process concepts, but the column explores what it portends for future rights.
Here is the Sunday column:
Like many people at the Supreme Court last month, I was deeply moved by the historic ruling in Obergefell v. Hodges recognizing the constitutional right of same-sex couples to marry. At such a transcendent moment, it is difficult to do anything but celebrate the triumph of what Justice Anthony Kennedy called the “dignity” and “profound hopes and aspirations” of the many loving couples who had been denied the recognition of marriage.
For the record, I have long advocated the recognition of same-sex marriage. But the most direct way the justices could have arrived at their conclusion would have been to rely on the 14th Amendment’s equal protection clause. It, along with the civil rights legislation of the 1960s, holds that all citizens are entitled to the same treatment under the law, no matter their race, sex, religion or other attributes known as “protected classes.” Kennedy and his allies could have added “sexual orientation” to the list of protected classes, making the denial of marriage licenses an act of illegal discrimination. This approach would also have clarified the standard in a host of other areas, such as employment discrimination and refusal of public accommodations.
Instead, Kennedy fashioned the opinion around another part of the 14th Amendment, holding that denial of marriage licenses infringed on the liberty of gay men and women by restricting their right to due process. As Justice Clarence Thomas correctly pointed out, liberty under the Constitution has largely been defined as protection against physical restraints or broader government interference — “not as a right to a particular governmental entitlement.” While Kennedy makes a powerful case for an expansive new view of due process, he extends the concept of liberty far beyond prior decisions.
In reality, he has been building to this moment for years, culminating in what might now be called a right to dignity. In his 1992 Casey decision, he upheld Roe v. Wade on the basis of “personal dignity and autonomy [that] are central to the liberty protected by the Fourteenth Amendment.” Kennedy wove this concept of protected dignity through a series of cases, from gay rights to prison lawsuits, including his historic 2003 Lawrence decision striking down the criminalization of homosexuality. These rulings on liberty peaked with Obergefell, which he described as an effort of the petitioners to secure “equal dignity in the eyes of the law.” He used the word “dignity” almost a dozen times in his decision and laid down a jurisprudential haymaker: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”
These words resonate with many of us, but it is not clear what a right to dignity portends. As Justice Antonin Scalia predicted in an earlier dissent to Lawrence, it signals “the end of all morals legislation.” Some of us have long argued for precisely that result, but the use of a dignity right as a vehicle presents a new, unexpected element, since it may exist in tension with the right to free speech or free exercise of religion.
Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, “the highest ideals of love, fidelity, devotion, sacrifice, and family”? The justice does not specify. It certainly appears as if Obergefell extends this protection because same-sex unions are now deemed acceptable by the majority. The courts may not be so readily inclined to find that other loving relationships are, to quote the opinion, a “keystone of the Nation’s social order” when they take less-orthodox forms. But popularity hardly seems like a proper legal guide to whether a relationship is dignified.
With the emergence of this new right, we must now determine how it is balanced against other rights and how far it extends. For example, it is clearly undignified for a gay couple to be denied a wedding cake with a homosexual theme. Yet for a Christian or Muslim baker, it might also feel undignified to be forced to prepare an image celebrating same-sex marriage. Should the right to dignity trump free speech or free exercise?
Other groups outside the lesbian, gay, bisexual and transgender community could invoke this precedent, since the reasoning does not concern a protected sexual-orientation class but rather a citizen’s right to dignity. Could employees challenge workplace dress codes as intruding upon their right to “define and express their identity”? Could those subject to college admissions preferences raise claims that race or gender classifications deny their individual effort to “define and express their identity”? Kennedy’s approach has only deepened the uncertainty over how courts will handle such cases.
Some of the greatest attacks on dignity are often found in the exercise of free speech. Europe and Canada, for example, protect broader dignity rights through laws that penalize statements deemed degrading, hateful or insulting to different groups, including homosexuals. In Britain, for example, a Baptist street preacher was charged with causing “harassment, alarm or distress” by stating on a street corner that he viewed homosexuality to be a sin. In Canada, comedian Guy Earle was found guilty of violating the human rights of a lesbian couple after he got into a trash-talking exchange during an open-mike night at a nightclub. In France, comedian Dieudonné M’Bala M’Bala has been arrested and prosecuted for jokes deemed anti-Semitic. In Greece, another jokester was arrested for insulting a famous monk by making his name sound like a pasta dish. In Italy, comedian Sabina Guzzanti was investigated for joking that “in 20 years, the pope will be where he ought to be — in hell, tormented by great big [gay] devils.”
In the United States, such efforts have been largely stymied by the express protection of free speech in the First Amendment and expansive interpretations by the courts. Nevertheless, pressure is rising to criminalize forms of “hate speech” or speech that is viewed as discriminatory or degrading to certain groups. Universities increasingly warn students and faculty not just against comments deemed racist but also against an ever-expanding list of “microaggressions,” such as the use of “melting pot” and other terms considered insensitive. This year, a Montana prosecutor sought to punish speech that exposes religious, racial or other groups “to hatred, contempt, ridicule, degradation, or disgrace.” Such laws could now be justified as protecting the dignity rights of groups and balancing the “danger” of free speech.
Obergefell would be a tragic irony if it succeeded in finally closing the door on morality and speech codes only to introduce an equally ill-defined dignity code. Both involve majoritarian values, enforced by the government, regarding what is acceptable and protectable. Substituting compulsory morality with compulsory liberalism simply shifts the burden of coercive state power from one group to another.
None of these concerns take away from the euphoria of this liberating moment. And the justices can certainly tailor their new right in the coming years. But if we are to protect the dignity of all citizens, we need to be careful that dignity is not simply a new way for the majority to decide who belongs and who does not in our “Nation’s social order.”
Twitter: @JonathanTurley
Washington Post (Sunday) July 5, 2015
Just Some Guy wrote: “A thing based upon A-A is equal to A-B is a falsity.”
Unless, of course, A and B are equal in all of the pertinent qualities.
Randyjet, my opinion, but you are simply wrong on this. Why would a gay person want to marry a straight person anyway? That argument is facetious. Two gay people did not have the right to marry each other, they do now, which is one of the good things our Judicial branch has done.
Gays marry persons of the opposite sex all other do. To have children, companionship, joint property ability, insurance, social pressures, etc.. In FACT, millions of gays HAVE married persons of the opposite sex. Two well known examples are Huffington and my favorite conductor Leonard Bernstein. Their kids would probably not exist if gay marriage had been available years ago. I would like to get their kids take on gay marriage.It would be interesting.
The majority of gays want to marry other gays. Would you want to marry a gay person Randy? Gay people love each other, adopt children and raise them in stable families too. The idea that gay people should only be allowed to marry a straight person is unconstitutional. Good for the SCOTUS that they understood this.
Annie, The SCOTUS only decide it by one vote. For such a major change in our laws and traditions, Warren had the intelligence to see that the Brown ruling HAD to be unanimous for a lesser change of desegregation in schools. It is judicial hubris and overreach to mandate such change from the bench with one vote and little precedent. There will be a number of vacancies on the SCOTUS for the next President. and no matter who is elected, the Senate will never confirm a justice who supports this ruling.
I. Annie wrote: “Why would a gay person want to marry a straight person anyway?”
To have children and a family.
I’ve shared this link before concerning a gay person named Josh Weed who married and has kids. He has blogged about the answer to your question, but you can ask him directly if you have more questions. He’s a Marriage and Family Therapist.
http://www.joshweed.com/
Just use common sense, if an elderly couple who no longer can reproduce cannot get married because of this fact, then they too should be denied legal marriage? Do elderly couples get together in marriage to satisfy lust? LOL. How about an infertile couple, should they be denied legal marriage too? These irrational arguments that marriage is about procreation are simply old and worn out and don’t hold any water. People can reproduce without marriage.
Annie, The interest the state has in promoting heterosexual marriage is that normal hetersosxual acts of intercourse can lead to children. Thus the state has a direct interest in their welfare and rearing. When homosexual acts result in children,THEN I will see a state necessity of gay marriage. One cannot deny marriage to opposite sex couples based on old age, fertility, race religion in keeping with the Loving SCOTUS decision. A law banning gays from heterosexual marriage would be unlawful discrimination or establishing a gayness test to deny them such marriage since the state has no interest is such details. In FACT millions of gay have married others of the opposite sex, and thus were not discriminate against. The SCOTUS simply chose to rewrite the laws on marriage with no legal basis in fact or precedent. If a state wishes to change the definition of marriage as NY did, it is their right to do so, and I support that.
I. Annie wrote: “if an elderly couple who no longer can reproduce cannot get married because of this fact, then they too should be denied legal marriage?”
No, I said there were two primary reasons, either of which can satisfy the need for marriage. Gender diversity and the need to complete oneself is reason enough. That can only be fulfilled through marrying the opposite gender. Also, sometimes people think they can’t reproduce but then they do. Abraham was 100 years old when he gave birth to Issac.
I. Annie wrote: “These irrational arguments that marriage is about procreation are simply old and worn out and don’t hold any water.”
They are not irrational arguments. How do you explain marriage in Chinese culture where they had no Judeo-Christian background? Reproduction is the primary practical reason for marriage in many cultures. Finding exceptions to the general rule does not change this.
Millions of people “Plus this One” will not accept the ruling of ‘those five people’ It is Male and Female that create the offspring and the creativity of the genetic pool with the dropping off and addition to that line makes those unions as unique above all others. A thing whose basis is of love is subjective, fleeting, an irrational lust. A thing based upon the collection of benefits is greed. A thing based upon A-A is equal to A-B is a falsity. Above all else, a thing that breaks the trust of ‘Honour thy Mother and Father’ with mother or father is a Betrayal and that, ‘This One plus the millions of people Will Not Do
Just Some Guy: Would you agree with the following statement?
“Almighty God created the male and female genitalia, and he placed them on separate bodies. And, but for the interference with his arrangement, there would be no cause for such a marriage. The fact that he separated the genitalia shows that he did not intend for a woman and another woman to marry.”
(Loving v. Virginia trial court’s dictum, redacted a bit by replacing race with genitalia, https://www.law.cornell.edu/supremecourt/text/388/1)
And interracial marriage, do you agree with its legality?
@stevegroen And interracial marriage, do you agree with its legality?
Do I agree with Darwins 1859 masterwork: On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life. That it was simply un-natural for the races to inter-breed? Of course not, Darwins Theory itself is contrary to the nature of a strong genetic pool.
Loving v. Virginia in all account was a case about Eugenics. AKA, the superiority of the Pure Blood race which is a thing of two parts. First part being, with selective breeding undesirable traits can be removed from the genetic code. Second part is those offspring found to contain the undesirable become themselves undesirable. As the cost of the second is too high, thus a falsity, the falsity in both cases is true.
There must always be Three, two actuals and one potential, the actual, the biological complementary of male and female is the potential for the creation of new actuality – – If I said it is possible for a white thing to be black, it is false as applied to the saying, and true as applied to the thing: for a thing which is white can become a thing which is black; whereas this saying, ‘a white thing is black’ can never be true. But in forms that are inseparable from a subject this distinction does not hold: for instance, if said, A black crow can be a white; in both cases it is false. Accordingly, if said male and female are biological complementary, in both case it is true. Therefore in forms that are inseparable from a subject, the biological complementary of male and female as marriage, in both cases is also true.
Marriage is not a thing of abstraction as love is defined as an abstraction of emotion. Marriage is a thing of potentiality to an actuality with a concrete end, that of joining the two separate and distinct halves of humanity, each half being of the unique potential forming the concrete actuality of new life . . .
Just Some Guy
stevegroen wrote: “Almighty God created the male and female genitalia, and he placed them on separate bodies. And, but for the interference with his arrangement, there would be no cause for such a marriage. The fact that he separated the genitalia shows that he did not intend for a woman and another woman to marry.”
The original statement was made about race, and it is defective in many ways when applied to race. Foremost is the notion that Almighty God created the races. Where does the Judge get that notion from? Not from the Bible. The Bible says that he created Adam and Eve. The races evolved after Adam and Eve sinned due to environmental factors and geographical isolation of the population.
Set aside the Bible and God for a moment, and just use logic. The purpose of genitalia in humans is to reproduce. While there might be pleasure associated with the behavioral drive to reproduce, that is not the function of genitalia. Genitalia are complementary in the sexes specifically purposed to relate to each other in a specific way to create a new individual. In a same sex relationship, this purpose does not exist. The only purpose in a same sex relationship is pleasure. They engage in sex simply to satisfy lust. There is no purpose to ejaculation or orgasm other than pleasure. No new individuals are created, no family, and no new relationships like father, son, mother, daughter, husband and wife. It is notable that the Democrats have introduced a bill to remove the terms husband and wife from the law. It is H.R. 2976, known as The Amend the Code for Marriage Equality Act.
https://www.congress.gov/bill/114th-congress/house-bill/2976/text
Because they have used the court to hijack all the laws about marriage created since the founding of this country, now they have to go back and amend the law. This is actually pretty good evidence that same sex unions and opposite sex unions are not equal. The laws they hijack must be modified in order to obfuscate the obvious fact that they are not equal because their unions do not in fact create the same relationships that are created in traditional marriage.
Just Some Guy – I support same-sex marriages, however I think it is up to the states, not the courts to decide. There is nothing in the Constitution that allows same-sex marriages, much less marriages. However, the reasoning behind the decision opens the door to everything, including child porn, bestiality, etc.
Forgotwhoiam wrote: “If it’s not Precluded by the Preamble, it goes to the Constitution. If it’s not addressed by the Constitution, it goes to the People, the Sovereign, through their representative, the Congress.”
Except that—and I guess I can’t repeat this often enough—The Ninth Amendment says “The enumeration in the Constitution, of certain rights, SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE.” (sorry for the shouting, but some people really can’t read.) And since there is NO legitimate legal or societal reason for the government to oppose same-sex marriage, the Ninth Amendment should carry the day—even if the Supreme Court based all of its argument on the 14th Amendment, which is also a recognizer of people’s rights.
markkernes wrote: “And since there is NO legitimate legal or societal reason for the government to oppose same-sex marriage…”
You make a wrong premise here. The legitimate legal and societal reason is that marriage defines a relationship primarily based upon gender diversity. It is because people are not born unisex. People are born male and female, and the man does not exist without the woman, neither does the woman exist without the man. To perpetuate the species, a man and woman comes together. Such highlights the unique differences between the sexes, but marriage is about more than just perpetuating the species. It is about completing a person. When a man bonds with a woman, the difference in the sexes creates a unique kind of bond that does not exist when a man connects with a man, or a woman with a woman. The woman brings to the union things that are lacking in the man. Likewise the man brings things to the union that are lacking in the woman. Gender diversity and reproduction are the two primary cornerstones of marriage, and if you lack both of these things, the union simply is not marriage. It is a domestic partnership or civil union. Just because you or the courts proclaim it marriage does not make it marriage just because they say so.
Millions of people will not accept the U.S. Supreme Court’s decision on this matter because their decision has no rational basis. It is one of those errant decisions like Dredd Scott that must be corrected.
Davidm2575 wrote: “Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?” Baxter wrote.
Indeed; there’s no reason why a group of people shouldn’t marry each other—Robert Heinlein wrote of such arrangements in his epic science-fiction novel “The Moon Is A harsh Mistress,” which takes place in 2075—and considering that that group could easily consist of men AND women, you should be happy. However, it’s sad (and not the least bit manipulative) that Baxter should conflate group marriages with “incestuous” ones, since we know that the chance of birth defects and other physical and mental problems are far higher in children of siblings than of people who are distantly related. On the other hand, as long as the siblings don’t procreate, I see no problem with brothers marrying their own sisters—or brothers.
markkernes
If it’s not Precluded by the Preamble, it goes to the Constitution.
If it’s not addressed by the Constitution, it goes to the People, the Sovereign, through their representative, the Congress.
If there is a shadow of a doubt, the issue goes to the Congress.
Obamacare and homosexual marriage should have been rejected and returned to the People, the Congress.
The executive and judicial branches shall not legislate.
Montana court clerk flatly rejected a request for the states endorsement of Dignity to be bestowed upon the children of a polygamous arrangement sought by a man, his wife, his other ‘wife’ and their seven children by denning the issuance of a marriage license for the ‘second’ wife, the legal mother of many of the children in the legal relationship of co-habitation.
*Just Some Guy*
http://www.wnd.com/2015/07/montana-clerk-says-no-to-polygamy/
It appears that if polygamy is to be permitted in Montana, it will take a legal battle similar to the path of Obergefell v. Hodges, the case through which the U.S. Supreme Court created “same-sex marriage.”
…
Collier said he was inspired by the Obergefell case.
While plural marriages are far more common around the globe today and historically, only a handful of nations recognize same-sex marriage. Billions of Muslims live in societies that accept multiple wives and in places like the United Kingdom, where the Muslim population is growing quickly, multiple marriages are becoming almost as common as marriages for two people, and the move is quickly growing in the United States.
…
“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?” Baxter wrote.
Elaine Smith, deputy presiding officer in the Scottish Parliament and former Archbishop of Canterbury George Carey issued similar warnings.
“Whilst the government has said that it has no intention of allowing polygamous marriages as part of this legislation which changes the essential nature of marriage, it has not explained in any detail and with research analysis its reasons for taking that position,” Smith commented. “Further, if the government is sincere about its support for ‘equal love’ then it appears to have a contradiction on its hands.”
There would be no “logical reason” for not allowing polygamous arrangements if the redefinition of marriage is based only on “love,” she said.
If I were to say that there is a constitutional right for the children of same-sex couples to enjoy the ‘Dignity’ that children of opposite-sex couples have, we have a truth which is true in both cases, however, in forms that are inseparable from a subject this distinction does not hold: what is for the children of couples and children of plural relationships is true to the former and as false to the latter.
*Just Some Guy*
I agree markkernes and I was implying the 10th amendment. The people of California spoke through Prop. 8 as they have the constitutional right to do but the courts overturned it.
to make civil unions legal and leave the institution of marriage as defined by the states. In this way all legal rights that come from the union are protected and the recognition of the marriage ceremony to be defined by the entities that will perform it.
Olly wrote, “In my untrained legal opinion it would have been better for SCOTUS to make civil unions legal and leave the institution of marriage as defined by the states. In this way all legal rights that come from the union are protected and the recognition of the marriage ceremony to be defined by the entities that will perform it.”
But the states don’t have the constitutional power to say who can get married and who can’t; that’s a “right … retained by the people.” As I’ve noted before, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
markkernes wrote: But the states don’t have the constitutional power to say who can get married and who can’t; that’s a “right … retained by the people.” As I’ve noted before, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Mark, you need to keep reading the Constitution in full or you will misunderstand the Constitution. You quoted the 9th Amendment which simply means that the Constitution does not enumerate all rights of the people. The 10th Amendment says that powers not specifically 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.
So the SCOTUS violated the 10th Amendment with this latest decision because nowhere in the Constitution does it mention marriage or give the United States the power to define it or force all the States to redefine marriage to accommodate sexual perversion.
Same sex unions are a right only under contract law and the right of association. They do not constitute marriage, nor should they be allowed to hijack all the laws made about marriage when marriage was defined and understood to be only opposite sex unions. ONLY ON THE PREMISE THAT SAME SEX UNIONS AND OPPOSITE SEX UNIONS ARE EQUAL can such a claim be made. Yet it is very simple to show that same sex unions and opposite sex unions are inherently different. Same sex unions cannot perform coitus, which traditionally has been the consummation of marriage. Therefore, so-called same sex unions are never consummated. Furthermore, the biological equipment is lacking to create children and families. The new relationships formed in marriage such as husband, wife, daughter, son, etc. cannot be achieved. In effect, all it does is create chaos about marriage. It is a deconstruction of the understanding of marriage.
As a result of the Supreme Court’s poor judgment, now we have a gay man suing Bible publishers for printing versions of the Bible that say his homosexuality is a sin. Even though some in this forum claim gay marriage has no effect upon the heterosexuals in society, we will see more and more of this kind of action because government has endorsed homosexuality as legitimate and forces every State and person now to endorse and approve of homosexuality and gay marriage.
———-
Gay Man Files $70M Suit Against Bible Publishers Over ‘Homosexual’ Verses
http://www.christianpost.com/news/33219/#HGzr75dJQrkcllYM.99
A homosexual man has filed a $70 million lawsuit against Bible publishers Zondervan and Thomas Nelson, alleging that their version of the Bible that refers to homosexuality as a sin violates his constitutional rights and has caused him emotional distress.
Bradley LaShawn Fowler, an ex-con turned author, filed the federal suit in the U.S. District Court for the Eastern District of Michigan on Monday, the same day a judge refused to appoint him a lawyer for his suit against Thomas Nelson, The Grand Rapids Press reported.
…
The 39-year-old is suing the Grand Rapids publisher for compensation of 20 years of “emotional duress and mental instability,” he told WOOD-TV in Grand Rapids.
———-
Davidm2575 wrote: “Mark, you need to keep reading the Constitution in full or you will misunderstand the Constitution. You quoted the 9th Amendment which simply means that the Constitution does not enumerate all rights of the people. The 10th Amendment says that powers not specifically 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. ”
Yes, I’m well familiar with the Tenth Amendment, but it doesn’t apply here. Obviously, in this situation (same-sex marriage), there would seem to be a conflict between the rights guaranteed under the Ninth Amendment and the powers granted to the feds by the Constitution and not prohibited to the states, but the fact is, since neither the federal government nor any state government has any legitimate reason to tell two people of the same sex that they can’t get married, the Tenth doesn’t apply. Neither the federal government nor any state government has any actual “skin in the game” regarding same-sex marriage. There are no LEGAL differences between the marriage of a man to a woman, a man to a man or a woman to a woman; all of those marriages would have the same contractual obligations to each other and the same duties to the rest of society. Hence, neither the feds nor the states have any legal basis to deny the rights guaranteed by the Ninth Amendment based on the Tenth Amendment. States can’t just willy-nilly decide that they want to regulate or prohibit something simply because the legislators’ prejudices say they should; they need a legitimate reason, and they don’t have one.
markkernes wrote: “There are no LEGAL differences between the marriage of a man to a woman, a man to a man or a woman to a woman; all of those marriages would have the same contractual obligations to each other and the same duties to the rest of society. Hence, neither the feds nor the states have any legal basis to deny the rights guaranteed by the Ninth Amendment based on the Tenth Amendment. States can’t just willy-nilly decide that they want to regulate or prohibit something simply because the legislators’ prejudices say they should; they need a legitimate reason, and they don’t have one.”
Nobody has ever been prohibited from marriage. You are not asked if you are homosexual when applying for a marriage license. Homosexuals have married since the beginning of civilization. They simply married someone of the opposite sex, because that is what the institution of marriage is.
As for regulating same sex unions, by changing the definition of marriage to include same sex unions, you are simply guaranteeing that governments will regulate them. If you truly believe as you say, that neither the Federal nor State governments should regulate them, then why would you ever want same sex unions to be treated as marriage? If same sex unions were treated simply as a contractual relationship between parties, then you could dissolve them without going to law and create them easily without applying for a license. The greatest freedom for same sex unions would be to make sure that they were not recognized by the institution of marriage.
There are huge legal differences between same sex and opposite sex unions. In an opposite sex union, children are generally the product of the union. The creation of a family creates new duties and obligations among new relationships that do not come about in same sex unions. This is why the institution of marriage is a matter of public policy concern and subject to regulation by government. When you have a man father several children and promise to provide for her and the family, then skips town to take up with another woman, that is a matter for government to step in and protect the woman from such irresponsible behavior.
By trying to treat same sex unions the same as opposite sex unions through changing the definition of the union, all you do is destroy the institution of marriage. You make marriage viewed as a mere contract between two parties. Because only same sex union is in your mind, you do not recognize the institutional nature of marriage and the need for government to publicly regulate it.
Consider the opinion of the U.S. Supreme Court in Maynard v. Hill:
“Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation.”
and
“Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.”
and
“It is also to be observed that while marriage is often termed by text writers and in decisions of courts as a civil contract, generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization, it is something more than a mere contract. The consent of the parties is, of course, essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. This view is well expressed by the Supreme Court of Maine in Adams v. Palmer, 51 Me. 481, 483. Said that court, speaking by Chief Justice Appleton:
“When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which rest not upon their agreement, but upon the general law of the state, statutory or common, which defines and prescribes those rights, duties, and obligations. They are of law, not of contract. It was a contract that the relation should be established, but, being established, the power of the parties as to its extent or duration is at an end. Their rights under it are determined by the will of the sovereign, as evidenced by law. They can neither be modified nor changed by any agreement of parties. It is a relation for life, and the parties cannot terminate it at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other.”
And again:
“It is not, then, a contract within the meaning of the clause of the Constitution which prohibits the impairing the obligation of contracts. It is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.”
Pp. 484-485. And the Chief Justice cites in support of this view of the case of Maguire v. Maguire, 7 Dana, 181, 183, and Ditson v. Ditson, 4 R.I. 87, 101. In the first of these, the Supreme Court of Kentucky said that marriage was more than a contract; that it was the most elementary and useful of all the social relations, was regulated and controlled by the sovereign power of the state, and could not, like mere contracts, be dissolved by the mutual consent of the contracting parties, but might be abrogated by the sovereign will whenever the public good, or justice to both parties, or either of the parties, would thereby be subserved; that being more than a contract, and depending especially upon the sovereign will, it was not embraced by the constitutional inhibition of legislative acts impairing the obligation of contracts. In the second case, the Supreme Court of Rhode Island said that
“marriage, in the sense in which it is dealt with by a decree of divorce, is not a contract, but one of the domestic relations. In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and, as to these, uncontrollable by any contract which they can make. When formed, this relation is no more a contract than ‘fatherhood’ or ‘sonship’ is a contract.”
In Wade v. Kalbfleisch, 58 N.Y. 282, the question came before the Court of Appeals of New York whether an action for breach of promise of marriage was an action upon a contract within the meaning of certain provisions of the Revised Statutes of that state, and in disposing of the question, the court said:
“The general statute,”
“that marriage, so far as its validity in law is concerned, shall continue in this state a civil contract, to which the consent of parties, capable in law of contracting, shall be essential,”
“is not decisive of the question. 2 R.S. 138. This statute declares it a civil contract, as distinguished from a religious sacrament, and makes the element of consent necessary to its legal validity, but its nature, attributes, and distinguishing features it does not interfere with or attempt to define. It is declared a civil contract for certain purposes, but it is not thereby made synonymous with the word ‘contract’ employed in the common law or statutes. In this state and at common law, it may be entered into by persons respectively of fourteen and twelve. It cannot be dissolved by the parties when consummated, nor released with or without consideration. The relation is always regulated by government. It is more than a contract. It requires certain acts of the parties to constitute marriage independent of and beyond the contract. It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community.”
In Noel v. Ewing, 9 Ind. 37, the question was before the Supreme Court of Indiana as to the competency of the legislature of the state to change the relative rights of husband and wife after marriage, which led to a consideration of the nature of marriage, and the court said:
“Some confusion has arisen from confounding the contract to marry with the marriage relation itself. And still more is engendered by regarding husband and wife as strictly parties to a subsisting contract. At common law, marriage as a status had few elements of contract about it. For instance, no other contract merged the legal existence of the parties into one. Other distinctive elements will readily suggest themselves which rob it of most of its characteristics as a contract and leave it simply as a status or institution. As such, it is not so much the result of private agreement as of public ordination. In every enlightened government it is preeminently the basis of civil institutions, and thus an object of the deepest public concern. In this light, marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil polity.”
Davidm2575 wrote: “Nobody has ever been prohibited from marriage. You are not asked if you are homosexual when applying for a marriage license. Homosexuals have married since the beginning of civilization. They simply married someone of the opposite sex, because that is what the institution of marriage is.”
Please don’t be cute. You know what we’re talking about here, and simply because you say that the “institution of marriage” is ONLY for opposite sex couples doesn’t make it some sort of universal law. People get married because they love each other—or they see some financial gain from it, or sometimes even to hide their true sexuality, but there’s nothing in the U.S. Constitution which defines marriage as between a man and a woman, so it wasn’t even the law of THIS land.
You cite Maynard v. Hill, a case about “legislative divorce” as opposed to one granted by a court, and the property rights attendant to it—and it’s from 1887; hardly applicable to our modern society and civilization. Hell, the Supreme Court didn’t even apply the First Amendment to the states until the early 1900s, much less the Ninth, which is the primary basis for why same-sex marriage is legal.
markkernes wrote: “Please don’t be cute. You know what we’re talking about here, and simply because you say that the “institution of marriage” is ONLY for opposite sex couples doesn’t make it some sort of universal law.”
Of course it is a universal law, just like gravity, but not because I say it. Look at the biology of the sexes and its role in marriage. When a man and woman come together and engage in coitus, children typically result from that. With children come new people and new relationships. Duties and obligations arise from this union. This is what makes it a public policy issue for government. None of this happens when a man and another man come together in some kind of loving or lustful bond. Their union is actually simply a contract. If they want to have a civil union or permanent domestic partnership that establishes some duties and obligations between them, fine, but don’t change the definition of marriage and pretend that such a union is the same or equal to opposite sex unions. It will never be, no matter if the Supreme Court says so or Congress. Making up imaginary laws that do not accurately define reality simply do not work.
markkernes wrote: “People get married because they love each other—or they see some financial gain from it, or sometimes even to hide their true sexuality, but there’s nothing in the U.S. Constitution which defines marriage as between a man and a woman, so it wasn’t even the law of THIS land.”
Yes it was the law of THIS land, through State regulation, because of the 9th and 10th Amendments. Every State regulated marriage for the people.
markkernes wrote: “You cite Maynard v. Hill, a case about “legislative divorce” as opposed to one granted by a court, and the property rights attendant to it—and it’s from 1887; hardly applicable to our modern society and civilization.”
Why would it not be applicable? The logic applied in that case makes a lot more sense than this idiotic gay marriage concept. Most gay people don’t even want to marry. Remember Squeeky’s information shared about how 50% of gays make their marriages non-exclusive? Gay marriage is a farce, forced upon our nation by feminists and homosexual on the Supreme Court who did not have the integrity to recuse themselves from this case because of their obvious bias and inability to judge this matter objectively and rationally.
markkernes wrote: “However, it’s sad (and not the least bit manipulative) that Baxter should conflate group marriages with “incestuous” ones, since we know that the chance of birth defects and other physical and mental problems are far higher in children of siblings than of people who are distantly related. On the other hand, as long as the siblings don’t procreate, I see no problem with brothers marrying their own sisters—or brothers.”
According to incestuous couples, that risk mostly concerns years of inbreeding. They want a chance to try to reproduce anyway. If they want to have children, why should you be allowed to stop them? New Jersey apparently allows incest, and so some incestuous couples are moving there. See the following link:
http://www.dailymail.co.uk/news/article-2915094/I-lost-virginity-d-never-felt-comfortable-man-Daughter-plans-marrying-father-talks-taboo-relationship.html
The point is that if the equality meme gains traction, it will lead to all kinds of problems.
Your point about the higher risk of health problems equally applies to homosexuality. Homosexuals have much shorter life expectancies than heterosexuals. They have much higher incidence of diseases and of mental illness, depression, and suicide. The government has no business encouraging homosexuality in the community. Homosexuality has been on the rise since government began endorsing it. That makes the government complicit in condemning people to the many health problems associated with gays.
Davidm2575 wrote: “Of course it [opposite sex marriage] is a universal law, just like gravity, but not because I say it. Look at the biology of the sexes and its role in marriage. When a man and woman come together and engage in coitus, children typically result from that. With children come new people and new relationships. Duties and obligations arise from this union. This is what makes it a public policy issue for government.”
Well, apparently you know as little about physics as you do about sexuality. “Universal law” my ass! You might conceivably have a point if the only purpose of marriage were children, but it isn’t. Many, many people get married who either can’t or don’t want to have children—and there happen to be plenty of same-sex couples who DO have children. Just being a lesbian, for example, doesn’t mean the woman’s ovaries dry up! You also seem to imply that the mere existence of same-sex marriage will somehow lead to a decrease in opposite-sex marriage—as if people will suddenly turn gay just so they can marry a same-sex partner. That’s completely nuts.
“Yes it [opposite sex marriage] was the law of THIS land, through State regulation, because of the 9th and 10th Amendments. Every State regulated marriage for the people.”
States had no legitimate power to regulate marriage BECAUSE of the Ninth Amendment, and later, the 14th. All such laws were inspired not by the Constitution but by clergy’s interpretation of the Bible.
“Gay marriage is a farce, forced upon our nation by feminists and homosexual on the Supreme Court who did not have the integrity to recuse themselves from this case because of their obvious bias and inability to judge this matter objectively and rationally.”
BWAH-HAH-HAH!!!!!!! And just which Supreme Court justices have you decided are homosexual?
“If they [incestuous couples] want to have children, why should you be allowed to stop them?”
Guess you can’t read very well. As I stated, there are well-founded genetic reasons why siblings should not procreate: because such children often have birth defects and other problems which the state may be required to pay for the treatment of.
“Your point about the higher risk of health problems equally applies to homosexuality. Homosexuals have much shorter life expectancies than heterosexuals. They have much higher incidence of diseases and of mental illness, depression, and suicide.”
Much of it due to bigots like yourself making them outcasts from society. Who wouldn’t be depressed if one could be fired from a job, refused goods and services and intimate relationships simply because of one’s sexual orientation?
“The government has no business encouraging homosexuality in the community. Homosexuality has been on the rise since government began endorsing it. That makes the government complicit in condemning people to the many health problems associated with gays.”
The government is “encouraging” and “endorsing” homosexuality????? BWAH-HAH-HAH!!!!
Seriously, have you considered seeing a psychiatrist?
It is not uncommon to hear that it is impossible to “legislate morality”. In a perfect world no law and no government would be necessary “…to secure these rights,” . The further we find ourselves from what is perfect the more laws and of course more government we will have. We no longer have a predominant common morality in this country and the one Christians are clinging to is continually being threatened by moral relativists. Our common morality today no longer has a fixed reference point other than what has been defined by the law provided through legislation and increasingly by regulation. The result is a desire to elect our favorite guardians of popular morality rather than caretakers of natural rights. We are no longer on course “to form a more perfect union” and in fact we are on course to completely “dissolve the political bands which have connected them with another,”.
In my untrained legal opinion it would have been better for SCOTUS
I don’t know too much about the law, I just know how I see the world…
Life is an unconditional gift.
If people want to marry others of the same sex, they are free to do so, or should be. I personally believe it’s wrong, but that’s just my own cup of tea.
Just an observation, the word ‘Matrimony’ is not found in the Obergefell decision.
Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth . . . than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.” Murphy v. Ramsey is till the law of the land.
No clergy anywhere in the U.S. may perform a marriage ceremony without processing the civil marriage license, The processing of, thus elevates the civil license, with the states imprimatur, to that of Matrimony.
*Just Some Guy*
Nobody dignified my one liner with a response! Do I have a case against this forum? I may see you all in court for not instilling in my perception, the proper dignity of a response.
LOL! Suit yourself; foolish and ignorant it is.
Go ahead and act like the sky is falling. That “disorder and chaos” rules the day. Fear is a mind killer. Seriously you folks need to GET A GRIP. Makes you look like hysterical ninnies longing for some theocratic dictatorship that will bring order, unity, your brand of decency, and group think to America. That is weak minded cowardice. All the blather about Rule of Law and the Constitution…just doing it lip service it seems. Instead SOME PEOPLE LONG for the disorder and chaos and blood shed of some nutty revolution. You folks have gone off the deep end.
“It almost seems as if SOME PEOPLE are craving the rise of a dictator in order to give them that unity and order they so need. ”
Some people,
Do you balance your checkbook, clean your house, iron your clothes, rake leaves, edge the lawn, shovel the sidewalk, put your credit cards in the slots in your wallet. All of those things (and then some) provide you order. Most of us would choose free will over order, that is normal. But when society is lacking basic law and ORDER, they will eventually go looking for a way to make the chaos end. The greater the chaos the more likely they will accept nearly any form of leadership that will make the chaos go away. This is not my theory, this has been proven and it is well documented.
Go ahead mock what you don’t understand, it just makes you look foolish and ignorant.
Reblogged this on pakweb786 and commented:
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Annie
“Lovely dignified wedding. Why so hateful? Why does their love bother you so much?”
= = =
I rather think of it this way:
Instead of being selfish and refusing to share through marriage equality…
… Resisters that put up some of the biggest push backs often are jealous of what they do not or can not have for themselves and by creating cases of opposition, they in turn waste precious time and energy that could have otherwise been invested in worthy relationships with those THE CHOOSE to be jealous of.
Outwardly it is easily interpreted as hate… When really it’s about the hater.
(If I can’t have a sparkling wine cooler… NOBODY can, dammit and I’ll call it Religious Liberty!)
I. Annie
1, July 6, 2015 at 10:04 pm
We could be a Theocracy! Whoopie!
= = =
If some here had their way… we would be one already!
Listen for the “Christian Nation” and “Judeo-Christian Laws” terminology.
These are the same people that FEAR Sharia Laws and Mexicans…
Bury them in their Dixi flag.