P.S. Here’s a handy FAQ on SSM and U.S. immigration…the other FAQs look handy, too, but of course I’m most interested in this one.
And another FAQ, straight from the horse’s mouth.
The opinion is rather poorly written, but I agree with this quote:
[QUOTE=Baker v. Nelson, MN]
Minn. St. c. 517, which governs “marriage,” employs that term as one of common usage, meaning the state of union between persons of the opposite sex. n1 It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense
[/QUOTE]
One cannot take prior decisions regarding marriage, like Loving, and say that since the court said X, Y, and Z about marriage that it means that gays can marry. Any discussion of marriage prior to say, 1990, was nearly certain to imply a traditional common sense meaning of the word “marriage” as we all understood it.
If tomorrow we decide that all plants and animals are “men” for legal purposes, we can’t start quoting Jefferson for support that trees and bears are both created equal.
I think (as usual) that Scalia was spot on in his dissent. The changing attitudes in public are giving same sex couples these marital rights, and if the democratic process takes its course, in my lifetime same sex marriage will be legal in all 50 states and opposition to it will be put in the same category as opposition to miscegenation. I’m sure that by that time someone or something will have convinced me that it is the right and correct thing for society to do.
But if we just declare it a right by judicial fiat, we’ve dishonored the rule of law by creating this generation’s Roe v. Wade, and as Scalia said, denied the winners the satisfaction of an honest victory and the losers a fair defeat.
What else could the point of deciding that all plants and animals are “men” for legal purposes possibly be?
I don’t think the drafters of the marriage statutes were contemplating same-sex marriage per se, but I don’t think they were contemplating excluding same-sex couples; they were thinking of marriage as it was at the time. They thought there’d be couverture. They took for granted that the husband and wife would have the same surname. They figured the wedding was all the consent to sex the husband ever needed. Is that, then, what marriage has to mean now?
I think court decision is the only honest victory.
Scalia wants supporters of SSM to take the legislative route yet he wants to strike down section five of the VRA, which had unanimous approval in the Senate the last time it was renewed.
Cool.
What did we do when we changed our thoughts about Women and Blacks? Did we just stop quoting ol’ Tommy because he was talking about White Men?
Can I ask you, do you KNOW how miscegenation was struck down? I suppose Loving v Virginia was wrong too, and all those Black/White couples should just have accepted being arrested and marginalized until the legislature of their backward State gave them an “honest” victory. As we all know, it’s better to be unfairly punished for most of your life, just as long as your rights are eventually granted in the “correct” manner.
All of these (wherever they existed) were struck down by statute, not declared a constitutional right by judicial fiat. And again, the weren’t contemplating excluding same sex couples because such a thing was unthinkable at the time. Such a statement is such an absurd tautology to not require any further analysis. No Jefferson didn’t specifically include slugs as men, but he never once contemplated excluding them!
It is cool how that works. When things are not protected by the constitution, like SSM, the legislature controls. When things are protected, like state sovereignty, the Constitution controls and the legislature can’t circumvent it.
Adopted the 13th, 14th, 15th and 19th amendments to the constitution. We didn’t simply say that women had the right to vote, we passed a constitutional amendment.
This begs the question. Race is clearly a protected class. It’s the whole reason the 14th amendment was written. A law using race as a category for anything is subject to strict scrutiny.
Is homosexuality the same? Well, that’s the question that Kennedy refuses to answer, and I find no support in history for equating the two.
So all that stuff that happened between the 1870’s and the 1950’s was what? Just an accident of history?
Emphasis added.
I suppose that text has to be locked into its meaning as of 1868, right? Which means the AWB should also be completely constitutional as the 2nd obviously didn’t take into account semi-automatic/automatic weapons, right? And the Web should not enjoy 1st Amendment protections, after all, it’s not a “press” right?
The hoops that get jumped through in the name of “textualism” or “originalism” or whatever the hell it’s getting called these days. Talk about your camel through the eye of a needle.
And again, we’re back to an unsupported assertion that same-sex relationships and different-sex relationships are as clearly and manifestly different as slugs and people.
It’s a nice turn of phrase, but it’s also very easy to tell other people to wait for a hundred years for things they should already enjoy. Especially if, like friend Tony Scalia, you’re a white heterosexual male.
I don’t think it’s a very nice turn of phrase at all. I think it’s a fancy way of saying that one can’t be bothered to change something they know is wrong.
Judicial fiat is the rule of law. Sounds to me like you and Scalia have a problem when the laws you agree with gets struck down, considering it somehow extra-judicial to do so while forgetting that everything that is done is done legally. And I have no desire to get an “honest” victory that may take 50 years. A victory now will guarantee that the law, which is constantly being reinterpreted, is judged to be honest.
And as for fair defeat? You must be joking! Who sits around claiming that because they were fairly defeated, they’ll agree their old positions were wrong and suddenly flip their support. The National Organization for Marriage is STILL crying about how the SCOTUS did things illegally or wrongly or judicial activism or whatever shit they are on about now, after the courts ruled and the SCOTUS ruling was handed down. They will be “defending” marriage until they cease to exist. If those bastards would admit defeat, admit that gay marriage is legal and the law and nothing was done wrongly in its rejection, then break up, then I would see your point. But they will never do that, barring some kind of massive epiphany
I understand that. Please don’t think I don’t. But for constitutional purposes it has to be decided if it is something that someone should “already enjoy.”
I don’t think that SSM is a fundamental right. Apparently, Justice Kennedy doesn’t think so either. My bud Nino (you call him Tony, I call him Nino 
) and I agree that fundamental rights can’t be created out of whole cloth. Your bald assertion that they should “already enjoy” these rights are not supported by the text of the 14th amendment or any case law.
It’s not popular on this board to argue my position, but it must be done. What right would not be upheld, one that doesn’t harm someone else, under your expansive reading of the 14th amendment? Bestiality? Polygamy? Incest? This country has had laws relating to morality since its inception. I don’t necessarily agree that in 2013 that we should have these laws, but how are they constitutionally prohibited?
Could you, pretty please with cream and sugar on top, try to discuss gay marriage without bringing up bestiality and / or incest? Just as an intellectual exercise. I understand that you are using them all as examples of activities that some people find morally repugnant, and that this fact is unarguable, but that category is so broad as to be useless. Some people are equally repulsed by masturbation, or atheism, or the color pink. Besides, the way you are using them rhetorically implies a sort of equivalence that I find dishonest and offensive.
Both gay marriage and polygamy are intimately bound up with the social construction of gender, and so I do think it’s reasonable for you to bring up polygamy. Incest and bestiality, however, are really dramatically different categories.
They are all “morality” laws. If we can say that a guy fucking his dog is offensive and illegal, then we can say that a guy fucking his male neighbor is illegal UNLESS that is held to some higher standard.
I agree that there are differences, and I don’t mean to offend. I am just talking about constitutional rights. I realize that if a poster is homosexual and/or in a loving relationship with a person of the same sex that he is offended with a comparison to bestiality or some such thing.
I don’t mean to bring that offense, but unless and until the Supreme Court says that homosexual relationships have higher scrutiny, then it is fair to compare them to other morality laws like bestiality and such.
ETA: At least in regards to marriage. Lawrence v. Texas decided that sodomy laws were unconstitutional.
History is my cite. The term “marriage” was never, ever (yes, never ever) meant to contemplate two same sex people entering into that union defined by the word.
It would be like if I called my dog a tree and you asked for a cite that a dog was never called a tree. It never happened because it was never contemplated. So, I ask you to prove, with cites, that laws relating to trees don’t apply to my dog.
So, we redefine the word, to be more inclusive.
In centuries past, the voting franchise only meant male landowners. That’s what the word meant. It would have been as absurd to think of a woman, or a poor person, “voting” as it would have meant to them for two men to get “married.”
Now, “voting” means something different. We expanded the franchise.
We’re doing the same for marriage.
Arguments against this based on dictionary meanings are flimsy. (We’ll all be gay when Johnny comes marching home.)
You know what? Too bad for them. Civil rights isn’t something that has an end point where people can say everybody up to this point gets to take advantage of the law but no one else does. Its an ever evolving sensibility. The amendments and court cases can be defined to fit whatever the new definition of marriage or rights is. That, I suspect, is what scares conservatives the most
It absolutely does. Where is the end point? If the state legislature or Congress decides that left-handed people are a protected class and can’t be discriminated against in employment, public accommodations, etc., then we at least have held a fair vote where the anti-lefty people have lost a fair fight at the ballot box.
For a court to declare that they know better than the public and to simply declare that the 14th amendment gives left-handed people never before known rights is a very scary power. Courts giveth and courts taketh away, and they can’t be defeated in the next election.
If these sensibilities have really evolved, we see that in the legislature, not in a constitution that is in ink and already on paper. I think the problem is that these sensibilities haven’t really evolved as much as liberals like and they want a little bump from the courts to evolve them more.
The argument becomes circular. You say that sensibilities have evolved and I ask you to take a poll of MS residents about their feelings on SSM and their sensibilities. You would reply that it doesn’t matter what THOSE people think because it is a basic civil right because enlightened liberals believe that it is.
So where does it stop? When is the 14th amendment satisfied? It’s not popular opinion, so it must be a secret committee of enlightened people who decide these things. Fortunately that’s not YET the Supreme Court.
And since we have a constitution that forbids unequal treatment under the law, and a high court that (sometimes) actually enforces that rule, now and again anti-lefty legislation is overturned.
Otherwise, the phrase “tyranny of the majority” becomes a nasty reality.
California has tried this before. We tried to deny education to the children of illegal immigrants. The court said forget it. And we tried to deny marriage licenses to same sex couples. The court slapped us down again.
We’re a Republic, not a Democracy. (How many times was this phrase thrown in our faces by conservatives! Nice to be able to throw it back once in a while.)