I don’t recall that interracial marriage was forbidden throughout all the colonies and later the states, and I don’t recall that any of the men who wrote the Constitution ever expressed their views on its legality.
The Constitution was written within a specific historical and cultural context; all documents are. The authors assumed many things which they did not explicitly state because they assumed the people for whom they were writing the Constitution would not need to have them explicitly stated. You can’t tear the Constitution out of its historical and cultural context, and then use it to justify anything you want.
There is nothing in the Constitution which can reasonably be interpreted as granting a right to same sex marriage. Neither is there anything in the Constitution which can be interpreted as forbidding same sex marriage.
Yes, that’s pretty much exactly what I’m saying. Scalia is a living constitutionalist. Of course he claims to believe living constitutionalism is wrong and denounces other judges for using it. So he says he’s an originalist instead and claims that’s completely different.
Only it works out exactly the same way. Scalia never says he’s inventing an interpretation. He says he’s finding the original meaning of the text - which just happens to be the meaning of the text he likes but which nobody prior to him had found in that text in two hundred years.
Originalists get to be judicial activists while still being able to denounce judicial activism.
I’ll never understand why so many people like you hate gay people so much that you want to see them married. I am in favor of new laws that will make different sex marriages illegal, hopefully annuling those already in existence.
If we can find instances where Scalia decided cases contrary to his own political beliefs, will you agree to stop this silly hijack of this thread?
If not, then I think it best for anyone disagreeing with you to simply ignore your posts on this subject and let them stand as the gratuitous swipes that they are.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; **nor deny to any person within its jurisdiction the equal protection of the laws. **
Emphasis mine. Equal protection can reasonably be interpreted to mean that benefits the State awards to married persons must be given to all married persons without regard to sexual preference.
See the full faith and credit argument mentioned briefly above. SCOTUS may or may not buy either argument, but those points can certainly be reasonably argued.
Oakminster is correct. It’s not an unreasonable argument.
From a historical perspective, it’s a novel argument, but it’s not unreasonable; it tracks with the plain text. “Equal” is a pretty straightforward word.
Of course, we all know that it cannot mean literally equal for all persons. “The equal protection of the laws” means that 13 year olds must be permitted to vote, and have sex - right?
So there’s obviously some test we must apply to determine what the actual rule is. And the claim that this protects same-sex marriage is a perfectly reasonable claim.
But it must come with the recognition that this is not a historical meaning of the phrase.
Sternberg v. Carhart, where he appears to suggest that partial birth abortion is apparently not governed by the inferred constitutional right to privacy because it grosses him out.
I don’t think that SCOTUS will want to take such a step after the 40 year outcry over Roe v. Wade. Even the supporters on the Court realize that it was a real piece of shit decision from a constitutional prospective. Do they really want to force this on the country by a 5-4 vote and reenergize the dying Christian Conservative movement?
I predict that Kennedy will punt and dismiss the case due to some mundane procedural rule and make everyone start from scratch.
Roe v. Wade bothers people because it relies on words that aren’t actually there. Assuming SCOTUS strikes down DOMA, they’ll be relying on words that are actually there. I don’t think the two are analogous at all, except in the sense that the right will be outraged.
In Loving v. Virginia, the right to marry was determined to be a fundamental right, so any law restricting that right would need to meet strict scrutiny, which means there must be a compelling state interest. It is hard to see what the compelling state interest is in forbidding same-sex marriage.
Well the way people try to get out of that is a linguistic one - a man and woman of different races could, absent the law, marry. People argue that because the term marriage by its nature involves a man and a woman, there is no fundamental right for two people of the same sex to enter a relationship with the same rights and privileges as marriage.
McCreary County v. ACLU. The majority followed the precedent of Lemon v. Kurtzman. Scalia dissented. He said the Supreme Court had made the wrong decision in Lemon. Scalia wrote that displaying the Ten Commandments in a courthouse was allowable because it was “governmental affirmation of the society’s belief in God”.
Now show me where in the Constitution it says that the United States is a Christian nation. Scalia based his opinion on the fact that many people, such as Washington, Jefferson, and Marshall practiced Christianity (and he cherry picked his evidence even to reach that conclusion). But even accepting his evidence, so what? The fact that the majority of Americans have been practicing Christians does not give Christianity any official status. Christianity, in the eyes of the Constitution, is equal to Buddhism, Hinduism, Wicca, and Scientology. Or atheism. Even if society does believe in God, the government has no authority to affirm that belief.
But hey, Antonin Scalia knows what the founders really meant when they wrote “Congress shall make no law respecting an establishment of religion”. He knows the original meaning of the text.
And the irony is that Marshall was a virulent anti-Catholic (as were many other people in eighteenth century America). If he had the power to establish a religion, he would have banned Scalia’s own religion.
Bullshit, yourself. You’re reading something into the Constitution that simply isn’t there. The institution of marriage arose because it served specific social purposes which same sex marriage would not serve. The institution does not exist just to make life more convenient for individuals, and you are not being treated unfairly or unequally just because you can’t get tax breaks, inherit your lover’s Social Security benefits or have him put you on his health insurance at work.
