What bothers me about the recent Supreme Court decisions (the gay marriage and the one upholding Obamacare) is that I don’t see how you could possibly argue that a document more than 200 years old supports the idea of gay marriage. I mean, if it did, why didn’t the Court vote it in over the last 200 years? It would be pretty arrogant for the modern-day members of the Court to think that somehow they are the best justices to ever serve on the bench in 200 years.
Also, if certain states have to now allow gay marriage, what about Polygamy/Polyandry? I personally am for gay marriage. However, I do not see how the government has any legitimate governing interest in making sure 3 or more consenting adults cannot be married. Pretty much every argument for gay marriage could be converted to supporting polygamy/polyandry, and if the Supreme Court can decree that it is unlawful for the Legislative branch at the state or Federal level to ban gay marriage, why do legislators have the power to block polygamy/polyandry?
The same thing regarding the Obamacare mandate. The conservative dissent is, since the document contains numerous clauses that say a specific thing, the Court can’t just ignore the text of the law because it would be a bad thing for the country. I agree, it would be catastrophic - the whole health insurance game fails badly if insurers get to cherry pick those who don’t have “pre-existing conditions”, because it means that even if a well paid, productive citizen gets sick and runs low on money to pay the premium for even a single month, they can no longer afford medical care at all. Society doesn’t give a shit about the poor, but this could happen to an aerospace engineer working at Boeing or some other valued member.
Still, if the court can do this, why don’t they reinterpret other unjust laws? Why don’t they open up the text of the laws criminalizing crack and declare it’s unconstitutional for their to be any sentencing disparity if 2 substances contain the same amount of the illegal substance. (that is, the actual amount of cocaine base in a given sample of crack has to be the basis of the sentence)
Why did they declare it unlawful for there to be any campaign limits at all? The problem with Citizens United is that it, over time, turns the U.S. government from one that serves the interest of the 1%…to one that is the mouthpiece of only billionaires. Why should a politician care about the interests of a mere millionaire constituent, willing to donate $100k, when he can cater to the whims of a billionaire who can donate 100 million.?
Not a constitutional lawyer, but it’s clear to me that there are a lot of things that exist today that weren’t anticipated by the writers of the Constitution. The Air Force, for one. Also, television, radio and the internet. And telegraphs and telephones. And yet, there are Supreme Court cases that involve application of the First Amendment to broadcast and online journalism. Plus my understanding is the Constitution is treated as a living document, not a static one. Earlier rulings influence later ones.
Let me make a point that I’ve not seen made explicitly. There are a lot of laws that treat married people differently from single people. Tax laws obviously, but also inheritance laws and laws (or rules) about who can made health decisions and the like, principals such as that you can’t be made to testify against your spouse. All these things were barred to gay couples and it is entirely reasonable to conclude that this violates the “equal protection” clause of the 14th amendment. And I do draw that conclusion.
The entire suit over ACA was fatuous. Courts have always looked behind the sometimes careless wording of acts to find the intent. There was not the slightest reason to suppose that Congress intended that only citizens of states that had set up exchanges could get a subsidy. Elementary fairness required that the court rule the way it did.
Anyway, the answer is that they are supposed to follow the law. If the government didn’t advantage married couples, there could have been no recourse to the equal protection clause. But it does and most of the advantages accrue to married people without regard to whether they have children.
200 years, not so much. You only have to go back 150;
[QUOTE=The Fourteenth Amendment]
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.
[/QUOTE]
One of the privileges and immunities of US citizens is the right to engage in contracts, per the freedom of association guaranteed in the First Amendment. Marriage is such a contract, and the states may not deprive any person of the right to engage in it. It’s that simple.
Well, the Constitution does not explicitly state that interracial marrige is right, nor does it explicitly say that representation by counsel in a criminal trial is a right – but few people today would argue that the Supreme Court was arrogant for holding that the Constitution provides for such rights (even though the Supreme Court did not find these rights until the last century). While Justice Scalia may assert that he is a textualist, the truth is that the act of interpreting a document written in general terms will inevitably require you to bring in your personal experiences and biases.
[QUOTE=Justice Kennedy]
“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
[/QUOTE]
Allowing multiple wives imposes a power imbalance that can lead to abuse. In the past it has also lead to sex trafficking.
It would also upend the current legal structure regarding marriage and separation. Can you imagine a child custody case involving multiple wives and husbands? *shudders *
Equal protection is not absolute. If the state can show the proper justification, then it can impose discriminatory laws.
Because it’s illogical to think that over the course of 250 years, history won’t change and issues won’t come up that the founding fathers didn’t anticipate. The Constitution is a living, breathing document, not a tablet set in stone from above. I mean the Constitution also said that slaves were to be counted as 3/5 of a person. I don’t see the Supreme Court justices who ruled against legalized segregation in Brown vs. Board of Education as arrogant, I see them as correctly interpreting the Constitution to be more inclusive of all human beings, not just white males. History and the rule of law should be progressive and reflective of the times in which we live.
The courts have to interpret old laws in light of new developments, as mentioned above.
Sometimes this leads to bizarre and inconsistent results.
For example, there was some understanding of “privacy” very early on (freedom from undue searches and seizures, for example), even though the word “privacy” appears nowhere in the Constitution or Bill of Rights. I believe it’s been established that the police cannot put a ladder next to a fence and climb up it to peer into someone’s yard, as the fence creates an “expectation of privacy”.
I heard of a case were a dentist was accused of, uh, “taking liberties” with his sedated female patients. His treatment room had a transom window. Police put a ladder against the outside wall and watched him in action through the transom, without a warrant, and caught him in the act. The courts threw the case out because of that.
And yet . . . Nobody knew about airplanes when those rights were written. Now, they can’t put a ladder to your wall, but they can perfectly well fly over your yard and watch you sunbathing in the nude. They could also just as well see your old junker corpse of a car in your yard and cite you for some code violation, even though it isn’t visible from the street. (I read of that happening on some rural property out in the woods in San Luis Obispo County.) They could also see you buttfucking with your boyfriend in (what you thought was) the privacy of your backyard, and arrest you for it (back in the days when that was a crime). But no ladders.
My thoughts on this are that this includes people changing too.
The people that were against same sex marriage or Government health care or even against legal marijuana are becoming less and less and the people for these laws to benefit them are increasing till it is the law of the land.
They might even pass a law someday saying no one else can immigrate to the greatest country on the earth, because we have squandered all of its wealth. :eek:
I presume that the demise of the 3/5 rule was not just an interpretation from any court, but an explicit result of the 14th “equal justice” amendment.
On the other hand, contrast with equal rights for females, and their right to vote in particular. I’m not aware this this right was ever explicitly granted at the Constitutional level. (Hence, the on-going agitation for an Equal Rights Amendment to fix that.) Voting rights, and any and all other rights for females has been granted by various acts of legislation in Congress and the states. Accordingly, in theory those rights can just as well be revoked by acts of legislation.
BUT… I’m pretty sure the courts, bowing to modern interpretations, have understood that the original philosophy “All men are created equal” [under the law anyway] refers to everybody, “men” being a generic word for “humankind”. Females have gained a lot of rights in the courts this way, in some jurisdictions, even without specific legislation.
But just let Congress or any state legislature try, now, to revoke any women’s rights that they have passed. Sure, in theory, they could. But let them just try it. We all know, that won’t get very far.(*)
(*) (Abortion rights and related women’s health rights being, apparently, somewhat of an exception. I think the problem here is that abortion rights were never entirely secure in the first place, even with Roe v Wade notwithstanding.)
I haven’t read the opinion in-depth but my argument would be fairly simple:
Analyze under the Equal Protection Clause of the 14th Amendment.
Decide which level of scrutiny to apply - since the right to marry is a fundamental right, apply strict scrutiny (could also argue that homosexuals are a suspect classification, which would also trigger strict scrutiny).
Under strict scrutiny analysis, the law must be “narrowly tailored” to meet a “compelling government interest” and there must be “no less restrictive means” of meeting that interest.
There’s no compelling government interest in forbidding gays to marry.
Done.
You could argue that the 3/5ths rule was basically nullified by the 13th Amendment (no slaves means no people who count as 3/5 of a person for representation purposes), but the 14th Amendment contains explicit language nullifying it, as Section 2 of the 14th Amendment specifically overwrites the portion of the Constitution containing the 3/5ths rule (Article I, Section 2, paragraph 3).
Pet can’t consent, so it’s not the same thing. This is why I used Polygamy and Polyandry as examples. Or both. You know what might be better than a married couple? A quad. Husbands switch wives every other night, wives switch husbands every other night. People get tired of each other more slowly. “Honeymoon phase” of a quad could theoretically be twice as long, and the period where the couples are in love might be twice as long as well. (since you spend half as much time with a given partner, you get tired of them half as fast)
If quads work out, what about an octet? With 4 separate wives, this might truly be the more stable union.
The 3/5ths rule was for counting people in servitude for the purpose of congressional representation. Free states didn’t think it was fair to give slave states full representation in the House of Representatives for people who would never be given the rights of a citizen. It became a moot issue when slavery was abolished by constitutional amendment.
Women were given the right to vote by the 19th amendment. It can’t be taken away without constitutional amendment.
Women were given the right to vote vide various State and municipal laws. All the 19th Amendment did was to forbid any action to stop voting solely on the basis of sex.
To the OP, its fairly obvious IMO that the ruling is visited by a desire to be “with the programme”, not on any rational reasoning of the text. Kennedy’s dicta state as much.
In future decades SSM advocates might come to regret this ruling, social change comes best when effected by the ballot box and the legislature, not by Judicial fiat.
I believe that the Constitutional provision which was activated for SSM was the 14th Amendment. This only 150 years old (not 200) and basically says nothing more than that, “Don’t single people out and be harsh to them, yo.”
That seems like a reasonably timeless statement that could be applied to a pretty wide variety of issues.
