# Is the Supreme Court supposed to bow to public pressure, or interpret the Constitution? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [June 27, 2015, 5:12pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638 "2015-06-27T17:12:07Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [June 27, 2015, 8:19pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/21 "2015-06-27T20:19:45Z")
> [@Smapti](#): > > Tell that to the non-white Americans who’d still be living in legally-enforced segregation today if not for Judicial Fiat. And segregation did not end after _Brown_. Earlier Interstate Commerce Commission and indeed some Federal Courts had made dozens of rulings on abolishing segregation and they had sweet fuck all effect. The real success was due to the VRA and the 1964 Civil Rights Act. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 27, 2015, 8:22pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/22 "2015-06-27T20:22:58Z")
> [@AK84](#): > > 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. And thus the 19th amendment guarantees women the right to vote. I’m at a loss as to the significance of your nitpick. ---
**Author:** ![Mr.Nylock](https://avatars.discourse-cdn.com/v4/letter/m/77aa72/32.png) [@Mr.Nylock](https://boards.straightdope.com/u/Mr.Nylock)\ **Post date:** [June 27, 2015, 8:25pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/23 "2015-06-27T20:25:31Z")
I’m actually glad someone posted this. I’ve been listening to C-Span for the last two days at work; it’s what my coworker likes to listen to, so I just go with it. Anyhow, I’v been listening to the debates back and forth ad nauseum and after a while I’ve just come to the conclusion that neither those for or against gay marriage have a lock on rational argument in favor of their respective sides. There seems to be no principle applied to the situation which does not have a contradiction in current law. Really, for me, it seems that we have social norms and they go more to how we feel about things and are not completely rational. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [June 27, 2015, 8:30pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/24 "2015-06-27T20:30:05Z")
**Is the Supreme Court supposed to bow to public pressure, or interpret the Constitution?** This is nothing knew. Over 100 years ago, with regard to the question of whether habeas corpus applied in the Philippines, Mr. Dooley noted that the Constitution may not follow the flag, but the Supreme Court follows the election returns. ---
**Author:** ![Flyer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/flyer/32/7298_2.png) [@Flyer](https://boards.straightdope.com/u/Flyer)\ **Post date:** [June 27, 2015, 8:52pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/25 "2015-06-27T20:52:28Z")
> [@Smapti](#): > > 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. “Any person” includes 14-year-olds, correct? If not, **why** not? If the proponents of gay marriage claim that it’s ok to discriminate against 14-year-olds who want to get married, then they must explain why (a) certain kinds of discrimination are ok, and (b) why they feel that it is so important to redefine marriage into something that it has never been before in all of recorded history. Hint: if marriage is defined strictly as between one man and one woman, then all the associated issues, such as polygamy, simply and quietly disappear. ---
**Author:** ![Habeed](https://avatars.discourse-cdn.com/v4/letter/h/a587f6/32.png) [@Habeed](https://boards.straightdope.com/u/Habeed)\ **Post date:** [June 27, 2015, 9:05pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/26 "2015-06-27T21:05:35Z")
> [@Flyer](#): > > “Any person” includes 14-year-olds, correct? > > If not, **why** not? > > If the proponents of gay marriage claim that it’s ok to discriminate against 14-year-olds who want to get married, then they must explain why (a) certain kinds of discrimination are ok, and (b) why they feel that it is so important to redefine marriage into something that it has never been before in all of recorded history. > > Hint: if marriage is defined strictly as between one man and one woman, then all the associated issues, such as polygamy, simply and quietly disappear. Because 14 year olds aren’t men and women? What if I drag into court evidence that in normal human societies, the breeding actually starts at \ on average? Oh, well, a 16 year old getting pregnant can’t care for her baby because she hasn’t finished high school? In today’s world, 18 year olds can’t either, they need the right certs from college or they can’t support a kid in conditions better than poverty. You could argue that a 17 year old hasn’t matured enough to have sex…but the latest evidence seems to show the maturing takes until about age 28… Essentially, 18 is arbitrary. Maybe we should make it 19 or 28. ---
**Author:** ![ctnguy](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@ctnguy](https://boards.straightdope.com/u/ctnguy)\ **Post date:** [June 27, 2015, 9:33pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/27 "2015-06-27T21:33:47Z")
> [@Flyer](#): > > “Any person” includes 14-year-olds, correct? > > If not, **why** not? 14-year-olds [lack the capacity](http://www.nolo.com/legal-encyclopedia/lack-capacity-to-contract-32647.html) to form most kinds of contract, not just marriage. > [@](#): > > Hint: if marriage is defined strictly as between one man and one woman, then all the associated issues, such as polygamy, simply and quietly disappear. And if marriage is defined strictly as between two people, the associated issues also simply disappear. ---
**Author:** ![GusNSpot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gusnspot/32/436_2.png) [@GusNSpot](https://boards.straightdope.com/u/GusNSpot)\ **Post date:** [June 27, 2015, 9:48pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/28 "2015-06-27T21:48:03Z")
Either we are tolerant or we are not. Lack of tolerance is the problem. Why is there so much of the lack? Because I want my share to be bigger than yours. How do I get more than you? By being in control. In the dim past when the first human traded another something they had for something the had or could do, we doomed ourselves. We established ‘classes.’ We now have gone around the corner where we want our freedoms to be guaranteed by force of government with a total lack of responsibility on our part which is exactly the opposite of freedom. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 27, 2015, 9:51pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/29 "2015-06-27T21:51:24Z")
> [@magnusblitz](#): > > I haven’t read the opinion in-depth but my argument would be fairly simple: > > 1. Analyze under the Equal Protection Clause of the 14th Amendment. > 2. 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). > 3. 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. > 4. There’s no compelling government interest in forbidding gays to marry. > > Done. > … The majority opinion written by Kennedy did not go into level of scrutiny, or much legal analysis at all for that matter. It basically said the right to marry is fundamental because of liberty. Yeah, let’s hear it for Liberty! Roberts’ and Thomas’ dissents delved more into some form of legal analysis, but neither touched the level of scrutiny idea. Thomas opined at some length that the term " liberty" as include in the 14th and 5th Amendment was used as a part of a phrase that had its roots in the Magna Carta. And the meaning of " liberty" in this setting was a right of " loco-motion" and thus a protection against imprisonment without due process. Nothing more. Scalia’s dissent raised Ginsburg’s comments about Roe v. Wade, that deciding such an important issue via judicial means may in fact result in the issue continuing to foment for much longer. While I agree with the outcome, I hope we don’t rue the reasoning used. Of the dissents, three quite explicitly stated that it is certainly the privilege of the States to permit SSM, but none delved into whether such marriages would have to be recognized across state lines. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [June 27, 2015, 10:25pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/30 "2015-06-27T22:25:11Z")
> [@Iggy](#): > > The majority opinion written by Kennedy did not go into level of scrutiny, or much legal analysis at all for that matter. It basically said the right to marry is fundamental because of liberty. Yeah, let’s hear it for Liberty! > > Roberts’ and Thomas’ dissents delved more into some form of legal analysis, but neither touched the level of scrutiny idea. Thomas opined at some length that the term " liberty" as include in the 14th and 5th Amendment was used as a part of a phrase that had its roots in the Magna Carta. And the meaning of " liberty" in this setting was a right of " loco-motion" and thus a protection against imprisonment without due process. Nothing more. > > Scalia’s dissent raised Ginsburg’s comments about Roe v. Wade, that deciding such an important issue via judicial means may in fact result in the issue continuing to foment for much longer. While I agree with the outcome, I hope we don’t rue the reasoning used. > > Of the dissents, three quite explicitly stated that it is certainly the privilege of the States to permit SSM, but none delved into whether such marriages would have to be recognized across state lines. [Here](http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf) is the Judgement in question. Kennedy J seems to dispense with even the pretence of legal reasoning for most of his opinion. Without touching to the merits of the matter, that is not a good thing, for anyone. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [June 27, 2015, 10:36pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/31 "2015-06-27T22:36:57Z")
> [@AK84](#): > > 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. Let’s take a look at _Loving v. Virginia_, which overthrew that state’s ban on interracial marriages. 1. The 14th Amendment was ratified in 1868. 2. In 1880 the Court held that Alabama’s ban on interracial sex didn’t violate the 14th Amendment because it applied to both blacks and whites.😕 3. _More than 50 years_ after the 14th Amendment) Virginia passed the Racial Integrity Act of 1924, forbidding interracial marriages. In fact, at one time or another, the majority of states had laws forbidding interracial marriage. Or just ask the people of those 14 states which still wanted to ban interracial marriages 99 years after the 14th Amendment. 4. Also, after the 14th Amendment there were three separate attempts in Congress to pass a Constitutional amendment to ban interracial marriage, the last coming in 1928. I’ll pause for a moment to let us ponder why Virginia, or any other state, or Congress would even consider such a law more than a half-century after “any rational reasoning of the text” of the 14th Amendment might suggest that banning interracial marriage would be unconstitutional. 1. The Supreme Court voted 9-0 to overturn Virginia law, and the laws of the 13 other states which still banned interracial marriage. And anyone who believes that ballot box + legislature = always good needs to reread John Stuart Mill’s [On Liberty](http://www.serendipity.li/jsmill/jsmill.htm). ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [June 27, 2015, 10:37pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/32 "2015-06-27T22:37:32Z")
> [@Habeed](#): > > 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? ICBW but I believe I’ve read that polyandrous and polygamous marriages are allowed if they predate entry to the US. Perhaps ‘respected’ might be better than ‘allowed’. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [June 27, 2015, 10:45pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/33 "2015-06-27T22:45:06Z")
I’ve never understood the argument that basic human rights should be up for majority vote. ---
**Author:** ![nachtmusick](https://avatars.discourse-cdn.com/v4/letter/n/ac91a4/32.png) [@nachtmusick](https://boards.straightdope.com/u/nachtmusick)\ **Post date:** [June 27, 2015, 10:50pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/34 "2015-06-27T22:50:13Z")
> [@Iggy](#): > > The majority opinion written by Kennedy did not go into level of scrutiny, or much legal analysis at all for that matter. It basically said the right to marry is fundamental because of liberty. Yeah, let’s hear it for Liberty! > > Roberts’ and Thomas’ dissents delved more into some form of legal analysis, but neither touched the level of scrutiny idea. Thomas opined at some length that the term " liberty" as include in the 14th and 5th Amendment was used as a part of a phrase that had its roots in the Magna Carta. And the meaning of " liberty" in this setting was a right of " loco-motion" and thus a protection against imprisonment without due process. Nothing more. > > Scalia’s dissent raised Ginsburg’s comments about Roe v. Wade, that deciding such an important issue via judicial means may in fact result in the issue continuing to foment for much longer. While I agree with the outcome, I hope we don’t rue the reasoning used. > > Of the dissents, three quite explicitly stated that it is certainly the privilege of the States to permit SSM, but none delved into whether such marriages would have to be recognized across state lines. Thanks Iggy, well done. I suppose we should have known it would be Kennedy. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [June 27, 2015, 10:55pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/35 "2015-06-27T22:55:37Z")
**Habeed** - have you actually read the rulings in any of these cases you’re complaining about? Because if you have, you haven’t addressed any of the rationales for why the Court decided the way it did. It looks like you have simply leaped to the conclusion that everything the the majority’s opinions are BS that’s covering up a political decision, and yet you don’t seem to be aware of the Court’s reasoning at all. I posted a question in the GD thread about what I saw as a really interesting hole in Kennedy’s opinion. The dog that didn’t bark, if you will. Maybe if you read the opinions and join that conversation, your questions would work themselves out some way. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [June 27, 2015, 11:01pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/36 "2015-06-27T23:01:26Z")
Not a lawyer and not knowledgeable about the law … but as the word “marriage” is not defined in the constitution the court must accept the use of the concept within our society. Once most of the country (by way of states) is defining these contracts between same sex couples as valid marriages then to some degree _that_ becomes what the word mean for purposes of textual understanding. And there is no going back. The point had been made in the NYT back [last October](http://www.nytimes.com/2014/10/07/us/denying-review-justices-clear-way-for-gay-marriage-in-5-states.html?_r=0) after they let stand appeals court rulings allowing same-sex marriage in five states: > [@](#): > > Most immediately, the Supreme Court’s move increased the number of states allowing same-sex marriage to 24, along with the District of Columbia, up from 19. Within weeks legal ripples from the decision could expand same-sex marriage to 30 states. > > That means nearly two-thirds of same-sex couples in the United States will soon live in states where they can marry … > > … There is precedent for such an approach: The court waited to strike down bans on interracial marriage until 1967, when the number of states allowing such unions had grown to 34, even though interracial marriage was still opposed by a significant majority of Americans. But popular opinion has moved much faster than the courts on same-sex marriage, with many Americans and large majorities of young people supporting it. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [June 27, 2015, 11:20pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/37 "2015-06-27T23:20:32Z")
> [@Habeed](#): > > 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. If this is what you want, push for it. File a lawsuit, and advocate publicly. I’m certainly willing to consider that such relationships are (or should be) Constitutionally protected, but I’d have to hear some reasoned arguments from people actually in such relationships who state they are denied certain rights. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [June 27, 2015, 11:29pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/38 "2015-06-27T23:29:46Z")
> [@Iggy](#): > > The majority opinion written by Kennedy did not go into level of scrutiny, or much legal analysis at all for that matter. It basically said the right to marry is fundamental because of liberty. Yeah, let’s hear it for Liberty! If it’s a fundamental right under the due process clause, then the standard is strict scrutiny. At least that’s what I remember from constitutional law in law school. Which would mean this decision sidestepped the whole equal protection of the laws issue with regards to homosexuals. We don’t know whether the government can discriminate against homosexuals with other laws that do not prohibit same sex marriage. We just know that homosexuals can’t be denied the fundamental right to marriage. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 27, 2015, 11:30pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/39 "2015-06-27T23:30:46Z")
> [@Habeed](#): > > Why can’t I and my 2 wives, or my 2 husbands, also get equal protection? The law is unjust. Show me somewhere in the country where the government allows three people to get married and I’ll agree you’re entitled to equality. ---
**Author:** ![kopek](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kopek/32/337_2.png) [@kopek](https://boards.straightdope.com/u/kopek)\ **Post date:** [June 27, 2015, 11:39pm UTC](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638/40 "2015-06-27T23:39:50Z")
> [@Lakai](#): > > 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. But because the overall movement is usually referred to as the GLBT i would not rule it out in the future that marriage and family will evolve way beyond what we recognize now. I could give examples of group families now who have been together decades and are just as much good members of society as you or I. Will their day take a lot longer than it has for basic couples? Sure. But don’t write it off as impossible. As pointed out in another post, what we’re talking here in a sense is contract law and that doesn’t have to be limited by anything other than the people involved and the state. And the state can clearly change its mind. [Previous page](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638.md?page=1) [Next page](https://boards.straightdope.com/t/is-the-supreme-court-supposed-to-bow-to-public-pressure-or-interpret-the-constitution/723638.md?page=3)