Historically, all SORTS of people were denied marriage: no same-sex marriage, no polygamous marriage (more or less), denial based on race, and of course non-citizens can’t marry citizens without taking a bunch of extra steps. There was a brief window when marriage was legal in California but not federally, and legally marrying my now-husband would have been a violation of his visa, which was for work but not marriage.
Exactly. That was my earlier point. Once marriage is established as a widespread and deeply valued social institution – which dates back to the dawn of civilization – then the denial of it for a certain group becomes an infringement of basic human rights and of basic human dignity, and relegates the targets to being discriminated against as second-class members of society. That should never be acceptable in any civilized society. The US Supreme Court, may, however, deem it to be completely acceptable in today’s America, which as we’ve seen since Jan 21, has totally blown any reasonable interpretation of the word “civilized”.
well this gets into the other aspect of the decision. “Marriage” was historically a union between a man and a woman. If you define “marriage” that way, the argument that it is a fundamental right is much stronger, and probably not contestable. After all, societies have recognized marriages for thousands of years. That is why anti-miscegenation laws rightfully were outlawed. They were denying a man and a woman the right to marry based on the color of their skin, an obvious violation of the equal protection clause.
But same-sex couples wanted their union to be recognized as marriage also, and some states said no, there is no historical context for same sex couples to “marry”, and so they denied it. That is, a “marriage” to a same sex person is not a fundamental right since society has never recognized such unions as marriage. And such individuals then said, well, this is a violation of equal protection clause, since you are denying me the right to marry. But the states said, well no, we are not denying you the right to marry. You are free to marry any opposite sex individual you want. We are saying your same sex union is not a valid marriage.
That was not my question. Historically you may not be allowed to marry who you wanted, but were there people not allowed to marry anyone?
Except there are many examples of same-sex “marriage” as a contractual partnership throughout history in many different cultures. Taking the religious implication out of marriage and making it more of a civil union then there is historical precedent that same-sex marriage is a right.
From the article:
there is certainly existing (but limited) historical precedent for same-sex unions. Saying that the ability to enter into such a union is a “fundamental right” is a stretch.
It isn’t.
Until some Australopithecus goes to the supreme court to get the Respect for Marriage Act declared unconstitutional…
let me rephrase. There is limited historical precedent to suggest that it should be considered it as such. The supreme court simply declared it by fiat. Hence why I considered it an activist opinion.
For reference, here’s a list of countries where same sex unions of different sorts are legal:
Andorra, Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Denmark, Ecuador, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Liechtenstein, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, Thailand, the United Kingdom, the United States of America and Uruguay.
You can look up the countries where same-sex sexual activity or unions are illegal. Look at the lists, and decide which countries you think the US should want to be more like.
One might look at the legal decision-making in those systems in both categories.
Ms. Davis can bite my shiny metal ass.
I would contend that if it is accepted that man-woman marriage is a right, then assuming that we do not live in a theocracy, same-sex marriage is also a right. All or none otherwise we might as well elect Nehemiah Scudder in 2028.
I think these two statements are contradictory. An example of making law by fiat would be Qualified Immunity that, in its current form, appeared ex nihilo via SCOTUS decision.
Yes. https://www.searchablemuseum.com/illegal-to-marry/
(Legally, of course, these people were defined as “not people,” but I think we can all agree that that was abominable and unconscionable.)
Thanks for that. I was not aware so ignorance fought.
What is Davis claiming is her standing in this issue?
I think her logic is if Obergefell was ruled on incorrectly and is overruled then it reverses her court loss.
IANAL but is that possible? I thought all the court could do is reverse a previous court’s ruling. I didn’t think they had the power to declare that a previous court’s ruling was invalid from the time it was issued. So while the current court can overturn Obergefell decision and rule that same-sex marriage is illegal starting in 2025, it can’t say that same-sex marriage was illegal back in 2015, which is the period which affects Davis.
Out curiosity, if this decision finds in favor of Davis on the basis just described, could a future court do it again? Could they declare that Baker v. Nelson was wrongly decided and that all government officials who refused to issue same-sex marriage certificates in the period between 1971 and 2015 were acting illegally?
Hey, it’s Kim Davis logic. God will prevail.
Given this court it is highly likely she (and God) will prevail with a 6-3 decision overturning Obergefell.
Your c-word is as offensive as the n-word. Even if it is the pit.