The Oi
Ahhhh chachachacha
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Yep. Another weak-sauce decision by someone unwilling to follow their convictions. There's no question that he had the votes to do it, though I'm less sanguine on Roberts joining the majority in the way you proposed. He was of course in the minority in US v. Windsor. In my opinion, he knew he was in the minority and wanted to come off as reasonable and non hateful, albeit in a very passive aggressive way. Dude is really concerned about his image.I think the Court erred by not applying, to the fullest, The Rational Basis Test and Strict Scrutiny of the EPC. Their reasoning using Substantive Due Process is sketchy and has rightfully led to controversy. Had they applied Strict Scrutiny centered on a minority group endowed immutable characteristics, with a history of being discriminated against based solely on that characteristic, then not only would the Court have struck down all anti-SSM laws, but also all anti-gay laws. It would have been a much firmer basis for a ruling and probably would have gained Roberts on the majority as well. They beat around the bush insofar they remedied a wrong without fully exploring why that wrong was committed in the first place.
It is still legal to discriminate against homosexuals in many states. Now, they can get married but will still be second-class citizens for many years before more cases are decided.
After reading many comments, all I will say is that rights do not belong in the purview of legislation or the democratic process. They are vested when we are born and the judiciary is absolutely correct to intervene when those rights are infringed upon by either the State or the majority.
I think the Court erred by not applying, to the fullest, The Rational Basis Test and Strict Scrutiny of the EPC. Their reasoning using Substantive Due Process is sketchy and has rightfully led to controversy.
It is still legal to discriminate against homosexuals in many states. Now, they can get married but will still be second-class citizens for many years before more cases are decided.
So now, states such as Alabama are beginning to understand this as they begin to get out of the marriage licensing business altogether. Will others follow?
I'm interested in your opinion on this. Under what level of scrutiny do you believe homosexuals should be viewed for Equal Protection analysis?
After listening to the oral arguments, it became pretty clear that the only argument against gay marriage was that it changed the historical definition of marriage.
This is to Roberts, not you - what a bunch of eye rolling bullshit. Where was this deference to the people during Shelby County v. Holder or Citizens United?
I am just going by the questions from Scalia, Roberts and Alito. That's what they mainly asked about.I think it's more accurate to say that the argument was that gay marriage had never been a fundamental right, which I think is inarguable if one is being honest..
Shelby County was not about federalism, or more specifically whether Section 5 of the Voting Rights Act was constitutional. Rather, it was about Section 4, the formula that Congress used to cover states subject to Section 5 preclearance when it reauthorized the Voting Rights Act less than a decade ago. It makes a mockery of his supposed deference to the political process and judicial restraint. Roberts basically said the peoples' representatives in Congress did not know what they were doing despite mountains of factfinding, hearings and testimony. I agree that Roberts would like to overrule parts of the Voting Rights Act as unconstitutional based on federalism concerns, but that is not what Shelby County did.Well, it should be to me too because I agree with him. In each of those three cases, Roberts opposed what he saw as overreach by the federal government.
Shelby County was a federalism issue, not one of deferring to "the people". The question was whether Congress was exceeding its authority in overriding decisions of the elected state legislatures. Which are also "the people." Citizens United was also about an overreaching federal government, and so was the gay marriage case. He's not being inconsistent if you view those decisions from that perspective.
I'm not seeing how this relates to Obergefell v. Hodges.But let's talk about Citizens United, because it makes the comparison with this case much more stark. Citizens United arose out of the FEC banning the dissemination of a movie about Hillary Clinton. The government attorney even conceded at oral argument that they would also be permitted to ban books, then had to come back weeks later and say "uh, no, we could only bar political pamphlets." As if that was really any better....
In any case, it was absolutely no stretch at all to argue that this directly implicated the First Amendment. It is clearly a freedom of speech/press issue, which is a right expressly stated in the First Amendment. People can disagree about the result, but there is no reasonable claim that the Court simply created the constitutional protection of free political speech itself out of thin air.
In contrast, the Constitution itself not only never mentions gay marriage -- it doesn't even mention marriage at all. In fact, it doesn't even contain a general grant of authority for the Court to define new "Fundamantal Rights", which could easily have been included in Article III had the Framers seen fit to do so.
Back to Citizens United for a second.....
Actually, I don't think talking about the "right" to free speech is the best or most accurate formulation. What the Amendment actually says is that "Congress shall make no law ......" To me, that restriction on Congress' authority applies no matter who or what it is directed against. Whether or not a corporation is a "person" should be irrelevant.
I'm not seeing how this relates to Obergefell v. Hodges.
I think one can convincingly argue that you are making a distinction without a difference. Citizens United can easily be looked at as completely inventing the right for corporations and unions to directly influence elections. That, like marriage, is nowhere to be found in the Constitution.Assuming that is the issue, then the point is that Citizens United involved striking down a statute because it conflicted with an explicit constitutional prohibition, and the other involved striking down a statute because it conflicted with a completely invented Constitutional right.
Saying this is what Citizens United is about is like saying World War I was about the assassination of Franz Ferdinand. The outrage is more about the Court, and Roberts specifically, performing some really underhanded manuvors in order to allow unlimited money into the political system. Which, ironically, works against the political process he says should play out in gay marriage.I've never understood the outrage about Citizens United. The idea that the government could lawfully ban a movie critical of a politician is something to which I'd think the general response would/should be "of course they can't fucking do that." And despite the backpedal by the SG, I think the logic of the law would have applied equally to the banning of a book or political pamphlet as well.
Well I do not argue that marriage is not a right because it is not in the Constitution. And I certainly am not arguing that it is not a right as interpreted by the Supreme Court. That is clear, as your cites demonstrate.Can't really understand why anyone is saying marriage isn't a right (because it's not defined specifically in the Constitution).
Here's some quotes from various sources on the subject.
It is well-established and crystal clear that the right to marry is a central aspect of the right to liberty, privacy, association, and identity.
Fourteen times since 1888, the United States Supreme Court has stated that marriage is a fundamental right of all individuals. In these cases, the Court has reaffirmed that “freedom of personal choice in matters of marriage” is “one of the liberties protected by the Due Process Clause,” “essential to the orderly pursuit of happiness by free men,” and “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
Here is a list of the fourteen cases, with links to the opinions and citations to the Court’s discussion of the right to marry.
- Maynard v. Hill, 125 U.S. 190, 205, 211 (1888): Marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.”
- Meyer v. Nebraska, 262 U.S. 390, 399 (1923): The right “to marry, establish a home and bring up children” is a central part of liberty protected by the Due Process Clause.
- Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942): Marriage “one of the basic civil rights of man,” “fundamental to the very existence and survival of the race.”
- Griswold v. Connecticut, 381 U.S. 479, 486 (1965): “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
- Loving v. Virginia, 388 U.S. 1, 12 (1967): “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
- Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971): “[M]arriage involves interests of basic importance to our society” and is “a fundamental human relationship.”
- Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974): “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
- Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (plurality): “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”
- Carey v. Population Services International, 431 U.S. 678, 684-85 (1977): “t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.”
[*]Zablocki v. Redhail, 434 U.S. 374, 384 (1978): “[T]he right to marry is of fundamental importance for all individuals.”
[*]Turner v. Safley, 482 U.S. 78, 95 (1987): “[T]he decision to marry is a fundamental right” and an “expression[ ] of emotional support and public commitment.”
[*]Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992): “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
[*]M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996): “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
[*]Lawrence v. Texas, 539 U.S. 558, 574 (2003): “[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
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Recognized federal civil rights law in the United States is grounded in the U.S. Constitution as interpreted by the Supreme Court. By this standard, marriage has long been established as a civil right.
The operative constitutional text is section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passages read as follows:
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.
The U.S. Supreme Court first applied this standard to marriage in Loving v. Virginia (1967), where it struck down a Virginia law banning interracial marriage. As Chief Justice Earl Warren wrote for the majority:The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men ...
To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
While the U.S. Supreme Court has not yet ruled on same-sex marriage, it is unlikely that it would overturn the foundational premise that marriage is a civil right.
Lower courts, even when relying on disparate state-level constitutional language, have consistently acknowledged the right to marry. Legal arguments for excepting same-sex marriage from the definition of marriage as a civil right have rested, instead, on the argument that the state has a compelling interest in restricting same-sex marriage that justifies limiting the right to marry (an argument that was also used to justify restrictions on interracial marriage), and/or that laws permitting civil unions provide a substantially equivalent standard to marriage that satisfies equal protection standards.
I think one can convincingly argue that you are making a distinction without a difference. Citizens United can easily be looked at as completely inventing the right for corporations and unions to directly influence elections.
That, like marriage, is nowhere to be found in the Constitution.
First, I'll define my terms. Marriage is something performed within a religious setting following certain historical religious practices. Civil unions are the official instrument by which the government recognizes a legal partnership between two people.
Marriage arises fundamentally out of religion and is squarely under the First Amendment. I believe that is a right conferred by the Constitution and protected, albeit in a limited manner, from interference from Congress.