Various examples can be cited to underline the tedium cited yesterday and the discussion over at SCOTUSBlog regarding same sex marriage is but an example. Charles Fried highlights the point, just as he does when he finds the ACA litigation so lame:
Harvard law professor and former Solicitor General Charles Fried argues that although a legislative solution would be ideal, a narrow ruling invalidating the Defense of Marriage Act is preferable to a broad ruling in favor of a constitutional right to same-sex marriage.I am not sure same sex marriage in particular being protected violates his not "forced by a Supreme Court ruling to celebrate what they deplore" standard while some ninety-something marrying a twenty-something or yet another marriage/divorce/marriage does not. Regardless, the basic illegitimacy of denying federal benefits to state recognized marriages only in this area is recognized by him.
The same sex marriage issue is standard by now, enough rulings alone to be tired of the various boilerplate arguments. But, DOMA is particularly offensive to me. States already were not required to recognize out of state marriages that violated their public policy and any possible loopholes (some "judgments" arising from them) were tiny. Singling out same sex marriages even there would seem problematic, not a "general law" for purposes of full faith and credit. As to Section Three, why should this one type of marriage (cf. common law or cousin marriages) be singled out? And, the very title is Orwellian -- "Defense of Marriage" by harming many who are, by various criteria including state law, already married.
The consistent libertarian recognizes these things and some will be on the right side here, even if they are on the wrong side on the ACA (where the "liberty" to submit to corporate health insurance policy and free ride is fought for). But, the discussion still has the usual, now tedious, components. One is that we have to face a New Deal Era restructuring of rights and governmental power where only certain "fundamental" liberties are respected. Just as it is false that pre-New Deal courts protected liberty more (as if; it didn't even overturn that many economic related laws, deemed a good or bad thing depending on one's philosophy, having a weaker "arbitrariness" standard that circa the New Deal was strengthened at least for some liberties), this is wrong. The important Corfield v. Coryell (1825) ruling underlines this:
We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign.That is, there are certain rights that are "fundamental" that must be put to a higher standard, not just a general "liberty" that the government needs to justify infringing in some fashion. See also, the Ninth Amendment, which (sorry Randy Barnett) doesn't reference some "presumption to liberty" as such, but "other rights" (see, e.g., this book) retained by the people. This is clearly a broad category, but it is not limitless. And, it makes perfect sense to use various criteria, be it precedent, building off rights listed or so forth to determine these rights, particularly if courts are doing so to strike down popularly passed legislation. This process, as with the interpretation of enumerated rights, powers and other matters, develops over time in a common law fashion, a written Constitution providing one restraining force along with others such as the limited power of the courts in the first place. As with interracial marriage, yes, marriage changes in the process.*
We have the usual tripe that if actually consistently applied would be problematic. For instance, we are reminded that certain studies support the value of "two biological parents," but that can't be too helpful. If it was, single parents who wish to re-marry should be stopped from doing so, since the alternative might encourage divorce and separation of biological parents. And, what are these "different gifts" brought by mothers and fathers? Gender stereotyping for $100, Alex. Anyways, without marriage, same sex (or blended) families would still exist. They just would be harmed more by being denied basic protections.
Well, the saying "there is nothing new under the sun" is not new, so the fact that the same old issues are being covered over and over again, including many of the same all tropes, is to be expected. This is furthered by people simply talking past each other. I find this a lot online and it tires me out. I spell out, taking time to do so, my position with support, and the reply ignores what I said and just restates the original flawed premises. This can go on forever as new flawed premises, often laden with attitude, are drawn up, sometimes involving ignoring what was said. And, equal standards too often don't apply, including standards of proof and respect.
The ability to find some common ground and to face up to the true matter of dispute is so important, but too often repeatedly not done. Online and off, it is pretty depressing, aggravating and so on. It really tires me out. Still, the issues are interesting, essential and ever arising. So, we solider on.
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* The citation to Baker v. Nelson (1972) is used as a talisman for the anti-equality side but this usual trope is yet another tedious overused device that is much less important than some think. Not only is the Supreme Court judgment just a bare reference, much has changed since then (including in the area of sex discrimination) and the actual laws at issue tend to be much different, e.g., Prop 8 stripping rights while protecting gays in any number of other ways (a basically gratuitous bit of discrimination) vs. not applying old marriage laws to same sex couples.