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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, June 26, 2015

Same Sex Marriage

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The majority opinion in the same sex marriage cases is basically as expected -- by Kennedy, in poetic language and resting on basically an "evolved over time" view of constitutional rights, a "synergy" of equal protection and liberty here given more expansive reach than in Lawrence v. Texas.  The nature of the right, history of discrimination and a citation at one point of the immutability of sexual orientation was cited but no specific level of scrutiny regarding equal protection was used. This is fairly typical of recent case law.  Marriage is a "fundamental right" and was always treated in an open-ended way.  Originally, it was assumed to be different sex, but over time, same sex couples were understood to be included.

I am somewhat surprised Roberts didn't find a way to concur somehow, perhaps on recognition or the possibility some sort of civil union or domestic partnership rights are required and the force of his dissent.  The other three, including their concerns, not so much.  OTOH, not really sure why Alito didn't join Roberts' dissent -- it covers all the bases.  Each justice dissented, Scalia and Thomas joining each other and Roberts (with Scalia/Thomas) and Alito (with Scalia/Thomas) provided their own. 

There is "no difference" (of constitutional moment -- but the message that the majority opinion means in general clearly rubs the dissent and others the wrong way) between same sex and different sex marriage.  As I think warranted, the nature of a constitutional right to marry was discussed.  A pure equal protection ruling is favored by some, but there you need to show why the two groups are the same for relevant purposes. I would add like some sex discrimination argument (which has only had limited reception in lower court opinions) and/or more of a focus on equal protection (including "animus") would require more going into the weeds, while this approach will likely be more "popular" in nature. The SSM opinion by Judge Posner has its charms; it's out there for those interested. This more "poetic" (which really turns off some people) approach has its own value.  Anyway, four general purposes of marriage:
  • right to personal choice regarding marriage is inherent in the concept of individual autonomy
  • two-person union unlike any other
  • safeguards children and families  [childbearing is only one]
  • keystone of our social order 
"The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."  The opinion spells out how marriage changed over time regarding sexual roles, premarital intimacy, financial issues (like child support) and so forth.  But, for the dissent, that doesn't really matter.  The "core" of the definition of marriage remains one man and one woman. The fact that "human society for millennia" (to cite Roberts) would find many of our current marriage norms, many treated as constitutional rights, absurd is ignored.  Core?  Who says?

Well, as Roberts argues:
This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.
This is a piss poor summary of the complexity of marriage over human history.  Marriage norms came about and developed over time, different in various ways in different cultures, by a range of reasons.  The case could have used a concurring opinion discussing sex roles, including how singling out marriage between a man and a woman, even though the overall reasons (not just procreation and raising children) didn't require it, and how this makes a sex discrimination claim a strong one.  A history of same sex relationships over human existence would have been helpful too. Yet again, I am concerned with the idea same sex marriage or even same sex relationships developed sometime in the mid-20th Century or later.

Alito, whose short dissent was in effect a warning about the possible negative effects of same sex marriage, alleges that the majority "focuses almost entirely on the happiness of persons who choose to marry."  Roberts noted the claims made seemed to generally be about how "marriage is desirable and petitioners desire it." But, dislike its tone or not, the majority recognizes a certain sacred nature to marriage, it is not merely something "desirable." And, claims made by individuals would logically focus on personal happiness.  But, the "keystone of our social order" is clearly not just about that.  Marriage is not just about procreation or personal benefit. A full protection of equality is a value for all, which is after all clearly shown by the discussion of children and their needs. 

The dissents are full with such lame arguments, down to the usual canard about judicial activism, a bit weak coming from people who wanted to overrule PPACA and major civil rights legislation.  A drinking game might be created for every time Roberts cited Lochner or Scalia (who mind you, doesn't really care much about this specific issue) said something stupid ... I mean snarky (hippies, tall buildings etc.).  Roberts also argues that a right to privacy provides "no support" -- not "not enough" -- to the claims here. Privacy is protected; there is no criminal burdens here either.  But, the right to privacy includes the right to make certain intimate decisions and marriage rights (and the majority ends with a reminder only "civil" marriage is at issue here) protect them in a variety of ways.  Loving v. Virginia would not have been decided differently if no criminal charges was at issue.  Stick with the "go slow" approach. This stuff is weak.

The summary of the core aspects of a right to marry to me is fairly obviously right.  Scalia can sneer at some right to intimacy and spirituality (the word seems to confuse him), but it is a well recognized thing.  The majority's citation of the special nature of the "bilateral" (Griswold) nature of marriage could have used more discussion, given the usual concerns about polygamy.  But, Roberts claim (backed up basically with a single cite of the oral arguments, not any of the numerous briefs) the claimants didn't differentiate is b.s. As is Thomas (who spent much time criticizing substantive due process) claiming same sex couples basically can "in peace" raise their children and so forth.  Deny different sex married couples the rights arising from marriage.  See how that goes.
The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.
The general argument that the majority preemptively is stopping political debate over this topic is answered by citing various recent developments. I think more could have been shown how rights of gays and lesbians (and "couples of the same-sex" generally) developed over recent decades. Appendixes were provided listing legislation and lower court cases. The "First Amendment" rights of those who believe differently was noted. This again didn't impress the dissents, which might be understandable on some level -- the side of "right" here is apparent.  OTOH, consider this from a 1880 opinion, regarding racial discrimination:
At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected.
Such references to  "positive dislike" (and more could have been shown here how state DOMAs grew out of this -- the background of the provisions, not just some general legislative choice to not recognize -- is one more thing that could have been helpful here) suggests the Constitution plays favorites here. Makes certain choices, even though many in 1880 still believed that race justified special discrimination (if they even would accept that framing) quite as passionately, often with natural law arguments.  Thomas here cannot even accept the laws here really "demeans," in part since people retain dignity.  So did blacks at that time.

We will see various people -- I already did -- complain about various aspects of the opinion.  It could have been written better in certain ways.  But, overall, it is a good opinion that mixes the developing nature of the history of our liberties with concerns for the equal protection, particularly dignity, of gays and lesbians. Contra the dissent, the Constitution "says" something about such things, no less than it does about the "dignity" of states to the degree a major part of national voting rights legislation, passed by the people, was declared unconstitutional.

The time for it has come.  I'll add one thing -- Scalia argued this debate has been declared closed by the majority. Obviously not.  The debate will continue.  What the majority did, like his majority in Heller, was protect a constitutional right while the debate continues.  Did they lose something too?  So, we are talking about a certain type of discretion, one limited by constitutional law.  There is and will always be a deep divide there.  This doesn't mean one or the other side is not applying the law though on some level we are a government of men (or people), since who else runs things? (I can say more, but will end there.)

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