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

Wednesday, July 01, 2015

And now the details ...

Meanwhile ... Cuba and U.S. to open official diplomatic relations.
We express no view on how controversies involving the intersection of these rights should be resolved but instead leave that to the robust operation of our system of laws and the good faith of those who are impacted by them.
The SSM ruling did not end the "so incest is covered now?" (comment) and won't solve everything even among same sex couples wanting to get married and so on either.  The move to have the pending cases settled and put the states on notice that it is time to recognize same sex marriage is beginning. For instance, the 5th Circuit never got around to releasing an opinion (seemed to lean toward 2-1 on recognition) but just ordered the three states covered to get going now that the USSC ruled.

The opening quote shows that the same sex marriage ruling will lead to various related questions such as those arising from children in those relationships. The ruling here also was sure to quote the portion of Obergefell v. Hodges (a name I will continue to fail to remember) regarding protecting the religious freedom of dissenters.  The full paragraph:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
What this entails is somewhat unclear, especially when we are not just dealing with "religious organizations" but "persons," for instance those who run let's say a bakery. Hobby Lobby spoke of "a compelling interest in providing an equal opportunity to participate in the workforce without regard to race" being a compelling interest that overrides a religious accommodation right. The dissenters and Kennedy clearly think sexual orientation also warrants such concern. How this applies to serving people, including if some alleged 1A interest (photography) is cited is open to further Supreme Court determination.

[Added] The religious rights here was a major concern of the dissents in the SSM cases. Their substantive due process arguments are weak* and would challenge a range of precedents. But, another primary point was a concern for dissenters.  In effect, some "right to be a bigot" that as I noted would likely not arise if racists were at issue or to be more temperate, dissenting viewpoints in the area of race.  There is a selective concern here as there is for "undemocratic" actions by the courts; was this sentiment equally shown in the handgun or campaign finance cases?  Justice Alito doesn't think government officials have a general right to freedom of speech at the job, but concern is given here for those who hand out licenses.  Where was this concern in the past given strong opinions against various types of religiously based opposition to marriage in other areas?  Is there something special about same sex marriages? 

The time sensitive nature of these actions was alluded to by reference to the "declining health of plaintiff Robert Welles." And, actions continue in various other states and orders from the 1st Circuit (Puerto Rico) and so forth should be forthcoming. What dead-enders will pop up? What complications will arise?  And, how soon will some lower court have to decide polygamy, a "purported to marry" case still pending to my knowledge.


* [Added] I have covered the dissents to some degree, but to belabor the point, they are both depressing and weak. Marty Lederman, e.g., noted that other than tradition, the dissents mostly ignored actually trying to justify banning same sex marriage. He wants to avoid reliance on "bigotry" comparable to racism but somewhat unsure how difference the two really are.  There too "moral disapproval, biblical teachings, anxiety" was part of societal reactions.  But, it is complicated, and overall useful to tone it down in an court ruling, underlining my support of not relying on animus. Still, as I said, that factors in especially as a rejoinder of "just leave it to democratic process." Yeah ... they blocked that special here.

Alito did cite some sort of procreation and the fear of unknown [as the majority opinion noted, while we wait some unclear amount of time, loads of people are denied rights] argument, admittedly joined by three justices (not CJ).  Still, this is all pretty weak sauce. And, still can get myself riled up by people -- now -- who make marriage small, just about having kids or something. Not all marriage is about. This isn't news to people unless they are talking about SSM. But, this is the nature of invidious discrimination -- double standards and widely held assumptions that just don't stand up to scrutiny. 

I'm sick of people criticizing the majority for weak arguments. The two lawyers on this week's Gay USA actually got it there.  As with Windsor, I will continue to defend Kennedy here, even if you can criticize things along the edges. Re-reading it only underlines the point. How about this passive aggressive dig at the dissents: "In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues."

As noted, contra some comments in the dissent, the majority also doesn't only rely on individual dignity here but at least two of the four principles of marriage provided cover others (children/family, society).  The two-person principle handles polygamy and since that was not at issue here, there was no obligation to explain it in detail. Also, the protect the family principle cited handles incest in large part since incestuous relationships would interfere with that. Again, not at issue here, so no need to discuss it in detail or the limits (e.g., cousins).  Finally, unlike monogamy or the incest bar, the states didn't refute that same sex couples had every ability to do the various things (including raise children) marriage is there for. Discrimination also factors in and even polygamy has not be blocked as strenuously on that level. 

And, reading it again, only a few parts really should have been toned down. SCOTUS threw in one more thing. Maybe this too will be the true end of the term for me until summer orders.

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