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I think Roberts's dissent is extremely persuasive.

I agree. While I applaud the sentiment of marriage equality, you have to admit that the Constitution is completely silent on the issue.

 

It isn't, though. It guaranties the "equal protection of the laws." I just think the majority chose the wrong premise for its decision (although I think I understand why they did so).

 

ETA -- Or maybe I mean I would have written the majority opinion differently.

 

Taken to the extreme, wouldn't that basically mean that states couldn't make any laws?

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No, it means they can't make any laws whose sole basis is invidious discrimination against some group. They have have a rational legislative purpose for making whatever distinction they made.

 

That was really the issue in this case: is there a rational reason, other than dislike, to deny the legal and social benefits of marriage to same-sex couples? That's why Roberts spent so much time on the rationale that marriage provides a stable environment for raising the children that heterosexual sex generates (often unintentionally). The discussion would then turn to whether that rationale really makes sense. If I were writing the majority opinion, I'd rebut it, and then close with Splnky's quote that in a society premised on property rights it makes no sense to deny marriage to any class of people.

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No, it means they can't make any laws whose sole basis is invidious discrimination against some group. They have have a rational legislative purpose for making whatever distinction they made.

 

That was really the issue in this case: is there a rational reason, other than dislike, to deny the legal and social benefits of marriage to same-sex couples? That's why Roberts spent so much time on the rationale that marriage provides a stable environment for raising the children that heterosexual sex generates (often unintentionally). The discussion would then turn to whether that rationale really makes sense. If I were writing the majority opinion, I'd rebut it, and then close with Splnky's quote that in a society premised on property rights it makes no sense to deny marriage to any class of people.

 

This is a fundamental right so you need more than a "rational legislative purposes". But I don't really buy tiered scrutiny - the more important the interest, the more compelling a reason you need.

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Wouldn't the "rational legislative purpose" be that the states imposing gay marriage bans believe that it's immoral? This country has a proud tradition of making criminals out of people the state finds immoral (even when they didn't hurt anybody).

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No, it means they can't make any laws whose sole basis is invidious discrimination against some group. They have have a rational legislative purpose for making whatever distinction they made.

 

That was really the issue in this case: is there a rational reason, other than dislike, to deny the legal and social benefits of marriage to same-sex couples? That's why Roberts spent so much time on the rationale that marriage provides a stable environment for raising the children that heterosexual sex generates (often unintentionally). The discussion would then turn to whether that rationale really makes sense. If I were writing the majority opinion, I'd rebut it, and then close with Splnky's quote that in a society premised on property rights it makes no sense to deny marriage to any class of people.

 

This is a fundamental right so you need more than a "rational legislative purposes". But I don't really buy tiered scrutiny - the more important the interest, the more compelling a reason you need.

 

 

That's only so under the "substantive due process" doctrine, which I criticize the Court for relying on. As far as I'm concerned, it was never good law -- but in any event, I can't believe it has much traction now.

 

Remember, even Justice Ginsburg now thinks that Roe was a mistake.

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Wouldn't the "rational legislative purpose" be that the states imposing gay marriage bans believe that it's immoral? This country has a proud tradition of making criminals out of people the state finds immoral (even when they didn't hurt anybody).

 

But the point is that if the law treats arguably similarly situated citizens differently (or if, under the discredited "substantive due process" doctrine, it impinges upon a "fundamental right"), the Court then gets to evaluate the content of the supposed "morality" being imposed. It has to be a rational means of serving a legitimate state end (and the discrimination must be necessary to serving the statute's purpose).

 

In Obergefell, none of the states whose laws were challenged even tried to justify their marriage statutes on grounds of "morality".

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(or if, under the discredited "substantive due process" doctrine, it impinges upon a "fundamental right"),

 

Obergefell is an sdp decision (hence Roberts citing lochner 80 times).* So i don't know why you say sdp has been discredited. I want elaboration on this one, sneak.

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(We'd also question whether people who are chattelized by act of law really maintain their dignity.)

 

To the extent it's to be taken seriously, Scalia seems to be advancing an extreme form of the Stoic doctrine that happiness and virtue, not to mention dignity, depend on our inner lives and not on external events ("You have power over your mind - not outside events. Realize this, and you will find strength" --Aurelius). But (1) it's not a slam dunk the Stoics were right; people are affected by the external circumstances of their lives, whether or not they "should" be; and (2) the Stoics didn't use the doctrine to justify treating others inhumanely.

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I think Roberts's dissent is extremely persuasive.

I agree. While I applaud the sentiment of marriage equality, you have to admit that the Constitution is completely silent on the issue.

 

 

Consider the outsider's perspective on a modern nation determining (or pretending to determine) what is now just, based on something written hundreds of years ago.

 

It would be shocking here in the States--but not elsewhere--to ask whether denying marital rights to same sex couples is a good idea now, regardless of what people might have thought in the eighteenth century.

 

And then, of course, there's The Bible.

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