LiquidNY Posted June 27, 2015 Share Posted June 27, 2015 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? 1 Quote Link to post Share on other sites
Sneakeater Posted June 27, 2015 Share Posted June 27, 2015 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. Quote Link to post Share on other sites
LiquidNY Posted June 27, 2015 Share Posted June 27, 2015 What about Minor v. Happersett? It took another constitutional amendment to overrule that. Quote Link to post Share on other sites
Lex Posted June 27, 2015 Share Posted June 27, 2015 What about Minor v. Happersett? It took another constitutional amendment to overrule that. Whoa. I didn't realize you worked on the Dark Side as well. Quote Link to post Share on other sites
Sneakeater Posted June 27, 2015 Share Posted June 27, 2015 What about it? It was wrong. Quote Link to post Share on other sites
Sneakeater Posted June 27, 2015 Share Posted June 27, 2015 The people who would have been citing that case here would have been the plaintiffs, as a cautionary example. Quote Link to post Share on other sites
Adrian Posted June 27, 2015 Share Posted June 27, 2015 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. Quote Link to post Share on other sites
Adrian Posted June 27, 2015 Share Posted June 27, 2015 Posner, citing to Mill in support of the decision: http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_gay_marriage_john_roberts_dissent_in_obergefell_is_heartless.html Quote Link to post Share on other sites
LiquidNY Posted June 27, 2015 Share Posted June 27, 2015 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). Quote Link to post Share on other sites
Sneakeater Posted June 27, 2015 Share Posted June 27, 2015 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. Quote Link to post Share on other sites
Sneakeater Posted June 27, 2015 Share Posted June 27, 2015 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". Quote Link to post Share on other sites
Adrian Posted June 29, 2015 Share Posted June 29, 2015 (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. Quote Link to post Share on other sites
Sneakeater Posted June 29, 2015 Share Posted June 29, 2015 How many SDP cases have there been in the last 20 years? Lawerence? What else? (And see Justice O'Connor's concurrence in Lawrence.) How many academics think SDP is a valid doctrine? Quote Link to post Share on other sites
Wilfrid Posted June 29, 2015 Share Posted June 29, 2015 (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. Quote Link to post Share on other sites
Wilfrid Posted June 29, 2015 Share Posted June 29, 2015 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. Quote Link to post Share on other sites
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