One question about marriage is answered, and many others now arise

Protesters outside the Supreme Court in April, when the same-sex marriage case was being argued. (Photo: Sean Cockerham / McClatchy)

Protesters outside the Supreme Court in April, when the same-sex marriage case was being argued. (Photo: Sean Cockerham / McClatchy)

The Supreme Court said today, in a 5-4 ruling, that the 14th Amendment affords same-sex couples the right to marry, anywhere and everywhere in the United States. This is a sensitive topic for many people, one that will unleash a range of emotions. But one cannot fully grasp how sweeping — radical is another word — this decision is without reading it.

To summarize: There is no limiting principle regarding the redefinition of marriage in this ruling. None whatsoever. While the ruling for now only legalizes marriages between same-sex couples, the soaring rhetoric Justice Anthony Kennedy summons in what he surely considers his magnum opus leaves the door wide open to any other kind of relationship that gains popularity in time.

Citing the 14th Amendment’s protection of “life, liberty (and) property,” Kennedy writes:

“(T)hese liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

He later adds:

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

While a substantial proportion of Americans have come to believe “freedom in all of its dimensions” includes the right of same-sex couples to marry, nothing about this language limits it to couples. No matter how many times Kennedy refers to “two persons” or “same- and opposite-sex couples,” those are merely descriptions of the “new insight reveal(ed)” in this particular instance. The opening Kennedy and the majority make to these couples simply awaits the next plaintiff appealing to the right to “individual autonomy” as it relates to choosing a marriage partner or partners. One does not, for example, have to believe same-sex relationships are equivalent to three- or four-person relationships — I would not say they are — to see the court has not just cracked the door open to other definitions of marriage but flung the door off its hinges.

Perhaps that is the concept of liberty that Americans, or “future generations” of Americans, accept. (Though I suspect we will see court cases arguing these “future generations” are in fact concurrent with the present one.) But that is not exactly how the present argument was sold, even if the way the argument was equally open-ended.

So we are left with this question: Will a movement dedicated to extending the dignity of an exclusive institution wind up rendering that institution so inclusive as to confer little dignity at all? And if so, what was the point?

***

As for the immediate effects of the ruling: The law is the law (yesterday’s contortions of the Roberts court to say the law is not really the law notwithstanding) and state and local governments in Georgia and elsewhere should follow it as such. If there is going to be defiance cloaked as civil disobedience, let it be done outside our state’s borders.

However, we will also find out if the libertarian cavalry, so to speak, is really going to arrive on the scene. By which I mean, we will see whether promises will be kept that this is truly an example of “live and let live,” and that “let live” will truly apply to dissenters who happen to work in, say, the wedding industry. We have been told by many libertarians and even some of our liberal friends that freedom requires the expansion of marriage rights to same-sex couples as well as allowing others to decline to participate in such wedding ceremonies for religious reasons. The 14th Amendment does, after all, include the protection of “property.”

Will those who advocated in full voice for this outcome be equally dedicated to protecting those who would dissent from it? Would the Supreme Court uphold laws passed to that end? With the end of one large question, we can easily see the advance of many other questions.

Reader Comments 0

118 comments
LilBarryBailout
LilBarryBailout

@NorthAtlanta

Liberal fascists think the First Amendment was written to protect the state from the church, when in fact it's the other way around.

manwithplan
manwithplan

"Will those who advocated in full voice for this outcome be equally dedicated to protecting those who would dissent from it?"

That, in my humble little Christian opinion, is the most important question for all moving forward. CJ Roberts and Justice Thomas, in their respective dissents, specifically pointed out that today the separation of church and state has been directly ignored, and hence the religious liberties of many have been placed in real danger.

So ... if we no longer need to recognize any separation of church and state, let's ratify The Bible, every word of it, as an Amendment to the US Constitution.

TBS
TBS

The right decision was made.......... Been too long.  Congrats to the gays who want to get married. 

Hope the whine that is being made out of all the sour grapes is at least good enough to drink. 


"You made the 'whine', now you drink a cup"

Thomas "Jeff Lynn" Fefferson

bu2
bu2

What are you talking about?  There's never been any live and let live.  When people in Houston opposed a gay rights ordinance that allowed transgenders to use the bathroom of their choice, the lesbian mayor subpoenaed ministers sermons and e-mails.  Its a scorched earth policy against anyone who doesn't accept their viewpoints.

http://www.religionnews.com/2014/10/14/houston-subpoenas-pastors-sermons-equal-rights-ordinance-case-prompting-outcry/


But the real issues are the ones the 4 dissenters discussed and those have nothing to do with gay marriage.  The justices have adopted President Obama's totalitarian approaches to law.  Its whatever they darn well please, regardless of precedent or laws in place.

DumbandDumber
DumbandDumber

And how long until priests/rabbis/reverends/pastors/imams are dragged into court because they won't perform a marriage ceremony for a homosexual couple? The left is not known for being overly tolerant (dissent against any of their opinions, even when drenched in facts, is heresy).

Roberts is a piece of work, yesterday there is no "Constitution", today he says this decision has nothing to do with the Constitution and is all made up?  Hypocrite.

The exec branch (with SCOTUS backing) has all but taken over this country, scary. Couple more steps towards fascism, which has happened at least twice in US history, under Wilson and FDR (they were much more violent in dealing with dissent).

HeyThere
HeyThere

So.... this entire article is a slippery slope argument.

MadWizard
MadWizard

As Kyle explains, with no limiting principle on marriage, I do expect fundamentalist Christians to now argue for right to form plural marriages based on a literal reading of the Bible. And why should they not require rapists to marry their victims, since that is also sanctioned in the Bible? 

DMayr
DMayr

Upon further review: with the histrionics from the right reaching fever pitch, and high ranking GOP officials and officeholders like Cruz, Santorum and Huckabee actively saying they will not recognize the judicially defined and reinforced law of the land if it contradicts their interpretation of the bible, I ask: what separates this mindset from that of the Islamic extremists who refuse to acknowledge their countries no longer follow their strict interpretations of the Koran? To the unbiased observer, there's more in common than most would like to admit. 


How long before another Dylann Roof 'stands up for Murica' over this or another issue where the right simply can't admit it's on the wrong side of history? 

Kyle_Wingfield
Kyle_Wingfield moderator

@DMayr Ah, so now we're pre-assigning guilt to not-yet-committed crimes.

Kyle_Wingfield
Kyle_Wingfield moderator

@DMayr But don't worry: All the histrionics are on the right side of the political spectrum.

DMayr
DMayr

@Kyle_Wingfield @DMayr I pose my question again: what separates the angriest members of US conservatives from the angriest members of radical Islam? Both are minority elements being relegated to the fringes by time and social progress, both feel justified/vindicated by religion, and both often resort to violence against innocent members of society in the name of their cause. 

Kyle_Wingfield
Kyle_Wingfield moderator

@DMayr "often resort to violence"? In comparison to ISIS and al-Qaida? You are delusional.

Kyle_Wingfield
Kyle_Wingfield moderator

@MadWizard I didn't see any kind of qualification in the earlier statement, and I would be very interested to see which crimes exactly were attributed to "right wing extremists."

MadWizard
MadWizard

@Kyle_Wingfield @DMayr

If DMayr is referring to American terrorists, she is correct, according to a study by Arie Perliger, a professor at the United States Military Academy’s Combating Terrorism Center. In the decade after 9/11, Muslim extremists in America accounted for 50 fatalities, right wing extremists 254.  

DMayr
DMayr

@Kyle_Wingfield @MadWizard The assumption of American terrorists was 100% correct. Kyle chooses not to acknowledge this because it conflicts with reality, which is a condition conservatives are immune to. Under no circumstances can a conservative acknowledge any reality which doesn't correspond with their chosen interpretation. Hence, the Iraq War, climate change denial, and any of the aforementioned wedge issues like gay marriage, Obamacare, gun control, racism, etc.

As for examples of right wing extremists, Kyle is too young to remember Eric Rudolph, James Klop, Timothy McVeigh and and some kid named Dylann. That's why he's pathetically beholden to conservatism; there's NO evidence anything is wrong with that mindset.As he might learn if time is kind enough to him: bless his heart.

Bless his heart, indeed.

Kyle_Wingfield
Kyle_Wingfield moderator

@DMayr "As for examples of right wing extremists, Kyle is too young to remember Eric Rudolph, James Klop, Timothy McVeigh and and some kid named Dylann. "

I'm not "too young" to remember them at all, but I am capable of counting. And that's a nice little rhetorical trick, claiming only the "angriest members of radical Islam" who stay in this country to fight -- but only since 9/11 -- when the outflow of radicalized Americans to fight in other countries is well-documented.

If your linguistic gymnastics help you feel better about your partisanship, I guess that's your prerogative. But I doubt it convinces many people.

MadWizard
MadWizard

@Kyle_Wingfield @MadWizard

I didn’t see any qualification either so I don’t know whether she meant domestic or international terrorism. My point, though, was that in the United States right wing extremists are much more dangerous than Islamic extremists. 


If you’re curious you can download the study. It’s very extensive, but page 142 details the groups he’s referencing and the number of attacks and fatalities of each.


https://www.ctc.usma.edu/posts/challengers-from-the-sidelines-understanding-americas-violent-far-right


The NYT also reported on this issue recently, which is how I happened to know about it.


http://www.nytimes.com/2015/06/16/opinion/the-other-terror-threat.html?_r=0


LilBarryBailout
LilBarryBailout

@DMayr

Do you accept responsibility for violence against innocent members of society in the name of leftist causes?

Kyle_Wingfield
Kyle_Wingfield moderator

@MadWizard There is no detailing of the crimes here and the associations of those who committed them. There is no way of knowing whether he's accurately classifying groups as this or that. But there is a rather tortured attempt on his part to link these criminals to a mainstream political movement that wants nothing to do with them and, as in the Charleston case, is as eager as anyone to see the criminals brought to justice. It strikes me as irresponsible and shamelessly partisan.

Caius
Caius

I have not picked up any discussion of "the living Constitution" so far in this blog.  If it has been discussed and I missed it, bad on me.


This is really what Kennedy addressed as Kyle noted.  He did not use the words, but that was the concept. And the sad part it is just not Kennedy.  I am not sure on the newest members of the Court, Sotomayor and Kagan, but the other 7 have used the idea in their opinions over the years.  They damn the idea in one opinion and use it in another.  And I have no answers except be careful of who you elect as President.

Kyle_Wingfield
Kyle_Wingfield moderator

@Caius Roberts' dissent refers to a paper (or something) by Rehnquist titled "The Living Constitution." But that's it.

bu2
bu2

@Caius 

Presidents need to be careful of who they appoint.

HW appointed Souter

Reagan appointed Kennedy

Nixon appointed Blackmun (a bigger mistake than Watergate)

GaBlue
GaBlue

What are you saying, Mr. Wingfield? "So we are left with this question: Will a movement dedicated to extending the dignity of an exclusive institution wind up rendering that institution so inclusive as to confer little dignity at all? And if so, what was the point?"


Are you saying you're BETTER than single people because you're married? Are you saying that, if everyone can marry, then the whole you-being-superior portion of it is lost?  Because that sounds like what you're saying.

Kyle_Wingfield
Kyle_Wingfield moderator

@GaBlue I'm not the one who brought a Supreme Court case, or wrote a Supreme Court opinion, saying that's where dignity comes from. Read the opinion.

RafeHollister
RafeHollister

Where is Nancy Pelosi shreeking, " How do you plan to pay for all these new tax breaks?"  Where is paygo? What do you plan to cut to pay for these marital deductions? "


Well anyway congrats to the gay folk.  Now the "War of the Roses" will be Peter Rose vs Paul Rose.

MarkVV
MarkVV

The introduction of the “slippery slope argument,” that gay marriage might lead to bigamy and polygamy, not to mention the more ridiculous fantasies, simply ignores the reality. A marriage now is a union of two people, who love each other (at least in the beginning), support each other, and want to codify that exclusive relationship. The society recognizes that such a relationship is beneficial for the society, and it rewards it with specific benefits. The value to the society includes nurturing of children, if desired –whether adopted or created by the couple. Thus, from the perspective of the government, it should make no difference whether the members of that unit are of the same or different gender, and a refusal to bestow the benefits on people of the same gender is a denial of the individual rigths.

The history of mankind in general is in the direction from polygamy to monogamy. There is no widespread attempt to change that direction.

irishmafiahigs
irishmafiahigs

@MarkVV UMM how does a  same sex couple that chose homosexuality have children "created by the couple" ?????

MarkVV
MarkVV

@irishmafiahigs @MarkVV  Never noticed the words, "The value to the society includes nurturing of children, if desired –whether adopted ...?".

AvgGeorgian
AvgGeorgian

Kyle, I hear you about religious beliefs. I recommend that all businesses that do not want to provide services or products to gay wedding activities or gay married households, put up a big sign on their business and website to that effect. If that could possibly be a legal problem, they could word it as they will serve this group, but wouldn't if they didn't have to.

AvgGeorgian
AvgGeorgian

The legislature could also put this on the confederate flag car tags, "We accept gay marriage but we don't like it"

MoFaux
MoFaux

@AvgGeorgian Sorry, you guys will need to opt for bumper stickers.  The car tags are going bye-bye.

bu2
bu2

@AvgGeorgian 


They've already been fined for not serving a gay wedding.


I guess anyone, including Jews, could be sued for not making a cake for an American Nazi convention.

Starik
Starik

Gay marriage will require formal gay divorces.

Bhorsoft
Bhorsoft

There was a time where as a society the majority thought the mixing of races was wrong.  The SCOTUS enshrined those belief in decisions years ago (see Bookman for details on those decisions). Over time the majority came to see that there was nothing wrong with the mixing of races and the SCOTUS essentially reversed their earlier decisions.  As a society we see nothing wrong with blacks marrying whites although there was a time the same types of religious and legal arguments were made against any form of integration.


There are still people who think the mixing of races is wrong and is a sin according to the Bible and possible their religion.  However those people (and according to Citizens United, companies are people too) are still required by law to provide services to races other than their own. You can't refuse service or hire and fire a person based on race event though you you believe the Bible says it's wrong --according to you or your church's interpretation of the Bible (or holy book of choice).


In the future the majority may come to believe that nothing is wrong with polygamy and will want polygamous marriages allowed.  There will be attempts at legislation.  There will be polygamous weddings.  There will be all the stuff that went on with interracial marriage and with gay marriage.  Eventually the SCOTUS may decide that level of freedom will be legal as well.  And I would be OK with that.  However, why anyone would want more than one spouse mystifies me.  I have my hands full with the one I have.

straker
straker

"will those who advocated in full voice for this outcome be equally dedicated to protecting those who would dissent from it"


In a word, NO.

MoFaux
MoFaux

@straker Protection from being forced to gay marry?  I think you just need to say no when you are proposed to...

Jefferson1776
Jefferson1776

Future decisions will be made on a as needed basis. Nothing new.

tlmaddox
tlmaddox

The next line of battle we will witness along these lines will have to do with levels of consanguinity and/or bigamy.

LogicalDude
LogicalDude

"Will those who advocated in full voice for this outcome be equally dedicated to protecting those who would dissent from it? Would the Supreme Court uphold laws passed to that end?"


I would advocate that anyone who would dissent from it, and refuse business based on that dissent, should publicly state that dissent BEFORE engaging in business relationships as well as public spaces that the person/business engages, such as advertisements and websites. 

I'm not sure how the Supreme Court would rule on laws passed to that end, however, because it's partially about free speech, and partially about religious imposition on others.  It would be interesting to see how that goes in court processes. 


Otherwise, people just treat everyone else equally.  Those businesses who discriminate will find themselves on the losing end of history - same as "Whites only, no negroes" businesses of the past. 

LogicalDude
LogicalDude

"Will a movement dedicated to extending the dignity of an exclusive institution wind up rendering that institution so inclusive as to confer little dignity at all? And if so, what was the point?"


Not sure what the point of the question is in relation to loving people wanting to get married.  


Are you already sliding down that slippery slope to polygamy and polyamory? Ok, let's slide right down that slope. 


If consenting adults agree, what is it any business of anyone else? 


Kyle_Wingfield
Kyle_Wingfield moderator

@LogicalDude Thanks for proving my point.

FWIW, I'm not some backwards yokel resorting to that point. Chief Justice Roberts -- loved by many of you here yesterday -- raised the very same question in his dissent (which I'm just now reading).

LogicalDude
LogicalDude

@Kyle_Wingfield @LogicalDude What dangers do you actually see from multi-marriages?  They are legal in other countries, so it has some cultural underpinnings. 

I do not see a problem as long as all parties agree, consent, and celebrate.  (This still would keep it illegal for those overly paternal religions from forcing teen girls into a multi-wife situation.) 

Kyle_Wingfield
Kyle_Wingfield moderator

@LogicalDude Well, there's the fact this particular issue was sold one way, and adjudicated in another. So there's the matter of honesty.

But I think I articulated the main point in the post: Does marriage still confer dignity on a relationship if more and more relationships qualify? Is there anything special any longer about that word if its meaning is continually stretched into new shapes?
There are actual consequences at stake here. As the court's majority noted, one purpose of marriage is to protect children and give them the dignity of living in a family rooted in marriage. Expand the definition once, and maybe more children live in such a "dignified" arrangement. Expand it again, and again, and maybe one more time, and partners raising children may begin to see no distinction between marriage and non-marriage. At some point, we undermine the very societal building block the court invoked to justify its ruling today. What then?

Lukasatl
Lukasatl

@Kyle_Wingfield @LogicalDude Roberts is a statist and a corporatist. In his prior decisions in cases before becoming a supreme court justice, Roberts routinely sides with either the corporate party or the state party in the litigation. He was appointed to the supreme court for this very reason. The majority is correct, and stands on precedent. 


U.S. Supreme Court Justice Joseph P. Bradley commented in the Civil Rights Cases that "individual invasion of individual rights is not the subject-matter of the [14th] Amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws.

Aquagirl
Aquagirl

Dignity is not a zero sum game. Also, I'm tired of people who claim to be so concerned about the chiiillldren. Those same people attend others'second weddings. They socialize with divorced people and in short, show no outward sign they disapprove. There's a name for thse people: hypocrites.

Kyle_Wingfield
Kyle_Wingfield moderator

@Aquagirl Is dignity, in this case, not a function of exclusivity or set-apartness? In other words, the dignity comes not from coupling, but from a couple's entering into an institution that connotes a different kind of relationship. If every relationship qualifies -- and I fully acknowledge here that I'm skipping several miles down the road, but then again that was the question put to me -- then will any relationship receive the dignity sought by today's plaintiffs?
Maybe. But I tend toward saying, probably not.

MoFaux
MoFaux

@Kyle_Wingfield @LogicalDude It isn't your or a court's responsibility to define dignity.  Every marriage is unique and the boundaries defined by those involved in it.  None of your business.

MANGLER
MANGLER

@Kyle_Wingfield If the idea of marriage is based on love, then it doesn't matter how the legal definition changes.  It will remain a powerful social institution.

Aquagirl
Aquagirl

And that's where we disagree. If people are truly committed, then yes, that confers dignity on a marriage. No matter what shape or size. And it sure as hell isn't up to the state or anyone else to decide that commitment can't exist.