Friday, June 26, 2015

Obergefell, and some advice to Republicans

Same-sex couples may now marry throughout the United States. This is a result, even if not a means to a result, that I have publicly supported for more than 11 years, eight years before Barack Obama. I am very happy for my gay friends today.

If we are permitted to descend to the political for a moment, it would be very smart for Republicans in general and GOP presidential candidates specifically to move the frack on. My recommended statement: "While some of us may have opposed this result as passionately as others favored it, the Supreme Court has now determined that couples of the same sex may marry throughout the United States, a ruling that will bring many people joy along with equality before the law. We call upon all Americans, regardless of their support of or opposition to the result in the Obergefell case, to consider the matter settled. We have important problems to solve as a nation, none of which will get closer to a solution if we beat each other to a pulp in the hope of obstructing the Court's purpose or of overturning this case many years hence."

Or words to that effect.


PeterK said...

" to consider the matter settled" as settled as Roe v Wade is?

TigerHawk said...

The two cases (abortion vs. gay marriage) are really very different situations, even if both decisions (arguably) overreached to find a new individual right in the Constitution. First, more than 200,000,000 Americans were already living under lawful gay marriage at the time Obergefell was decided. This was mostly a done deal, in some cases by legislative action and in other cases by dint of state court action. Far fewer Americans lived under lawful abortion when Roe was decided. In this regard, Obergefell was following, and Roe was leading, widespread and settled state law (recognizing that some of those 200 million were living under federal court decisions). Second, public opinion itself has moved very far and very rapidly regarding same-sex marriage. That never happened, and still has not happened, regarding abortion. Again, the Obergefell court was mostly following public opinion, and Roe was not. Third, the practical reality is that it would be almost impossible to repeal gay marriage once enacted. What do you do about millions of married couples? Nullify their marriages, their estate planning, their tax returns, and their property rights? Abortions, however, are single point events that continue to occur, with no continuing legal entanglement after the abortion. If Roe were overturned and a few states outlawed abortion, lawful abortions would then stop in those states, but there would be no other legal consequences. Fourth -- and this is the big difference for me -- abortion implicates the rights of the fetus rather profoundly. With lawful abortion, there are repeated and ongoing violations of those rights. The only question is whether that injury is a price worth paying for the right. I have never, however, understood how allowing gays to marry damaged the rights of other people.

So, the cases are very different for many reasons, and while there is a reasonable basis to think that Roe can be reduced in its impact even if not overturned, even a light-speed reversal of Obergefell (say, within a decade) will have the slightest impact on the persistence of gay marriage. Republicans should therefore give it up and move on before they destroy themselves with the large majority of Americans who support the outcome.

I do believe, for what it is worth, that we have not seen the end of the argument over the collision between gay rights more broadly and religious rights under the First Amendment. The most secular supporters of the opinion of the Court today (as distinct from the result) may one day regret the emphasis on "dignity," which may well turn out to be the basis for a future decision supporting the First Amendment's promise of free exercise.

JB said...

Marriage is, was, and always will be between one man & one woman, regardless of what mental & verbal gymnastics the liberals on the Supreme Legislative Body say. Roe v. Wade did NOT make abortion anything less than the taking of innocent human life, and the same is true of this decision.

With all that said, my upset over this decision would be purely focused on the lack of logic associated w/ arbitrarily redefining the institution of marriage, if it weren't for the fact that I absolutely know what is coming next. For the gay activists, this was never about "marriage" but about the complete destruction of society as we know it.


It will really be sad to see a once proud nation, founded on PRINCIPLE, reduced to "You have a RIGHT to do whatever you feel like" and a return to the religious persecution that some colonists came here to escape.

A sad, sad day in our nation's history.

JB said...

Tigerhawk, you're missing the point. There is no way to put the toothpaste back in the tube. As Hammer has already commented elsewhere, if marriage ceases to mean what it has for centuries, than "marriage" can mean anything anyone wants. The very same arguments used in defense of gay "marriage" can (and already are) being used to create new definitions of "marriages" and "families" with 3 or more persons. Indeed, Assoc Justice Sotomayor, in the oral arguments on DOMA, asked what turned out to be a rhetorical question: "In the absence of this (gender), what is left for the state to regulate (on marriage)?" Before Sorenson could speak, she continued, "I guess it's only age."

The same gay activists who went after Christian bakers, florists & photographers (notice, it was never about Orthodox Jewishs or Mulsim bakers, florists or photographers) will not rest until Christian clergy, specifically Catholic priests, are forced to perform gay "marriages" or be led away in handcuffs.

Liberals have always hated, mocked, sneered at & ridiculed (Jon Stewart anyone?) the military, religion & family. This is by design.

Please read:

There are none so blind as those who will not see.

TigerHawk said...

Perhaps, perhaps not. Conservatives need to learn to win these cultural battles. The courts, which are fed by lawyers, will rarely save them, and when they do those victories will be at best temporary.

As the libertarian here, I strongly defend the right of all private actors to exercise their religion without restriction, and for religious people to refuse to participate in practices that offend their belief. I suspect that the "dignity" justifications in Justice Kennedy's opinion will sustain a lot of religious freedom, when the dust settles. But religions and social conservatives need to do their part by building adherence to their ideas. Unfortunately, "because God said so" is not a popular argument in the West, and unless religions can reformulate their approach they will fade in to irrelevance.

It would also help, I might add, if conservatives demonstrated a fraction of the creativity of liberals in the waging of political litigation, which (unfortunately) has been a powerful instrument of social change in the United States for at least 60 years. It was one thing to complain about activist judges in the 50s, 60s, or 70s, but at this point pretty much everybody other than social conservatives understands that they are here to stay. Indeed, judicial activism is growing in popularity and acceptance for many reasons, which include: (1) Years of pro-activist propaganda taught in what passes for our government schools; (2) The fact that few people alive today can even remember what it was like for judges to defer; and (3) the dysfunction of our political system, which has become so gridlocked that courts (or unelected bureaucrats) decide virtually everything of significance.

TigerHawk said...

I should add that I have thought since law school, a very long time ago now, that Reynolds v. United States was wrongly decided.

"The Hammer" said...

TigerHawk if you will show me in the Constitution where gay "marriage" is addressed, or where it says I am REQUIRED to purchase a good or service, then I'll move on. These decisions have FUCK ALL to do with the Constitution. Regardless of the merits of Obamacare or gay this or that, this is about the rule of law and if you think guys like me are just going to accept this travesty, then you are delusional. In fact, as a lawyer you know better. You should be ashamed of yourself.

TigerHawk said...

Regarding the gay marriage decision, I think Kennedy chose the wrong basis in his opinion. I would have gone with the equal protection clause in the 14th Amendment, rather than the due process clause. By a long-shot. But that's just me. As for the "rule of law," the very long history of the SCOTUS has involved practical results under unusual circumstances. Where in the Constitution does it say that the Supreme Court has the final say on questions of Constitutional interpretation? No where. John Marshall cooked that up, arguably out of whole cloth. Sure, he had his reasons, but he provided a lot of new "content" (as we say today) where none existed. As for this week's ACA decision, the entire case was a put up job, and the argument over it was partisan theater on both sides. Given the unbelievably broad regulatory powers granted by the ACA to the executive branch, there would have been a very simple regulatory fix. The only question is whether Obama would have implemented that fix actually to restore the subsidy, or let the people who had subsidies in holdout states twist in the wind to torture the Republicans.

TigerHawk said...

Oh, and to specifically address the question of being "required" to buy a good or a service: Again, another put up job. It was obvious from the beginning that the "fine" for not buying health insurance was only denominated as such, rather than as a tax, because the Democrats did not want to raise taxes on the "middle class," because politics. It is hard to believe that in the community of political blog readers, at least, there was a single person who did not understand that workaround. Then it came back to bite them. Chief Justice Roberts saved them by actually saying what everybody knew, which was that the "fine" was in fact a tax. As even you know, pigs can fly under the taxing power. So again, a nice attempt at lawfare by the right, but a quixotic one. The SCOTUS got its ass handed to it by FDR for striking down the miserable National Recovery Act, which was far more offensive to all the things you and I hold near and dear, and since then has been extraordinarily reluctant to interfere with especially federal laws that are fundamentally economic regulation. I was quite surprised the current SCOTUS struck down the eighty year old California raisin regulation, which does indicate at least some willingness to inch back in that direction.

"The Hammer" said...

There are no checks on nine people appointed for life, who have an insane amount of power. And if I remember cottectly, Marbury v Madison established judicial REVIEW. When the damn law is rewritten, or this is declared that when neither party asserts it is that, then Goddammit it's time to man the barricades. Tyranny is upon us!

"The Hammer" said...

I should NEVER blog on my phone. Cottectly?

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