Supreme Court weighs longshot appeal to overturn decision legalizing same-sex marriage nationwide

[Sighlass]

End of the day, it doesn’t really matter whether you approve or not. It’s done.

Yeah, 81% of our state voted that marriage was between a man and a woman. We didn't want to create special rights for homosexual that wasn't intended since time began. Heck, the liberal courts went full monty on anyone that dared not be swayed by "it is love" crapola. It was an assault on Christianity, it was an attack at the government for daring to believe that they should uphold an institution designed to raise children in the best environments, it was a ploy to get adoption rights, it was joke when shown that most of these marriages were "open" at best. Not to mention, cheaper rates through government means (loans, taxes).

Mark me down in the don't approve and will never approve catagory. One person (Roy Moore) stood for what was right in Alabama, and he was buried politically for daring to defend our state constitution by every crooked way they could find.

[Bigun]

Let's add another dimension to this discussion. In 1868 many states remained under martial law and the ratification of the 14th - which was akin to ratification of the Constitution itself since it fundamentially changed the character of this republic - went like this:





I wonder why so many states reused to ratify initially and then changed their minds. I'm sure gun barrels in faces had nothing to do with it. /S

[Luis Gonzalez]

Yeah, 81% of our state voted that marriage was between a man and a woman.

Seventy percent of Americans opposed interracial marriage at the time Loving was decided.

We are a Constitutional Republic.

[Hoodat]

Seventy percent of Americans opposed interracial marriage at the time Loving was decided.

Not sure why you keep bring up Loving since it refutes your claim by reaffirming the fundamental of marriage as a union between one man and one woman.

Maybe you can explain how the Loving decision was deemed 'Constitutional' in 1967, yet deemed 'unconstitutional' in 2015.

[Hoodat]

I’m satisfied with my arguments. I (as is plainly visible) have made them quite well. But unfortunately I can’t help you understand them.

I understand your arguments.  It's just that they don't have a damn thing to do with Obergefell.

[Luis Gonzalez]

I understand your arguments.  It's just that they don't have a damn thing to do with Obergefell.

So in spite of all the evidence — and the Court’s own reasoning — you’d rather oppose SCOTUS by leaning on the ol’ ‘it’s always been that way’ defense? That’s the appeal to tradition and popularity teaming up for one last dance. Unfortunately, neither holds up under the XIV Amendment — and that’s exactly why Obergefell does.

We understand each other.

[Luis Gonzalez]

Not sure why you keep bring up Loving since it refutes your claim by reaffirming the fundamental of marriage as a union between one man and one woman.

Maybe you can explain how the Loving decision was deemed 'Constitutional' in 1967, yet deemed 'unconstitutional' in 2015.

It refuted the notion that society could, as a voting block, continue to violate the Equal Protection Clause of the US Constitution, your oversimplification and misinterpretation of the case and its finding notwithstanding.

The decision says what it says and there is no mention of “one man, one woman” in it as a deciding factor in the doc, and in both cases the XIV was the base.

Nah. I’d rather see you defend Dredd Scott from your double-pour of logical fallacies. 

[Fishrrman]

Lots of meaningless and useless banter in this thread.

Makes me wonder...

What if you had asked the Founders at the Constitutional Convention (each and every one of them):
"What do you think of homosexual marriage? Will this Constitution protect that?"

I wonder what their replies would have been (each and every one of them)...?

[roamer_1]

So in spite of all the evidence — and the Court’s own reasoning — you’d rather oppose SCOTUS by leaning on the ol’ ‘it’s always been that way’ defense? That’s the appeal to tradition and popularity teaming up for one last dance. Unfortunately, neither holds up under the XIV Amendment — and that’s exactly why Obergefell does.

We understand each other.

It goes way past mere tradition and approaches violating instinct.

It also helps to destroy the lowest common denominator of governance, removing the household. Yet another destruction of the sanctity of marriage, and the sanctity of family.

It is insidious in its perfidy. It is a lie. A vile cancer to cut out.

[Hoodat]

So in spite of all the evidence —

What evidence?  I've asked you for evidence multiple times.  And your only response has been to repeat the claim.

(See logical fallacies:  Begging the question)

— you’d rather oppose SCOTUS by leaning on the ol’ ‘it’s always been that way’ defense?

No, not at all.  Nowhere in any of this have I made that argument.  Let me remind you that it was YOU who introduced all that "fundamental right" bullshit, not I.  You're the one who keeps bringing up Loving which affirmed that marriage is between one man and one woman.

No, my defense from the get-go has been that there has been zero evidence presented showing that Ohio marriage law violated Equal Protection.  In fact, when it comes to Equal Protection, it is the Obergefell decision itself that violates it by creating a special class with special rights that trump all other groups.

That’s the appeal to tradition and popularity teaming up for one last dance.

That was your argument, not mine.  Remember, you are the one who introduced Loving.  I don't give a damn about tradition or popularity.  My concern is with the wording of the Constitution itself as it applies to the facts of this case.  The Fourteenth Amendment hasn't changed in 145 years.  Neither has Ohio marriage law.  That's not tradition, that's fact.  So what did change?

Unfortunately, neither holds up under the XIV Amendment —

Yet again, how so?  Explain how a marriage law deemed compliant with Amendment XIV for almost a century and a half suddenly finds itself in violation of it?  Let's hear it.  Stop repeating the conclusion.  Make your case.

— and that’s exactly why Obergefell does.

No, it does not.  Obergefell creates a protected class at the expense of all others.  That isn't "equal".

[Hoodat]

It refuted the notion that society could, as a voting block, continue to violate the Equal Protection Clause of the US Constitution

Yet again, Ohio's marriage law didn't violate the Equal Protection Clause of the US Constitution.

The decision says what it says and there is no mention of “one man, one woman” in it as a deciding factor in the doc

Loving is mentioned 14 times.  Would you like to revisit that?

Nah. I’d rather see you defend Dredd Scott from your double-pour of logical fallacies.

Speaking of logical fallacies, nowhere have I defended Scott, although I'm sure you would readily declare it a violation of the Fourteenth Amendment based solely on the premise that it violates the Fourteenth Amendment, just as you have done with Obergefell.

[Hoodat]

So in spite of .  .  .  the Court’s own reasoning —

Let's review that reasoning, shall we?  Here's what a few of the Justices had to say about it:

Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.[1] The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.

The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg, 521 U. S. 701 –721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor, 570 U. S. ___, ___ (2013) (Alito, J., dissenting) (slip op., at 7). Indeed:
“In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.

“What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” Id., at ___ (slip op., at 7–8) (footnote omitted).
For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.

-Justice Alito-

https://supreme.justia.com/cases/federal/us/576/644/#tab-opinion-3427257

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.  .  .  .

.  .  .  By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach of the normal democratic process.” Brief for Petitioners in No. 14–562, p. 54. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a “bare majority” of this Court, ante, at 25, is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.[1]

Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or “procedural” due process—a party must first identify a deprivation of “life, liberty, or property.” The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.  .  .  .

.  .  .  Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.

-Justice Thomas-

https://supreme.justia.com/cases/federal/us/576/644/#tab-opinion-3427256

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.” Ante, at 19. I have no choice but to dissent.
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

-Justice Roberts-

https://supreme.justia.com/cases/federal/us/576/644/#tab-opinion-3427258

These three Justices (along with Justice Scalia) nail it.

[Bigun]

"...But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. ..."



 

[Smokin Joe]

Leviticus 18

7You must not expose the nakedness of your father by having sexual relations with your mother. She is your mother; you must not have sexual relations with her.

8You must not have sexual relations with your father’s wife; it would dishonor your father.

9You must not have sexual relations with your sister, either your father’s daughter or your mother’s daughter, whether she was born in the same home or elsewhere.

10You must not have sexual relations with your son’s daughter or your daughter’s daughter, for that would shame your family.

11You must not have sexual relations with the daughter of your father’s wife, born to your father; she is your sister.

12You must not have sexual relations with your father’s sister; she is your father’s close relative.

13You must not have sexual relations with your mother’s sister, for she is your mother’s close relative.

14You must not dishonor your father’s brother by approaching his wife to have sexual relations with her; she is your aunt.

15You must not have sexual relations with your daughter-in-law. She is your son’s wife; you are not to have sexual relations with her.

16You must not have sexual relations with your brother’s wife; that would shame your brother.

17You must not have sexual relations with both a woman and her daughter. You are not to marry her son’s daughter or her daughter’s daughter and have sexual relations with her. They are close relatives; it is depraved.

18You must not take your wife’s sister as a rival wife and have sexual relations with her while your wife is still alive.

19You must not approach a woman to have sexual relations with her during her menstrual period.

20You must not lie carnally with your neighbor’s wife and thus defile yourself with her.

22 “Thou shalt not lie with mankind, as with womankind: it is an abomination.” 23You must not lie carnally with any animal, thus defiling yourself with it; a woman must not stand before an animal to mate with it; that is a perversion.

24Do not defile yourselves by any of these practices, for by all these things the nations I am driving out before you have defiled themselves. 25Even the land has become defiled, so I am punishing it for its sin, and the land will vomit out its inhabitants.

Seems there are a lot of rules about marriage much older than the Constitution, even the Magna Carta.

FAFO with that Judge at your peril.

A mere 1400 years old:

Sayyidna Abu Hurairah ؓ عنہ reports that the Holy Prophet ﷺ said: "Four types of people are, when they begin their day, under the wrath of Allah and when they reach their evenings they are under the rage of Allah." I asked: "Who are they, 0 Messenger of Allah?" He said: "Men who imitate women and women who imitate men and he who goes unto animals and he who goes unto men".>snip<
As for a fixed punishment for this evil act, there is a difference of opinion among Muslim jurists, details of which are available in books of Fiqh. Nevertheless, the nature of such punishments reported by them is as severe as it can be, such as, burning into fire, bashing under a wall felled over, throwing down from a height, stoning and beheading with a sword.

Considering the above takes in three major religions, all of which affect the secular laws within their purview, inventing a "Right" for same sex marriage sure goes against that grain. WHile homosexuality has certainly been around that long also, there is no "Right" stated for anyone to marry someone of the same sex.

As for equal protection, people have been (generally) free to marry someone of the opposite sex, provided they are not close relatives, with the exception of anti-miscegnation laws. Those should have been overthrown, simply because in the case of a man marrying a woman, race is only as relevant as the participants feel it is. There are no biblical or Koranic prohibitions insofar as race goes that i am aware of.

[Luis Gonzalez]

What evidence?  I've asked you for evidence multiple times.  And your only response has been to repeat the claim.

1. Loving v. Virginia (1967)

Constitutional basis: Fourteenth Amendment — Equal Protection & Due Process Clauses

Chief Justice Earl Warren, writing for a unanimous Court, stated:

“These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment.”

and:

“There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

Summary:
The Court held that Virginia’s anti-miscegenation law violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It established that marriage is a fundamental civil right, and states cannot infringe upon it through discriminatory classifications (in that case, race).

2. Obergefell v. Hodges (2015)

Constitutional basis: Fourteenth Amendment — Equal Protection & Due Process Clauses

Justice Anthony Kennedy, writing for the majority, explicitly linked Obergefell to Loving and relied on the same constitutional provisions:

“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same sex may not be deprived of that right and that liberty.”

Kennedy further cited Loving as precedent:

“In Loving v. Virginia, the Court invalidated laws prohibiting interracial marriage, holding that such laws ‘deprive[d] all the State’s citizens of liberty without due process of law.’
The reasons why marriage is a fundamental right apply with equal force to same-sex couples.”

Summary:
Obergefell directly extended Loving’s Fourteenth Amendment reasoning — that the right to marry is a fundamental liberty protected by Due Process and cannot be denied to a class of citizens without violating Equal Protection.

Both Loving and Obergefell explicitly rest on the same constitutional foundation — the Fourteenth Amendment’s guarantees of liberty (Due Process) and equality (Equal Protection). One addressed racial discrimination and the other sex/gender based discrimination.

Each decision reaffirmed that marriage, as a civil institution, falls within the scope of those constitutional protections.

No, not at all.  Nowhere in any of this have I made that argument.  Let me remind you that it was YOU who introduced all that "fundamental right" bullshit, not I.  You're the one who keeps bringing up Loving which affirmed that marriage is between one man and one woman.

Where is that quote from Loving defining “one man, one woman” marriage?

No, my defense from the get-go has been that there has been zero evidence presented showing that Ohio marriage law violated Equal Protection.  In fact, when it comes to Equal Protection, it is the Obergefell decision itself that violates it by creating a special class with special rights that trump all other groups.

That’s not accurate. Obergefell didn’t create a “special class” or “special rights” — it applied the same Fourteenth Amendment protections that have always existed. The Court held that marriage is a fundamental right under both the Due Process and Equal Protection Clauses, and that the state can’t deny that right to one group of citizens simply because of who they love.

Equal Protection doesn’t mean freezing rights where they stood in 1868 — it means the law must treat similarly situated people equally. Ohio’s ban excluded same-sex couples from a civil institution the state granted to everyone else. That’s the violation.

The Court didn’t give new rights to gay couples; it removed an unconstitutional barrier that denied them the same civil right everyone else already had — just as Loving v. Virginia did for interracial couples nearly fifty years earlier.

It’s important to remember the actual legal facts:

   1.   Loving v. Virginia did not define marriage as “one man, one woman.” The Court’s decision focused entirely on racial discrimination, affirming that the freedom to marry is a fundamental right protected by the Fourteenth Amendment. It did not impose any restriction based on the gender of the spouses.
   2.   Both Loving and Obergefell v. Hodges are grounded in the Fourteenth Amendment. Loving struck down race-based barriers to marriage under the Equal Protection and Due Process Clauses, and Obergefell applied the same principles to extend the right to marry to same-sex couples. In each case, the Court protected the individual liberty to marry and ensured equal treatment under the law, rather than creating “special rights” for any group.

In short: the Constitution protects the freedom to marry; it does not restrict that right to a particular race or gender.

We are done here until you provide the Loving text you keep alluding to a one man, one woman. I want to read Warren saying that, not what you think he meant by saying anything other than that.

[Sighlass]

Let's review that reasoning, shall we?

Thank you for the Justices quotes. The decision was a gift to a new imagined misaligned that came not due to constitutionality but wokeness.

[Smokin Joe]

Loving, while not explicitly declaring marriage to be between one man and one woman, only loosened the constraints for such unions between members of different races. By longstanding convention, such unions were between one man and one woman, only departing from the imposition of racial constraints. Thus, fundamentally, there was no real change from what had traditionally been considered a "couple", the aim still to, within a societal framework, produce and raise children. Note, too, that this allows for intermarriage not just between black and white, but Native American or Asian to marry other races as well, but still, between a man and a woman.

As I have quoted in an earlier post on this thread, there were definite religious constraints on even those unions, to prevent incest, and none of the three religions cited (Judaism, Christianity, and Islam) permitted marriage, or even sexual relations between people of the same sex.

In that sense, Obergefell departed from millennia old convention as to what a married couple should consist of in terms of the sex of the partners.

To believe that the Founders would have meant for a marriage which would have flown in the face of long-held religious convention about relationships eligible for marriage, which would have served no purpose for bearing and rearing children, and which would have contributed little to social stability seems disingenuous.

Most of the protections afforded by marriage to heterosexual couples could have been handled by contractual arrangements other than imposing abomination on a sacrament by legal means.

The glaring exception is health insurance coverage, relevant especially in the instance of homosexual couples due to HIV/AIDS and other medical complications that often accompany the lifestyle. At the time of Obergefell, the expense of treating those conditions, including but not limited to medications, was (and likely still is) extreme.