9 ms·

This is a case of states violating the constitution of the united states. It's a pretty clear violation of equal protection. It's not up to the states to decide

This is a case of states violating the constitution of the united states. It's a pretty clear violation of equal protection. It's not up to the states to decide this. Rights of a minority should not be left to the democratic process.

elmin 11y ago
If that's how the equal protection clause works, why was it necessary to pass the Civil Rights Act as a law or Woman's Sufferage as an amendment? Based on the state of civil rights at the time, it's clear that the founding fathers did not intend the constitution to provide universal equality for all peoples. I agree with this decision, but not because I think it's justifiable under the constitution. I see it as acceptable because I believe one of the unspoken roles of the Supreme Court is to be a group of 9 people who are a bit more wise than the average American.
- hackuser 11y ago
  > the founding fathers did not intend the constitution to provide universal equality for all peoples In fact, they agreed that some people should be slaves to others and only landholding white males should vote. But the founding fathers intentions are not decisive or necessarily even important (and relying on grasping their intentions is, as I understand it, is not a legal principle but just one philosophy of many). To emphasize the difference in perspectives: This is not a religion; the Founding Fathers are not gods, and they did not hand down scripture to us. They were the citizens of their day, they did what they did (I think they did very well), and we are the citizens of our day, to do what we think best. That's the essence of democracy; the Constitution and country are now ours, not the property or responsibility of 18th century or 19th century or any other ancestors; they belong to the people, to make of it what we will. If you think about it, it's a very conservative and pessmistic idea to say we must appeal to these ancient authorities to decide things for us, that we can't do it ourselves just as well (and if you read about the people and politics of that era, you will see they were no different than us). A more optimistic and I think democratic point of view is to say (it's a well-known idea but I don't know who I'm quoting ...), "We are the ones we've been waiting for'.
  - chc 11y ago
    The point is not that the Founding Fathers were mortal incarnations of the divine. The point is that the law has to have a meaning or else it is literally meaningless. If we use the law like tea leaves and just read in whatever meaning we want, whether or not it's what the law is actually supposed to mean, that puts us in a precarious position. Maybe today "equal protection" means that gays should be allowed to marry, but tomorrow it means that everyone should be equally protected from being hit on by gays. That's not a good footing for our society to be on.
    - drivingmenuts 11y ago
      > That's not a good footing for our society to be on. That's actually very good footing for our society to be on. It means that the law can change as society changes over time. Future societies will not be bound to outdated precepts established by people who have never lived in their world. We tend to think of laws as these unchanging concepts, perfectly created, but they are not. Ultimately laws are created by mankind and interpreted by the same. We may believe that they derive from a higher power, but we have no absolute proof of that higher power and thus, the law must begin and end with Man. If some deity is willing to descend to the mortal plane and lay down The Law, then he/she or it welcome to do so. Until then, we are stuck with the best that we ourselves can do.
      - hackuser 11y ago
        > We tend to think of laws as these unchanging concepts ... I think the best analogy here is, people tend to think of them as code.
      - sfeng 11y ago
        It's the job of the legislature to change the laws, not the courts.
        hackuser 11y ago
        > It's the job of the legislature to change the laws, not the courts. Not according to our system of laws. The courts are empowered to change laws that conflict with others, particularly with laws superior to the one in question; in this case the laws in the Constitution overrule state laws. Also, the courts are responsible for interpreting laws, and therefore can change them in that way too.
- themartorana 11y ago
  There's an often referenced and interesting argument from the TV show The West Wing where a republican woman argues against the ERA (Equal Rights Amendment) based on the same question - passing an amendment saying women are equal somehow implies they weren't under Article 14 of the Constitution. https://www.youtube.com/watch?v=PQIkLTLf_IQ https://www.youtube.com/watch?v=PQIkLTLf_IQ
- steego 11y ago
  The Civil Rights Act was not a prerequisite for interracial marriage. It was decided in Loving v. Virginia. (http://www.oyez.org/cases/1960-1969/1966/1966_395 http://www.oyez.org/cases/1960-1969/1966/1966_395) A constitutional amendment was necessary for women's suffrage because the constitution already spoke on the issue
- ddoolin 11y ago
  Even though Scalia probably agrees with your unspoken rule, he doesn't reach the same conclusion because of it: (Scalia, I): "...Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers, who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation..."
quizotic 11y ago
Yes, but why this minority? Why not allow 12 year olds to marry as a consititutional right? Why not allow brothers and sisters to marry? I'm not trying to make a slippery slope argument. I'm really asking. States license things all the time, and the conditions of their licenses block certain people from doing certain things. Why are the courts blocking the right of states to license this activity (marriage) in this particular case? Again, I'm personally happy with the outcome. It feels as wrong to me to say the LGBT can't marry as it would to say an interracial couple can't marry. But Scalia asks what the legal reasoning is, not whether it's the right outcome. What's different about this minority or this situation?
- hackuser 11y ago
  12 year olds, and brothers and sisters, are not oppressed minorities facing a long history of brutal discrimination.
  - MajorLOL 11y ago
    Pre-requisite for protections under law; "long and brutal history of discrimination" - hackuser Sorry white people, you can't be protected under law, you haven't been brutally oppressed for long enough, just a couple more years than we can protect you.
  - chralieboy 11y ago
    The opinion very specifically did _not_ provided any protected status to gays and lesbians. Persecution had nothing to do with it.
  - MBlume 11y ago
    >12 year olds [...] are not oppressed minorities facing a long history of brutal discrimination. No, they absolutely are -- not in a way that really bears on whether they should get married, but seriously, have you been 12? Ever spent five minutes inside a Jr. High?
    - mgkimsal 11y ago
netfire 11y ago
Can you specify what part of the constitution is being violated here? There are amendments that protect race, color, gender, etc. Protection based on sexual orientation doesn't seem to be covered, at least not specifically. In my mind, the correct solution to this issue should have been legislative (that is, add an amendment to the constitution), not judicial.
- sremani 11y ago
  That is correct. Change in attitude can be reflected by due legislative process, but some of the liberal victories always believed in Fiat, either from the POTUS or SCOTUS.
- mikeash 11y ago
  This really has nothing to do with sexual orientation. It's not gay marriage, it's same-sex marriage. This is a subtle but extremely important distinction. Gay people have always been allowed to marry. They haven't been allowed to marry the people they want, but a gay man was allowed to marry a gay woman in every state in the union. Similarly, straight people were not allowed to marry other straight people of the same sex. Marriage is just a matter of straight-up sex discrimination. Bob can marry Jane but Susan can't, because Bob is a man and Susan is a woman. That's clearly discrimination based purely on the sex of the participants (and not the sexual orientation, which is merely the thing that might cause Susan to want to do this, but not relevant to whether it's allowed) and IMO a clear violation of the equal protection clause. Laws are supposed to be sex blind. If a man can legally do something, a woman should be able to legally do it as well. That was not the case with marriage before this decision.
  - netfire 11y ago
    I should have phrased my earlier comment more specific to same-sex marriage, that's true. I don't think your second argument that marriage is sex discrimination is valid though. As you point out, both men and women have been allowed to enter into non same-sex marriages, regardless of their orientation or gender. What's in question here is whether its discriminatory to not allow same-sex marriages to occur and whether states should be able to determine what marriage means and restrict it accordingly. Marriage has traditionally been between a man and a woman and certainly wasn't intended to be part of the 14th amendment when it was added to the constitution in 1868. To add it more than 100 years later seems like a case of the judicial branch legislating and adding to the law, more than interpreting existing law in the context and intent of which it was passed.
netfire 11y ago
Rights of a minority should not be left to the democratic process. If the constitution and the its amendments, which protect minority rights (and people's rights in general) aren't the result of a democratic legislative process, what are they a result of? The question is whether the current constitutional legislation provides these minority rights. The court's role is to interpret existing laws, not add to them because it thinks its the right thing to do. That's the legislature's role.

elmin 11y ago

If that's how the equal protection clause works, why was it necessary to pass the Civil Rights Act as a law or Woman's Sufferage as an amendment? Based on the state of civil rights at the time, it's clear that the founding fathers did not intend the constitution to provide universal equality for all peoples. I agree with this decision, but not because I think it's justifiable under the constitution. I see it as acceptable because I believe one of the unspoken roles of the Supreme Court is to be a group of 9 people who are a bit more wise than the average American.

hackuser 11y ago
> the founding fathers did not intend the constitution to provide universal equality for all peoples In fact, they agreed that some people should be slaves to others and only landholding white males should vote. But the founding fathers intentions are not decisive or necessarily even important (and relying on grasping their intentions is, as I understand it, is not a legal principle but just one philosophy of many). To emphasize the difference in perspectives: This is not a religion; the Founding Fathers are not gods, and they did not hand down scripture to us. They were the citizens of their day, they did what they did (I think they did very well), and we are the citizens of our day, to do what we think best. That's the essence of democracy; the Constitution and country are now ours, not the property or responsibility of 18th century or 19th century or any other ancestors; they belong to the people, to make of it what we will. If you think about it, it's a very conservative and pessmistic idea to say we must appeal to these ancient authorities to decide things for us, that we can't do it ourselves just as well (and if you read about the people and politics of that era, you will see they were no different than us). A more optimistic and I think democratic point of view is to say (it's a well-known idea but I don't know who I'm quoting ...), "We are the ones we've been waiting for'.
- chc 11y ago
  The point is not that the Founding Fathers were mortal incarnations of the divine. The point is that the law has to have a meaning or else it is literally meaningless. If we use the law like tea leaves and just read in whatever meaning we want, whether or not it's what the law is actually supposed to mean, that puts us in a precarious position. Maybe today "equal protection" means that gays should be allowed to marry, but tomorrow it means that everyone should be equally protected from being hit on by gays. That's not a good footing for our society to be on.
  - drivingmenuts 11y ago
    > That's not a good footing for our society to be on. That's actually very good footing for our society to be on. It means that the law can change as society changes over time. Future societies will not be bound to outdated precepts established by people who have never lived in their world. We tend to think of laws as these unchanging concepts, perfectly created, but they are not. Ultimately laws are created by mankind and interpreted by the same. We may believe that they derive from a higher power, but we have no absolute proof of that higher power and thus, the law must begin and end with Man. If some deity is willing to descend to the mortal plane and lay down The Law, then he/she or it welcome to do so. Until then, we are stuck with the best that we ourselves can do.
    - hackuser 11y ago
      > We tend to think of laws as these unchanging concepts ... I think the best analogy here is, people tend to think of them as code.
    - sfeng 11y ago
      It's the job of the legislature to change the laws, not the courts.
      - hackuser 11y ago
        > It's the job of the legislature to change the laws, not the courts. Not according to our system of laws. The courts are empowered to change laws that conflict with others, particularly with laws superior to the one in question; in this case the laws in the Constitution overrule state laws. Also, the courts are responsible for interpreting laws, and therefore can change them in that way too.
themartorana 11y ago
There's an often referenced and interesting argument from the TV show The West Wing where a republican woman argues against the ERA (Equal Rights Amendment) based on the same question - passing an amendment saying women are equal somehow implies they weren't under Article 14 of the Constitution. https://www.youtube.com/watch?v=PQIkLTLf_IQ https://www.youtube.com/watch?v=PQIkLTLf_IQ
steego 11y ago
The Civil Rights Act was not a prerequisite for interracial marriage. It was decided in Loving v. Virginia. (http://www.oyez.org/cases/1960-1969/1966/1966_395 http://www.oyez.org/cases/1960-1969/1966/1966_395) A constitutional amendment was necessary for women's suffrage because the constitution already spoke on the issue
ddoolin 11y ago
Even though Scalia probably agrees with your unspoken rule, he doesn't reach the same conclusion because of it: (Scalia, I): "...Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers, who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation..."

quizotic 11y ago

Yes, but why this minority? Why not allow 12 year olds to marry as a consititutional right? Why not allow brothers and sisters to marry? I'm not trying to make a slippery slope argument. I'm really asking. States license things all the time, and the conditions of their licenses block certain people from doing certain things. Why are the courts blocking the right of states to license this activity (marriage) in this particular case? Again, I'm personally happy with the outcome. It feels as wrong to me to say the LGBT can't marry as it would to say an interracial couple can't marry. But Scalia asks what the legal reasoning is, not whether it's the right outcome. What's different about this minority or this situation?

hackuser 11y ago
12 year olds, and brothers and sisters, are not oppressed minorities facing a long history of brutal discrimination.
- MajorLOL 11y ago
  Pre-requisite for protections under law; "long and brutal history of discrimination" - hackuser Sorry white people, you can't be protected under law, you haven't been brutally oppressed for long enough, just a couple more years than we can protect you.
- chralieboy 11y ago
  The opinion very specifically did _not_ provided any protected status to gays and lesbians. Persecution had nothing to do with it.
- MBlume 11y ago
  >12 year olds [...] are not oppressed minorities facing a long history of brutal discrimination. No, they absolutely are -- not in a way that really bears on whether they should get married, but seriously, have you been 12? Ever spent five minutes inside a Jr. High?
  - mgkimsal 11y ago

netfire 11y ago

Can you specify what part of the constitution is being violated here? There are amendments that protect race, color, gender, etc. Protection based on sexual orientation doesn't seem to be covered, at least not specifically. In my mind, the correct solution to this issue should have been legislative (that is, add an amendment to the constitution), not judicial.

sremani 11y ago
That is correct. Change in attitude can be reflected by due legislative process, but some of the liberal victories always believed in Fiat, either from the POTUS or SCOTUS.
mikeash 11y ago
This really has nothing to do with sexual orientation. It's not gay marriage, it's same-sex marriage. This is a subtle but extremely important distinction. Gay people have always been allowed to marry. They haven't been allowed to marry the people they want, but a gay man was allowed to marry a gay woman in every state in the union. Similarly, straight people were not allowed to marry other straight people of the same sex. Marriage is just a matter of straight-up sex discrimination. Bob can marry Jane but Susan can't, because Bob is a man and Susan is a woman. That's clearly discrimination based purely on the sex of the participants (and not the sexual orientation, which is merely the thing that might cause Susan to want to do this, but not relevant to whether it's allowed) and IMO a clear violation of the equal protection clause. Laws are supposed to be sex blind. If a man can legally do something, a woman should be able to legally do it as well. That was not the case with marriage before this decision.
- netfire 11y ago
  I should have phrased my earlier comment more specific to same-sex marriage, that's true. I don't think your second argument that marriage is sex discrimination is valid though. As you point out, both men and women have been allowed to enter into non same-sex marriages, regardless of their orientation or gender. What's in question here is whether its discriminatory to not allow same-sex marriages to occur and whether states should be able to determine what marriage means and restrict it accordingly. Marriage has traditionally been between a man and a woman and certainly wasn't intended to be part of the 14th amendment when it was added to the constitution in 1868. To add it more than 100 years later seems like a case of the judicial branch legislating and adding to the law, more than interpreting existing law in the context and intent of which it was passed.

netfire 11y ago

Rights of a minority should not be left to the democratic process. If the constitution and the its amendments, which protect minority rights (and people's rights in general) aren't the result of a democratic legislative process, what are they a result of? The question is whether the current constitutional legislation provides these minority rights. The court's role is to interpret existing laws, not add to them because it thinks its the right thing to do. That's the legislature's role.