Saturday, June 27, 2015

Justice Scalia's Greatest Hits, Part II (does the 14th Amendment prohibit states from defining marriage as between a man and a woman?)

Justice Antonin Scalia responds to the reasoning in the Obergefell v. Hodges majority opinion that the 14th Amendment prohibits states from defining marriage as a relationship between a man and a woman:
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. 
But the Court ends this debate, in an opinion lackingeven a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,”thinks the Fourteenth Amendment ought to protect. 
... This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, eventhose that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the Peoplesubordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Amen, Tony.

16 comments:

KyCobb said...

Martin,

Originalism doesn't work here because marriage in the 21st century is not the same institution as marriage was in the 19th century. In 1868, marriage was an institution in which the sex of the partners mattered, because a woman entering into a marriage effectively became a ward of her husband, losing the right to own property or enter into contracts herself. Thus the notion of two men or two women marrying would have been nonsensical. However in the last century, we made marriage gender neutral, a contract between equal partners with equal rights. In a gender neutral institution between equal partners, there is no reason why one of them has to be a man and one has to be a woman. Marriage has evolved into an institution fit for homosexual couples, and without any rational justification for barring them from entering into a marriage contract, equal protection dictates that the state cannot treat them differently from heterosexual couples.

Martin Cothran said...

KyCobb,

Originalism doesn't work here because marriage in the 21st century is not the same institution as marriage was in the 19th century.

I guess you didn't notice that the very question at issue is whether marriage should be considered differently. Just asserting that it is doesn't prove anything.

It's a nice theory that you have, but a lot of people disagree with it, among them, Jefferson, who supported anti-sodomy laws. In fact, the law is filled with indications that it saw marriage as inherently male and female, among them the stated believe that marriages, in order to be fully valid, must be "consummated"

Maybe you can tell me how a same sex marriage is "consummated." On second thought, please don't.

Old Rebel said...
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Old Rebel said...
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KyCobb said...

Martin,

Would that be Thomas Jefferson, the 19th Century slave owner? That just makes my case for me; what people thought about 19th century institutions isn't relevant to completely different 21st century institutions

Lee said...

You seem to like Thomas Jefferson just fine when he supports your own reasoning.

Lee said...

A couple of other thoughts...

1. You've said many times that same-sex marriage is actually protected under the equal protection clause. If something can become irrelevant because of the passage of time, what makes the equal protection clause immune?

2. You've said many times that morality is not an absolute. If this is true, then couldn't one argue that slavery may be bad today and in 1865 but was perfectly good in 1800?

Your arguments are always clever and they're good so long as I remember that you have to borrow incessantly from religious precepts (absolutes exist) in order to win your points.

KyCobb said...

Lee,

1. Its in the Constitution, so it can't become irrelevant unless the Constitution is amended to remove it.
2. Even in the 18th Century most people outside the South knew slavery was wrong; that's why the Constitution had a provision allowing the African Slave Trade to be banned in 1808.

My arguments are based on the simple principle of enlightened self-interest; my rights and well-being are more likely to be protected if society protects the rights and well-being of everyone.

Martin Cothran said...

KyCobb,

Why amend the Constitution when you can just get judges to rewrite it?

KyCobb said...

Martin,

Obergefell didn't rewrite the Constitution; it applied the Constitution. You want to rewrite the Constitution to eliminate equal protection of the laws.

Lee said...

> Its in the Constitution, so it can't become irrelevant unless the Constitution is amended to remove it.

Oh, I'm sorry... is that an absolute moral truth?

Say yes and you've just invalidated your own rules and validated mine.

Say no and that statement too becomes subject to questions of timeliness and relevance.

> Even in the 18th Century most people outside the South knew slavery was wrong;

How did they know it was wrong? Where was it written? Whose authority made it so?

> that's why the Constitution had a provision allowing the African Slave Trade to be banned in 1808.

So then maybe slavery was okay in 1619, when slaves were first brought to America?

Lee said...

> You want to rewrite the Constitution to eliminate equal protection of the laws.

Yeah, Martin, same-sex marriage was there all along, it's just that nobody saw it until 2014. Even renowned Constitutional scholar Barack Obama missed it until a year or two ago.

You know... emanations of penumbras...

Lee said...

> My arguments are based on the simple principle of enlightened self-interest

Let's see if I understand... it's self-interest if I think it's for my own good, but it's enlightened self-interest if liberals think it's for my own good.

Is that how it works?

Lee said...

Gotta watch those adjectives. They can really turn things around on you.

KyCobb said...

Lee,

"Oh, I'm sorry... is that an absolute moral truth?

Say yes and you've just invalidated your own rules and validated mine.

Say no and that statement too becomes subject to questions of timeliness and relevance."

Presumably there will come a time that the Constitution of the US is no longer relevant, much like Hammurabi's Laws.

"How did they know it was wrong? Where was it written? Whose authority made it so?" That would've varied from country to country.

"So then maybe slavery was okay in 1619, when slaves were first brought to America?" If your source of absolute moral truth is the Bible, slavery should be okay with you now. We know now that slavery has never been ok, but the people living in 1619 don't care what we think, because they are all dead.

Lee said...

> We know now that slavery has never been ok,

How do we know that? How can slavery be wrong at all times when morality itself is relative?