Here is Justice Anthony Scalia, dissenting from the Supreme Court ruling striking down the Defense of Marriage Act:
It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.
I don’t get it. The Consitution neither requires nor forbids our society to approve of the Atlantic Monthly, but it still requires us to tolerate the Atlantic Monthly. Or does Justice Scalia disagree?
(Note to potential commenters: This is not a post about whether we as a society either should or should not approve of same-sex marriage, or for that matter whether there’s any meaningful sense in which a “society” is capable of approving anything at all. It’s also not a post about what our policy should be toward same-sex marriage. It’s a post about Justice Scalia’s odd notion of what this case was about. Please stay on topic.)
In this case didn’t “approve” involve granting federal benefits?
iceman: Perhaps that’s exactly what I missed. Thanks.
The case was about political posturing – as was the act, and the campaign itself – and Scalia understands that perfectly well.
It’s about those people who don’t mind homosexuals but don’t want it shoved down their throat – as the joke goes – getting it shoved down their throat.
I think iceman’s point is correct, but then what’s the analogy to alcohol consumption?
(Continued – pressed submit too soon)
It is about the left damn well making sure the traditionalists *know* that they have been crushed.
It’s not the substantive issue – there isn’t really a substantive issue any more, with most of the privileges marriage confers having been either abolished, or extended to extramarital liaisons – it’s pure symbolism.
Not injecting my views on either case here, but I think many have rightly pointed out that Scalia doesn’t think the court should overturn the “will of the people” re: DOMA but should be able to overturn the “will of the people” re: voting rights act.
Dave: Good followup question!
Wow. Let’s try the whole paragraph and a bit of preceding and following shall we?
I trust Scalia’s actual point is now clear. He is addressing the question does the document’s silence on this issue imply the government lacks the power to legislate on the issue. It looks to me like a standard argument about rational basis standard of review in fact.
As for Steve’s analogy. A separate section of the constitution DOES require us to tolerate Atlantic Monthly I seem to recall. If memory serves it appears shortly before the second amendment somewhere. Perhaps someone can help me out here?
Scalia’s dissent can be found here http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf
@6,&: See 8. I believe Scalia is arguing for deference to the legislature when the law passes a “rational basis” review. One can have a “rational basis” for banning alcohol or training yaks to tap dance, or any other issue on which the constitution is silent, and Scalia would probably defer to the legislature on those. This is quite different from banning Atlantic Monthly because the thing is NOT silient on that issue.
You may not like that standard — defer to the lesliature when there is a rational basis and no infringement of an explicit provision — but it’s neither silly nor novel.
Steve,
I could be wrong (and I’m not a lawyer, let alone a constitutional scholar), but my guess is that Scalia is responding to the argument that it violates equal protection rights if a law discriminates against (i.e., treats disparately, and presumably in an inferior and harmful manner) some group (depriving them of equal access to some privilege, institution, etc.) on the sole basis of moral disapproval (or “animus”, or any other sort of moral objective and/or emotional motivation), as opposed to having the rationale of reducing some practical cost or increasing some practical benefit.
In other words, my guess is that his point in saying that the Constitution doesn’t require society to approve of something is to imply that constitutionality of a law does not require some rationale other than to express disapproval.
Incidentally, before the usual supects start misquoting me, I think Scalia is wrong on this one. It’s quite clear that DOMA was passed as a federal law intruding into what is usually state issues specifically and overtly to harm in some symbolic way same sex married couples. I don’t think the constitution is silent on that at all. I gather from what I have read that the ruling relies on the 5th and possibly 14th. Seems right to me.
@Gordon L:
That may be part of his thinking but the argument he actually *made* is stronger. He said “However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex),there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act.” He is invoking a pretty standard doctrine that if there is a rational basis for a law the court should be inclined to defer to it. He is also disputing the contention made in the opinion that the *only* reason for the law was to express hatred or enmity. He even cites precdent on this point ““It is a familiar principle ofconstitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.””
From the ruling a key bit:
I think this gets right what Scalia gets wrong. There are rational reasons that can be adduced for the law, but it is fairly clear what the purpose of the law is. The unusual reach into state business is a tip off, as id the name. Now that motive might not, per Scalia’s precedent (his best argument imo) be enough to invlaidate the law, but the opinion notes problems with equal protection and due process. So this is NOT a case of the court just imputing illicit legislative intent and overturning the law on that basis but of noting that confluence of the intent with the effect, both problematic.
I do NOT think this is a slam dunk but I think the court got it right. Of course I support gay marriage so perhaps I am being biased. What I reject utterly is Steve’s implication that Scalia can only be a dolt.
@Ken B,
As you suggest, he seems to be making an additional argument beyond the argument I think he’s making. He seems to be saying that expression of moral disapproval alone can be a sufficient rationale for a law to be constitutional, but that there is another sufficient rationale as well.
I was just addressing Steve’s point; I’m suggesting that Scalia’s point re: “approval” is not what it appears to be, taken literally and out of context and without interpreting and discerning his implication within context. Rather, I think Scalia is really disputing the premise that societal “disapproval” cannot suffice as the sole rationale for a law.
If I’m right about the above, I think Scalia could have chosen better wording to avoid such confusion by readers.
@14
I suspect we mostly agree then. As for Scalia’s wording, I think neither of us has read the whole dissent. Having read a number of Scalia’s opinions in the past I find his — and almost all USSC opinions btw — to be (once you remove the citation clutter) models of clear expression. So I bet you are wrong. Remember, you are getting only selected quotes from me and Steve (rather more “selected” from Steve.)
@Ken B #15,
Indeed I have only read bits of the Opinion and Dissent so far. I searched on “approv” to jump to variations of “approve/approval” and “disapprove/disapproval” and read bits around those spots. Although my initial best-guess reading of Scalia’s implication (#10) was before reading anything beyond what Steve quoted (just based on prior knowledge of this controversial point re: whether or not moral disapproval alone can suffice), I did see in both the Opinion and the Dissent (in my search and spot reading) support for my interpretation (what Scalia meant) per my comment #10.
What Ken B said.
Many legislators were clear that their dislike for homosexuals/homosexuality/homosexual sex prompted them to vote for the federal Defense of Marriage Act. The Supreme Court’s majority cited this fact as proof that the Act deprived homosexuals of equal protection of the laws, or was otherwise unconstitutional. In rebuttal, Scalia argues that the idea that legislators were motivated by animus for homosexuals, even if true, is insufficient to demonstrate that the law is unconstitutional.
First, Scalia argues that Congress may legislate solely for the purpose of promoting “traditional moral[ity],” and that the Constitution does not require society to treat homosexuality as moral. And beyond questions of morality, Scalia argues that Congress has other reasons – “perfectly valid” and “downright boring” reasons – to adopt the Defense of Marriage Act, and that Congress is free to adopt laws in support of these reasons, animus notwithstanding. (Consider: Imagine that following the attack on Pearl Harbor, Congress was justified in declaring war on Japan, AND Congress was filled with racial animus. Should someone be able to reverse Congress’s declaration on the grounds that Congress had, in addition to proper motives, some additional improper motives?)
I think Scalia makes some fair arguments. I’m not persuaded that Congress’s motive should matter here – or that judges are especially gifted at discerning the motives of hundreds of individuals, or that it even makes sense to talk as if hundreds of individuals have a single motive. And I don’t know what to make of the idea that Congress is free to regulate in favor of traditional morality even in the absence of other social goals – this seems a lot like the Establishment of Religion – but I know Congress has long regulated to promote traditional morality IN SUPPORT OF promoting other goals.
But ultimately Scalia can’t get over the equal protection argument. And here, my fellow commentors are simply clueless. Yes, this case about symbolism. But it’s also a case about cold, hard CASH. A lesbian woman’s estate tax bill was going to be VASTLY LARGER because she was denied the opportunity to marry her long-time lover. There is no conceivable measure by which anyone could say she had received equal protection of the laws.
The case was a slam dunk from opening to close. Accept it before it destroys you.
nobody.really beat me to it: if you think this case was merely about putting the boot in on “marriage traditionalists”, then you didn’t read the actual complaint. At all.
@Ken B (8) – Thx for the extended quote. Does he write about the ‘valid’ and ‘boring’ rationales for ‘this legislation’?
I really don’t see a legitimate equal protection case here. The argument here isn’t that the law treats heterosexual and homosexual individuals differently, but rather that it has a disparate impact on homosexuals because they have different preferences. But one might just as well argue that drug laws discriminate against people who prefer to smoke marijuana rather than tobacco. There are good arguments against banning marijuana, but that it violates equal protection is not one of them. Likewise, there are good arguments for repealing DOMA and other restrictions on gay marriage, but this isn’t one of them.
The majority relied on the 5th amendment. Here it is, if you want to look for the gay marriage clause.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The most obvious purpose of DOMA was to allow some states to pass same-sex marriage without imposing burdens on other states. Maybe Kennedy has superior mindreading skills.
Brandon #20,
By your reasoning, I don’t see how you’d ever see even a potential violation of equal protection in any disparate treatment under law. Your reasoning would imply, for example, that there was no equal protection case in Loving v Virginia. After all — your reasoning would go — there is no more equal protection case there (or chance thereof) than there would be in criminalizing marijuana but not tobacco, or for that matter (to extend the same reasoning) to criminalize driving totally sh*tfaced drunk while allowing sober people to drive.
I think it gets down to what is the nature of the disparate treatment under the law (e.g., denying some couples access to the institution of marriage, or denying them equal benefits), what is the basis for this disparate treatment, and is the nature and magnitude of that basis sufficient for the disparate treatment, which presumably means some people are excluded or otherwise harmed (or denied some benefit or privilege).
We don’t let people get driver’s licenses if they can’t pass a vision test (this could conceivably change if, say, a car could drive itself without the need for vision of the human “driver”), but it would violate equal protection to exclude from driver’s licenses all black or all redheads or all Republicans etc. etc. What’s the difference? The answers to my questions above. Blind people driving would presumably seriously injure too many people, damage too many things, etc. If the rationale for denying licenses to redheads is just some bigotry against redheads*, I would think there would at least be an arguable case of a violation of equal protection (even with a lower burden on the state than if it involved a “protected class”, a disparity in itself that I find troubling, but that’s another matter).
* http://www.noob.us/humor/south-park-ginger-kids/
“…because she was denied the opportunity to marry her long-time lover.” -nobody.really (17)
Actually, it’s because the estate tax exists. Take away the estate tax and this court case never happens.
Gordon, #22:
By your reasoning, I don’t see how you’d ever see even a potential violation of equal protection in any disparate treatment under law.
Simple: People actually being treated differently under the law. Prohibiting women from becoming doctors, for example, or denying black children access to public schools. Having different legal standards depending on your race or sex. For Loving v Virginia, you can make the argument that members of minority races are restricted to much smaller pools of potential marital partners than are members of the majority race, and that this constitutes unequal treatment under the law.
But with bans on gay marriage, a gay man has legal access to exactly the same pool of potential marriage partners as a straight man.
So where’s the limit? The law can’t discriminate on the basis of inherent personal characteristics, but it can, and must, discriminate on the basis of behaviors and actions. What law isn’t invalidated by the interpretation of “equal protection” you propose?
It’s not that I don’t like the outcome of this ruling, but bad jurisprudence is bad jurisprudence, no matter whose ox is getting gored.
Gordon:
I actually read the first paragraph of your comment, got distracted and walked away, and came back with the mistaken belief that I’d read your whole comment. So my response doesn’t really make sense as a response to your whole comment.
You could say that the DOMA discriminates between men and women in a way that doesn’t pass the rational basis test. But this seems a bit like question-begging, because the (admittedly weak) argument for DOMA is that it does have a rational basis. In which case the decision basically boils down to the question of whether at least five of the justices personally like DOMA. Which rubs me the wrong way, because so much really awful caselaw has been decided that way.
Aaagh! Have we gone italic again!
“there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case.”
I think this is quite central. From what I have seen, these justifications do not exist. They always seeem to end up being based on some invalid premise. It is quite possible that I have missed some. It seems that court decided that there were not in fact valid reasons, and thereofore it was only malice that could be the reason for this law.
Phew! Not italic.
@26:
I disagree with this Harold. Remember Saclais and the court should not be deciding good or wise policy, just constitutionally allowable policy. There is an established doctrine for deference to the legislature called “ratioanl basis”. Not “oh that’s right” just “that’s a rational argument that could be right”. So here’s an argument against gay marriage which I think passes the test: gay marriage leads to less dependency on government in the same way heterosexual marriage does. Now to ME that’s a killer argument FOR gay marriage. But to some it’s a bug not a feature. It seems a legitimate concern for legislators rather than judges.
Seth to n.r
I ahte to be pedantic (HA!!!) but Seth makes a REALLY important but subtle point here. Whether her same sexmarriage was allowed or recognized is a STATE matter, and the crucuial fact is that NY state DID recognize it. But the DOMA insisted on treating her state recognized marriage differently from Steve Landsburg’s (he lives in NY). To her material detriment. THAT disparity is where the unequal protection comes in. Had NY state not recognized her marriage there would be no case. The case is not as n.r says about her being denied a right to get married to her lover, but about the feds treating different state recognized marriages differently based on the sexes of the couple. That’s unequal protection under the NY state marriage law.
Ken B states is correctly @ 29; I misstated the matter @ 17. The plaintiff WAS married. Federal law discriminated in the manner it treated her marriage and other marriages from her state — and the feds failed to articulate a sufficient reason for doing so.
Brandon #24 and #25,
Just a couple of notes: First, I was not responding just to your point as it would apply to DOMA, but more generally regarding marriage equality, since you referred more broadly to marriage equality when you concluded, “there are good arguments for repealing DOMA and other restrictions on gay marriage, but [equal protection] isn’t one of them.”
Second, not sure what you mean by “restrictions”, since we are talking about exclusion — i.e., laws denying access to a civil institution (marriage).
Lastly, I’ve always thought the term “gay marriage”, while often used without any intended negative connotation or opposition, can be misleading in the context of debate of this issue, because (in such a context) it subtly implies (perhaps inadvertently) that they are seeking to have a new civil institution created for them (“gay marriage”), as opposed to what they want: access to an existing civil institution (marriage). Same thing with “same-sex marriage”, which even I use as shorthand sometimes, since SSM is quick to write. But I think its best to use “marriage equality”. (Before I came across the term “marriage equality” a couple of years ago, on blogs I usually laboriously used phrasing like “equal access to civil marriage” instead of “SSM”.)
@28. You are probably right, but this bit:
“The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-dueprocess grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “‘bare . . . desire to harm’” couples in same-sex marriages”
suggests to me that if the motivation is “a bare desire to harm”, then it cannot be based on “a valid…justifying rationale”
Your example -as you say seems to be an argument for marriage equality (nod to Gordon L.). I don’t quite see how that is an argument in any way against ssm. If one believes that Govt dependency is a good thing, then it is an argument against marriage per se, but offers no good reason to restrict marriage within the same sex.
@32
Again, does not need to be a convincing argument. But imagine your goal is more govt dependency and govt power. Your name is Pelosi or Reid. Then you can *rationally* accept that you cannot eliminate all other forms of power and influence in society but can try to restrict as much as possible things that limit or compete with it, school vouchers for example. You can accept you cannot get rid of the schools that exist directly but can work at the margin. Gay marriage is at the margin.
” I don’t quite see how that is an argument in any way against ssm.”
Well you are right that mine is a wicked example but there are LOTS of people who argue for more govt control all the time. Drug laws, financial regulation, Obamacare, no speech for corporations, licensing for professionals, tarrifs. There are people who favor more govt control of more aspects of more people’s lives. My example is a nipple twister for sure but it is also quite rational.
It is only rational if your stated objective is more control. I believe that all those other policies have a different stated objective. In the specific context, I have not heard it used to defend DOMA, which may or may not be besides the point.
@34
The issue is not whether one agrees or not. I don’t know how to explain this any more clearly. The test is is, is there ANY rational basis, not is it acceptable to Ken B or Harold. “It is .. rational if your … objective is more control. ” Yes, exactly, so it passes the rational basis test. There is nothing incoherent about the law and the objective, while to me odious, is not one otherwise constitutionally impermissible.
The question is not “is this a good law” but “should a judge’s dislike for it trump a legislature’s will”. We are concerned with the limits of judicial and legislative prerogative here.
Love the title of this post!
ahahahaha
Prof. Landsburg,
Your post is “on topic”. You “should” have frozen the thread there and then when the signal to noise ratio was unbounded!
Ken B. I am probably just being dim, but I still don’t get it. My question is how does one know if the basis is rational unless the objective is stated? It cannot be that the court cannot judge on anything that someone can come up with a rational basis for – there must surely be some declaration of what that basis is. If I wanted to kill Barak Obama, then a rational policy would be to kill all black men. This is not sufficiant to prevent the court ruling on whether all black men should be killed. If I want to increase Govt power over everyone, then it is rational (possibly) to ban same sex marriage. Unless I say that my objective to increase power, then how can anyone judge whether my reason is rational?
Harold:”Ken B. I am probably just being dim, but I still don’t get it. My question is how does one know if the basis is rational unless the objective is stated?”
The answer is, you don’t need to know. You only need to imagine. The court is not presented with Ms Pelosi arguing against anything that diminishes govt dependence. The court ruled that the ONLY basis for the law was animus. Maybe yes, maybe no. But Scalia’s point, and he cited precedent, is that just assuming bad intentions from the legislature is not grounds enough to invalidate the law. Just being harmful to some is not enough. You need more. Now “more” can come in several shapes. It can be an infrimgement of part of the constitution, or it can be that the law lacks a “rational basis”. Admittedly there is some judgment here but its firmly established doctrine. Scalia is rejecting this claim, and says he can imagine several reasonable, permissible goals for which this law makes rational sense. You don’t need to argue any one of them, the other side has to show none exist.
So here are more:
1) the marriage exemption costs the govt money so we want to restrict it.
2) gay marriage harms our diplomatic efforts in the Muslim world.
3) Gay marriage violates a treaty with Whogivesacrap.
These are all easily imagined. So you really cannot argue that the ONLY possible basis for the law is animus. It passes a rational basis test.
In this case I think the court got it right by citing an infringment. The DOMA vitiated the effect of NY state’s recognition of her marriage, and did so not on the basis of actions she took but just ipso facto. That does seem like a violation of equal protection. (Note this would not apply had NY state NOT recognized her marriage.)
Here harold is a bit from a law prof (A Althouse) that seems on point:
But let’s be clear about a few things.
1. The majority opinion in Windsor did not use the word “bigotry” (or “bigot”). That word appears in Chief Justice Roberts’s dissenting opinion: “At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.” …
2. The majority’s expression is “a bare congressional desire to harm a politically unpopular group,” which might sound extreme, but it appears in the case law going back to the early 70s, and it’s a stock phrase used to characterize the government’s interest when the Court is applying minimal scrutiny and therefore needs to say that there is no legitimate governmental interest.
I risked the dread italics. Did we survive?
Read Steve’s post and was all ready to jump in, but found that Ken B. has already said pretty much everything I would have said, and then some. Ken B. for SCOTUS!
Sorry, I can’t read all the comments, so this might be redundant: Steve, I don’t know what Scalia thinks, but *I* don’t think the Constitution gives the federal government the right to tell state governments they have to tolerate The Atlantic Monthly. The federal government can’t itself interfere with The Atlantic Monthly, but I don’t think your specific argument works.
(I am not saying the DOMA was constitutional, by the way. I’m just talking about Steve’s argument against Scalia’s point here.)
@Ken B (8) – Thx for the extended quote. Does he write about the ‘valid’ and ‘boring’ rationales for ‘this legislation’?
I’m not Ken, but Scalia does write about the rationales. He mentions two, both of which seem quite cogent:
1. Choice of law (pages 19-20). A gay couple marry in state A, which recognises gay marriage, but are domiciled in state B, which does not. For the purposes of their federal tax return, are they married or not? It is not clear which state’s law should control, and so there needs to be some federal rule on the subject that would work out whether they were married for federal purposes (without interfering with state A and state B’s determinations for state purposes).
2. Preservation of prior federal legislation (page 20). There are lots of federal laws that affect marriage. Indeed, the case at issue concerned a federal spousal estate-tax exemption. When Congress was working out that tax rule, it presumably calculated the costs of the exemption, the benefits, etc etc. However, the nature and working of that rule, costs to the taxpayer, etc, will all be changed if states can change the definition of marriage and thus give large numbers of new people access to the exemption.
@41 Bob Murphy:
I believe the USSC has ruled that the first amendment has been incorporated against the states. So at least one branch can and has done similar things. Maybe nothing as odious as Atlantic Monthly, but Screw, Hustler, and Juggs.
Ken B. OK that’s fine, but Steve said the Constitution requires that “society” tolerates the Atlantic Monthly. To be analogous to this Court ruling, maybe he meant “the federal government,” in which case Steve’s argument is fine. But if “society” means, well, “society,” then no I don’t think the Constitution requires that at all; I’m not even sure what that means.
The majority is going to be intellectually embarrassed as it is forced over and over during the next decade or so to find exceptions to its own ruling’s rationale, and if Scalia is around, he is going to remind them of it, over and over.
And I write this as someone who loathed DOMA.
KenB,
I have not paid close attention, but I don’t think DOMA affects NY state law (or any state law). The marriage was still applicable under NY law. It’s only for the purpose of federal law that DOMA matters. So under DOMA, no matter where you are in the U.S., the only way to use marriage to avoid taxes is to have a recognized, heterosexual marriage. For NY state tax law, they are treated as married.
There is no equal protection issue because there is no protected class involved and men and women, whether straight or gay, have the same right to marry and one of probably many rational bases for DOMA would be you’re tax liability shouldn’t be significantly affected by which state you live in. And it’s not just a same-sex marriage issue. What if a state like Texas passed a law saying that in addition to normal marriage, you can also marry one or more children in addition to your spouse. This lets rich, texas oil persons avoide the estate tax by leaving money to their spouse-children. Not sure if that’s really an option the way the tax statute is worded, but I can almost guarantee you that there is another federal law that could be taken advantage of doing something similar.
This opinion really was terrible, even if you like the result (and while I’m mostly indifferent, I think next to the gov’t getting out of the marriage business completely, allowing same sex civil union/marriage is better). But marriage status affects many federal laws and aside from it being a good idea to pretend S.Ct. decisions are guided by the constitution and law, there are also practical reasons to let Congress address the definition of marriage under federal laws.
As one more example, while I don’t have a problem with polygamy, federal law (I’m thinking mainly tax and social security, although I’m sure there are others) is not written to take polygamy into account. And after this decision, there is no principled defense to allowing a federal law that limits marriage to two people. (Not that the court won’t make one up, it just won’t be principled. It will be DOMA is bad because I agree with SSM, but not recognizing polygamous marriages is ok because I don’t agree with polygamy). But I’m not sure people should be allowed to have an unlimited estate tax exmpetion for two spouses or to have more than one spouse entitled to social security survivor benefits.
Ken B: I am not familiar with the law firm Screw, Hustler and Juggs – have they relevant opinion?
From prof Althouse ““At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.””
This suggests that there is some level of evidence that would be sufficient, but Scalia thinks it is currently insufficient. The majority think it is sufficient. In neither case would it seem that the mere existence of a possible rational reason is enough. Maybe there is some “reasonable” test, or “proportionality” test?
However, it does seem to leave a hostage to the future if this is the basis of the judgement, as it is clearly easy to dispute.
#45. How should we phrase that the constitution requires free speech? If we say society is all citizens, then it seems a valid way to put it that the constitution requires society (that is all citizens) to tolerate the existence of Atlintic Monthly.
It is proabbly worth re-visiting Lawrence v. Texas – the supreme court declared laws banning sodomy unconstitutional. Scalia dissented in that one. From wiki: “Scalia wrote that if the court was not prepared to validate laws based on moral choices as it had done in Bowers, state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable”
The fact that such laws may not prove sustainable is of course not a valid argument that they should be sustained. In fact, it has turned out that the one about same sex marriage has indeed proved unsustainable. It may well turn out that the adult incest one will go the same way, although that may concern a non-consenting futur eperson with increased risk of genetic problems. I don’t have any idea what ones he was refering to concerning masturbation and fornication – I had understood both to be entirely legal in private between consenting adult(s). Bestiality involves a non-consenting anilmal, so that is different.
The Consitution [sic] neither requires nor forbids our society to approve of the Atlantic Monthly, but it still requires us to tolerate the Atlantic Monthly.
Where does the constitution do this? The constitution is about the federal governments structure and its relationship to the state government and the people. Where in the constitution does it say “society” must be tolerant of anything?
I’m still not clear what malice has to do with the equal protection clause.
Let’s say congress passes a law that says those of German ancestry should have to pay an additional $ 2000 in taxes per year. Also, let’s assume it can be proven that there was no malice on congresses part.
The argument for whether or not this law violates the equal protection clause would be based on whether or not the government is treating a separate class of individuals separately. It would not be based on whether or not congress had any malice.
For those law scholars who would know better than me, was there anything in the decision on Brown vs. the Board of Education that mentioned the decision being based on malice on the part of legislatures?
Will A: “I’m still not clear what malice has to do with the equal protection clause.”
I’m assuming this is related to my discussion with Harold.
It’s not. It is connected to “legitimate government purpose”. There are different criteria or levels of review the court applies in different circumstances.
Let’s say you have a law with a disparate impact on some group. That’s not enough by itself to invalidate the law. After all we wnat laws on theft to affect thieves. But when a group is affected the issue of why and how matters. A tax on beer would affect your hypothetical Germans disproportionately. I am 100% sure it would survive a challenge none the less. And there are clear rationales related to clearly reasonable govt purposes for such a law. But there is a continuum. Your German law would not survive a challenge as it is a clear prima facie violation of equal protection. But consider something in between, something moving along the coninuum, like our current strong bias against Asian ancestry in unversity admissions (known as affirmative action). Now the court is balancing “legitimate government purpose” with disparate effect. It now matters if the law was *intended* or *designed* to screw Asians or if it just did so as a side effect.
If that example doesn’t appeal just think of one where it is to you uncertain. Then think of what the court should consider when trying to decide this unclear case. And I think then legislative intent will be relevant if it is clear.
You may not like that balancing act, but I get the impression Will A you support affirmative action.
@Will A:
re Brown the holding was basically that that was at one end of the spectrum. But even so, intent was read into the law (correctly):
” The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.”
I haven’t read anything on Brown for years so my memory is sketchy but I think racial segregation violates 14 on its face, so you don’t need to consider intent even to the extent I just quoted, but the court *did*.
Harold: “I don’t have any idea what ones he was refering to concerning masturbation and fornication – I had understood both to be entirely legal in private between consenting adult(s). ”
You need to get out more
http://digitaljournal.com/article/280303
http://www.cnn.com/2005/LAW/01/25/grossman.oldlaws/
Harold – as Ken B suggests, “rational basis” doctrine only requires one to be able to *imagine* any valid reason a legislature *might* have had. Ironically I think it’s been mainly conservatives that have found this to grant too much deference, and it’s tended (I think) to be applied in areas of regulation in particular. However in cases involving discrimination a higher standard of “rigid” or “strict scrutiny” has evolved. This may help explain the differences between some of the justices.
There does at least seem to be some consistency between the DOMA and VRA cases (both involving discrimination), suggesting that anyone who is celebrating one and bemoaning the other can be accused of simply wanting it both ways. Both reflect a view that the context supporting a legitimate basis (vis-a-vis equal protection) can evolve over time. My take on the DOMA case was that while I too favor the end result here – but wholeheartedly agree with johnson85 that the ideal is to get govt out of the marriage business altogether – since there is a seemingly legitimate basis in promoting child-raising in stable homes, again involving the granting of *federal benefits* here, at least up to now this has been an issue people have properly been allowed to vote on. I presumed that eventually (as was determined for VRA) shifting circumstances and societal norms would weaken the basis for distinguishing between types of relationships for this purpose, but I wasn’t sure we were quite there yet. Apparently 5 justices decided we were, and therefore imputed that the only possible remaining basis was “animus” (I agree the precedence this presumption sets is unsettling).
BTW regarding the estate tax problem, I’m not sure the particular circumstances of the plaintiffs here provided the most compelling story. Just sayin’.
I am gonna hammer you on this Harold. You are simply assuming that Scalia just simply positively must have said something stupid. That seems like the default assumption whenever progressives expatiate on these things. It seems to be Landsburg’s working assumption too. It’s a gross error. Worse, it’s a shibboleth.
There are a couple of amendments concerning alcohol, so I don’t think it’s a good analogy.
@56:
Really? Which amendments? I cannot think of a single amendment that addressed directly “the consumption of alcohol.” You mentioned two; I’ll settle for one.
I know you won’t refer to 18 or 21, which weren’t about the *consumption* of alcohol at all.
@Johnson85
“As one more example, while I don’t have a problem with polygamy, federal law (I’m thinking mainly tax and social security, although I’m sure there are others) is not written to take polygamy into account. And after this decision, there is no principled defense to allowing a federal law that limits marriage to two people. (Not that the court won’t make one up, it just won’t be principled. It will be DOMA is bad because I agree with SSM, but not recognizing polygamous marriages is ok because I don’t agree with polygamy). But I’m not sure people should be allowed to have an unlimited estate tax exmpetion for two spouses or to have more than one spouse entitled to social security survivor benefits.”
BINGO!! We’ve moved from one arbitrary definition of marriage with a huge amount of cultural precedent to another with very little. I can’t wait to hear the twisted logic against polygamy now –a practice that also has a tremendous social history in many cultures. What about adult cousins? It’s not desirable from a health perspective, but to many gay marriage isn’t desirable either. Children and pets are relatively easily dismissed by stating that marriage requires consenting adults. I think a lot of people haven’t woken up to the possibilities of this ruling.
Oh, and I don’t have a problem with gay marriage, but I just can’t see a self-consistent logic that limits marriage to two consenting adults either.
There are some things society can take one of three broad positions:approve or indifference or disapprove.
The Atlantic Monthly is an example. Society can approve by subsidy. Be indifferent. Or disapprove by taxing (at a greater rate than substitutes).
There are other things which society can not be indifferent. It can only either approve or disapprove.
An example might be polygamy. It can approve ie allow or disapprove ie make polygamy illegal. It can not be indifferent as this is effectively approving.
Arguably gay marriage is an example of a thing which society can only approve or disapprove. It does not have the option to be indifferent.
I will just point out a couple of things about making a compelling argument against incestuous marriages vs same sex marriages since the former can lead to genetic abnormalities in offspring:
(1)This would not be a valid argument against a mother marrying her daughter, or a father marrying his son.
(2)Nor would it be an argument against a marriage between relatives, one of which is medically incaple of conception.
In either of those cases, I don’t see a principled objection to allowing such marriages, and all the tax/benefit therein, if you were a supporter of the DOMA decision. Like Johnson85, I think the majority on the court would just make the unprincipled decision going the other way. It may seem a moot point, but someone is going to use this decision to bring just such a case to court at some point.
In re 59 and others, people are missing a key point. The court did not rule that states must allow gay marriage. It ruled that DOMA distinguished amongst state recognized marriages in an improper way.
Rules against gay marriage do not i think discriminate. imagine i havean identical twin brother, and one of us is straight, one gay. The set of persons we can marry is identical. This would remain true is Ssm were legalized. The question of Ssm is not one of rights but just a run of the mill moral and policy issue. If compelling evidence arose showing that Ssm leads to a higher or lower murder rate one could sensibly change ones views on legalizing it.
I favor Ssm, mostly for reasons that SHOULD appeal to conservatives, but I’ve gone over them elsewhere and won’t repeat them here. I just want to point out that THIS narrow ruling need not lead to polygamy.
My solution to DOMA (and federalism issues generally) is a federalism market: let Congress and the States bid for the right to legislate in this area, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1568905
@Ken B #61,
You write:
Rules against gay marriage do not i think discriminate. imagine i have an identical twin brother, and one of us is straight, one gay. The set of persons we can marry is identical.
Presumably you mean that either of you can marry anyone in the set of women (even if one of you would prefer a different set). Why not imagine you have a gay twin sister instead. The set of persons you can each marry is not the same in that case. The law says that your genitalia make you eligible to marry a woman, and her genitalia make her ineligible to marry a woman, so you can marry a woman, but she can’t, even though she probably will want to. So, per your own standard, doesn’t that constitute discrimination?
I posted earlier but my post did not go through …
In place of letting judges decide questions of federalism, my (theoretical) solution to cases like DOMA is a “federalism market”; tha is, why not let Congress, the States, and private groups bid for the right to legislate in this area.
I spell out my argument in more detail in: papers.ssrn.com/sol3/papers.cfm?abstract_id=1568905
Ken B,
This narrow ruling does not lead to polygamy, but it does prevent the federal gov’t from passing a law providing that for federal purposes, polygamous marriages won’t be recognized (or it least it would if the S.Ct. was principled). Whether to recognize SSM or polygamous marriages for the purpose of federal law is a policy decision properly left to the legislature. The S. Ct. overturned DOMA b/c it basically decided it didn’t agree with the policy decision made by Congress. If polygamous marriage was recognized by a state, I’m sure the S.Ct. would come up with a reason to uphold a federal law not recognizing such marriage, but it would basically be a determination that they were ok with that policy decision.
Looking at the direct result, this case is not that big of a deal. It accomplished what would have been accomplished legislatively in another 5 or 10 years. But this case is up there as far as examples of the Ct. abandoning any pretense that their authority to legislate is limited in any manner.
Ken B: Thanks for the elucidation on fornication and masturbation.
“You are simply assuming that Scalia just simply positively must have said something stupid.” Which bit assumed that? He said that various laws would become unsustainable, and has been proved largely correct. It seems to me that these laws being struck down so far is a good thing. Perhaps he intended people to think it would be a bad thing. This is difference of opinion.
@62:
In your example, as in mine, the sexual *orientation* of the other twin has no bearing on the law. You want now to argue that it is discrimination on the basis of sex not sexual orientation. That is quite a different question.
My example is on point as I have changed only ONE factor in the equation, and you have changed two.
To go back to a favorite topic here at TBQ I could ask you why, under your argument, rape laws specifying penetration are not discriminatory.
@Harold 64
“Which bit assumed that?”
The bit where it seemed to me yopu were implying Scalia didn’t know what he was talking about regarding laws on masturbation and fornication. If you were praising not dissing the man I retract.
More in response to Gordon L 62.
Imagine rather than a sister I have neighbors. I am an only child, my neighbor friend has 123 siblings. The set of persons we can legally marry is not the same. I have more choice than my friend who cannot, regardless of ssm, legally marry any of his or her 123 siblings. By your criteria this is improper discrimination.
#66. I was praising his foresight, and questioning his use of the examples. I did assume that he made those assertions in order to make the judgement seem bad, rather than good. If so, the use of some of those examples wouldn’t have helped his case – at least I would have thought so, but maybe I do need to get out more (or stay in more?). There will always be tension between rights. The private life one will rub up against all sorts of moral ones, depending very much on the morals at he time. I took him to be saying that if we rule private life more important than morals *in cases where there is no harm to others* then that will prevent us from banning all sorts of nasty things we want to ban, and that would be a bad thing.
#67. “By your criteria this is improper discrimination” Not necessarily – there is the issue of genetic problems for the children of such a marriage. This does at least potentially bring it into the realms of “proper” rather than “improper” discrimination. Unrelated step-siblings have no such issue, so preventing their marrying could be considered improper discrimination. The same would apply to same sex siblings. Unless it can be demonstrated that some harm results from such unions.
@ Ken B
“Rules against gay marriage do not i think discriminate. imagine i havean identical twin brother, and one of us is straight, one gay. The set of persons we can marry is identical. This would remain true is Ssm were legalized.”
Just altering your paragraph to give the proper comparison, and eliminating your argument.
The set of persons, which we are sexually attracted to, we can marry is identical. This would remain true is Ssm were legalized.
When people push your argument as evidence of non-discrimination it is self-evidently ridiculous. From the out-start you’re making an implicit change in the set because the set is a completely different set for different people. Your set includes people for which you are sexually attracted to, your identical brother’s does not. Therefore this can not be used as evidence of non-discrimination.
@Daniel 70:
Your argument proves too much. If we judge discriminatory by what people directly affected by a law *want* to do then a lot of laws are discriminatory:
– laws against smoing in public
– laws against beating puppies
– laws against setting prices
– laws against child molestation
A law doesn’t have to be discriminatory to be a bad law.
The First Amendment requires that we allow the Atlantic Monthly to exist. There is no comparable amendment that says anything about gay marriage, alcohol, etc. Scalia’s point is obvious – when the Constitution is silent, the court should have nothing to say (pro or con). The Constitution is obviously not silent on publishing magazines like the Atlantic, so the Court has a long First Amendment jurisprudence.
@Ken B,
I reject your premise that gay people *want* to be sexually attracted to the same sex, just like I would reject the premise that straight people *want* to be attracted to those of the opposite sex.
My qualifications are, and I think this helps to alleviate worries about polygamy:
1. The government can decide on what kind of contracts people can enter into (this includes the number of parties)
2. The government can not decide which consenting adults can enter into either side of a contract.
I challenge you to find loopholes in these qualifications that would allow for any of the other things Scalia was talking about.
Daniel: “I reject your premise that gay people *want* to be sexually attracted to the same sex.”
Well I reject your premise that all Germans have three heads.
Because that bears about as much relation to what I said as what you attribute to me does to what I said.
Quick question Daniel. Can people *want* to do things?
@72
Now we’re past your misrepresentation of what I said let’s discuss your axioms 1 and 2. I think I basically agree. Libertarians will object of course. I’m not sure the pair answers a few odd cases like incest but yes this handles polygamy. It also makes good sense as things like marriage have legal consequences and cultural significance.
@Ken B 73,
Sorry, than I must have misunderstood what you said. I apologize.
My two axioms are more important to me. You’re right that it doesn’t handle incest cases. I’m going to need to think and do some research about that one, as I have not put a lot of thought into incest because it is so rare. I’m also not sure how serious the genetic abnormalities are with incest, and if most of the reason against it is for the ‘ick factor that most of us have associated with it rather than those actual tangible reasons. I’m also not sure how we can allow older couples over 40 to get married if the reason for our discrimination is that it increases the chance of genetic abnormalities in offspring. Let me make a suggested modification to axiom 2 to resolve this problem in the case that incest does create provable harm to the offspring.
2. The government can not decide which consenting adults can enter into either side of a contract, unless definite direct independent harm can be shown among people who are not involved within the contract.
By independent, I mean that, the harm can not be related to how society treats those individuals. For example, if kids of incest relationships turn out to have an increased chance of an Autosomal recessive disorders, this is directly caused by the genetic similarities between those procreating. However, in the case of showing harm among kids of ssm, you would be required to show that something about that relationship causes harm, rather than how society treats them (I challenge anyone to come up with a falsifiable hypothesis that could be tested that shows children of ssm somehow receive increased harm because of their parent’s ssm rather than how society treats that ssm.)
Daniel@75
That’s all good and well as a construct for determining when marriage will be recognized by the State, but it doesn’t have much to do with what the Supreme Court did. Your proposal would seem like a pretty reasonably policy framework to set up legislatively, but it hasn’t been set up legislatively. The court in this case found that Congress is somehow prohibited by the Constitution from passing a law saying that SSM won’t be recognized for the purpose of federal law. If there were a principled constitutional reason for reaching this this, it most likely would also apply to a law stating that the federal gov’t won’t recognize polygamist marriages. But the Court didn’t have a princpled constitutional reason; five of them just decided that as far as they are concerned, SSM is ok and should be recognized as such by the federal gov’t.
Now if a similar case arises w/r/t polygamy, the court will have to make up a reason to say it’s ok to not recognize polygamy. Not a huge problem, as they are clearly willing and able to put together an opinion that does a decent job of glossing over the fact that they have not constitutional basis for their decision, but it just makes me uncomfortable for the Justices to so blatantly embrace becoming super legislators. An ok result here, but it’s just a bad idea (at least to me) to basically have 5 people overriding Congress based solely on their whims without any real constitutional constraint.
And out of curiosity, why would you want to ban polygamy but not SSM? If there is no moral component to
@Johnson85,
I think that the 5 justices could set up these two axioms as a guide for determining whether there is discrimination based on the “equal protections” clause of the constitution. As this part of the amendment is vague, they have some flexibility in determining where to draw the line for discrimination. I think these guiding principles would lead to consistent rulings.
I actually don’t really want to ban polygamy, but I can think of a non-discriminatory reason the federal government would do such a thing. All of the benefits are set up such that there are 2 people in mind. SS, taxes, etc., they would need to modify all of these laws in order to come up with a way of handling multiple partners that is fair to all other couples. It changes the structure of the contract to do this, rather than the people that can enter into them. I don’t think the federal or state governments should be able to come up with ridiculous cohabiting laws, like no more than 1 non-relative adult female or whatever they can come up with, can live in a house at any given time, although I’m not sure there’s any constitutional principle to consistently deal with offering these rights. It may fall under axiom #2, in that other non-intimate couples can set up cohabiting situations without consideration.
@johnson85,
I do however agree that these principles must and probably will in the case of SSM be extended to State laws as well. They were just able to dodge that question this time around because of technicalities and apply the principle only to DOMA.
“I think that the 5 justices could set up these two axioms as a guide for determining whether there is discrimination based on the “equal protections” clause of the constitution. ”
The nice thing about judges is they don’t get to set the axioms. The word for the day is kritarchy.
@ Ken B,
“The nice thing about judges is they don’t get to set the axioms. The word for the day is kritarchy.”
My Impression was that they do get to interpret where the law is vague. Is this not the case? How do they set up principles such as tiered scrutiny if this is not the case? Let me know how my axioms do not fit into this paradigm? It’s possible that I’m missing the distinction since I’m not a legal expert.
These axioms are only a suggestion for how to determine whether a discriminatory law has a rational basis or not, and I would limit their function to deciding that alone.
@Daniel 80:
I’m mostly reacting to what I see as a ‘licence to kill’ for judges.
Judges are bound, or should be, by the text of the constitution(s) and laws(s), and precedent. I rather like your axioms as a basis for making policy and writing laws. But they are not based on the constitution or common law, so judges should not substitute them for either. Which it sounds like you were suggesting.
@Ken B,
I agree with you. I just think the protection clause is so vague that judges need to come up with rules they can apply to interpret this amendment consistently. Scalia has some valid points about how the majorities opinion could lead to these other things and I’m just trying to think of a way the majority could fairly interpret the clause to be consistent. I’m not sure if my axioms are a legally permissible way of doing this but I’m struggling to see the distinction between them and say scrutiny levels.
Seems to me the (only?) “principle’ the 5 justices can articulate is purely contextual – that equal protection becomes the determining factor (over any other ‘rational basis’) once society’s acceptance level reaches a critical point, and we are there on SSM but not polygamy etc. You know, the “living and breathing” document. Beyond that I don’t see Daniel’s “they can decide what types of contracts but not who can enter into them” as being very grounded in any principle. How about “marriage between people who can bench press 200 lbs and people who can type 90 wpm”?
@Iceman,
How would that example be a confusing choice based on my principle? Seems you’ve found nothing or maybe you’ve just given a very bad example to illustrate your reasoning. It might be that my axioms are not something that could be used by judges as guiding principles but my question is why not?
@Ken B #67,
Harold #69 responded roughly as I would, although I would put it generally and just say that (1) it is discrimination and a restriction of liberty, and (2) whether or not it is constitutionally permissible discrimination depends on the rationale, with the default presumption being that it is not permissible and the burden being on those supporting the discrimination to make the case that the rationale suffices in nature and magnitude.
@Iceman #84,
I’m pretty sure you’ve nailed their “principle”. They are just sticking their finger in the wind. At least five justices feel like they are basically super legislators that can set policy contrary to what comes out of the political process, as long as the question is close enough politically and they feel like the voters got it “wrong”.
“Those who disagree with Scalia are entitled to object to his votes and his tone. At the same time, they should understand that his broadest commitment is to the rule of law. They should honor that commitment, and they should respect his efforts to develop an approach to interpretation that is compatible with it.”
From a prominent left wing legal thinker, Cass Sunstein http://www.bloomberg.com/news/2013-07-01/how-not-to-misunderstand-scalia.html
Harold: “Ken B: Thanks for the elucidation on fornication and masturbation.”
Glad to help. You mentioned another topic…
http://www.dailymail.co.uk/news/article-2352779/Bestiality-brothels-spreading-Germany-campaigner-claims-abusers-sex-animals-lifestyle-choice.html
Re. #46, Canada’s experience is enlightening. After Canada legalized SSM in 2005, there was a rush of marriages. Less than two years later, one of the couples decided their marriage wasn’t working, and decided to end it. However, they discovered that while Canada had legalized SSM, it had not legalized same sex divorce. There was a quick passage of legislation to rectify this.
I was surprised at the path selected by the majority to reject DOMA. When the case was accepted in the fall, I anticipated that it would be rejected, but based on the 10th Amendment and the enumeration of powers in Article I, Section 8. I had read at the time (I forget the author) that DOMA exceeded the constitutional authority of Congress.
@AlV 94:
Yeah federalism seems a good ground, but these things are often path dependent. In this case we had a client who was affected very heavily by death taxes so the case centred on her treatment. With another case maybe other grounds.
88 – I just presumed you wanted your framework to serve a purpose so you’d be troubled by a backdoor ban on SSM. Absent any *principled* limits, axiom 1 can achieve any desired disparate impact. And how about polygamy via distinct 1-on-1 contracts? Like Ken B said, libertarians — or anyone craving guiding principles for that matter — will be unimpressed.
” I just presumed you wanted your framework to serve a purpose so you’d be troubled by a backdoor ban on SSM.”
How exactly would they do that? Axiom 2 states that they can’t limit the types of people that can enter into a contract. Your example of wpm and a bench presser was irrelevant since those are both types of people and so are protected by Axiom 2.
Polygamy via distinct 1-on-1 contracts? You’re going to need to describe what that means. How can more than two parties be involved in a 1-on-1 contract?
@Iceman
Did you mean that people could have multiple 1-1 marriages? The government could require that the marriage type of contract stipulate that only one of these contracts of this type is allowed. I don’t think this would violate axiom 2, but I might put some thought into rewording axiom 1, because you do raise a legitimate point there.
DOMA itself isn’t a benefits program for straight married couples. It is a clarification of other federal statutes that reference ‘spouse’ and marriage. By rejecting DOMA, the federal government hasn’t left it up to the states. It has essentially mandated that all states accept gay marriage, at least in federal matters. Gay couples will just get married in a state that recognizes gay marriage and then move back to their state and receive the federal benefits. Even if the federal laws require that your marriage be accepted by the state you reside in to qualify, it is just another court case until that gets overturned. If recognizing gay marriage has to do with equality, then that will of course be incorporated into every state. And then it will be to what extent. Do churches have to accept and perform gay marriages like with straight marriages? Do adoption agencies have to approve all gay applicants in all cases, even if the biological parents are against it and there is a wait list? The court should have ruled that egregious inequalities can only mean the repeal the federal programs, not the implementation of mandated state programs. Trying to walk the tight rope of incorporation is a lost cause, which will continue to become more evident.
“And then it will be to what extent. Do churches have to accept and perform gay marriages like with straight marriages”
Tell that to straight couples that want to get married in a catholic church but can’t because one is divorced. The federal government has never, ever required churches to marry people. I’m not sure where you get this idea from.
#97 – Well if you define “types” that broadly – not just based on inherent attributes like gender or race but any characteristic whatsoever [is there a “type” that can both bench press a lot and type fast? Seems like this paradigm is deeply into imputing stereotypes] — it’s not clear what’s really left for axiom 1 to do, other than arbitrarily discriminate against one particular “type”: people who want to enter into multiple marriages.
Which is what you’re basically trying to do, reverse engineer a system that allows SSM but not polygamy, and this provides more evidence of how difficult that is to do based on consistent principles.
Putting teeth into axiom 1 (again absent other guiding principles) would seem to take us back to the kind of situation for which the original VRA was passed (is there a “type” of person that can read?).
Alternatively you have the libertarian base case “consenting adults can enter into any type of relationship they want”, which the govt can ‘tolerate without approval’ by simply not subsidizing by type of relationship. This sure would make the Court’s job easier too. But alas even Scalia thinks we can legislate morality. Sunnstein is surely right that he is “poorly understood by his admirers and critics alike.”
@Iceman,
I still think there’s some merit to the axioms. The government can define a kind of contract that it would like to subsidize, whatever it likes as long as it doesn’t restrict the people that can enter into that contract. Then anyone can either choose to restrict themselves by this type of contract defined and subsidized by the government, or they can choose not to. At least the choice of whether to restrict yourself remains within the hands of those making the decision, rather than with the majority.
@Daniel #97, your axioms are still unworkable. The federal government had defined a type of contract: a contract between a man and a woman. The didn’t restrict the people that can enter that type of contract. Any man and woman could enter into it, and it was still struck down.
Lots of states also set a limit on how old you must be for entering into certain contracts. Under your axioms, the court would have to say setting ages of majority is no longer be permissible, because it would result in restricting the people that could enter into those contracts. Somebody needs to determine what kinds of discrimination is permissible and what kinds are not. Under our constitution, it would generally be a policy decision set in the constitution or in statutes. The Supreme Court has now decided that its a permissible area for the Courts to produce new common law.
“your axioms are still unworkable. The federal government had defined a type of contract: a contract between a man and a woman. ”
It does restrict the kind of people that can enter into either side of a contract. The key words are either side.
“Under your axioms, the court would have to say setting ages of majority is no longer permissible because it would result in restricting the people that could enter into those contracts. ”
Actually no, the axiom explicitly states that it’s for consenting adults. Maybe it’s not rules that can be set by a court, but I still think, equal protection under the law leaves a lot of wiggle room for interpretation, and if it was clarified with my axioms, it would make the interpretations much more narrow. Again, I’m not a legal scholar, so I don’t know if this is even possible for a court to do, I just think it would neatly tie things up.
Consider this link a barb aimed at a deserving few. You know who you are! http://althouse.blogspot.com/2013/07/the-zimmerman-trial-needs-to-be-more.html
Lol, Ken B. Not going to respond because that would be off-topic but way to fit a square peg into a round hole.
Also if you still want to fight about this, shouldn’t we do it in the correct topic? I’m willing to revisit if you want.
@Daniel
Perhaps I am thinking this really is a round peg. Trials are about evidence.
I present this related link with no comment, confident that my targets will recognize themselves http://www.althouse.blogspot.com/2013/07/im-trying-my-best-not-to-be-cynical-but.html