ABA Journal


U.S. Supreme Court

Scalia predicts the future, once again, in gay-marriage dissent

Jun 27, 2013, 12:32 pm CDT


Scalia's Lawrence dissent was embarrassing enough when issued. You don't do him any favors by reminding people that he thinks "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity" are all in the same moral category. Some of these behaviors actually harm others. His Windsor dissent just says it again, louder, and that strategy doesn't work even for giving directions to a non-native speaker.

BTW - are there really state laws prohibiting masturbation, or was Scalia just intermingling church and state once again?

By Pushkin on 2013 06 27, 1:07 pm CDT

Wait. Masturbation is illegal?

By Harry Palms on 2013 06 27, 1:23 pm CDT

What a shame that I don't give a damn what Scalia thinks.

By isolde on 2013 06 27, 2:01 pm CDT

It really is remarkable how quickly our country is going down the crapper.

Nah, just kidding, in fact I think each and every one of the things Scalia mentions *should* be legal. Well, maybe not bestiality, there's no consent there. But I'd rather see us get there democratically than by judicial fiat.

Harry @ 2, LOL. Lock me up!

By Just Some Bloke on 2013 06 27, 2:11 pm CDT

"Enemy of human decency?" Well, if the shoe fits......

By AndytheLawyer on 2013 06 27, 2:30 pm CDT

"Live well. It is the greatest revenge." - The Talmud

By Anonymous on 2013 06 27, 2:35 pm CDT

Justice Scalia is right. And some of you folks know that.

By kennyg on 2013 06 27, 2:56 pm CDT

Wow. When you read his dissents, and when you listen to his questions during the oral argument portion of the Obamacare lawsuit you seriously wonder what ever qualified this guy for his position. He seems to only have a vague grasp of the law and make all his votes based on opinion. Oh way, a GOP nomination, it all makes sense now.

By Marc on 2013 06 27, 3:35 pm CDT

In 50 years the big debate will be whether or not man-boy love should be legalized. Public morality, and society, are in decline in this country.

By Caesar Augustus on 2013 06 27, 4:26 pm CDT

You think the priests are gonna push that hard to make their desires legal?

By Marc on 2013 06 27, 4:29 pm CDT

So, if a state were to declare divorce illegal and require that couples with children honor their marraige vows ( and we know the mantra that children always benefit from a two parent family so long as the parents are heterosexual ), the state law should be valid?

Similarly, if a state were to declare misengynation illegal, that would be valid? Let's leave it to the states.

And if a state were to declare Christianity as an official state religion, and ban other worship, or tax adherents of other religions, that should be left to the states in Scalia's interpreation of the Constitution. NOTE THAT ON THIS PROPOSITION THERE IS NO QUESTION MARK AS JUSTICE SCALIA AS ALREADY PROVIDED HIS OPINION ON THIS ISSUE ON A PANEL DISCUSSION SHOW ETHICS AND RELIGION IN AMERICA.

By J.E. Fink on 2013 06 27, 4:52 pm CDT

@11 - Frankly, at least with the last point, that would actually (for once) be an Originalist result. The First Amendment never applied to the States until the Incorporation Doctrine was invented later. None of the states that formed the Union did so under a belief that the First Amendment applied to state laws or restricted state powers.

Now, I think Incorporation is a good thing for all of us as citizens. But as a legal issue, it's a raw exercise of judicial power with very shaky framework.

By Anonymous on 2013 06 27, 5:00 pm CDT

The majority opinion was very thinly reasoned. The holding is essentially this: "Well, the federal government can trump state definitions for some purposes on a piecemeal basis, but since Congress tried to enact a uniform definition for all federal laws and the name "Defense of Marriage Act" sounds bad, we decide for the plaintiff." Yesterday was a very dark day for America.

By jdj on 2013 06 27, 5:43 pm CDT

You're so cute. You must not have read the opinion.

By Anonymous on 2013 06 27, 5:51 pm CDT

I have mixed feelings about this because the situation is so complex. My public policy opinion is that I am an equal to any other adult and therefore should not tell them how to live their life unless it specifically harms someone or something. I don't see how gay marriage, incest, adultery, bigamy, sodomy, and prostitution hurt anyone as long as it is consenting adults. So I say they should not be regulated.

Legally though, I am troubled. Wasn't one of the first things we learned in law school that the states have police powers including "morals." Isn't this a "moral" issue for the people who vote against it? Isn't any "morality" law necessarily going to make the people who want to engage in this "immoral" activity feel "disparaged," "injured,” “demeaned,” “imposed upon inequitably,” and “stigmatized?” I think that is what Scalia is saying. So have we abrogated the police power of imposing morals? If so, I am fine with it. But lets be honest about what we are doing. It seems the only police powers that are constitutional now are "health, safety, and welfare." Any acts that are not consensual can certainly be precluded though those powers.

I think you are looking at this issue through an impassioned lens. I doubt you will find anything where Scalia says those things are morally similar. It seems to me the list is a list of sexual acts that are or have historically been outlawed.

Seems like you agree with me politically on this issue and I agree with you that we should have done this democratically. It is troubling that these SCOTUS decisions are so wide sweeping when it is only 9 people speaking for a whole nation of 300+ million and the decisions are often politically slanted.

By AzAttorney on 2013 06 27, 6:45 pm CDT

I still don't understand how DOMA was ever constitutional. How can you bar a person from entering a contract based on sexual orientation. That isn't equal protection under the law.

By Marc on 2013 06 27, 6:45 pm CDT

That is a huge simplification. You can "enter into a contract" regardless of sexual orientation. They can live together, split bills, plan their estate, own property, etc.

However, many contracts are illegal despite both parties being agreeable. Contracts for prostitution, drugs, bodily organs, indentured servitude, etc. The difference I believe is that some people see homosexuality as "immoral" like many people feel prostitution is immoral. And some people feel homosexuality is not immoral in the slightest. These two groups will never agree legally because of this fundamental morality disagreement. So if we abrogate morality as a police power (democratically preferably), there will be no argument because gay marriage does not negatively effect health, safety, or welfare.

By AzAttorney on 2013 06 27, 7:02 pm CDT

@17 -
A) I don't think that's really Marc. Or maybe it's someone new who picked the same name?

B) The problem is that there's nothing about contracts at all here. In fact, many parts of marriage can be replicated with contracts under state law. The issue is non-contractual government benefits.

By Anonymous on 2013 06 27, 7:20 pm CDT

"I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square. His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history." Francis Cardinal George

By Yankee on 2013 06 27, 7:23 pm CDT

@1: "Those Who Practice Bestiality Say They're Part of the Next Sexual Rights Movement"

By Tyrone on 2013 06 27, 8:13 pm CDT

Comment removed by moderator.

By AndytheLawyer on 2013 06 27, 8:57 pm CDT

Back to the topic, folks! Also, this "Marc" is indeed a different user than the "Marc" who commonly comments on stories. Just to clarify.

<b>- Lee Rawles
Web Producer</b>

By Lee Rawles on 2013 06 27, 9:05 pm CDT

Comment removed by moderator.

By Pushkin on 2013 06 27, 9:55 pm CDT

Variation on a theme of mScalia:

“State laws against

ok : bigamy,

o.k. except create a word for it : same-sex marriage,

o.k. : adult incest, but in Ohio adult parent→adult child and adult step-parent→adult step-child incest is <b>NOW</b> unlawful

o.k. : prostitution <sigh>

o.k. : masturbation : as I understand , Ohio law forbids A.B. , age 18 from masturbating C.D., age 17.31416 ;; YET if A.B. and C.D. are both under thirteen and there is no force ; no harm no crime .

o.k. adultery <sigh>,

o.k. fornication, <B>< SIGH ‼ ></B>

o.k. bestiality – if animal participant is a mountain gorilla or a cape water buffalo and there is an issue of consent ,, I opine that both are well capable of communicating “No.” even though unable to speak English .

obscenity it depends ::
If it is I accusing a rogue ♂ judge of having a chronic incurable Oedipus complex , then he needs to lighten up ;
If it is a rogue judge prostituting the oath of office then the obscenity is the tyrannizing by judicial fiat and he or she needs a bag job (either head or body) but such sanctions may be unlawful.

... every single one of these laws is called into question by today's decision,” he wrote.

Benevolent anarchy where ever person is kinder to all others than they are kind to the person would work .

By Docile Jim Brady – Columbus OH 43209 on 2013 06 27, 10:06 pm CDT

Comment removed by moderator.

By Yankee on 2013 06 27, 10:28 pm CDT

@ 15. AZATTORNEY. Prostitution often is not consenting adults. Many young women are truly forced into prostitution. fact.

By loathetocomment on 2013 06 28, 4:37 am CDT

Comment removed by moderator.

By J.FINK on 2013 06 28, 4:58 am CDT

State laws against masturbation are called into question by everyone who finds out that there are state laws against masturbation.

By quilty on 2013 06 28, 8:59 am CDT

There is a difference between harming those who would desire same-sex marriage and denying them the "marriage" word. Give them all of the contractual rights that married couples have but "for God's sake" please do not call it marriage. Of course since you do not believe in the concept of God then to Hell with Marriage. Oops, no God no Satan, no Hell. As for the idiot that believes that if a Justice is appointed by a republican he will then vote conservatively, he just ignores the facts. However, the same does not appear to be true for democrat appointees. It was hoped that SCOTUS appointees would rise above politics. Maybe the original concept but we live in a different world not necessarily a better one.

By blackjack on 2013 06 28, 9:34 am CDT

Folks, don't shoot the messenger....Justice Scalia is dead on point. Such issues are "reserved for the States". I frankly don't care about the issue at hand, but rather, care about the Bill of Rights, specifically, the 10th Amendment. Why have it? Let's just go to a pure Federal System of government and let the Legislative Branch, the Executive Branch, and the Judicial Branch just decide it all, for all of us..."One Nation, under the Three Branches of the Federal Government, indivisible, with Liberty and Justice for All."

By Jay Tome on 2013 06 28, 10:08 am CDT

kennyg, intentionally snarky, or not, your comment cracked me up. I'm old enough to remember the 1964 race between Barry Goldwater and Lyndon Johnson, and one memorable (to me, at least) photo published in (I think) Life Magazine: It showed a billboard bearing Goldwater's picture, and his campaign slogan "In your heart, you know he's right." Some witty hoodlum had scaled the structure, adding a spray-painted postscript: "Yes. FAR right".

By noel on 2013 06 28, 10:38 am CDT

For opponents of gay marriage, the choice is clear: Don't marry a gay! Beyond that it is none of their business.
Before gay marriage was legal, there was plenty of gay marriage, except that gays were marrying straight people. Now gay people can marry the people they want to marry--other gay people--and straight people have less chance of finding out that they are unwittingly in a gay marriage. Used to happen all the time.

By Smith on 2013 06 28, 11:58 am CDT

I would just like to say that I will be overjoyed to be able to attend the wedding of my brother and his boyfriend of 16 years, in the near future. They deserve it; with couples marrying and divorcing these days like it's a revolving door, I think that a long-standing, loving relationship between two consenting adults should be able to be made legal, and allow for federal benefits.

By Rachel on 2013 06 28, 12:05 pm CDT

Hmm, lets see: in Loving v. Virginia (338 U.S. 1), a state law prohibiting interracial marriage was deemed to be unconstitutional, and overturned as in effect, preempted federally. In Windsor, a federal definition is in effect held to be subordinate to, and overruled by a state law (that was not even in force when the federal law was written).

This is a poor, emotion-based decision, and continues to call into question the relevance of the SCOTUS.

By Riffmeister on 2013 06 28, 12:28 pm CDT

Comment removed by moderator.

By Pushkin on 2013 06 28, 12:34 pm CDT

We are well into the age of Newspeak when a defense of traditional marriage/morality is popularly characterized as an attack. Traditional marriage confers a wide variety of societal goods and should be encouraged.

By AltheDago on 2013 06 28, 12:35 pm CDT

I see a lot of snarkiness, disrespect, and disdain, but I don't see anyone willing to put their credibility against his and publish a response pointing out why his predictions are wrong and making their own predictions. And we all know why: he's right.

By associate on 2013 06 28, 12:38 pm CDT

@ 34 - Riffmeister - I take it from the way you put your point (strange citation format, misuse of "preemption"), you're not a lawyer. The Constitution has an Equal Protection Clause and it played the major (and same) role in both Loving and Windsor. Constitutional analysis does not end with the identification of the sovereign that enacted the law being challenged.

By Pushkin on 2013 06 28, 12:46 pm CDT

@34 - See comment #38; Mr. Pushkin seems to have you under control. Your simplistic analysis is basically a bad trolling attempt. (It appears it worked, since we're correcting you, so well done.) You should try reading the opinions. And the Fourteenth Amendment.

By Anonymous on 2013 06 28, 12:58 pm CDT

The Constitution really, truly and sincerely is dead. Constitutional Jurisprudence is a sham and it has been for a while. We are living in a Post Constitutional Age.

When one of these gals or guys puts her or his right hand up and swears to "preserve, protect and defend the Constitution of the United States" what they are really saying is that 'I'll do whatever I can get away with." When the Constitution is cynically seen as a Rorchack Inkblot by the ruling class and words have no set meaning, it easy to see how this happens.

The robes, the finely appointed Courtroom, the elevated bench and stiff formality, are all props intended to convince the 'little people' that the rule of law in our nominal Constitutional Republic is alive and well. To me, this seems to be money well spend since voluntary adherence by most of the population to the rules promulgated by the instrumentalies of government, is much cheaper and more effective over the long run than compelling adherence through the force of arms.

Still, I wonder what will happen as the years roll on and more and more people wake up and realize that this is all a canard? Will there be a point in time when a critical mass of the population - - possibly whole regions - - no longer voluntarily adhere to the edicts of government such that the system, which is predicated upon voluntary cooperation, begins to collapse? If national government takes its cue from governments in other lands and other times, it will take an increasing authoritarian approach to enforcing it laws. At that point in time, the ability of a supposed government to enforce its rules would simply be a function of who has the guns and the willingness of its human agents to put themselves in harms way.

Finally, centuries from now, when historians study the nation that once existed in this piece of the North American Continent, I wonder if they will be able to connect the destruction of the family and the resulting decline of the culture, with the collapse of the constitution and the rule of law?

By Yankee on 2013 06 28, 12:58 pm CDT

@37 - No. No one here believes his prediction is true. Scalia hasn't cited anything in support of his bizarre prediction of a future where it's legal to go out and rape puppies in front of orphans simply because gay marriage is legal. Nor do I feel obligated to cite anything in opposition.

By Anonymous on 2013 06 28, 12:59 pm CDT

All this talk about "traditional" marriage makes me sick! Hetero-only marriage is a monopoly created through the historical oppression and persecution of a minority. It's like saying that white-only public schools in the South prior to the Civil Rights Act were a tradition!

By Non-oppressor on 2013 06 28, 1:02 pm CDT

I'm far beyond whether being gay & living the gay-lifestyle is morally right or wrong by now..

What it truly boils down to is the question of equal marriage rights for:

health benefits,
insurance discounts,
tax breaks,

and so forth. What do you think about that?

By Oliver Klosov on 2013 06 28, 1:04 pm CDT

How sad...look how divided we all are....look how divided a nation and people we have become....I can actually feel the hatred, the sarcasm, the "personal agendas" in all your comments.....folks it is simple......that which does not unite us, will divide us....." "A House divided, cannot stand......" I warn all of you of this: Democracy in America will not die as a result of some revolution or will die the day the Executive Branch, the Legislative Branch, and the Judicial Branch, no longer act independently, but rather act in union of a common "political agenda". Then and there my friends will be the end of democracy in this country. Again, " a House divided cannot stand"...and this House will fall.

By Jay Tome on 2013 06 28, 1:09 pm CDT

@40. "Will there be a point in time when a critical mass of the population - - possibly whole regions - - no longer voluntarily adhere to the edicts of government such that the system, which is predicated upon voluntary cooperation, begins to collapse?"

You see a glimpse of this happening in states that passed gun control legislation in the wake of Sandy Hook. Sheriffs refuse to enforce the law, often based on valid reasons (life, liberty, property). Once there was public trust that a court would do the right thing and strike down a statute that had no rational relationship to the intended societal ill; however, today, the courts are as politicized as the other two branches of government.

By CT Lawyer on 2013 06 28, 1:10 pm CDT

The very name "Defence of Marriage Act" is bigoted! The name defines homosexuals as undesireables who must be defended against. What, an additional 3% of couples being added to the marriage roles? Man the ramparts! We must defend against that onslaught!

What, really, is being defended against? How would allowing homosexuals to be legally married do anything bad to the institution of marriage? All I see is bigoted members of the majority trying to keep people they consider to be undesireables out of their private club.

By Non-oppressor on 2013 06 28, 1:10 pm CDT

@45 - But keep in mind that those comments are all relative to your personal opinion. To most of us, the only shocking thing or "canard" here is that the courts waited for public opinion to catch up before enforcing the text of the Fourteenth Amendment.

By Anonymous on 2013 06 28, 1:12 pm CDT

Putting aside the fact that some of the laws that could be called into question ought to be, Scalia does have a half a point about bigamy. Unless one accords gay people quasi-protected class status, the reasoning for striking down laws against bigamy or polygamy are largely the same as the ones for striking down laws against gay marriage.

I'm not saying that's a good thing or a bad thing, it just is. To the extent bigamy laws protect young women from coercive marriages, (1) we certainly can achieve that goal by less intrusive means and (2) how is that different from coercive marriages with a single partner?

By Tim on 2013 06 28, 1:17 pm CDT

Romans Chapter 1, Verses 26 and 27

By Hugh Palmer on 2013 06 28, 1:21 pm CDT

@48 - I'll give you that. There is a serious discussion to be had about whether or not there is a rational basis beyond naked morality for that.

Interestingly, we only get *in* this pickle because of legal benefits given to persons entering certain relationship arrangements. If you cut out those legal benefits entirely and make marriage a completely non-legal arrangement, a lot of these problems simply disappear.

But of course, that's never going to happen. The federal government doesn't have the power to make that happen at the state level (nor should it), and the states probably aren't ever going to do anything like that.

When it comes right down to it, the truth is that this is way more about public tolerance and acceptance than the law. That isn't the way it *should* be, but it is. There are excellent arguments about poly-marriage and whether or not there's a rational basis involved -- on both sides. But it comes down to this: there will probably never be the groundswell of public support that it apparently (and unfortunately) takes to get the issue seriously and fairly considered before a court.

Or that's my opinion. And we all know what opinions are like.

By Anonymous on 2013 06 28, 1:24 pm CDT

Here's a thought: What do you care? How does this affect your day? The guy in the car next to you at the stop light is married to a dude - and? I understand that some of you may find a gay marriage weird or odd and possibly immoral because of your interpretation of a passage in the Bible. Let me remind all you biblical scholars of a few other things the book of Leviticus bans:

Trimming your beard or cutting your hair at the sides is also frowned upon (19:27); cotton-polyester shirts (mixing fabrics in clothing) and Labradoodles (cross-breeding animals) are also abominations (both in verse 19:19); eating fruit from a tree within four years of planting it is a sin (19:23); not standing in the presence of the elderly (19:32); mistreating foreigners (maybe with different religious beliefs) - Whaaaaat? (19:33-34)

Anyways, the point is this. How does this ruling change your day? Do you need to change YOUR behavior? Do you need to do something different today? Just letting other people be happy - maybe happier than you, that is the real killer isn't it?

By Matthew on 2013 06 28, 1:24 pm CDT

@51 - Wrong. Windsor gives us the right to forcibly redecorate your home or office. With a warrant signed by the Court of Fabulousness, we can restructure your wardrobe at gunpoint. While making you listen to showtunes. Or Cher. The end is nigh!

By Anonymous on 2013 06 28, 1:27 pm CDT

The trick here is for some of you to figure out that it is not about gay marriage but a much more sinister agenda on the part of the "progeressive" left. They don't care about gays. The do care about advancing the progressive agenda and a secular society, but they don't care about gays. Remember, liberalism is a totalitarian philosophy.

By BJJT on 2013 06 28, 1:27 pm CDT

@37 associate, I appreciate your remarks. They are on-point.
@14 Anonymous, there is no need for your sarcasm. Free expression of thoughts is expected in a sophisticated society. You opine about everything other than the holding. Perhaps you migth re-read Lawrence v. Texas to better understand how Justice Scalia analyzes the issues. You might not agree with the Justice's reasoning, but at least you can carry on an intelligent conversation about it without the prepubescent insults. Moreover, put a name to your posts to avoid the label "coward."
Regrettably, the Court no longer has Originalist Justices. The past 50 or 60 years of liberal judicial activism is starting to rear its ugly head into the mainstream.

By MAZZLAW on 2013 06 28, 1:29 pm CDT

"Letting the states decide" would leave us with miscegenation still a crime in many southern states -- there being no shortage of "biblical" and moral arguments in favor of it, prominently featuring the notion of "preserving the sanctity of marriage". And while Scalia gives lip service to Loving v. Virginia being correctly decided, the cognitive dissonance rings loudly: the framers of the 14th amendment were largely opposed to miscegenation, which was widely outlawed at the time -- even in northern states -- and their "original intent" is pretty damned obvious.

Scalia's originalism being an unreliable guide, I do find it possible to predict almost all of his opinions, simply by applying the general rule that "America was perfect in 1955."

By Ham Solo on 2013 06 28, 1:31 pm CDT

@47. You've made my point, thank you.

For example, try to reconcile Justice Ginsburg's rationale that Section 4 of the 1965 Voting Rights Act is constitutional since it was renewed in 2006 with overwhelming Congressional support (390-33; 98-0). Yet, when it came to DOMA (also a federal law that received overhwleming bipartisan support), she favors states rights all of a sudden. This is results-oriented jurisprudence, plain and simple.

By CT Lawyer on 2013 06 28, 1:33 pm CDT

@13--very true. it was the type of poorly reasoned, results oriented decisions everyone should expect from the liberal wing. I support gay marriage but this ruling didn't do any favors for anyone.

Judging from the immediate "you're so cute" comments responding to you the left has lost all ability to formulate a cogent argument and only has sarcasm in its arsenal.

By silencedogood20 on 2013 06 28, 1:34 pm CDT

Most of the comments railing against Scalia's observations are based on the substance of this particular case and not the broader legal principle. I am thrilled that DOMA is gone, and I wish the Court had taken up the 14th Amendment analysis in the Prop 8 case and made marriage equality the law of the land. That being said, at a minimum, Scalia provides us with some serious food for thought. Consider your own pet issue and imagine the Court exercising its purportedly broad powers to adjudicate where, as here, (arguably) no issue truly is joined and issuing a decision contrary to your beliefs. This all reminds me of how the Left and Right complain about government intrusion but only into those areas where they, respectively, don't want it. The Left want to government to leave a woman's body alone, but have no problem with the government raiding her pocketbook. The Right take the obverse position. Bottom line: if you give any branch of government power, that power will be used upon you, perhaps in ways you don't like and assuredly in ways you don't foresee.

By JRM on 2013 06 28, 1:34 pm CDT

@54 - If you appreciate those remarks, then you appreciate his opinion, not the merit of the analysis. Because the analysis is dead wrong. The lesson of the cases is that it doesn't matter who the sovereign is -- no sovereign acting within its lawful authority can exert that authority in a discriminatory manner prohibited by the U.S. Constitution.

Yes, I could have been less snarky. But really -- you can only draw opinions like that with the most shallow, C-level understanding of Constitutional Law, and I guess I just haven't had my morning caffeine yet. So I apologize for my testiness.

In my view, Mister Scalia's "analysis" consists of figuring out what his personal moral or political opinion is and finding creative ways to get there. I'm sure that reasonable and intelligent people can disagree.

I do agree with you on one thing -- there are no originalist justices left. If there were, the Bill of Rights would still apply only to the Federal Government, after all. I would go further -- there have NEVER been "Originalist" justices on the Court. Not even in the beginning.

By Anonymous on 2013 06 28, 1:38 pm CDT

@57 - Actually it's because even a casual reading of the syllabus will tell you that #13's comments do not accurately reflect the substance of the opinion at all.

I'm fine with criticizing the writing or the reasoning, but his summary of it is just flatly incorrect.

By Anonymous on 2013 06 28, 1:39 pm CDT

@49 - This is a legal discussion not a bible study. However, since you brought up the "good book" I am sure that you must also agree that divorce should be illegal, right? I mean take a look at Matthew Chapter 19.

I'm sure you also agree that slavery should still be legal, right? Leviticus 25:44-46; Exodus chapter 21

By AtticusFinch on 2013 06 28, 1:48 pm CDT

Why is it even remotely surprising that Scalia writes that the "states" and it's "people" should decide this type of question. That is what the constitution states.

It is always hard to be legally correct when people instead want to force their moral opinion on someone else.

And Yankee - I agree with you but I think it's the politicians we need to worry about more than the the Supremes. The Supremes are only given what legislatures give to them.

By Two to Beam Up on 2013 06 28, 1:57 pm CDT

@53, coming on the heels of @52 -- that's priceless.

By Ham Solo on 2013 06 28, 1:57 pm CDT

@63 - I think you mean "fabulous."

By Anonymous on 2013 06 28, 2:02 pm CDT

Isolde #3, agreed. It's a contradiction. You have to pay attention to what he says because he's a Supreme Court justice. But otherwise he's just an ordinary dogmatic hypocrite who in a remotely ideal would simply be ignored.

By Wortmanberg on 2013 06 28, 2:08 pm CDT

At the end of the 19th and beginning of the 20th centuries in parts of Louisiana the people used to express their sentiments toward individuals of Italian descent with a long drop at the end of a short rope. Is that the kind of states rights he's talking about?

By rosslaw on 2013 06 28, 2:09 pm CDT

Scalia's defitionion of "Freedom": the right of the government to get into your bedroom.

By adel on 2013 06 28, 2:19 pm CDT

All this talk about morality and quoting from the King James edition of the Christian bible only demonstrates the point that DOMA and all other laws prohibiting homosexuality (not to be confused with bestiality, fornication, pedophilia, polygamy, and prostitution) are based purely upon a particular religious viewpoint, not upon a rational basis, such as health or public welfare.

The reason we have legal recognition of marriage, which is properly regulated by the states as the decision recognized, is to provide a legal framework for the equitable division of property after dissolution of the relationship or the death of one of the parties and for the care of minor children resulting from the relationship. Are there spiritual reasons for entering into a marital relationship? Of course, but adopting a particular religious viewpoint of marriage is not necessary to provide legal recognition of rights and responsibilities of the parties by society.

I don't see how encouraging loving same-sex couples to formalize their commitments to each other hurts society. The DOMA decision strikes me as being pro-State, pro-marriage and pro-family.

By Moderate Maven on 2013 06 28, 2:19 pm CDT

Under the majority's logic, what rational basis is there for a law prohibiting polygamy and communal marriages? It would be so much better if the government would get out of the business of sanctioning marriage of any sort. Let the people decide without government involvement.

By Healthynut on 2013 06 28, 2:53 pm CDT

What comes around goes around. Scalia's dissent will stand the test of time. Lefties will raise it high when the Court picks up a darling issue of the Right, which through contrivance will arrive at the Court despite the fact that there is no case or controversy to be decided. It is unfortunate for those in favor of gay marriage that the victory is, in a very real sense, tainted. For Californians, whose state constitution provides for direct referendum, the companion case on Prop 8 effectively nullifies that provision. If the A.G. opts not to enforce a California law enacted by a valid referendum, apparently there is no representative of The People with standing to enforce the law.

By JT Leone on 2013 06 28, 2:55 pm CDT

@70 - You let us know when Scalia's parade of horribles comes true. Then you can say his bizarre prediction that gay marriage will allow people to rape and pillage with impunity "stood the test of time."

Gay marriage has been legal in some states for quite awhile now. And I assure you that in those states, people are not out in the streets molesting whatever is unfortunate enough to happen to be in the vicinity.

Maybe -- just maybe -- we could actually draw on objective experience, rather than bandwagoning around (or even against) Scalia's bizarre and completely speculative apocalyptic prophecies?

By Anonymous on 2013 06 28, 3:00 pm CDT

In my area two consenting adults have come forward to legitimize their relationship. They are brother and sister. No lie. I personally found it absurd.

By John on 2013 06 28, 3:00 pm CDT

#71 - I never said anything about a "parade of horribles." Let's get past the emotion, eh? Scalia offers a challenge: find another case picked up by the Court that had even a remotely similar procedural stance. The Court stepping in here was ill-advised. It bodes badly for both sides of any future, politically charged debate whose ultimate resolution should either (a) be left to other branches of government; or (b) be decided by the Court in the context of a dispute in which the appellant actually disagrees with the appellee.

By JT Leone on 2013 06 28, 3:10 pm CDT

#40 -- "Destruction of the family"? Nah. Overturning DOMA expanded the "family"........and it has no impact whatever on your or anyone's rights to marry someone of the opposite gender, live and raise your kids as you see fit.

By AndytheLawyer on 2013 06 28, 3:13 pm CDT

@48: There are legitimate reasons for striking down bigamy or polygamy. The state has a legitimate interest in legal certainty - knowing who has the right to make health care decisions for an incapacitated person, who inherits if a person dies intestate, etc.

Limiting legal marriage to one person (of whatever gender) makes it clear who the spouse is for numerous benefits and decision-making powers, and doesn't violate equal protection. Expanding legal marriage to an unlimited number of co-spouses interferes with those legitimate interests, and likely violates EP.

For example, can the state allow legal polygamy but say 'only the first spouse gets to be claimed as spouse for purposes of tax deductions, all other spouses have to file separately'? Not likely - that's giving unequal protection to legally married persons who don't happen to be the first (or oldest, or whatever). Same with decisions - if the law is going to recognize multiple spouses, then what happens when 2 say 'pull the plug' and 2 say 'keep alive at all costs'? The law will have to recognize all as equally valid. Even if it's 2-1, the law isn't giving the 1 the same protection that spouse would have in a 1-1 marriage if it says 'majority rules.'

Religious marriage is different - have all the spiritual spouses you want. But the law has good reason to recognize only one of those for legal purposes.

The government doesn't have a legitimate interest in denying people the right to legally marry the one person of their choice simply because that person is the same gender. It does not follow that the government doesn't have a legitimate interest in limiting legal marriage to one person; in limiting legal marriage to persons who are separated by a number of degrees of relationship; in limiting the age at which one can consent; or in limiting the species that can consent.

By KJS on 2013 06 28, 3:14 pm CDT

@75 - I think that's a very good rundown of some of the potential rational bases for prohibiting poly-marriage.

By Anonymous on 2013 06 28, 3:19 pm CDT

One thing i've noticed is that unless I read about a Supreme Court decision, there is no indication in my day to day life that they even exist.

By You call this coffee!? on 2013 06 28, 3:35 pm CDT

@68. Finally, someone nailed the essence of the decisions and why the two cases were heard together: SHOW ME THE MONEY! As a Californian, the best interpretation of this was to say loud and clear that outside money cannot be used to usurp our laws. To whit: keep your sticky hands off our rule-making process! Arch-conservatives tried to hijack the progressive California proposition forum to make rule on same-sex marriage. And it backfired! If a Proposition is deemed illegal, badly written, etc. it goes through court challenges. Quite a few Propositions have been invalidated over the years. Essentially, SCOTUS held that States have the right to make their own laws regarding marriage and DOMA is unconstitutional because it does not treat all people equally. In a government based on separation of church and state, such a law is questionable.

What we should be talking about is how access to federal money has been expanded and what will likely happen to reduce those benefits. Means testing?

Justice Scalia has been ranting in his schoolboy snarkiness what?? I agree that it's more a demonstration of his own egocentricity than legal analysis. It's embarrassing. Or it should be but then he's the center of his own world. He should have join the priesthood and then been a member of the Curia.

The comment equating a vagina to a purse is ludicrous! You must be a man.

By o'yeh on 2013 06 28, 3:36 pm CDT

All it takes is for me to read comments on this website to disabuse myself of the notion that my fellow attorneys are generally well-educated, broad-minded individuals who seek to maximize liberty and equality. To those of you who are complaining that SCOTUS overstepped its bounds by ruling that part of DOMA unconstitutional, I would remind you that it was in fact the US Congress that overstepped its bounds by making a federal issue out of marriage, which correctly has been the province of the states since the beginning. And, once more, I would ask those of you who oppose same-sex marriage because of the claimed detrimental effects it will have on society: Where is your proof? Where is the proof that allowing SSM will prevent heterosexuals from marrying? Where is the proof that it will cause more children to be raised in anything less than a two-parent household? Even households of two opposite-sex parents? The fact is that you can't point to any evidence for your assertions because there isn't any! At the federal court trial on this matter, the proponents of Proposition 8 utter failed to carry their burden to show a legitimate state interest here. You keep repeating these lines, but you really don[t have any substantiation for them.

By OP on 2013 06 28, 3:47 pm CDT

@38 & 39 - this is not a trolling exercise. The inconsistency in analysis by the Supreme Court is striking -- all in the name of political correctness. As many have eluded to here, the minority has a much more credible, reasoned analysis in this case.

Further, there will be a cost, to every taxpayer. We will all pay more, as a new class is awarded federal benefits. There is nothing to keep this from being extended to plural marriages, and certain incestuous marriages. It doesn't take a groundswell of public support to change the longstanding will of the people, only an activist judge.

The now inherently political nature of the SCOTUS demeans the institution and calls into question its future relevance.

By Riffmeister on 2013 06 28, 3:58 pm CDT

@12 - incorporation was indeed invented later, absolutely true. About 1866, by John Bingham. The privileges & immunities clause of the 14th Amendment was specifically designed to prevent individual states from abridging rights that individuals have against the federal governemnt in the first eight amendments of of Bill of Rights.

In the historical context, there was a dispute over the reach of the power of the federal government. The people in the blue uniforms won. Sorry.

The histronics started in the Slaughterhouse Cases shortly thereafter, when the SCOTUS was taken over by folks who didn't like black people. We've been living with that (and having to do gymnastics around it) for over a century.

Who gets it? Justice Thomas for one, in his dissent in McDonald v. Chicago.

By Incorporation? on 2013 06 28, 3:59 pm CDT

People have the will and ability to engage in whatever relationship they choose, regardless of whether any institution, whether it be governmental, social, religious, etc. chooses to acknowledge it. With respect to the marriage relationship, it seems to me that there is a societal benefit that comes from individuals who engage in a committed relationship that is oriented to bringing new life into our world through natural means. In addition to contributing to the next generation of citizens, if those who engage in this relationship, properly take on the concomitant responsbility of providing for the needs of their offspring, physical, emotional and otherwise, a likely result would be future productive and tax-paying members of sociey. This becomes a win-win for the couple and society in general. Those who engage in this relationship and fulfill their responsibility are rewarded by the many joys that come from thier children, but practically speaking, this comes only with a great expenditure of time and money, often including career sacrifice, with much of the benefit going to society by virtue of the offspring who become productive contributors. Encouraging and assisting those who undertake the vocation of parenting is wise for the government. Acknowledgement of the personal sacrifice and the societal benefits seems a logical rationale for the government to grant certain financial benefits to married heterosexual couples. It appears that the Justices siding with the majority have not considered this, and chose to presume that those who supported DOMA did so for hurtful purposes. Their conclusions appears to be based upon personal opinion, as their decision did not at all address any of the rationale behind any of the 1000+ governmental benefits they reference as being unfairly bestowed.

It seems also that members of the Gay community who are engaged in a monogomous relationship have recognized that a percentage of heterosexual married couples choose not to or cannot provide new productive members of society, and yet they receive the same governmental benefits as those who do. This appears to involve some unfairness on its face, and Gay couples would also like to reap the benefits that non-child bearing heterosexual married couples receive. Reason would dictate that if anyone should be complaining of unfairness in this regard, it should be those who have sacrificed. Rather than bestow benefits upon couples who have not made a significant sacrifice in time and money to provide future productive citizens, would it not be more logical and fair to take measures to take benefits away from those who should not be entitled? If part of the result of this decision is the granting governmental financial benefits to an additional class of people who have not made the contribution that the benefits were designed to acknowledge, that result will financially benefit only the additional class of people who have not made the contribution, and society in general will pay the bill to provide this financial benefit.

By Gerard on 2013 06 28, 4:01 pm CDT

@70: "If the A.G. opts not to enforce a California law enacted by a valid referendum, apparently there is no representative of The People with standing to enforce the law. "

This is and always has been the case. It's called prosecutorial discretion.
Your recourse is to vote in a different administration . . . provided you can get 'The People' behind you. Good luck getting more Mormon money for the campaign.

By Ham Solo on 2013 06 28, 4:15 pm CDT

I have no problem with recognition of legal equality of non-practicing homosexuals and heterosexuals, none whatsoever.

It is patent, however, that mere recognition of legal equality of homosexuals and heterosexuals is not the real goal of the homosexual movement. Rather, practicing homosexuals actually want recognition of equality of homosexual sex acts with heterosexual sex acts. To me and many other people, however, it is personally quite offensive that (i) a relationship between two people that cannot reproduce involving purely recreational oral sex, anal sex and other homosexual acts ever be equated in any measure to a marital relationship between a man and a woman capable of human reproduction, and that (ii) such a homosexual relationship ever be termed a marriage in any sense of the word.

Homosexuals indeed are entitled to legal equality of non-practicing homosexuals and heterosexuals, but not equality of homosexual sex acts to those sex acts of heterosexuals, nor to their immoral relationship in any way ever being called a marriage any more than the recreational sex relationships between a prostitute and a John or a farm boy and a sheep in any way ever being called a marriage. Such a proposition is very, very offensive to many, many heterosexuals that are married, and practicing homosexuals should be more sensitive to those heart-felt feelings.

Roger T. Yokubaitis
Houston, Texas

By Roger Yokubaitis on 2013 06 28, 4:16 pm CDT

@82: There are a number of infertile couples who might want to have a word with you. Standing in the same line are couples who have simply decided not to have children.

Let's imagine that the government adopts your position, and grants legal benefits (tax, insurance, inheritance, etc) on the basis of the presence of children in the household. You find yourself dealing with all those gay couples who've adopted kids or had children through surrogates. Will you fall back on anti-gay sentiment, or will you stick with your stated principles, and grant them the "legal' benefits of marriage?

By Ham Solo on 2013 06 28, 4:25 pm CDT

@84: Knocking "recreational sex" won't win many people over. Not even in the reddest of states.

By Ham Solo on 2013 06 28, 4:33 pm CDT

@ 41: I believe Scalia's predictions, i.e., that state prohibitions against same-sex marriage, whether express or implied, i.e., the state refuses to issue a license, are going to be eliminated. People seem to forget that the primary reason (well, at least aside from the political considerations) that DOMA became law was because legislators were concerned that the legalization of same-sex marriage in one state would eventually require recognition of that union by another state which opposed same sex marriage. Specifically, the worry was that Article IV, Section 1 of the United States Constitution, the "Full Faith and Credit Clause," which requires states to respect the "public acts, records, and judicial proceedings of . . . other state[s]," would be interpreted to mean "records" of marriages, a completely logical result, and the reason couples don't have to get remarried every time they relocate from one state to another in order to keep their legal status. The thought was that a federal law prohibiting government benefits would afford a sufficient buffer against challenges to state statutes due to the Supremacy Clause, i.e., a couple could not challenge a state law prohibiting same sex marriage where federal law (unconstitutional though it may be) at the time prohibited recognition of same sex marriage for federal purposes. The state would simply point to the federal law, and argue that its compliance. The Supreme Court's decision in striking down DOMA eliminates this barrier.

Let's think abou this for a second -- if I am married in Hawaii, and move to Georgia, I don't need to remarry because the presumption under the FF&C is that my marriage is also valid in Georgia. Once a resident of Georgia, however, it seems a stretch to me (and I haven't researched this, and am going solely on 17 years of intution) that Georgia can thereafter force me back to Hawaii (or some other state recognizing same-sex marriage) to (as only one example) obtain a divorce. In addition to the equal protection and due process considerations, such a decision would compromise a host of other Constitutional provisions. To the extent Georgia grants my application for divorce, it would implicitly recognize the validity of the marriage, raising the question as to how Georgia might enforce a ban against marriage between two individuals of the same sex in the first place. Seems straightforward to me. And I think that's what Scalia sees around the corner. I mean, suppose I'm gay, marry in Hawaii, adopt two kids, move to Georgia, and die 20 years later. Are my spouse and adopted children now divested of rights arising under Georgia state inheritance laws? Does Georgia have to apply Hawaiian law, even though I've been gone 20 years? That's a pretty convoluted result.

Given the glacial pace at which lawsuits take place, and absent any further rightward shift in the Court's membership, my guess is that any state prohibition against same-sex marriage will be declared unconstitutional within the next 6-7 years. The principles of the FF&C are simply inconsistent with state-specific prohibitions against marriage.

Frankly, it seems to me that the only (possible) recourse for so-called conservatives who desire to maintain the "sanctity" of traditional marriage is to call a union between a man and a woman "marriage" while calling a union between two people of the same gender a "union," yet still grant both unions equal legal status, on the premise that a party would be hard-pressed to make a claim for discrimination stick where he or she or they are entitled to equal rights and benefits and protections, and are simply arguing about how the state refers to his or her or their status. But the recent decision even seems to call that "solution" into question.

All this being said, I am unconcerned, and I struggle to understand those who believe that same-same marriage impacts their own marriages. I especially struggle to understand Scalia, when the day before the DOMA decision he ignored Congressional judgment, effectively concluding that discrimination against African-Americans is over -- because he knows better than Congress, who cannot save themselves from their collective judgment because of political considerations -- and that Section 4 of the VRA is no longer necessary because, well, he and four other judges say so. He's a hyprocrite of the first order.

By GALITIGATOR on 2013 06 28, 4:38 pm CDT

Ham Solo @83: Agreed that prosecutors have very wide latitude. But Prop 8 wasn't a criminal matter and it didn't happen in a vacuum. California's own Supreme Court declared Prop 8 a-ok. At that point, the folks in office in California have a duty faithfully to enforce the laws. Yes, they can exercise their prudential judgment as they see fit. But, as I noted above, had California actually defended against the federal appeal and lost, the proponents of gay marriage would have had a victory in which they could take pride. Instead, they get an asterisk; they didn't win on the merits. The court never even reached the merits.

By JT Leone on 2013 06 28, 4:43 pm CDT

@82- "Rather than bestow benefits upon couples who have not made a significant sacrifice in time and money to provide future productive citizens, would it not be more logical and fair to take measures to take benefits away from those who should not be entitled?" Wow, you presume so (too) much. Many of us did not give birth as a sacrifice to provide the state with future productive citizens. People with a desire to reproduce are driven to it genetically and maybe by their upbringing, i.e., wanting to have a family who love each other on this short journey on earth. Your argument sounds - really weird.

Furthermore, "more than 40% of US children are now born out of wedlock," according to, Catholic Online! - so no, marriage does not necessarily bring forth children, as you yourself recognized.

Then also please read the article as it explains the harms to children and society of children in single parent homes.

Then maybe put it all together and recognize that gay people will be gay whether or not their marriages are recognized. They will procreate with straight people if they want children, or they will adopt unwanted children, but those who don't want children will not have children, regardless of their sexual orientation. We should encourage children being raised by two loving adults, as opposed to one adult, or in orphanages, or by two abusive "straight" parents, etc...

Even if you are right that the recognition of and reward for marriage was designed for the provision of productive citizens, this purpose, again as you yourself point out, has long passed into oblivion. Second marriages without children? Third ones? Elderly getting married? nearly half of kids being born out of wedlock? Finally, there are far more than financial benefits bestowed to married couples (which are not that great to cause you to so worry about society footing the bill) - and nothing to prevent gay persons from providing children or caring for unwanted children.

I cannot understand the mentality (not saying you have it) of "you must have children" almost immediately followed by, "once that child is born we are socialists if we care for them."

I realize my thoughts are kind of all over the place, but your post was so strange it made me kind of crazy. I mean, really? You said,
"Those who engage in this relationship and fulfill their responsibility are rewarded by the many joys that come from thier children, but practically speaking, this comes only with a great expenditure of time and money, often including career sacrifice, with much of the benefit going to society by virtue of the offspring who become productive contributors."

There were no "careers" for women until not too long ago - I can't figure out if you are kidding or maybe you just are not in a marriage with children, your idea of the whole thing is so 'textbook' but I'm not sure which book you've been reading. Maybe you can enlighten us?

And P.S. LOL: rewarded by the many joys that come from their children. Children come with far more than "many joys."

By Anonymous on 2013 06 28, 4:45 pm CDT

@85 Thank you for reading my comments. My wife and I are infertile, and we have adopted.

The sentiments of my comments were not intended to be anti-anything other than anti-unfairness. Considering your hypothetical, if the proposed law was a Federal law based uon presence of children in the household, for example, because the children are presumingly being provided for and there is a governmental interest in this, then by defenition, all individuals with children in the household should benefit.

Analogizing this to the current situation, what if after the law was enacted, a State decided that "the presence of children in the household" also meant "the presence of more than one person in the household." Would it be appropriate or fair for a household in that State with only 2 adults to benefit from the Federal law?

By Gerard on 2013 06 28, 4:58 pm CDT

It is an undeniable biological fact that every human being, naturally conceived, who is walking the face of the earth today was the product of a heterosexual coupling and not a single human being walking the face of the earth today was the product of a homosexual coupling. It would seem that nature itself is calling out as liars those who equate the two relationships.

Just as important, in parallel with this undeniable biological reality is that men and women are ontologically different, and yet wonderfully complement and complete each other. Traditional marriage is the most perfect expression of this union and the very best vehicle to preserve and advance the human race into the future. This being the case, it is not surprising that traditionally governments have cooperated with Godband nature in supportingnand elevating Traditional Marriage. In contrast to what God has created, Gay Ideology is sterile, lifeless and pathetic.

God had it right.

Justice Kennedy not so much.

By Yankee on 2013 06 28, 4:59 pm CDT

@91: "God had it right" works for the Taliban. For the SCOTUS, you're right: not so much.

@90: We actually do have tax deductions for dependents, child credits, etc -- on further reflection, I realize that my hypo isn't all that hypothetical. From the point of view of fairness, I agree there's not much justification for giving tax breaks to people merely on the basis that they're in a marriage. Inheritance laws and insurance benefits are a different matter, and marriage in order to obtain those benefits is not at all uncommon these days.

Not sure what your analogy is getting at, though. If a Fed law says "child", it will certainly have a definition of the term. States might extend their own state benefits to non-children, but they wouldn't be able to deny children the federal benefits, nor grant the federal benefits (e.g. a federal tax deduction) to non-children.

By Ham Solo on 2013 06 28, 5:20 pm CDT

@54 - "You might not agree with the Justice’s reasoning, but at least you can carry on an intelligent conversation about it without the prepubescent insults."

When Justice Scalia engages in prepubescent insults by equating homosexuality to bestiality and incest, it is hard to respond to his position with an intelligent conversation. The only intelligent response to such a preposterous viewpoint is to laugh at it.

By NoleLaw on 2013 06 28, 5:28 pm CDT

#91 -- People are created through sex -- sometimes married, often not.

Your narrow view of marriage and its allegedly limited purpose profoundly insults me and my wife of 40 years, who for biological reasons could not and did not have children -- as well as countless millions of others worldwide.

By AndytheLawyer on 2013 06 28, 5:33 pm CDT

Save me your faux outrage, Andy: You're not "insulted" and you know it.

What you also know is that heterosexual couplings are qualitatively different from the physical encounters that homosexuals may have.

By Yankee on 2013 06 28, 5:54 pm CDT

@94 - Don't feed the troll. Just enjoy his tears of impotent rage as he watches the world move towards justice and equality, helpless to put it back under the heel of a hypocritical church.

By Anonymous on 2013 06 28, 6:02 pm CDT

@91 -- while many, in fact most, people, are created through sex -- heterosexual sex at that, not all people are created that way. I have three small people who were created without sex at all. Science is amazing. So as for your "undeniable facts" -- they are indeed deniable. My living proof are at home right now. And do recall marriage is not just about kids, having or raising them. There are no fertility tests required and no child-bearing mandates for married couples. That line of argument is a non-starter.

By Meauxmo on 2013 06 28, 6:03 pm CDT

@89 I think you are reading way more into my comments than I intended, and that's probably my fault. The underlying consideration in my comments involved possibe rationale for laws impacting marriage. The reasons my wife and I desired children and eventually adopted was out of desire to love and have a family. My personal desire for a family and parental instinct is not a governmental concern but how I act on that desire, i.e., becoming a parent, could be a governmental concern irrespective of the primary purposes for which I started a family, because from the government's standpoint, I am raising a future adult citizen. I did not state that you must have children but once children are born, we are socialists!!!!! Please don't put words in my mouth. I only recognize the practical fact that children are future adult citizens.

I was presuming only that the government would not enact laws impacting marriage without a legitimate governmental/societal purpose. I was addressing whether the impact of the Supreme Court decision on the laws it affected would be consistent with what would probably have been the rationale for at least some of those laws. I was also addressing whether the result of the decision would ultimately be fairness.

By Gerard on 2013 06 28, 6:10 pm CDT


Define what you mean by "naturally conceived."

I realize you run away every time you are asked to explain what you meant by a particular term or phrase but please show some spine this time around.

By Doodle Dandy on 2013 06 28, 6:36 pm CDT

". . . the world moves toward justice and equality . . ."

Is that what you see, Andy?

I see only sin and death, a world building on the body count of the last century which witnessed Godless governments continue to build their secular utopias.

And it will end the same way . . .

By Yankee on 2013 06 28, 7:17 pm CDT

We all know that fear inhibits rational thought Now we see why extreme conservatives so rarely can put together a rational thought. Their brains are working at a different level than those of most people, they are terrified.

By NoleLaw on 2013 06 28, 7:20 pm CDT

Hmm... That's a good point. I'll have to think about that.

By Anonymous on 2013 06 28, 7:23 pm CDT

@101 Exactly what is it about sodomy that makes you so think you are so superior?

By PamelaR on 2013 06 28, 7:36 pm CDT

@103 - Well, he doesn't assume that everyone who happens to disagree with his political opinions must be gay, for starters.

By Anonymous on 2013 06 28, 7:37 pm CDT

@104 - At least not until your Fabulous Police authorized by this decision kicks down our doors and forces us straight folks to adopt the "Gay ideology".

@103 - Your nonsensical non sequitur gave me a good chuckle, so thank you. Also, please look up the definition of sodomy. Chances are you do (or have) regularly engaged in it yourself. It usually leads not to feelings of superiority as much as relaxation and somnolence.

By NoleLaw on 2013 06 28, 7:42 pm CDT

thanks for trying @104, but you are the one making assumptions-and not letting others speak for themselves. He's a big boy. Let him answer for himself.

By pamelaR on 2013 06 28, 7:43 pm CDT

@105 - You wait, your days are numbered. Soon, your outfits will be color-coordinated and you'll have a fauxhawk. SOOON!

I wouldn't bother responding to the troll, I shouldn't have either. If she wants to raise an actual legal point, let her.

By Anonymous on 2013 06 28, 7:51 pm CDT

No worries feeding that troll, it was a funny first post on her part actually. W/r/t color coordination, my girlfriend would be thrilled. Too bad by then I suppose she will have a mullet, wear flannel, and no longer be able to pay any attention to me...

By NoleLaw on 2013 06 28, 7:55 pm CDT

Well, you've opened up a can of worms there. There's an inner schism in the community between lesbians and gay men. So depending on who wins, that's an option -- the alternative is personal shopping buddy for life. So she might not object!

By Anonymous on 2013 06 28, 7:57 pm CDT

@98 - I quote myself, "I cannot understand the mentality (not saying you have it) ....."

By Anonymous on 2013 06 28, 7:59 pm CDT

@105 Sorry you couldn't understand. Perhaps you should try using more common sense and not over thinking things.

By PamelaR on 2013 06 28, 8:02 pm CDT

I have yet to see an argument made based on the full faith and credit clause of Article 4 Sect. It seems to me that DOMA was in violation of that clause as the federal government failed to recognize marriages legally recognized in 12 states and the District of Columbia. To me that should have been the basis for striking it down. I have been somewhat surprised that no one other than myself has raise this issue in discussion and that it seems to be addressed tangentially in the Justice Kennedy's decision.
As for the religious arguments, religion should have nothing to do with the Court's decision. This country is based on the government not forcing a particular religious belief on its citizens. Half my ancestors left Europe to escape religious persecution. Yankee at 100 chastises us for Godless governments, I would refer him to the Holy Office of the Inquisition and the Thirty Years War, and existing theocracies such as Iran and Saudi Arabia. Do those who constantly cite religious belief as their basis for opposition to the Court's ruling believe they have a right to force their religious beliefs on everyone else?

By George Sly on 2013 06 28, 8:28 pm CDT

@53 You are right. No one should be celebrating this, but it's like they say, Nero fiddled while Rome burned. I also want to add that the author left out Scalia's comments on Kennedy, who called those who disagree with him or his view, "enemies of the human race". Liberals always resort to name calling, even those on the SCOTUS and the ABA web site. Talk about scared, NoelLaw. It's more like intimidation. People don't want to be called out as "enemies of the human race" or "haters" or ….. It's harder to speak out and it creates a chilling effect on debate, very much like calling someone a racist does. How has that worked out socially? Today, you can see all over the news, articles defending the prosecution's star witness in the Zimmerman case. Defending her lying, sassy, disrespectful attitude because she's black. How insulting! But I digress. Back to this issue. Legally speaking, if you can just change definitions on words then you don't really need a legal argument, do you? You @101 are a legalist and I do not mean that as a compliment. Study your history and we can meet up later to see where the Country stands. As far as my style, you, my friend, should not worry. If you'd like to SEE for yourself you can look at my facebook page. It's a bummer to know that not everyone who opposes you fits your stereotype.

By PamelaR on 2013 06 28, 8:43 pm CDT

@112 - I mean, the answer is simply this: Theocracy is apparently acceptable when one is on the winning side.

By Anonymous on 2013 06 28, 8:47 pm CDT

Actually, Nero was over thirty miles away when Rome caught fire. According to contemporary accounts, he immediately returned to begin relief efforts.

Now, whether or not he ordered the fire set in the first place is an open question...

By Anonymous on 2013 06 28, 8:55 pm CDT

@92 Under the analogy, if some or all of the 1000+ laws referenced by the Supreme Court in its opinion were enacted based upon a rationale that applied only marriage as understood throughout human history prior to their enactment, this would be analogous to there being a rationale for a law, under the hypothetical, allowing benefits to a household with children based upon what a child is commonly understood to be. New York changed the definition of marriage in that State, and now, apparently, those 1000+ laws may benefit people they were not intended to benefit under the rationale for their enactment, and if the rationale for the laws was sound, this would be an unjust result. Similarly, under the hypothetical, were a state to merely change the definition of "household with children", it would similarly be unjust to give the legal benefits to households with 2 adults because that would not serve the purpose of the law when enacted.

DOMA sought to insure that laws enacted under a rationale that applied only to traditional marriages would not be applicable under a subsequent definition of marriage to which the laws were never intended to apply. If the rationale for those laws was sound, and I beileve my prior comments suggest a sound rationale, injustice results where a change in the definition of marriage has the effect of broadening the applicablity of the laws to cover individuals to whom the laws were never intended to apply.

By Gerard on 2013 06 28, 9:41 pm CDT

@116 - Two problems with your logic:
1. Broadening of application =! injustice.

2. Broadening of application = justice when the application was limited in order to exclude a group in violation of the Equal Protection Clause.

By Anonymous on 2013 06 28, 9:48 pm CDT


"njustice results where a change in the definition of marriage has the effect of broadening the applicablity of the laws to cover individuals to whom the laws were never intended to apply."

Injustice? Seriously? What do you think "equal treatment" means?

Once upon a time, a whole lot of black people suddenly got the benefit of laws not originally intended to benefit them. As I recall, there was some fairly noisy complaining about that, too, before American society was seen not to be collapsing into a mongrelized heap of depravity. Gays are people, married gays are married people, and in spite of Scalia's fever-dreams, the world will not end because of it.

Cheer up. Think of the boost to the economy (albeit only in certain select states) provided by all those *fabulous* weddings! It's likely to be the only noticeable impact.

By Ham Solo on 2013 06 28, 10:41 pm CDT

@113: "the author left out Scalia’s comments on Kennedy, who called those who disagree with him or his view, “enemies of the human race”.

Those are Scalia's words . . . Kennedy, of course, said no such thing.

By Ham Solo on 2013 06 28, 10:47 pm CDT

Ham Solo,

You left out my qualifier "if the rationale for the laws were sound." When sound rationale for a law limits its applicabiliy, injustice can result from broadening its applicablitiy on an arbitrary basis, such as when a State's changing of the meaning of the term that represents the class to whiich the Federal law applies means that the Federal government now is required to apply the prior law in that State under the new definition.

With respect to equal treatment, I disagree with the concept that claiming that different things are the same is, on its own merit, a rational basis for treating them equal. Can we also define marriage as any 2 siblings who would like the Federal laws to apply to them? Would their marriage then, by virtue of the new legal definition, be the same as a heterosexual married couple. Should they then be entitled to equal treatment under laws designed to acknowledge the benefits to society of "traditional" marriage? Why not just define marriage as any 2 people who want the marriage benefits that the law grants. If we change the definition in that manner, would it be fair to grant them equal treatment too?

By Gerard on 2013 06 28, 11:42 pm CDT

@120 - You are missing a serious point there. There is a rational basis in biology for the government to do what it can to discourage consanguineous reproduction.

The restriction is not based in a naked will to discriminate against people for no rational purpose beyond naked morality and "ick factor."

By Anonymous on 2013 06 28, 11:57 pm CDT

The rationale for anti-miscengation laws was considered "sound" at one time, so that distinction doesn't get you off the hook. Times change, and attitudes change, as the young replace the old. Given the tolerant attitude of today's young people, broad acceptance of gay marriage is inevitable, just as interracial marriage became widely accepted decades ago. In another 50 years, bible-thumping about gay marriage will be as rare as bible-thumping about miscegenation is today.

I'm curious to know, who do you think suffers the "injustice" when some small percentage of "husbands" don't have the usual male anatomy (if you peek into their pants)?

Interesting concept, granting federal "married couple" benefits to any two people willing to enter into a legal marriage contract. Two siblings living together, raising a child ... sounds vaguely creepy until you realize that many single parents, widows, etc. probably do exactly that: move in with a brother or sister who's willing to help out. Call it something other than "marriage" and you can probably sell the idea of a legal agreement between the adults, in exchange for tax, insurance, and inheritance benefits. (If the siblings are the biological parents, that's a whole different problem, and different laws exist to address it.)

That last point brings up an inconvenient truth: conservatives are simply waaay too concerned about what's going on in people's bedrooms -- and most of them won't admit that that's the problem.

By Ham Solo on 2013 06 29, 12:32 am CDT

The state has police powers. Those powers include the power to regulate for the morals of the community.

Scalia wasn't personally endorsing or disapproving any of the particular acts. Rather, he was making the legal-historic argument that the Constitution is silent on these matters, that it reserves the power to the states. The states and the people in them can decide whether same-sex marriage, prostitution, bestiality, masturbation, and all the rest of it, promote good morals.

I don't recall a referendum stripping the states of this aspect of the police power.

The question then is, whose morals? The morals of the Harvard and Yale set? The morals of the Vatican?

I think Scalia would reject both of those. Instead, he would profess agnosticism and say the morals that matter are the morals as expressed in the legislation.

Naturally, this won't appeal to you if you think the police power includes morals. Furthermore it won't appeal to you if you think that the Constitution DOES say something about same-sex marriage et al. Scalia, and many others, think the equal protection clause is silent and that substantive due process is at work.

By LexLoci on 2013 06 29, 12:40 am CDT

@112: "Yankee at 100 chastises us for Godless governments, I would refer him to the Holy Office of the Inquisition and the Thirty Years War, and existing theocracies such as Iran and Saudi Arabia."

And the body count of the so-called theocracies you mention, pale in comparison with the many well-know Godless governments of the 20th Century - - - Stalin's Soviet Union, Hitler's Germany, Mao's China.

This is an argument that you'll lose by the numbers, George.

By Yankee on 2013 06 29, 12:59 am CDT

I disagree. I believe that Scalia would implement every word the Vatican said if he had his way. I think it a horrible feat of cognitive dissonance to think he does not endorse a particular set of morals and consider it his power (duty?) to force them on others -- all the while lying about how all the Founders magically agreed with him.

By Anonymous on 2013 06 29, 1:04 am CDT

@125 Anonymous

So, you are stating that he would betray his oath to the Constitution?

If you are then, in a way, you are proving Scalia right. For in his DOMA dissent he wrote, "It is hard to admit that one's political opponents are not monsters."

If you think someone's a monster then it's easy to think the worst.

By LexLoci on 2013 06 29, 1:21 am CDT

I think Scalia regards one authority as higher than that oath. From his lens, what he's doing is perfectly rational. He probably even believes his own reasoning.

I think he's many things, but I don't think he's a monster.

By Anonymous on 2013 06 29, 1:26 am CDT

@123: ". . . he [Scalia] would profess agnosticism and say the morals that matter are the morals as expressed in the legislation."

The morals of the citizens of New York, Massachusetts, Delaware, etc. ARE expressed in the states' legislation. Scalia's problem, clearly, is that they're not abiding by HIS morals. The man belongs in the Vatican, not on the Supreme Court.

@124: "They all do it, so it's OK"? Can't imagine what other point you're making.

By Ham Solo on 2013 06 29, 1:31 am CDT

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to con- demn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to "dis- parage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homo- sexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

By PamelaR on 2013 06 29, 1:42 am CDT


Justice Scalia dissent.

By PamelaR on 2013 06 29, 1:48 am CDT

I think you're romanticizing hate. No matter how you pretty it up. This law wasn't about marriage, it was about legal rights. You can keep the word. But you have to give people equal opportunities and privileges. Or you have to have a reason besides naked moral disapproval to do it.

By Anonymous on 2013 06 29, 1:49 am CDT

As more and more people find out that their family and friends are gay (and start to agree that they shouldn't be taxed upon inheriting their life partner's estates);
As more and more people realize that their own marriages are not an iota weaker by reason of same-sex neighbors who marry instead of coupling out of wedlock (and probably realize that their own marriages are stronger by reason of married heads of neighboring households);
As more and more people get past their "ick factor" involving gays (the way a majority has already done with their revulsion, morbid fascination, etc at so many other demographic groups like the disabled, developmentally delayed, and interracial couples);

the "morality" prevailing in America will evolve to the point where people will stop focusing on the genders or genitalia of their neighbors, and on the quality of the heart and soul in their households.

I think the widespread incidence of gay marriages is not merely inevitable. I believe it must inevitably result in an overall decline in promiscuity, in divorces of parents who way too belatedly face their own homosexuality, in bullying of orientationally-questioning adolescents, and in the stereotypical forms of gender-based domination or manipulation within marriages.

In other words, I think the rise of gay marriage will make everyone else's relationships of many types (not just life partnership) stronger and healthier.

By Avon on 2013 06 29, 2:07 am CDT

I meant to say, "people will stop focusing on the genders or genitalia of their neighbors, and START focusing on the quality of the heart and soul in their neighbors' households."

By Avon on 2013 06 29, 2:08 am CDT

" he wrote. Based on the court majority’s reasoning, “what justification could there possibly be for denying the benefits of marriage to homosexual couples?”"

He must have thought of SOMETHING over the intervening 10 years, right? I mean, he didn't join the majority, so there must be SOME legal basis for treating different people differently, depending on whether or not the sex you assume they're having is not the kind of sex you'd like to have yourself.

Is Justice Scalia in favor of revoking the right to marry from heterosexuals who engage in various acts of sodomy within the marital bedroom?

By James Pollock on 2013 06 29, 2:32 am CDT

Having clearly established the importance of allowing people state by state to decide on important issues like same sex marriage it is great to see that Justice Antonin Scalia believes the same about corporate personhood. I mean, after all, if he is not up for a national declaration that gays are human with equal rights (hello, US constitution!) then he definitely can not be up for a national declaration that corporations are human. Let us decide this issue state by state!

Oh, wait! I misunderstood. He is FOR the Supreme Court declaring corporations are people to the extent they can spend unlimited funds to jam up our political system (Citizens United). What a homophobic hypocrite.

By Nerissa Belcher on 2013 06 29, 3:13 am CDT

@123 - The problem with the 'morals as police powers' argument is that nevertheless a claim of legality on the basis of morals cannot be the end-all as far as federal constitutional analysis goes. Otherwise, all of the parade of past legislative horribles listed on this thread could have been justified merely on a morality basis. We're talking about marriage. A choice of who one wants to spend the rest of their life with; what better example of something that government should have to jump through a higher hurdle to regulate as a fundamental right of an autonomous and free human being? Or, as a minimum, why not require at least a legitimate arguable policy reason (to pass a meaningful rational basis review) in order to allow the state to prevent a group of people from marrying?

Or if you please, whether as a state you invoke morals or not, you should still have to pass intermediate scrutiny in order to discriminate on the basis of gender. The federal EPC still applies to all state law, constitutional or otherwise (and not even Scalia has been arguing that it shouldn't).

By NoleLaw on 2013 06 29, 3:29 am CDT

Hell, it has to pass a *rational basis* level of scrutiny, and no one's yet been able to offer one beyond naked morality that doesn't wind up a sobbing mess at the witness stand, trying to explain why his "expert opinion" is right despite the fact that the majority of experts disagree and his methodology is an obvious mess meant to reach a particular result.

By Anonymous on 2013 06 29, 3:32 am CDT

James Pollock, Nerissa Belcher, and Anonymous (134-137) -

You all might be intrigued to consider that Scalia was a dissenter in the Hollingsworth decision to deny standing to the Prop8 proponents. In other words, he joined three liberals in voting to decide whether there's a Constitutional equal right to marriage that bars Prop 8 - and, presumably, bars other states' efforts to ban same-sex marriage.

Presumably, he knew what he was going to say about that issue on the merits, and was as eager to say his piece as were those who would find exactly such a Constitutional right. I myself would love to know just what he'd argue.

By Avon on 2013 06 29, 4:11 am CDT

And therein lies the problem with Scalia.
You know exactly what conclusion he would reach -- the argument is only a sideshow.

By Anonymous on 2013 06 29, 4:16 am CDT

Scalia takes down the 'Gaystapo' thought police with a particular keenness of insight and disregard for empty pretentious preening prose - that graces his better writings as landmarks in American Jurisprudence - even in Dissent...

Scalia dissects their pompous pedantic buffoonery with such a deft hand that just leaves the Misandrists (those Hateful to Men & Boys, Masculinity and Normal Heterosexuality) here nothing to do but avoid his words and mau mau some more of their separatist / exterminationist rage against the hated Y-DNA BioManPigOppressor'

Academentia is indeed a pathetic farce, and legal education all the more so.

When I graduated McGeorge (w/ Dist) I was threatened with extreme violence by a 'martial artiste' professor for Supporting in a Conn Law class Scalia's top notch stick it to em Dissent in Kennedy's prior incarnation of Dred Scott - "Romer v Evans"

I was also notified near the end of classes that I was nominated for the 'prestigious' Anthony Kennedy 'Inns of Court' -

Sadly, before I could turn them down with an equally scathing observation on 'mr kennedy' and his shortcomings - I was notified my nomination was almost immediately blackballed by the same Gaystapo Buffoons who Censored Scalia's discussion of them and their bigotry from the legal text books.

Talk about disappointment - Like any self respecting Marxist (groucho) I wouldn't want to join an organization that would have someone like me as a member, but doesn't mean I wouldn't have liked the opportunity to tell ole Phony Tony so.

By Mike McD on 2013 06 29, 4:34 am CDT

Now that is Onion material.

By NoleLaw on 2013 06 29, 5:25 am CDT

I thought of how Scalia's opinion may have been the basis for this article and most of the comments above - for a few seconds - then I reminded myself of the forum.
To those younger attorneys - please bear in mind that this is a strictly liberal forum - that is to say, the FAR left is treated as mainstream - and the reasoning used to get to that liberal result is entirely ends-oriented.
Scalia is far too consistent in his reading, and corresponding application of the law to be appreciated here (i.e. he doesn't change his view of the law for one case just to get a popular result). And when he points out how someone is wrong, he is usually impossible to successfully argue against. Too many here have tried and failed, so now they no longer try - they just skip right to trashing the guy.
The ABA is great for resources on many legal topics - Constitutional is most definitely NOT one of them. Why do you think that almost no one outside the ABA cares anymore how the ABA rates judicial nominees?
I'm not saying to avoid the site completely, I'm pointing out that the organization has become less than credible in the sight of many respected and very competent attorneys, judges, and other lawmakers-conduct yourself accordingly...

By john on 2013 06 29, 12:07 pm CDT

Why wasn't the Sam Kinison argument brought up? It is certainly an argument that would sustain rational basis for DOMA: "How can a man fall in love with another man's hairy ass?" If Kennedy focuses on love between two people being the overriding factor, then the principles of attraction must be brought into the equation. Will someone please answer Sam Kinison's question?

By Chauncey Gardner on 2013 06 29, 12:43 pm CDT

@ 137 "Hell, it has to pass a 'rational basis' level of scrutiny . . ."

As many posters on this board will find out on that Last Great Day, hell does not have to pass any man-made rational basis scrutiny test.

The Constitution may be dead, but God is not.

By Yankee on 2013 06 29, 1:55 pm CDT

@144 - I'm sure we will all see you there.

By NoleLaw on 2013 06 29, 2:50 pm CDT

Scalia is blindingly inconsistent . . . the only consistent thing about his decisions is that (1) they express conservative ideology, and (2) he uses "originalism" as an infinitely flexible tool to arrive at conservative results. E.g., Congress gets deference from Scalia - but only when they're being conservative (DOMA); otherwise (Voting Rights Act) they need to be saved from themselves. He's happy to read women's rights clean out of the Constitution, even as he writes corporations into it.

It is a plain fact that you can predict his decisions without knowing a thing about Constitutional law, and if that doesn't tell you something's wrong, you're not thinking very hard at all.

By Ham Solo on 2013 06 29, 3:09 pm CDT

Scalia, as usual, was exactly right. Thankfully, there are still 38 states that protect marriage. But, the Homosexual Normalization Lobby will now be attacking marriage in those states by demanding that they create legal fictions that homosexual relationships are capable of being "marriages."

By Slaw on 2013 06 29, 4:11 pm CDT

All I see in these comments are arguments based on man-made laws and man-made morals. I see nothing bsed on science. Science is moving towards stronger and stronger proof that homosexuality is a genetic inclination, as strong is the few as is the heterosexual urge in the many. Once that is established with certainty, where go your "moral" arguments? If God created us all and did so, in part, through our genes, then you who are offended by what God hath created offend God.

By Science Anyone? on 2013 06 29, 4:36 pm CDT

Comment removed by moderator.

By Mike McD on 2013 06 29, 5:00 pm CDT

@146 so, Scalia is blindingly inconsistent only when he deviates from his principles (almost never).
And congress only seems to get the deference you speak of when they actually write a law the way they intend it to be enforced. -i.e. when they "mean what they say"

Sure you can predict many of Scalia's conclusions because they're usually the right thing and properly follow from reason and what the text of the Constitution and law actually say. (but I'll bet you could not "guess" exactly how he will choose to state his argument - and given it ahead of time, would be unable to find it actually logically inconsistent).

As it appears that a result based on what the Constitution actually says seems to be inconvenient (especially with that pesky thing of having to deal with delayed gratification while waiting for Congress to write a Constitutional law, combined with the not being able to take credit for that result), you must be a "fair weather fan" of the Constitution. That's when you just don't think at all, at least not with your brain - you just look at a case, decide which result you want, (forget the what the Constitution and/or the US Code actually says), tell a clerk "that so and so should be allowed to do this, or not allowed to do that - now go and make me up an argument - heck invent a few new rights and feel free to change the actual text of some laws while you're at it! Just make sure my special interest group back home can pat me on the back."

By john on 2013 06 29, 5:09 pm CDT

Of course, others of us see that you've essentially described Scalia there. We see him as not right, performing sham analyses, misrepresenting the history, and doing his best to ignore the text of the Constitution in order to implement his political will and moral opinion.

By anonymous on 2013 06 29, 5:14 pm CDT

John @142, Thank you for that, seriously. I had never been on this site before and I was surprised at the comments. I had no idea how far left the ABA was. I just joined and was curious what other lawyers thought of the dissent. Not anymore! Most of these comments do exactly what they accuse Scalia of doing i.e. apply their "reasoning" to the desired result. It's a 5-4 decision with no real analysis backing it up. It seems to do nothing more than represent the personal views of five justices and has caused millions to lose confidence in the court. I suppose that's exactly why they feel the need to attack a dissent and those who agree with it with such vitriol. Anyway, it was a terrible first impression. I have to shake the dust off my feet.

By PamelaR on 2013 06 29, 5:25 pm CDT

You could complain about the ABA being "left" just because your personal opinion is no longer part of the mainstream. (And yes, the latest polls support that. I know y'all aren't fond of facts and data, though.)

Or you could actually make a legal argument about why it's wrong. Just sayin'. I mean, you don't actually impress anyone just by going "WHAAARRGARRRBBL LIB'RALS!" It's seriously a cop-out.

By Anonymous on 2013 06 29, 5:37 pm CDT

Mr. Anonymous -
I was not aware that "studies" had been done about personal opinions and the mainstream.
And "I know y’all aren’t fond of facts and data" - seriously. Either you're actually from the south - which is not how your comment appears, or you've made my point about attacking the person. LOL.
Life is too short - I'm glad you just had to go ahead and make any further discussion pointless.

By john on 2013 06 29, 6:06 pm CDT

Southern born and raised. No attack.

And yes, there are polls and metrics for tracking the movement of social consensus on issues facing our society.

My point is only this -- the ABA position, and that of the pro equality posters -- is, in fact, now mainstream.

You may not agree, but you should make legal arguments. Not simply deride the ABA and others for being "liberal" just because you disagree with the outcome of a legal development.

By Anonymous on 2013 06 29, 6:33 pm CDT

It is an empirical fact that a majority of Americans are in support of SSM.

It is also true that support for SSM is continuously and rapidly increasing. Interestingly, this Gallup poll also found that while a majority of Americans support SSM, a majority do not think there is majority support for it. That last category is where you land, #154.

By NoleLaw on 2013 06 29, 6:33 pm CDT

@156 - Get out of here with your liberal-biased objective methodology and factual data! You're just an instrument of the fact-based liberal homosexual agenda!

By Anonymous on 2013 06 29, 6:35 pm CDT

It is an empirical fact and a matter of basic science that two homosexuals are incapable of conceiving a child. That fact is evidence of the plan and the will of nature's God. Neither the instrumentalities of government nor opinion polls can change that scientific reality.

It is a matter of simple logic that truth can not be discerned from opinion polls.
Particularly, an opinion poll of a population increasing made up of adults from the 'Whatever Generstion' large numbers of which grew up in Fatherless homes, and understandably cannot understand the nature of traditional marriage.
A basic indifference to civilization and the future should not be mistaken for an increase in "social conscience"

By Yankee on 2013 06 29, 6:51 pm CDT

No one here has questioned how conception takes place. No one here has questioned the virtues of a stable marriage of biological parents as the optimal environment for child rearing. You must be lost, you are commenting on the wrong thread.

By NoleLaw on 2013 06 29, 7:19 pm CDT

Respectfully, many of the comments here are notable not for their scholarship or erudition, but for the very things that are most troubling about our society and discourse these days: intolerance, conceit, and hypocrisy. Were it only less so among those with what presumably is a superior grasp of the law and its noblest traditions.

By noel on 2013 06 29, 7:25 pm CDT

There is no evidence to suggest that homosexuality is learned behavior. Yankee has no more ability to divine god's will than anyone else. We don't even know if he, she or it exists. There is also no evidence to suggest that homosexuals lack any of the human emotions. So there is no legal basis to deny them equal protection of the law.

By Redwood on 2013 06 29, 8:31 pm CDT

@161- We know that. But he doesn't. But conveniently, God seems to agree with all of Yankee's political and personal opinions. So we don't even engage him now. I'd encourage you to consider a like approach.

By Anonymous on 2013 06 29, 8:44 pm CDT

@156 you are correct. Congratulations. Take with that "victory" the knowledge that as homosexuality and the acceptance of it continue to rise, our civilization will continue it's decline (see Roman Empire and Athens, fall of). These things are, however, merely a symptom of the problem. The problem is relativism. They exchanged the truth for a lie. ("There is no difference between this and that, these things have no effect on you", etc….) The more we "progress", the more we slip into the abyss. This is a big slippery slope argument. Unfortunately, the difference between us and Rome is that, while Rome ended with tyranny, it seems we are moving toward totalitarianism. @160 you would like scholarly comments. I can take down Kennedy's argument in one sentence. DOMA is NOT mean. (Emphasis added with tongue sticking out, index fingers in ears and other fingers waving.) The law is no longer noble when justices leave the Constitutional framework because it is convenient. You also mention intolerance, hypocrisy, and conceit. Did you see a certain well-known actor's homophobic rant this week? He's a huge LGBT supporter, btw. Speaking of queens, as Alec did, did you see the crown Jay Z and Beyonce's baby was rocking? Who knew they made crowns for babies? Keeping it classy those two friends of Castro. It's always good to get a lecture on virtues from the left though. Now I have to go shake the dust off. Again!

By PamelaR on 2013 06 29, 10:38 pm CDT

Sorry. I forgot to cite authority in support of my legal argument in favor of DOMA. See every single statement of Bill Clinton (who signed it into law) and Barak Obama re marriage BEFORE they "changed their minds". I guess they just both realized the error of their ways (roll eyes).

By PamelaR on 2013 06 29, 10:58 pm CDT

Mmm... tears of impotent rage, 2013 summer vintage. Mild tang of willful ignorance with citrusy notes of inability to even make a legal argument or participate in a discussion about the legal principles in play. This particular bottling is known for the full-bodied inability to even acknowledge that other reasonable, intelligent, moral people could disagree on the subject and simply admit that the other possible conclusion won the day in the end.

The downfall of this particular brew is its blandness. Most of the flavors are repeats from the past with little variety. The deep, rosy roar of cognitive dissonance and a magical ability to pretend that saying something makes it true does add a distinctive new background to these old repeat flavors. But it isn't enough to reinvigorate them or make them appear less recycled.

This vintage will forever rank among the famous ones -- but it won't ever be the best due to its lack of originality. Altogether, though, Fundamentalist Tears Aficionado gives this vintage a rating of 93.

It is worth noting that the vintage will likely improve with age due to the tendency of the childlike anger at not getting one's way to increase as society inevitably moves towards justice and the apocalypse fails to occur as predicted. Unfortunately, the increase in flavor will plateau as the wrathful, equality-resenting generation dies off. See our previous article on the aging process of the "Loving Vintage" and the "Brown/Board Vintage" for notes reminiscent of how we expect this vintage to age.

Fear not, however -- as the flavor increase plateaus, the next generation will find some new group of people or element of social justice to irrationally resent. The cycle will repeat as it has so many times, and thus a similar vintage can be expected within the next fifty years.

By Anonymous on 2013 06 29, 11:04 pm CDT

Like the opossum said while making love to the skunk, “I have had just about all this fun I can stand!”

How do I get this web page to quit sending me e-mail of everything posted here?

By Roger Yokubaitis on 2013 06 29, 11:59 pm CDT

@136 NoleLaw

I agree that the morals argument can't be the end-all of the constitutional analysis. That, however, does mean that such an analysis would determine that the Constitution governs or, that if it does govern, that the regulation is impermissible.

If you want a rational basis for DOMA I'll offer this. Congress recognized that there is debate as to the meaning and/or purpose of marriage. For instance, is marriage about the joining of families for political purposes, the life-long committment of two (or more) people; a form or female suppression; an institution to productively channel the sex drive; or an institution to promote child-bearing and child rearing? On and on it goes.

Congress also recognized that -- to use Mr. Clement's words -- Congress is a big player in the debate. Federal incentives can influence the debate.

DOMA's purpose was like that of a TRO or Preliminary injunction: it was to keep the status quo -- to allow the debate to happen without the issue of federal benefits getting mucking up the works.

It's not animus to say, "We don't know where this same-sex issue is going. Let's continue doing what we are doing because it's worked for our civilization for hundreds of years; and we don't know if same-sex genie will be a good genie or a bad genie when let out of the bottle. If we feds put our thumb on the scale then we have a Full Faith and Credit issue that we're not ready to handle." That…that may be misguided…but it's not animus.

A problem people have with the judiciary's role in the same-sex marriage issue is that -- well, it's easy to conclude that no rational basis exists for discrimination when we can't come to terms on the purpose and meaning of marriage.

If marriage is about life-long committment, then I can't see how same-sex discrimination rationally advances that goal. But if marriage is about sex, child-bearing, and role-modeling of male-female relationships, then I can see why the state would discriminate against certain couplings.

The judiciary has lifted the debate from the hands of the people. Rather than letting the people decide what marriage is about, the court has made that determination. Concluding that marriage is about committment, naturally the Court finds the tool of same-sex discrimination to be ill-suited, irrational, unjust, unconstitutional means to accomplish that end. But where did we as sovereign cede to black-robes the right to determine the meaning and purpose of marriage?

By LexLoci on 2013 06 30, 12:09 am CDT

1. @159: "No one here has questioned how conception takes place."

Nor would I expect anybody to question that, since that is part of the natural order - - - as is the different and complementary nature of males and females - - - and should inform from a natural law perspective the question at hand.

2. @161 "Yankee has no more ability to divine god’s will than anyone else."

Fortunately, I have never sought to "divine" God's will.

God will on this issue is not only part of Holy Tradition but also is evident in nature itself.

3. @165 I haven't seen such long-winded, flowery, affected prose since "Another Andy" posted on these boards.

By Yankee on 2013 06 30, 1:11 am CDT

@PamelaR and the various Anonymous/anonymous who replied to me (I'm the john at 142 and 149) and ESPECIALLY the younger attorneys reading all this:

We are all colleagues. Our discussions become heated, (and since we're not in court, we can go pretty far off topic in our responses to each other) and at times personal.
We are nonetheless members of the group who will represent how legal issues/matters are to be handled to those who end up reading about them on FoxNews and MSNBC.
I would just like to point out - especially to younger attorneys - that ,as heated as this gets, many of us get along quite well outside of these forums. That does not mean we compromise our positions (I maintain steadfastly that the ABA has been a very politically liberal organization for decades (one of my points at 142)); on the contrary we argue. Unfortunately, and too often in an unproductive manner (see what has happened to this series of comments).
However, many of us know, and the younger generation must understand, that our conduct has more influence than we often anticipate. Yes I criticize (and on a blog - often based on prior experience and not a set of cite-checked notes). I am also aware that I will likely be the object of similar types of criticism.
But as this country is seemingly becoming more divided (in a harmful way), I ask and (if you are like those I have had debates with as a law students and later as attorneys and counselors in a courtroom) I would expect you all - and myself to work to keep things civil - if not for the integrity of our profession, then as professionals who have taken a oath - sometimes several- regarding the upholding of the Constitutions of State and Country. And if not civil, then at least "professionally uncivil."
Yes, Yes, I know y'all probably don't like where I'm from (a point where we all seem to have been reduced to describing states by color rather than name). And probably a lot of much worse terms as well.
But when we leave these forums - in the interest of not provoking some insane Constitutional Convention, please let's try to disagree in a manner that reflect to lay persons that, yes there are fights and mud-slinging going on, there is a group of people educated in government who are interested in keeping this country together AND getting the right things done by the PEOPLE ( yes, even though there are agreements about that too).
It is, in a very real sense, more than "just an argument" where some of us are concerned. A lot of the stuff we do and say goes further than a computer screen.

Well, I've said my peace, God Bless you all (even the ones who don't believe - and you should know there'll be no changing my mind on that) have great night - let's actually try to find where it is that we can work together. But as for me - I'm taking the rest of tonight off.

By john on 2013 06 30, 3:35 am CDT

From the whining on the right about how horribly liberal the ABA is, you'd never know that a majority of Supreme Court justices agrees with the majority of ABA members (shocking, ain't it?), who agree with a majority (and a growing one) of Americans at large.

The big mistake the religious right made was in trying to paint gay marriage as a "threat to the institution of marriage." Rational people could see that it doesn't affect their marriages in the slightest, and that DOMA was ridiculous on its face (or at least in its title.) Calling it a "mistake" is, perhaps, not quite fair; the only alternative argument is a marginally more polite version of the Westboro Baptists' "God Hates Fags" lunacy. That argument, Scalia notwithstanding, is a non-starter in any U.S. court of law.

The battle to prevent miscegenation was lost, and the battle to prevent same-sex marriage is being lost in front of your eyes, but you really should just chill out -- progress on these fronts will not lead to the end of the American Empire As We Know It. It may, with luck, lead to less influence of religious intolerance on government policy. Fundies, btw, are now explaining the absence of the expected fire and brimstone and California earthquakes with "God is turning his back on America." (No doubt He'll be back, and paying attention, with the next round of climate-related - I mean, gay-rights related - monster hurricanes.)

Good luck with the "rational basis" bit when the gay equivalent of Loving v. Virginia comes before the Court.

By Ham Solo on 2013 06 30, 4:27 am CDT

Roger @ 166: See the checkbox below, labeled "Notify me of follow-up comments?" Guess what it does, if you leave it checked?

By Ham Solo on 2013 06 30, 4:29 am CDT

@158: "A basic indifference to civilization and the future should not be mistaken
for an increase in 'social conscience' "

A basic indifference to your point of view should not be mistaken for indifference to civilization and the future. (See: "The Renaissance". See also: "The Enlightenment".)

By Ham Solo on 2013 06 30, 4:36 am CDT

John, I agree with your sentiment, but look at your earlier posts. Rather than engage in legal debate you derided everyone simply as liberals for daring to reach a different legal conclusion -- how is that different than red state/blue state? When the ABA disagrees with you it's because it's "liberal" -- not because *it might objectively be a reasonable legal conclusion if not the only possible one*.

All I would ask of you is this: Don't just assume that the next person who disagrees with you is a "liberal" and just has reached the conclusion for that reason. Realize this: That person MIGHT in fact have a well-reasoned legal argument that a reasonable person would not find absurd. You could legitimately ask the same of me -- though perhaps it's moot now that the Court has answered.

You know what's worse? A lot of us who disagree with you *do* believe. We would never want to change your mind about that. We just... don't believe that your opinion on the matter accurately reflects our religion, its history, or the original language of the texts on which it is based.
And you know what? That's fine! It's ok! It's ok, as a member of any religion, to allow the government to treat legal rights separately. And at the same time, you can believe whatever you want to believe or have whatever opinion you believe your religion requires.
It's ok to say: "I disapprove morally, but I will leave it to God to sort out eventually. I recognize that you have an equally reasonable legal argument and, you know what, yours won out this time. Please live a happy life."

I would ask you to consider one other thing with regard to the ABA. The ABA will die if it does not recruit new members in each generation. It is an indisputable, objective fact that each new generation (or perhaps even "class" in law school terms) agrees more than the last that it is an obvious violation of the Constitution to discriminate against their homosexual loved ones, friends, and colleagues. Whether you agree with that legal conclusion or not, the fact that the opinions are shifting every year is not legitimately open to dispute. The ABA cannot survive if it does not keep step with them. Is the position regarding equality objectively right? Even if it isn't, would the ABA be making the right move by adapting? I offer that equally reasonable, moral, and professional people could disagree on both questions. But I say this only that you could understand why (if not *agree* with) the ABA may be shifting.

I would also ask that you try to at least consider whether this might not be part of a broader pattern. People reacted the same way every time social conservatives have inevitably lost on every issue. And then a generation later, we're still a strong country, our religions still survive, and we're ashamed of those last few generations.

I agree, we could all do better. We all must do better. In fact, neither of us have been on our best behavior. But I see hope in you, and I see it in me. If you'll hope for that for me, I'll hope for it for you.


By Anonymous on 2013 06 30, 4:46 am CDT

I'm not sure I understand the debate. States determine marriage laws and DOMA attempted to limit that power. So....the decision was only that married persons in every state must be recognized by the Feds. To uphold DOMA would have been equivalent to setting a federal marriage age or failing to recognize common law marriage simply because they vary.

By CASpark on 2013 06 30, 8:32 am CDT

That is the real irony here, isn't it? Scalia is all "Let the states decide" -- as long as they decide the way he wants them to. If they don't, he doesn't want the Fedral gov't to recognize those decisions.

By Ham Solo on 2013 06 30, 10:03 am CDT

@173 / whoever else was replying to me:

First, my comments are not a direct response to any recent Court decision - you'll notice that I did not bring any of the court's recent activity up. Second, I am using the terms "liberal" and "conservative" in a more neutral manner than it appears they are being read here (i.e.. the way they were generally used 15, 20 or more years ago.
The way these terms are now used are a large part of the problem, if not the source of a complete misunderstanding. Part of this is because the ABA is a "liberal" organization, it always has been - in much the same way that the AARP is also a liberal org.
The terms used to be tolerated and were useful in making a broad description.
Example: Ginsberg is a liberal judge (alway has been) (don't believe it, read few things she wrong in her pre-judicial career (I'm thinking about her recommendation about the what the "age of consent" should be - 12 14 yrs? I think?. Anyway Clinton nominated her, the ABA (which used to provide an evaluation of the fitness of a person to perform judicial duties) gave here a very high, if not the highest possible rating. Now look at to two key federal nominees by Reagan - Posner and Easterbrook - both with experience on par with Ginsberg, but very conservative - both "not qualified" according to the ABA . They were both approved (7th Cir.) and are now among the most frequently cited judges in the country.
The ABA has earned itself its own "brother organization" - a part of the Federalist Society that does nothing but sit back a watch them.
It really is not going out on a limb or even making a stretch to say the ABA is liberal.
IMO that affects credibility on Const. Law issues.
BUT, as I also said above, the ABA is a great resource for just bout and other are of law - Anyone interested in Bus/Commercial law; real estate and probate, tax law, antitrust, etc., etc..... really needs to become acquainted to the journals that the ABA produces in those legal fields.

Regarding Scalia, I believe I was pretty direct. Most dislike for the guy comes from a "he's good but he's not on my team" mentality. Nearly everyone that I have spoken with respects him. A small number really dislike him, though I've noticed that many disagreements that people have about what he says occur either 1) after he forcefully and openly points out a very serious flaw in their reasoning, or goes out and loudly restates a convoluted pages long academic argument in a brief paragraph or two. An example of #1 is his opinion in Planned Parenthood v. Casey (If the majority had submitted that one in law school they would've flunked based only on a look at what they state to be stare decisis. An example of #2 is his opinion in the Virginia Bankshares case.

By john on 2013 06 30, 3:24 pm CDT

@49: Romans 2:1-4

By Will on 2013 06 30, 4:54 pm CDT

Our Country is going to hell. Everything that was good when I was a kid is now bad and all the bad is now good. Marriage is between a Man and a Woman. No other combination should be recognized as such. Homosexuals do nothing to propagate the species (thank goodness).

By Michael A Sullivan on 2013 06 30, 7:52 pm CDT

Mass Resistance has posted as succinct an evaluation of the Failure of 'nice people' to Defend Marriage, Family & Society from the Gaystapo as exists at this point.

After having won at the ballot box they were betrayed by their own leaders (Schwarzenegger was Blackmailed over his 'secret' Extra Son, while in office)_- and got their teeth kicked in in court, and when they turned the other cheek - got that kicked down the stairs by Tony kennedy and klan.

In short - it pays to remember that the Courts are Misandrist (Hateful to Men & boys, Masculinity and Normal Heterosexuality) because Law School is even more Misandrist than the rest of Academentia - and serves as a Filter of politically un-good views sullying their dys-topia:

"How the pro-family movement botched these cases.

"We are reluctant to sound unkind to the pro-family legal people who worked hard on these cases. But this is such a horrible outcome that something must be said. (Mass Resistance)

Both of these cases suffered from an unaggressive and short-sighted approach that bordered on incompetence. The pro-family side did not present a credible case in either of these cases.

They were deathly afraid that telling the truth about homosexuality might offend someone.

By not effectively countering the absurd arguments and assumptions by the homosexual movement, they made it easy for the judges to rule as they did...

A larger problem in the conservative movement

The cowardly nature of the pro-family movement has wrought terrible consequences and continues to be a huge problem. The DOMA case represents the tip of the iceberg.

This unwillingness to address the underlying issue of homosexuality itself -- the behavior, its associated health risks, the profound moral issues, and the "born gay" myth -- gives that movement free rein to continue its march through our institutions.

As comfortable an argument as it is, we must stop deluding ourselves that this war is about the definition of marriage or children needing both a mother and a father.

It's a bare-knuckles battle about truth versus lies that we cannot afford to continue to lose.

By Mike McD on 2013 06 30, 9:18 pm CDT

The amazing thing about this conversation is that at its essence it has nothing whatsoever to do with homosexuals or anybody's desire to "discriminate against them" and everything to do with the complementary nature of men and women that allows them to conceive children - - - and separately - - - through marriage, provide the very best vehicle to raise children and continue civilization into the future.

No matter what anyone may claim to the contrary, the essence of marriage cannot be redefined. Its meaning is intrinsic, grounded in human nature (i.e., both biology and the ontological different but complementary nature of a man and a women) and discoverable by human reason with or without the aid of faith. Homosexuals may be successful in changing laws so to have the legal status of married, but from an ontological sense they will always come up short - - and in their hearts they will recognize this.

Although homosexuals will claim to be vexed by their homophobic fellow citizens, their real beef is with God and the nature He has created.

By Yankee on 2013 06 30, 9:21 pm CDT

I agree "the essence of marriage cannot be redefined." (at least not in the way that many other legal terms can and have been redefined.
Based on my understanding of the from Constitution to employee benefits (with spousal and dependant benefits). I have no problem whatsoever with same sex couples being allowed those same legal benefits/ status as that created legally by what most people would refer to as a marriage. Actually, if the those seeking same-sex marriage are sincere about this in the manner that they claim to be, the the call should be to allow a civil union between two people - without regard to race, sex, creed, or whatever -INCLUDING the allowance of two same-sex HETEROSEXUAL persons who wish to enjoy these benefits. I believe that to be the most equitable and honest law to pass - if you are wanting same-sex marriage. To be careful about the first amendment - just don't call in marriage (that itself would end most of the legitimate legal objections that I've encountered. Of course, having practicing in family law, I must say that this is an ideal opportunity to streamline family law (especially when it comes to non-married persons who have been living together and are now splitting up and suing each other seeking a remedy that has traditionally been reserved for divorce actions. Anyone who has dealt with even one of these cases, is probably aware that many courts are just making this up as they go along and that the legislature may do well to address it.
The "same-sex" marriage crowd loses its credibility to the extent they oppose this type of move - demanding instead that everyone be required to call them married. If marriage is as religious a term as I know that it has been traditionally, and will likely become more so the case as many turn to the first amend. as an argument opposing same-sex marriage, then it only seems appropriate. Let heterosexual, couples get a civil union from the state and a "marriage" from whatever church or religious organization they belong to.
The only type of union that it really makes sense to prohibit is one between close relatives who intend to reproduce - that's a public health issue well within the state's interest to prevent.
The states need to leave marriage to those who want a union in religion.
Based on how states treat these unions they really are economic joint ventures. Looking to my own state - that much is obvious from all the rules that make things like earning power relevant. I also point to the rule that allows 1st cousins to get married so long as they're both over 65 yrs old.

Change the name, and let people have the economic benefit.
Those insisting so fervently that the term "marriage" be used fail to understand the actual purpose of the law currently in effect. They also scream "we are not sincere in our motive" - kinda like the gay groups that sued the Boys Scouts about 20 yrs ago - a suit that wasbrought such a manner that it was like saying "we're gay and we demand to be alone with your 10 year old son the woods at night."

By john on 2013 06 30, 11:29 pm CDT

@180 - " their real beef is with God and the nature He has created." The only consistent thought you've shown throughout your posts is that it is in fact you who have a beef with God and the nature He has created.

By NoleLaw on 2013 07 01, 12:06 am CDT

Comment removed by moderator.

By Doodle Dandy on 2013 07 01, 8:25 am CDT

Comment removed by moderator.

By Doodle Dandy on 2013 07 01, 8:27 am CDT

@136 and 137
Come up with a theory that meats the rational basis test on consensual adult prostitution.

It exists legally in other places and has been found to cut down on the abuses of the workers and the diseases. The only argument against it is a moral one.

By AzAttorney on 2013 07 01, 6:03 pm CDT

@185 - How about public health? That was pretty easy.

By NoleLaw on 2013 07 01, 6:04 pm CDT

@185 & 186 - I actually don't think there is a non-moral rational basis for prohibiting consensual adult prostitution.

Public health seems better served by regulation and documentation.

Although I suppose a reasonable legislature could decide otherwise. I'd need to know what the actual data are on it.

By Anonymous on 2013 07 01, 6:15 pm CDT

I thought it had already been established that sexuality was genetic. But what if there is a genetic component to violence? What then?

Simply answering "its genetic" doesn't seem to resolve anything.

By AzAttorney on 2013 07 01, 6:21 pm CDT

Let's not forget, a justification does not have to be "correct" in order to be supported by a rational basis.

By NoleLaw on 2013 07 01, 6:22 pm CDT

So prohibiting sexual practices that can be demonstrated to have a deleteriois effect on "public health" would meet the rational basis test, huh? Maybe we should revisit Lawrence v. Texas on that basis.

By Yankee on 2013 07 01, 6:38 pm CDT

@189 - That's true -- but I would say that unless the court is applying zero scrutiny at all, the justification has to be at least not *contradicted* by mainstream, credentialed, peer-reviewed science.

(And I don't know what the field says on that question.)

There may also be other rational bases based on sociological research of prostitution. Or maybe most of the conclusions we'd expect to be there are actually NOT true and come from our naked moral condemnation searching for a legitimate anchor. I'm not sure.

It's a good question though, and I think this is a great line of inquiry. Because even if we disagree, it moves us towards a society that tries to anchor its laws not in subjective social, moral, or political opinion, but in facts and recognized science. And yeah, science isn't perfect. It changes. I mean, they can't seem to decide whether eggs are healthy for us or not. But as a species, it's the best we can do -- and it sets a precedent that says "No, despite our flaws, we do the best we can to govern ourselves rationally rather than ignorance and baseless speculation."

By Anonymous on 2013 07 01, 6:56 pm CDT

@ 191- Correct me if I am wrong, but run of the mill rational basis review does not require any showing that a policy is based on any sort of scientific research (contradicted or not), or that it is supported by any sort of empirical evidence. It is almost equivalent to the highly formulaic "laugh test". There is of course a related cousin, "meaningful" rational basis review, which does get us close to what you are advocating. But it is my impression that even speculation, as long as it is plausible, will be sufficient to support a finding of a rational basis for a law...

By NoleLaw on 2013 07 01, 7:07 pm CDT

@192 - That's true -- I suppose I'm projecting my normative vision onto the process where the Court actually conducts analysis rather than performing what one of my old professors called the "Oh, What The Hell Rational Basis Test." Haha!

But I do think that even that version of the test is subject to the lesson of Romer and Lawrence -- that you need something other than naked morality.

By Anonymous on 2013 07 01, 7:31 pm CDT

I have never backed Scalia on anything but today I back him. Sodomy as a crime is out the window. How do two guys have sex if it is not by sodomy? It is stupid to charge a person with bigamy when all the parties are in agreement. Though I am tolerant of gays I find their behavior insulting and nasty and I want nothing to do with them. I foresee problems down the road.

By Augustin Ayala on 2013 07 01, 7:42 pm CDT

Yes, you sound very tolerant.

By Anonymous on 2013 07 01, 7:52 pm CDT

@193 - Well, in Romer and Lawrence you also had private consensual behavior between adults, as well as pure animus motivating laws, which militate against using the Oh, What the Hell Rational Basis Test. Laws against prostitution prohibit the business transaction, not the private act, and have a much lower hurdle to pass through. Not to mention no EPC implication.

@194 - None of this is about sodomy. If it was, I suspect that there would be even more support for the outcome here, since I'd bet many more Americans support/engage in sodomy of one form or another than support same sex marriage.

By NoleLaw on 2013 07 01, 8:01 pm CDT

So you would be fine then if states across the nation banned gay sex for "public health reasons?" I doubt that! Furthermore, incidents of AIDS have been more prevalent in the gay community, so there would actually be data to support that claim whereas with prostitution, as I have said, communities that have legalized it and regulated it have less "public health" issues.

I agree, 194 does sound tolerant. "To allow without prohibiting or opposing; permit." "To put up with; endure."
Although it could be that you were being sarcastic...

I don't think I would go as far as him personally. Saying, "I want nothing to do with them" is harsh. I have friends that are gay and have never done anything to make them feel "less than." But I don't "get it" and therefore it seems very strange to me. But I find other sexual behavior strange as well. Are you all aware of a thing called "furries?" Weird, but who am I to judge? As I have said previously though, I look at it practically and I do not think I should tell another adult what to do if it isn't hurting anyone.

By AzAttorney on 2013 07 01, 8:16 pm CDT

@197 - See my reply to 193 @ 196. Laws against prostitution ban the transaction, not the activity that is bargained for. You do not have the same concerns about banning private consensual behavior, and you have no EPC concerns in banning prostitution. Finally, the SSM debate is not about how icky you or I might find gay sex to be.

By NoleLaw on 2013 07 01, 8:26 pm CDT

You are preaching to the choir on the "ick factor." I thought I made that clear.

I still don't see a distinction with regards to prostitution. All you need is one guy that says the way he expresses love is to pay for the service. He would argue his form of love should be given equal respect as other people's form of love and he shouldn't be judged by what happens in closed doors in his bedroom.

By AzAttorney on 2013 07 01, 8:53 pm CDT

I mean, there may *not* really be a rational basis for prohibiting prostitution. That might actually be a possible conclusion here. Just saying.

Frankly, I've never understood why it makes any sense that it's not legal to pay someone to have sex with you, but it's perfectly fine to pay two people to have sex with *each other* for the purposes of filming it and selling it.

But maybe there are statistics linking legalized prostitution to actual, objective social ills? I don't know, I'm not going to waste my time looking for it, but I can allow for the fact that it's possible that the facts support a rational basis for prohibiting it.

I'm just alright with confronting the possibility that our objection to prostitution may, in fact, be irrational.

By Anonymous on 2013 07 01, 8:58 pm CDT

Comment removed by moderator.

By Mike McD on 2013 07 01, 10:24 pm CDT

@199 - You do not have any EPC implication just because someone states that they express love by paying someone else for sex. Re: the ick factor, your defense of @194 made it seem that you let your personal dislike of certain activity to color your legal analysis.

@200 - A ban on prostitution easily passes rational basis, regardless of whether it is good policy or not.

By NoleLaw on 2013 07 02, 12:39 am CDT

@201: Like global warming deniers (and you are one, right?), you've got the science-like sound bites down, courtesy of the web sites you patronize, but are entirely lacking in actual understanding. Start with "epigenetics", and move on to "cellular differentiation" -- Wikipedia should be good enough to give you the general idea on the topics. The fact that epigenetics, not the X chromosome, makes a human fetus turn out male, should at least give you pause: given what it does to the structure of the body, you have to wonder what it does to the brain, do you not?

The whole "Identical twins are not both gay" tale, cited and re-cited and re-re-cited, has spread like a cancer through right-wing and religous web sites and blogs. Seeing it everywhere, you might think it's got to be true, but it all tracks back to a single source: self-described "Christian writer" Dr. Neil E. Whitehead, who cherry-picks his sources and has done no actual research in the field. Actual science, as opposed to "Christian writing", does in fact show a significant genetic component: Bailey JM, Pillard RC, Neale MC, Agyei Y (1993). "). Heritable factors influence sexual orientation in women." Archives of General Psychiatry 50 (3): 217–223. A more accessible summary is here:

It's all quite reminiscent of creationist and "intelligent design" pseudo-scientific mumbo-jumbo, which likewise starts with pre-ordained results and mangles scientific observations in a hopeless, procrustean attempt to make them fit. (The parallels to the case at hand, of course, are not a coincidence.)

PS: your posts are insulting, which is why they get removed. Five-dollar words don't buy you a pass on gratuitous name-calling, and they certainly don't impress this audience.

By Ham Solo on 2013 07 02, 12:41 am CDT

Comment removed by moderator.

By Mike McD on 2013 07 02, 1:51 am CDT

Comment removed by moderator.

By Mike McD on 2013 07 02, 1:57 am CDT

@203 - Now we know what happens when you feed trolls with crack.

By NoleLaw on 2013 07 02, 2:33 am CDT

You have to legitimately pity that person. He or she seriously needs professional help. There's nothing we can do except look on in wide-eyed wonder and hope that he or she does not end up hurting others or him or herself.

By Anonymous on 2013 07 02, 2:45 am CDT

Wow. Now I'm curious to see if sheer lunacy is grounds for deleting posts. ;-)

By Ham Solo on 2013 07 02, 6:06 am CDT

How many of you who have posted comments have actually read the various court opinions, as opposed to news reports of them?

Yes, Justice Kennedy said that marriage has historically been left to the states -- but two or three times that he said that, he immediately followed that statement by the words "subject to constitutional requirements". That's what Loving v. Virginia was all about, so Justice Kennedy (who cited Loving) was not saying that he states will always have the last word about who can and cannot get married. We recognized there are federal constitutional limitations.

Also, Justice Kennedy wrote that he didn't have to decide the DOMA case on the basis of federalism (ie, whether the federal government unconstitutionally interfered with the states who recognize same-sex marriage) because he declared that the basis for DOMA was an unconstitutional intent, unsupported by legitimately stated goals, to single out gay people for second-class treatment by denying them -- based on their sexual orientation -- something that the federal government otherwise recognizes, i.e., a state-sanctioned marriage. This was his Due Process finding.

For those of you who disagree with Justice Kennedy's rationale, please at least read what he said and correctly characterize it. If you read it carefully, and look at every word, it is well-reasoned and well-written, though you can disagree with his reasoning.

By Jake on 2013 07 07, 12:47 am CDT

Seems like the quality of debate is declining, as the logical and legal commenters give up and go away, and those who lead with their beliefs are left standing. (Or, still sitting around.)

I am a heterosexual person with a spouse and grown children, and my belief is that my marriage is just fine, thank you, without needing my government to discriminate against any other marriages. Sure, they may not be like me, but who cares. Marriages contribute to societal stability, and theirs don't hurt mine one iota.

Not only does my marriage not need any kind of "protection" from gay marriages (as if the gay relationships would just go away as soon as you destabilize them a bit?!), but God - in whom I also believe - doesn't need our protection from the forms of sincere human love and devotion. In fact, God doesn't need our protection even from sinners; God's has ways of dealing with them.

Beliefs are fine. It's the hubris that accompanies them that is getting my goat here. Not to mention, driving away the more reasoned commentators.

By Avon on 2013 07 09, 2:20 am CDT

Well said Avon @210!

A thought on the bigamy issue posed earlier in these comments - to me, there has always seemed to be a simple answer as to why bigamy is different from gay marriage. If gay marriage is allowed, everyone is being treated the same - you have the right to marry one person at a time. Since everyone is being treated the same, there is no equal protection issue.

If we, as a country, decide later down the road that bigamy should be legal, then that's a different conversation. Bigamy, however, historically comes with a LOT more problems for society than gay marriage. While I'm sure there are loving and secure bigamist homes in our nation, I'm also quite aware of the abuse that can be perpetuated in such cultures.

By RecentGrad on 2013 07 09, 1:52 pm CDT

1. ". . . God . . . doesn't need our protection . . ."

That's absolutely right. But, nobody is questioning that.

Rather, preserving the institution of marriage as God intended it - - one man and one women for life - - protects our culture, and is the very best vehicle for transmitting civilization to the next generation. Put another way, experience teaches that Humankind is always better off when it is following God's will than when it isn't.

2. ". . . forms of sincere human love and devotion . . ."

There are many "forms" of "human love and devotion" that may or may not be "sincere," that do not serve the function, or merit the status of marriage. Marriage is so much more than a committed relationship among adults.

Instead, marriage is the institution created by God to bring a man and a women together in a partnership for life directed toward their mutual suppoert and the generation and education of children. Marriage is grounded in human nature (i.e., men and women, although different in nature, complement each other physically, spiritually and emotionally) and biology (e,g., two guys can't make a baby) and discoverable by human reason without the aid of faith.

3. Just because somebody doesn't agree with you doesn't mean that thet are not a "reasoned commentator."

By Yankee on 2013 07 09, 2:36 pm CDT

Your reply to my points is relevant and logical.
I just don't accept that God's will is what you say it is.

I've read the key verse in Leviticus, and the five other spots in the Bible that arguably say the same thing. But I've also taken to heart Jesus' message of non-judgment of heathens, love for the sinner, and rendering unto God what is God's. In worship and in community life, I have come to know that gay and straight marriages are equally holy.

I know what it is to be divided as to God's will. In my city, millions disagree emphatically as to whether it's evil to cut the hair on the sides of the head (Leviticus requires sidecurls), or to cook meat in butter (ditto), or to eat beef (Hindu law), or to have figurative as opposed to abstract art (Commandment against idolatry). The African branches of my own church are mostly deeply aggrieved by the fact that so many of our American branches solemnize same-sex marriages, and it's painful to be on either side of that divide. I just have faith that humanity - or at least, all people of faith - will find healing and be restored in unity.

By Avon on 2013 07 09, 5:42 pm CDT

Avon: I appreciate your comment, although I will give you one small point upon which to reflect, before you discuss this issue in the future

You make reference to "non-judgment of heathens" and "love for sinners." Those words/sentiments were jarringly out of place in his particular discussion since it is clear from your comment immediately above that you don't find homosexual sodomy to be sinful whatsoever. Likewise, those words/sentiments were not remotely responsive to my last comment since my opposition to same sex marriage is not predicated upon the sinfulness of homosexual sodomy, but rather on the nature of marriage itself.

By Yankee on 2013 07 09, 6:24 pm CDT

I don't remember commenting on sodomy (or indeed other sex acts) of any kind, and I don't know which words you refer to as being my "comment immediately above." But you are correct that I don't find homosexual sodomy to be any more or less sinful than heterosexual sodomy, which is probably more common because so many more people are heterosexual. (I mean "sodomy" in the dictionary or statutory sense.) Anyway, any relationship can be sinful insofar as the purity of a couple's love is diminished by one selfishly using the other, or by a number of other wrongs. That's true regardless of whether or not that relationship is same-sex.

I define "sin" as violating or disregarding God's will.

I don't think there is any such thing as "the nature of marriage itself." Certainly, married Americans of the same sex these days " complement each other physically, spiritually and emotionally" in the same ways as married opposite-sex couples do, and they have all the kids they want. Those indicia are much more different between American heterosexual married couples and those in many other places I could name than they are between American heterosexual and homosexual married couples. The nature of marriage has not remained constant since civilization arose, just as it is far from constant across geographic distances. It's way too much of a moving target to serve as a standard by which to judge suitable public policy today - or the ideal legal policy for our future.

By Avon on 2013 07 09, 8:47 pm CDT

1. "I don't remember commenting on sodomy . . ."

If I misunderstood your earlier comments, I am sorry, but strongly implicit in your comments was that these same sex couplings of which you approved had a sexual dimension. If you were talking about a platonic, brother-and-sister relationship that is obviously something else.

However, if I was correct in my understanding, "sodomy" is indeed the correct term.

2. ". . . they [can] have all the kids they want . . ."

Actually, no.

It is a biological fact that no child throughout human history has been conceived from a homosexual coupling. Not one.

Put another way, every single child being raised by homosexual couples in the United States has a biological mother and a biological father. The fact that the court systems in our country have declared pairings of homosexuals to be the legal parents of particular children, does not change this inconvenient biological fact.

3. "The nature of marriage has not remained constant since civilization arose."

This is only true if marriage is not a divine institution, created by God Himself, as described beginning in the earliest passages is Scripture.

By the way, your lack of a belief in the divine and settled nature of marriage is why (referring to your comment @213) that you will never again be in communion with "[t]he African branches of [your] own church . . ."

By Yankee on 2013 07 10, 9:45 am CDT

I still don't think I commented on sex acts, but sodomy includes many different ones - in most states just about every genital contact besides penile-vaginal pairings. Most of which occur heterosexually as well. The same-sex couplings I approve of are committed/lifelong human domestic partnerships based on, or in harmony with, divine Love. I favor marriage when there's such a relationship.

I also didn't say gay couples can conceive all the kids they want. If you define "have" as "conceive" you're not addressing my point. The adoptive children I know best are parented by one male-female marriage and one male-male partnership. They certainly don't NOT "have kids"!
(I do predict, though, that within several years same-sex couples will be offered the technology to conceive their own genetic children. When I married, I never would have seriously believed that by now in-vitro fertilization would be so readily available. If "infertile" people can now become pregnant, with their own zygotes if they've got 'em, then it's a futile game to try to predict who can conceive and/or bear children in the future.)

God existed long before Scripture. Communion within a church can transcend different members' current convictions as to which words of Jewish Scripture are God's will and which are not necessarily. All things are possible when we're talking about communion in mankind. I have hope and faith.

By Avon on 2013 07 11, 12:46 am CDT

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