BBO Discussion Forums: The Supremes are on a roll - BBO Discussion Forums

The Constitution doesn't mention lots of things explicitly. I believe is traditionally addressed by the notion of "common law": traditional customs are automatically assumed as the baseline. The rights specifically enumerated in the Constitution (e.g. freedom of speech and religion) were needed because there wasn't a tradition that citizens had these rights. Marriage, on the other hand, had been around for ages, so there was no need for the Constitution to confer the right in general; there are only statutes that deal with the details (the process of becoming married, financial implications, legal rights of spouses, divorce/annullment, etc.).

But since the concept of marriage isn't defined in the Constitution, it leaves it up to the definition in common language. That's where much of the controversy comes from. It means different things to different people, but you can't rely on personal definitions when it's tangled up in so many legal issues. There are probably people who have attacked others, but their personal notion of "assault" doesn't include "when the guy has it coming", but we don't allow that as a defense.

Some states have gone to the effort of adding a definition of marriage to their state Constitutions. The Supremes basically decided that it makes no sense that such a basic concept can have a definition that depends on where you happen to live. Its meaning is basically what it has always been, but society itself has changed, so that the details are now different.

barmar, on 2015-July-01, 09:46, said:

Exactly - it was (and is not) a state issue but a federal one. The states are rather limited in their rights - it is the Federal government and then the people who hold most rights. I do not think Roberts thought this a state issue either. My reading of his dissent shows that he thought the electorate, i.e., Congress, should have been the arbiter rather than SCOTUS.

I have started at least a half dozen posts on this thread and then dumped them. Maybe I will post this one. And then probably regret it. I am fine with gays getting married. I have an intense dislike of legal arguments. I rarely agree with any of them, the few times that I have been in court (an observer, mostly but not always) I have been dismayed by the way it goes. I think the time I liked best was when I was in courrt, along with maybe fifty other people, for a traffic ticket and the judge began by carefully spelling his name. He explained that if any of us wanted to write a letter of complaint to the Washington Post he wanted to be sure we spelled his name correctly.

Anyway, there are nine supremes, I accept that none of them is there for the fun of wearing robes. Nine serious educated people do not totally agree. This does not shock me.

Summing up: I am fine with gays getting married, I am positive I would flunk a bar exam, that's about all I have to say. I am probably better at computing Galois groups than most of the supremes.[Although a bit out of practice]

kenberg, on 2015-July-01, 21:20, said:

Actually only three -- if you count Diana Ross. I had assumed that this thread would be abut music; I have never before encountered this new terminology.

Winstonm, on 2015-July-01, 12:00, said:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." -- U.S. Constitution, Tenth Amendment

States' rights, like Federal rights, are limited only by what the people have delegated to them.

Note: this is why it falls so harshly on my ears when people talk about the government (at any level) "giving" rights. That ain't the way it works, and any citizen of this country ought to know that.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." - Declaration of Independence.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." - Ninth amendment to the U.S. Constitution.

This is enough of a Constitutional argument to establish the right of anyone to marry as is necessary. The rest is applesauce.

blackshoe, on 2015-July-02, 06:58, said:

You assume a word that does not exist - expressly. The powers delegated to the U.S. are vast and purposely unspecified. States have some rights but those rights cannot conflict with federal law. The Constitution grants Congress all the implied powers "necessary and proper" to using its enumerated powers. These are the "implied" powers that are not enumerated, nor should they be, but are delegated to the U.S. by its Constitution.

States rightists attempt to argue Articles of Confederation as though they had been adopted rather than the 10th Amendment.

Winstonm, on 2015-July-01, 12:00, said:

Yeah, I've been thinking about that. Although I'm happy with this decision, it does seem weird that a panel of nine people gets to decide what our entire society means when we refer to "marriage". And last year's Obamacare ruling hinged on a rather arbitrary distinction between a fine and a tax -- that really seemed like the majority simply defined the words to mean what was necessary to justify their decision.

These types of decisions seem like they should be based on concensus of the people, not a tiny group of old men and women.

Rather than leaving it up to SCOTUS to make decisions like this, it seems like it would be better to have a process where something becomes a US law if a sufficient number of states each pass it. 72% of the states had already legalized gay marriage, that seems to be enough to indicate that there's a widespread concensus in favor of it, so perhaps a supermajority like this should have just made it the law of the land automatically. Of course, we'd need a constitutional amendment to add this process.

However, there's a Catch-22. Let's assume that we start with a situation where most states have a law AGAINST something, so it's automatically elevated to a US law. When any state tries to pass a law ALLOWING it, it won't be possible because of that rule. State legislation is supposed to be an opportunity to experiment, but this would strangle that ability.

barmar, on 2015-July-02, 10:26, said:

Are you getting your information from primarily right-wing sources? I'm not trying to accuse but am attempting to understand why your thinking is as such. From my perspective, we have 3 branches of government, Congress, Executive, and SC. SC was given the job to determine legality of laws and executive actions. These 9 judges determined that the Constitution grants a right to equal treatment, even as regards to marriage, and in no way re-defined marriage. Marriage was never defined as simply male-female union by the Constitution, so it was the judges' jobs to determine a number of issues - including whether or not the decision should be made federally (they took the case to the answer is yes) or by a district judge, or by the states legislature.

There is precedent - interracial marriage used to be illegal until the SC ruled that law a violation of the Constitution, as well.

What most people do not grasp is that the purpose of the Constitution is to protect the rights of the minority from the oppression of the majority. Rampant democracy can be dangerous and tyrannical if left unchecked. Gays have equal rights. Without the Constitution and the SC, that would not be so.

barmar, on 2015-July-02, 10:26, said:

Hardly arbitrary - the SC was charged with determining if Congress and the President had created a legal bill and thus a legal law. The SC held that it was within the rights of Congress to levy taxes, and thus the Affordable Care Act was legal as it imposed a tax for non-compliance.

Words are never black and white, as some would suggest. Without knowing the content of the words and the intent of the author(s), words can have many interpretations. I read this example lately: suppose you are giving a friend a ride home in your car but do not know where his place is located. You approach a traffic light that turns yellow, and your friend says, "Go through the light." What does he mean by that statement? Does he mean he wants you to run the yellow light? Is he explaining that you will go past this light before turning? Is it something else altogether?

There is no way to know simply from the words - tone of voice, body movements, inflection, outside factors - all of these play a role in helping us understand (or try to) the phrase, "Go through the light."

Some right winger states' rightists, so called 10th Amendmenters, would hold that words(like the 10th Amendment and 2nd Amendment) can only mean exactly what they say in black and white. If so, where in the Constitution does the government have a right to create a U.S. flag? (hint: nowhere). They use this argument only when it fits their purpose. This black-and-white-words argument is exactly the position Antonin Scalia took with regards to the ACA decision and his dissent, that words can only mean exactly what they say, regardless of intent or context, which is surely a silly and superficial argument, much like a child who was rebuked for eating too much candy when the sign above the candy said, "help yourself", would make.

barmar, on 2015-July-02, 10:26, said:

Absolutely not.

The federal judiciary, and especially the Supreme Court, is the last line of defense against pure democracy - the rule of the people. And there is a good reason for this. The majority is often wrong. If it were left to a majority, most of the rights that the American people enjoy would be subject to the whim of the majority. Think of how the rule of the majority would discriminate against minorities. There are so many examples of this throughout history that I don't have to mention any.

Winstonm, on 2015-July-02, 08:25, said:

Do not presume to tell me what I assume.

blackshoe, on 2015-July-02, 11:57, said:

Winstonm, on 2015-July-02, 11:39, said:

The third branch is the Judicial. It consists of ALL of the federal courts, not just the Supreme Court.

ArtK78, on 2015-July-02, 12:00, said:

Yes, thank you for the correction.

barmar, on 2015-July-02, 10:26, said:

It does no such thing. Every person remains 100% free to think whatever they want about the meaning of marriage, and to say so.

Winstonm, on 2015-July-02, 11:39, said:

I'm not getting my information from anywhere, I'm just expressing a personal opinion.

I'm very happy with this decision, but the process does seem a little wonky. It takes 12 people to convict someone of a crime, but only 9 people, who aren't even "peers" of most of us, get to decide what counts as marriage for everyone? Yes, the purpose of Constitution is to prevent tyrrany of the majority. That's why it's a representative democracy -- the legislature is expected to be wiser than the people as a whole. But the Supreme Court hardly represents anyone, except insofar as the legislature has to approve their appointments (but since they're appointed for life, their terms can last into an administration that would not have approved of them).

I also understand that this is all part of an elaborate system of checks and balances. But SCOTUS does seem to have a particularly strong hand. The President has veto power, but the legislature just needs a supermajority to override it. Overriding a Supreme Court decision requires a Constitutional amendment, a process that usually takes years.

The job of the Supreme Court is to interpret the Constitution and laws -- what did the people who wrote them mean? If they're just interpreting the legal language, that's a perfect job for someone with decades of experience as a lawyer and/or judge. But does that background also prepare someone to determine how some old language should be understood in light of changes in society? That seems more like the job of a social scientist, not a judge.

Contrast the gay marriage decision with the decision this week about the EPA. They decided against the EPA on a technical point of law (at what step in the regulation process do they have to take cost of implementation into account), they didn't decide whether or not environmental regulation is a good thing or bad thing.

barmar, on 2015-July-02, 12:22, said:

The SC also did not rule of whether gay marriage was a "good thing or bad thing". What they ruled was that it was Constitutionally legal. Would you prefer that this law was subject to change every so often depending upon what party was in power, or have each state decide on its own whether or not gays could marry?

I guess I simply do not understand your complaint.

Winstonm, on 2015-July-02, 12:39, said:

Perhaps I can help, perhaps not. For me it goes something like this. I have some thoughts about sexual interactions, marriage, children, adoption and so on. The Supreme Court has now informed me that it is a waste of time for me to think about it, they will set the rules. For example. My own adoption was long ago and no doubt things have changed. But it may still be the case that married couples are given preference to unmarried couple or single in adoption applications. Possibly the sexual lifestyle of a couple is a factor in adoption decisions.So now we have a married homosexual couple wishing to adopt. How should the person handling the case approach this? S/he is morally and legally obligated (or so I believe) to watch out for the best interests of the child. The rights of the prospective adoptive couple take second place (or I hope that they do) to the best interests of the child. What do I think? Well, I know, rather close up, a child raised in approximately these circumstances. He is 14 or 15 and gives every appearance of having a happier, less troubled adolescence than my own. So fine. Or is it? Looking back, I think that my being raised by a heterosexual couple was desirable. Probably not essential, but desirable. I am pretty sure that this does not make me a bigot, and I did not consult the right wing about this either. Alternatively, if liking the fact that my own parents were heterosexual makes then the world will just have to cope with that.

I guess I would prefer, as Barry is suggesting, that matters such as these be worked through thoughtfully by the citizenry rather than having them decided by edict. I have absolutely no interest in telling anyone how to lead his or her sex life. Adopting kids is a different matter, and I would like to see the discussion proceed with a minimum of name calling.

The whole question boils down to states rights vs. individual rights. The grey area between these is large, to say the least.

There are a lot of really absurd laws out there, which seem to arbitrarily restrict rights. For example, in my state and some others, car dealers must be closed on Sunday by law. What nonsense is this? Surely this intrudes on a business owner's rights. No possible harm could come to society from buying cars on Sunday. But there it is.