Supreme Court Same Sex Marriage Argumet

[TheRealJoeFish]

Ha ha!! You are going to argue legal realism based on the ruling of Obergefell v. Hodges?! Did you read the ruling??

I read Obergefell front to back twice. Maybe you misunderstood what I meant by "legal realism." I didn't mean whatever gleaming understanding of the law that you (or anyone else) believes is enshrined in the Constitution. I meant this: "The way judges actually make constitutional decisions, rather than the way we think they should." And how do Judges make Constitutional decisions? They take what they believe in, and then find the portion of the Constitution that they believe supports them.

This week, Justice Kennedy found 14th Amendment support for the proposition that a ban on gay marriage is Unconstitutional. Maybe this changes the previously held meaning of the Fourteenth Amendment. So? Justice Scalia, this week, found 14th Amendment support for the proposition that the words "involves conduct that presents a serious potential risk of physical injury to another" are unconstitutionally vague. You know what Justice Alito said about that? The majority is "transforming vagueness doctrine." One man's intelligent, informed interpretation of the Constitution is another man's, as you say, "complete[] ignor[ing of] the law as it has always been understood."

Obergefell ignored Washington v. Glucksberg? My left foot it did. Glucksberg says "fundamental rights are those deeply rooted in the nation's history." What was the fundamental right here? Marriage. Deeply rooted in the nation's history? Sure. If you want to define the right at issue as "gay marriage" as distinct from heterosexual marriage, then, sure, Glucksberg looks like it makes the case more interesting. But that's just absolute semantic torture; we don't think of "the right for children to drive a car" as separate from "the right of adults to drive a car," we think of "the right to drive a car" that is then revoked for certain classes of people. (Note that the state can revoke it from children because they don't have the capacity to drive a car, and they can revoke it from other people because it's *not a fundamental right*.)

Ignored the intentions of the ratification of the amendment? Pshaw. So did Loving v. Virginia.

And coming up with, as you say, the "BS argument to dignity," or, as the Majority says, "liberties extend[ing]to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs"? Yeah, that's clearly not part of the law, which is why the Court didn't cite any cases as precedent. Except Eisenstadt and Griswold (right to possess contraceptives). And Loving. And Lawrence. But, surely, you don't disagree with Lawrence, right?

To this I would say go to law school, read all the cases, and marvel at the slippery slope that always happens.  Hell marvel at the slippery slope of Lawrence V Texas that lead to United States V. Windsor and to Obergefell V. Hodges all under the argument of Dignity!

Oh. Perhaps you do...

And, by the way, regarding "going to law school and reading all the cases?" I have.  I did. And I have no idea what you mean by "the slippery slope that always happens." 

Do you mean 32 years of Lochner jurisprudence?  Pfft.  Here's the revisionist, textbook version of what happened: The Supreme Court in Lochner, faced with a decision to 1) exercise Judicial restraint and defer to the state legislatures or 2) to grant itself more power and allow itself to review laws for prudence rather than Constitutionality, decided the latter, effectively overriding the separation of powers and taking a broad view of the 14th Amendment that allowed the Court to do almost anything it wanted, invalidating laws for, as you mention, "not being in the public good".

Which is great if you're running for office or trying to look like a Constitutional Scholar of the highest order.

The "legal realist" perspective?

The Supreme Court in Lochner, faced with a confrontation between States' Police Power and Personal Right to Contract, both of which were 1) clearly enshrined in the Constitution and 2) clearly not unlimited, made a judgment call and determined that the latter was more important than the former in most cases.  Why?  Not because the power-hungry Court wanted to usurp the legislature, but because most people thought that "self-determination is good!" and "how dare the state tell us what we can and can't agree to?!" and "those guys chose to work 14 hours a day for 12 cents an hour" and "other pro-business, anti-worker rhetoric!".  Thirty-two years later, the US had gone through the Great Depression, the country had realized through the media and important events that the freedom to contract is awesome until it results in a million people wondering if they're going to die of the black lung from working in the coal mines or from hunger because the coal mines fired them because they got the black lung and couldn't work anymore, and FDR was in office, and - what a surprise - the Court saw its position from before as barbaric, took a more liberal view than it had a few decades ago (again, not a shock, because the average American was more liberal in 1938 than in 1905), and decided that it had balanced its Constitutional provisions incorrectly.

So, what does that mean with Obergefell? It means that the Court's interpretation of the Constitution has always changed, and the fact that the court 100 years ago didn't mean for a ban on gay marriage to be unconstitutional doesn't mean that it isn't.

Obviously, one can get a real good kick out of the fact that Lochner was a right-wing triumph, a federal-law-based curb on the power of the state governments' power to limit personal freedom.

Obergefell's another case where it looks like the federal government is curbing a state's power to limit personal freedom. Except, this time, the conservatives are siding with the states because they happen to agree with the states.

Listen: if you're one of the maybe 1,000 people in this country who really truly gets the Constitution, has a perfectly coherent and consistent framework of Constitutional jurisprudence, and wouldn't need to make a judgment call to interpret some of its more lofty decisions, then all the power to you. But that's not how it works in the real world. What happens in the real world is that this thing written 240 (text), or 150 (XIV), or however many years ago consists of a few hundred words set down on paper, and those words have to be called on to apply to everything that the government can possibly be involved with. And to do that, men and women bring in their knowledge, intelligence, and preconceptions and do the best they can.

What does the Constitution say? That's a very, very difficult question.
Whose job is it to tell us what it says? The Supreme Court of the United States.
What does the Supreme Court say the Constitution says? That states cannot deny same-sex couples the right to marry.

Those who are so quick to jump on the "rule of law" bandwagon tend to only support the rule of law as applied to laws they agree with. In doing so, they become little mini-versions of the second-guessers they accuse the Supreme Court of being.