Supreme Court Same Sex Marriage Argumet

[Anima]

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.  

You realize in saying the judges determine in the manner of taking what they already believe in and then finding the portion of the constitution that supports them seriously undermines the integrity of judicial determinations. Thereby stating the judicial branch does indeed act with force and will in such a manner as to say we do not live in a democracy, but rather under a totalitarian regime of a few judges who may invalidate the democratic choice of millions based on their own beliefs and ability to vaguely interpret the constitution as supporting those beliefs. Perhaps you are right, this is the reality (judicial realism, the meaning of which I did misinterpret) we live in. I sure hope not.

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*.)

Glucksberg establishes a two prong test for the determination of substantive fundamental rights:
1. The right must be traditional recognized as existing in nations history.
2. The right must be so essential to ordered liberty that justice may not exist without it.

Semantic torture? Such would be arguing that an adjective qualifier serves no purpose upon a noun when in truth the whole purpose of an adjective qualifier upon a noun is to make distinction between particulars within a general category. The red book is not the blue book. Admittedly they are both books, but to say this fact is all that matters and not the particulars of the books is an untenable over generalization, which would contend all books are of prominence because they are part of the general category of book and within that category of book exists some prominent books. This is utterly foolish and blatant example of the fallacy of construction in which a condition of the part of the whole is considered to be the condition of the whole.

In the historic tradition of the nation there has never been recognition of a right to marry anything and everything. As such a substantive fundamental right to marriage has already been recognized as existing with inherent constraints upon that definition. I am not opposed to the recognition of a substantive fundamental right to marriage as determined by Glucksberg. With that said under the Glucksberg analysis the historic tradition recognizes a fundamental right to heterosexual marriage. To adopt the argument you have made we may say the history and tradition of the nation exhibit the engagement of sex for financial profit therefore there is a fundamental right to engage in sex for profit and prostitution is protected as a fundamental right, therefore laws prohibiting prostitution are unconstitutional. We will ignore that social/legal recognition of sex for financial profit has been limited to marriage for profit, where marriage is was an implicit agreement to sex.

Furthermore if we agree there is a substantive fundamental right to sex for profit we would not say recognition of that fundamental right would not immediately negate prohibitions against prostitution as the majority does in this ruling. This fundamental right would be subject to strict scrutiny and may still be restricted even if determined as existing. The majority in this opinion jumps from the existence of a substantive fundamental right to immediately say there is no conditions upon which the state may restrict that right in accordance with strict scrutiny.

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

I would not say the ruling of Loving V. Virginia ignored the intention of the ratification of the 14th. Remember Loving v. Virginia was against miscegenation not against interracial marriage (to which Mildred loving had a valid exception as native american who was not so prohibited by Virginias miscegenation laws). As such Loving v. Virginia is primarily supported under the 4th protections to privacy.

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?

All the cases you sight are not a matter of dignity. As stated by Chief Justice John Roberts, "There is no nobility and dignity clause in the constitution". Each of the cases you reference are supported under 4th amendment rights to privacy. Lawrence gains legal support not in regards to dignity (which is a terrible argument which would allow any one who wishes to engage in an act not legally encourage by recognition as being deprived of dignity), but rather in 4th protections right to privacy and private associations (to which the issue of marriage does not land due to it being public recognition). Personally I do not agree with Lawrence. From a legal stand point I agree Lawrence is in keeping with Constitutional interpretation to privacy and thereby agree with it legally.

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." 

Really? In all the cases you did not see where the precedence set by a prior ruling was then utilized in a subsequent ruling? I am sure you did having read all those cases. Well what did you think the slippery slope was? It is simply a matter of accepting the first argument as valid and then someone coming along and saying you accepted X as valid so what about X+1. That is basically precedential jurisprudence in a nut shell!

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".

I mean the 32 years of Lochner jurisprudence where, as stated by Chief Justice Roberts:

"Where this Court invalidated state statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interference with liberty of person and freedom"... Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them “unwise, improvident, or out of harmony with a particular school of thought.”To avoid Lochner’s error of converting personal preferences into constitutional mandates”'

Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York... The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1–2. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante, at 12. This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.”

To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner."

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..., in summation, self determination not good? And a more liberal view? I would say the first ruling was liberal "self determination trumps all" the second would be more conservative, "self determination does not trump all".

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.  

So what does that mean for Obergefell? Why the same thing it meant for Lochner, argument to self determination and personal preference over social policy is not only bad jurisprudence but ultimately will result in grave harm to the society in question as more and more rulings are made in favor of personal self determination.

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.

Ha ha. Obergefell is another case where it looks like the federal government is curbing a state's power to limit personal freedom. Except Liberals, who were all for empowering the state to limit personal freedom for the benefit of the social welfare, are siding with the individuals because they happen to agree with the outcome.

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.

I direct you to comments in the first response. If this is truly the case than we are subjecting ourselves to rule by an elite minority and have done so since the inception of the nation.

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.

1. Correct
2. Two for two
3. Not so much, the Supreme court ruled the Constitution protects dignity and security (which people are going to have a field day with) and as such recognizes a substantive fundamental right to marriage. Legal precedence would then state this substantive fundamental right is now subject to strict scrutiny in terms of restrictions to be applied and does not necessarily mean the 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.

Those inclined to jump on any bandwagon tend to do so only when they agree with it. However, as I said earlier, I am not in agreement with Lawrence v. Texas, but I recognize it is good precedential jurisprudence and that it is thereby in accordance with the law. Something Obergefell v. Hodges was not.