Wednesday, June 26, 2013

If You Refused To Vote For McCain or Romney Because They Weren't Conservative Enough...

Then today's decisions requiring the federal government to recognize same-sex marriages and overturning the voters of California concerning "one man, one woman" are consequences.  Neither McCain nor Romney was all that conservative, but do you think all of their appointees to the Supreme Court would have voted the same way as Obama's appointees on these questions?

I am really hard pressed to see how the same logic used with DOMA doesn't apply to polygamous or incestuous marriages.  All we need is for one state to recognize either, and the federal government will be obligated to provide benefits.  I could see Michigan recognizing polygamous marriages in the next twenty years, or perhaps Massachusetts, as a way of showing how open-minded and non-traditional they are.

UPDATE: Library of Law & Liberty points to Justice Scalia's powerful dissent quoted at The American Conservative:
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.
UPDATE 2: A comment on this post is important enough to escalate.  Rich Rostrom explains why Scalia joined the majority in deciding that California Prop. 8 parties lacked standing:
The basis of the Prop 8 decision is simple.

Scalia and Roberts guessed (or knew) that in a ruling on the merits, Kennedy and the liberal bloc would invent a Constitutional right to same-sex marriage.

To avoid this immediate calamity, they produced a ruling on standing which satisfied Kagan, Breyer, and Ginsberg. It voids Walker's ruling against Prop 8, but allows the District Court to strike it down for want of defensee. However, it leaves open the possibility of defense by someone with a different claim to standing.

It screws Californians and residents of any other state with the initiative, but that’s long term damage.

After seeing Kennedy’s opinion on DOMA, this was probably the best possible outcome. Someone at Volokh wrote that it was hard to understand Kennedy’s reasoning. It’s actually simple. “Gay is OK! Anyone or anything that is not Pro-Gay! is Bad. And the Constitution prohibits anything the Right People (like me) think is Bad.”

3 comments:

Rich Rostrom said...

he basis of the Prop 8 decision is simple.

Scalia and Roberts guessed (or knew) that in a ruling on the merits, Kennedy and the liberal bloc would invent a Constitutional right to same-sex marriage.

To avoid this immediate calamity, they produced a ruling on standing which satisfied Kagan, Breyer, and Ginsberg. It voids Walker's ruling against Prop 8, but allows the District Court to strike it down for want of defensee. However, it leaves open the possibility of defense by someone with a different claim to standing.

It screws Californians and residents of any other state with the initiative, but that’s long term damage.

After seeing Kennedy’s opinion on DOMA, this was probably the best possible outcome. Someone at Volokh wrote that it was hard to understand Kennedy’s reasoning. It’s actually simple. “Gay is OK! Anyone or anything that is not Pro-Gay! is Bad. And the Constitution prohibits anything the Right People (like me) think is Bad.”

Tom Locker said...

Sebastian thinks “that if the Plaintiff and Government agreed with the result of the lower court, thus end[s] the controversy”?

This ruling essentially kills the referendum/initiative process, the whole point of which is to force the government to do things the people want but the government doesn’t. If the politicians don’t like the way the people vote they just don’t have to show up in court to defend it and it loses. Want to pass a tax cut initiative like California’s Prop 13 – the politicians will just not defend it when some pro-government spending group sues and presto – no tax cut!

Or how about this – pass an initiative requiring “Shall-Issue.” MAIG sues, the government refuses to defend – court rules in favor of MAIG – end of story. This is a very dangerous ruling – it ties the hands of the public and puts almost all the power of changing laws in the hands of the government.

Now that I’ve thought about this more, I think it’s even worse than I originally thought. If the Executive doesn’t like any law which is currently under litigation, he can make sure that it is nullified by the courts just by refusing to defend it.

That would apply to laws enacted under a previous administration, or a law passed over the Executives veto.

I’d love for someone to explain to me how I’m overly concerned here.

w said...

We are now in the reality of "anything goes!"

I wonder if Las Vegas bookies are placing odds on how long before marriages of multiple human and animals together becomes legal.

One opinion is that it just isn't popular enough to get support---but that's the key point. The under age 50 gay support and general liberal support that helps push gay marriage could easily say if our Muslim brothers want it they should be able to have polygamy!

Besides it might make Bill Clinton's life easier for him to manage.

How long before they push for public sodomy to be legal!

The culture wars are over and traditional values have lost.