But Seriously...

I'm going to respectfully disagree with you. Scalia's dissents are both consistent. His objection in the one is reading 'Federal' into the word 'State' when it is clearly not there. His objection in the other is reading 'right to marry someone of the same sex' into the 14th Amendment, when it is not there - nor contemplated when it was written and passed. His whole objection is that he doesn't believe that 9 judges should determine what 'freedom' means to the extent that they are reading freedoms into the Amendment that were not there when it passed, or enumerated in other Amendments.

He is correct. When you see a Supreme Court opinion that starts with 'a review of history and tradition' you know they are making shit up. Scalia has always said that the Constitution is NOT a breathing document. It says what it says, and he points out that you can amend it. Just because it is difficult to amend (only 17 times) doesn't mean the rest of it gets 'squishy' so you can read whatever you want to it. It is a legal document, setting forth very limited legal powers that were granted to the Federal government by the States several.

This is one of those cases that I like the outcome, but hate the way they got there. There were far more elegant, and legally honest, ways to get there. The 14th Amendment has become the cheerleader on prom night to judicial interpretation: she'll always give you what you want.

Basically, the majority said 'this is a fundamental right because we say it is and therefore 14th Amendment applies which makes it a fundamental right.' Circular? A bit.

Now, I need to reveal MY bias. My sister is gay, and I believe that she has every right to be as miserable as I am in the bonds of holy matrimony. However, I agree with Robbie Clark: a lot of this wrangling could have easily, and honestly, been done by the Federal Government in repealing any tax code provisions that they felt were unfair. Further, as the Court found DOMA to be unConstitutional several years ago, it would have been consistent just to say 'Hey, Full Faith and Credit Clause' applies here kids, so while your state can 'ban' same sex marriage, you must give credit to those performed in a sister state (this is the whole point of the FFaC clause). To be fair, the majority does say this, so I'm legally ok with that part, but they went much further than they needed to and did it in a shady way.

The opinion is here for those that want to read it for themselves.

 

@Robbie Clark If the states can't see their way towards protecting the legal rights of a minority group, they can and should have that authority removed from them. The ideal "democratic" process is not very effective at protecting minorities.

For as long as the law (state or federal) provides any benefit whatsoever to married couples, those couples need to include the same-sex variety.

 

Here's the thing, under the Constitution, the State is the supreme arbiter of rights in general. People have a lot of difficulty in understanding Federalism because people assume that the Federal government is superior to the States - and by and large, this is not true. For instance: Amendment X to the Constitution:

"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."

The founding fathers were very hesitant to include a Bill of Rights, because they correctly assumed that the view would become that all rights are derived hence. As the Tenth Amendment points out, all powers by default belong with the State, UNLESS they were specifically granted to the Federal Government. In this instance (as Scalia points out) - family law has traditionally (and I would argue legally since the Constitution doesn't grant the power to define it to the Federal government) been the purview of the States. My legal bitch about these things is that as a population, as the founding fathers feared, we now look to the Bill of Rights as the font of our rights, which can be very limiting - because it says what it says. So what happens is those 'rights' are now read into words and phrases that are clear but now intentionally made muddy to get the desired outcome.

As to your contention that if a state or federal regulation grants a right to a married couple, then you can't discriminate. So what's the solution? The offending regulation must be removed as impermissible. For instance, DOMA was challenged several years ago and provides the context for the latest court ruling. At issue in that case was a federal tax regulation that did not recognize same sex marriage for inheritance tax purposes. This is just a regulation, so all the federal government had to do was something along the lines of 'for purposes of the tax code, we recognize the marital status based on the domicile of the taxpayer.' Boom. Done, no need to read language that isn't there, or more importantly, require the expansion of words and phrases that don't say specifically what the Court wants them to say. Ultimately, that's Scalia's complaint.

Then, all the Court needed to do was say 'hey, the Full Faith and Credit Clause requires that judgments of another state (and marriage is a judgment) must be legally recognized by a sister state.' This is the process by which I believe the Court could have respected federalism, and protected it, while still allowing the right. As I said in my previous post, I love this outcome, but having followed the Supreme Court in depth for almost 20 years, I recognize the danger in reading things into the Constitution that are not there. While in this case, the result is good, in another case, by allowing such an expansive view of interpretation, theoretically you could take rights away (for instance the NSA being allowed to dispense with warrant requirements).

So while I'm firmly a supporter of same sex couples marrying and enjoying the benefits of that marriage, I don't think this was the correct legal way to do it.

 

Just to be clear, I don't profess to be a constitutional scholar. This may not have been the best way to go about it - I just contest the notion that such a decision should be left to the states, as Robbie indicated.

The states have proven in this case that they can't be trusted to protect the rights of a minority. One way or another, they had to have that decision removed from them.

Doesn't your proposed solution still require gay couples to go get married in another state? That's not equality.

 

I think his ultimate solution would be a constitutional amendment?

 

You're missing the point though. The way to frame it is whether or not marriage is a right in the first place, not that the states are irresponsibly denying it. In your argument it's already been decided as such, Robbie Clark is saying that the argument is a higher question than that. That's why the court was so hesitate to take it on until now and that's the basis of his states' rights argument.

 

Oh, hey, fair enough, this stuff gets very esoteric and there is a great deal of disagreement even among Constitutional scholars. As to the 'equality' argument - in terms of marriage it often comes up that single people, people with kids, and married people are treated unequally by the tax code. If the federal government wants to remove these inequities, they are free to do so, but just because there are inequities doesn't mean they're impermissible inequities for Constitutional purposes. Another example might be not allowing felons to vote or carry a weapon - both of which are fundamental rights, but through due process of law, can be abridged. That's the part of that Amendment that seems to get short shrift, unless specifically prohibited and with due process those 'fundamental rights' can be abrogated. Hence, the tax code makes distinctions based on marital status, and prefers blood relatives in inheritance. But these things can easily be changed without resort to the Constitution as our understanding changes about what a family is.

And ultimately, the majority of the Supreme Court agrees with you, not me. I definitely have a more restrictive view of Federalism than most people (including on the Court) and I've seen that the road to hell is indeed paved with good intentions.

Under my scheme, here's what would happen - and Brandeis called it 'the laboratory of the states' - and that is exactly what is happening now. Some states approve, some don't, but let's also look at the following: there has been a dramatic shift in thinking on this issue in just the last decade. I just don't think it's necessary to do violence to the idea of 'fundamental rights rooted in tradition' because in this one matter it doesn't fit the prevailing view. There were other ways to skin this cat so to speak, and like Robbie my concern is the bigger picture, because you can in this case protect both - whereas the passage of the 14th Amendment was absolutely necessary because there was no other way to prevent the horrors being perpetrated by certain states.

So please don't take my disagreement with you as denigrating, as I said, the majority agrees with you, so I'm the one who is 'wrong.' Reasonable minds can always differ reasonably.