It's good day to be gay . . .

^ thank you Mr. Deez. A lot of what you said is what I wrote earlier (thought not all) and deleted. Hats off, you did a better job at making some of the same points than I did and included many I left out.

The problem is the way the court did it. It is possible the court could have come up with something else like Roe and Griswold. The problem is, their rational was based on nothing (well not quite nothing, but it might as well be nothing). To be honest, what bothers me is not the issue of marriage, it's their rational. The rational is scary. The rational is they can make up whatever they want.

Anyway, I probably would have given up on this topic, but "the court says so therefore it is" arguments infuriate me. It's like saying "As a citizen, I shirk my personal responsibility to learn about and interpret the constitution and should always just take the court's word for it." That's the reason I've kept coming back when I need to stop haha. Anyway, I need to stop. Between the two of us and Roberts, I do not know what else is left to be said. I agree, the same opinion could have been reached on other grounds (and you picked a good one, because states recognizing marriages in other states is a fairly big part of our constitutional order).

 

http://theaxisofego.com/2015/06/27/what-was-lost-obergefell/

Here is a pretty good article that may do a better job of explaining for non-lawyers. I do not know anything about the author or website as I just saw it on facebook. I also cannot speak to the portions discussing the media.

"
.....With the populace already accepting the lion’s share of the narrative, the turning point was when activists and media allies convinced much of the public that the questions “Should gay marriage be legal?” and “Is there a right to gay marriage in the Constitution?” were the same question.

They are not.

When I explain to people that I would never burn an American flag, but I understand that the Constitution precludes a law banning same, they usually grasp the dichotomy. When I transport the analogy to abortion, and explain that someone can be pro-choice but admit that Roe is horribly reasoned caselaw (as several of my liberal law professors did, privately), I start to get confused looks in return.

When I say that someone can be indifferent to gay marriage—or even favor it—but think that there is absolutely no substantive constitutional right to gay marriage, it is at that moment that the pitchforks and torches tend to show up.....

But why does that distinction matter so much?.....

The value is self-determination.

We decide for ourselves what sort of society we want.

Not the clergy. Not the aristocracy. Not the King of England.

We do....

If you think passing simple legislation is too hard, just think of how tough it is to ratify amendments!

And, so, we “discover” new rights now. Today’s ruling did so, and it was even more remarkable than other, similar cases: Its heavy reliance on factors like loneliness and dignity in legal decisionmaking was profound. Again, these are fine legislative arguments, but those concepts are not referenced in the Constitution. Neither is marriage, for that matter. At all.

With each decision like the one the Court announced today, we chip away a bit at a core element of our national, governmental, and jurisprudential identity.

A nick here, and a cut there, and, before you know it, we’ve bled to death.

Because what we lose when enough of these decisions accumulate is nothing short of true self-governance: The kind of self-governance that the people or legislatures of states like Vermont, New York, Washington, Maine, and Minnesota used to legalize same-sex marriage."

 

I'm disappointed but not surprised. I can understand and sympathize with the basic need behind many who have pushed for this - I think it's perfectly reasonable for a gay person to want the same protection in terms of being able to extend benefits to a partner and be able to enjoy the same benefits as a straight married couple. I would have liked for the proponents to work with the opposition to use the avenue of civil union - a move which would have received overwhelming support from both sides. I believe that could have been an opportunity to show some unity and common civility to one another.

Instead, we have a ruling that insists on a fundamental change to a civil institution which will now extend into churches as well as individual businesses (which is a change that's already left the station in the past few months.) I think we will definitely see pushes for polygamy and other variations in the future, but I don't know if that will happen soon.

What WILL happen soon is the call for religious institutions to relinquish their tax exempt status if they are unwilling to honor and perform same-sex marriages. In a way, I'm not that bothered by this - there are a lot of people in the "religion business" for the perks, and that should thin some of those people out, or at least expose them for who they are. Nonetheless, it's disappointing that there will now be a target on churches who are known to object to gay marriage (with the notable exception of Islamic mosques.) The first stage will be revoking tax exempt status, but ultimately it will lead to other penalties, including civil liability. After the last few months, would anyone really doubt that there is going to be an activist wing of the LGBT community who is going to actively start trying to drive opposing viewpoints out of the marketplace of ideas? Does anyone really believe that the response to "I'm sorry but we do not perform marriages between same-sex couples" will be "oh that's ok, we'll move on to another church"?

The question isn't "if", but "how soon."

 

I cannot understand how polygamy won't be allowed. If consenting adults want to enter into a contract, why can't they?

And there are religions that still practice polygamy. Isn't that their religious right? How can that be denied?

And if gay people can get married in Texas, why can't we have casinos here too (slightly off topic)?

 

Welcome back Roger. We missed you.

 

Roberts seems to think this decision pushed the door wide open for polygamy:
"Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.

When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either."
http://thefederalist.com/2015/06/26...uotes-from-john-roberts-gay-marriage-dissent/

 

Really? With all the religious preservation pushes going on in many states you think Civil Unions would be acceptable? Remember in California when the LGBT community simply wanted city/state sanctioned unions and they were spent into oblivion to block those? I'd argue that the Religious Right fervor in opposing gay marriage has had a boomerang effect. It certainly could lead to intrusion into the church although every gay person I know (there are many in Seattle) could care less about your church or any other for that matter. this was truly a battle for equal rights/penalties under the law. It was the Religious Right that made this and continues to make this a religious fight. Need more evidence? Look at the State of Texas who's AG today said he approved individual county clerks denying marriage licenses based on their own religious convictions. This isn't and never has been about infringing on religious rights but rather the Religious Rights attempts to enforce their personal views/convictions on everyone else. Despite their efforts, a definite majority of the country supports gay marriage.

 

I'd wager the vast majority of those that support gay marriage also have no qualms with polygamous relationships. As was mentioned previously, it would have significant impact on legal rights though as it's less cut and dry. With that said, I'd agree with ProdigalHorn that we'd be decades away from a Supreme Court allowing Polygamy.

 

Why should churches be tax-exempt while the non-religious subsidize the tax burden?

It seems that churches want to enjoy the legal benefits of tax exemption while also declining to perform legal same-sex marriages.

 

This is an absolutely perfect analogy!

 

That's another question, isn't it? It would be pretty revisionist to argue that this country has never been so religious in thought and character that it never believed that we ought to encourage religious institutions and those who contribute to them. If you don't think those should be promoted through the tax code today, then you should probably start lobbying to get that exemption removed. You'll get plenty of support.

Until then, it's an attempt to decide which religions are "acceptable" and which aren't, and using the tax code as a punitive measure.

 

It is, but the second part of my post ties in to the current issue at hand.

If religious institutions want to take advantage of the law with regard to tax exemption then they should not be able to selectively evade the law regarding marriage ceremonies.

 

It's always been a religious fight. Do you mean that it was the Right that made it a POLITICAL fight? If that's what you mean, then to some extent I would agree, but I think both sides were more than happy to drag the government into the debate. Insofar as the state has any say in religious practices (i.e. tax-exempt status, the extent to which it can/should interfere with religious practice), this was inevitably a political fight. To the extent that churches pushed for state support and involvement in the family (i.e. tax breaks for married couples, other considerations), then I would agree that they invited an eventual interference into their activities.

Again, that sort of depends on your perspective. Aren't you also imposing your beliefs on me in compelling me to perform a service that you believe to be right and I do not? This tends to devolve into two sides pointing at each other and saying "you're violating my rights by forcing me to do something I don't think I should do" - and then accusing the other person of doing it not because of their own conscience but because they just want to screw the other guy (figuratively speaking, of course...).

I would absolutely agree with the idea that a civil servant should not be forced into performing a ceremony that they cannot condone - provided that there is still an avenue for the other party to receive that service from someone else. Since it's the government's job to supply that legal service, then it seems to me that it's the government's job to ensure that the requirements of its constituents be supported, and that it have people on hand who are able/willing to do so. So basically, as long as the county has an alternative pathway to same-sex marriage, then really I would argue that YOU are the one who is imposing - because it then becomes an issue of making a specific person provide a service as opposed to simply receiving the service.

To be clear, he doesn't say he approved of the clerks denying the license. He said the clerk should not be disciplined for not violating conscience. In some cases, that might equate to the same thing, but if the state does its job, it shouldn't have to be.

 

I think that's where we disagree. How does a city issued marriage permit with a ceremony by the justice of the peace have anything to do with religion? Are you arriving there because religion has coopted the term "marriage" and offer their own similar services?

You are coming to this from religious perspective, not a government worker perspective. If you are a registrar at any government agency, you simply do not have the right to inflict your own religious preferences. Women cannot drive in Saudi Arabia. Should a muslim woman at the DMV be able to deny all women licenses? Are you advocating we should have that right? Maybe that's the crux of the issue. The Religious Right is trying to extend their religious freedoms to not only apply to their own worship, but also into services they provide for others regardless of government, private or corporate. That's a significant enhancement to the "freedom of religion" laws as I know them. Keep in mind, I'm not going to your church or your home to say what how you can and cannot worship. Why do you think it appropriate to enforce your religious beliefs on me in a public setting, especially for a service required to get for legal rights?

LOL! That's exactly the argument conservatives used to lambaste the Obama admin in he immigration debate. So, it's OK to disregard laws/rules in cases where someone religion is an issue? I have no problem with small adjustments for religious consideration in the workplace. For example, if you wanted to pray to Allah, God or whomever a few times a day that's fine as long as it wasn't a significant burden on your employer or the job you were hired. In this case you're advocating for someone to not have to do specific aspects of their job for discriminatory reasons based on religion. I'd say that's in directly conflict to the job they accepted.

 

Let's look at the marriage license clerk argument in another setting.

What if a grocery store employee refused to ring up a customer's sale because it included alcohol, or condoms, which the employee found to be in conflict with their religious beliefs? I would think that person could be terminated for not doing their job.

How is the clerk different?

 

I am arriving at the conclusion because marriage has always been a religious institution, but as civil government determined that it was an advantage to have married people, it started to encourage it through tax laws, property laws, etc..., which of course meant that it had to get involved with issuing marriage licenses and determining who was really "married" and who was just claiming to be married to get the bennies. Religion did not co-opt the term marriage; marriage originated as a religious rite and eventually was taken on by the state. To the extent that a civil ceremony and a religious ceremony have the same outcome with the same implications, then a city issued marriage permit and a JOP ceremony HAVE to have something to do with religion.

If there were a civil ceremony that was distinct from the religious ceremony which offered the same benefits, then I would agree that a civil ceremony would have no impact whatsoever on the religious ceremony. Wouldn't it be great if we had that?

There's a difference between denying all women licenses and abstaining from being the person who processes the license. I wouldn't have a lot of sympathy for that particular example just because the person took the job knowing full well that her entire job (or 50-something percent of her job, to be more precise) entailed doing something that violated her conscience. But let's say it's only part of her job that can easily be segmented out. If it's possible/reasonable for her not to be involved in the cases which violate her conscience, and those responsibilities to the public are still filled by someone, then why would it be so crucial that that particular person be the one to do it?

If you are THE gatekeeper, and the fulfillment of the task depends solely on you, and if by implication your conscience will dictate whether someone receives the service they are legally entitled to, then you should not be in that role, or you need to find a way to live with your job and your assigned duties. As I said before, the state's first requirement is to fulfill the law, and it has to staff accordingly.

That's always been the case. Religion has never been confined to what you do inside a church building. It has always been about how you live your life, and how you interact with the world on a daily basis. (At least it's supposed to be - if you're only a Christian while you're in the church building, then you're not doing it right.) You seem to be under the impression that Christians never USED to care about gay marriage until the religious right got involved with government. The change has not come in the attitude or practice of religious people, but rather that 20 years ago, a baker would almost never have been requested to make a cake with words on it supporting a gay marriage - and he refused, he wouldn't have been taken to court and fined for it. This isn't some new effort by the right to extent its reach into other people's lives. In the case of gay marriage, how can you argue that this is a recent development, when the situation never came up before? The clerk who objects today almost certainly objected 20 years ago - and they took the job that they took with no indication that it would ever be an issue.

So this is in fact a result of the gay community becoming more bold and enabled through the law. I'm not making an argument for or against that - I'm just saying that people are now being forced to confront an issue that they never had to confront before. So to say that they're just now coming up with this objection is not true.

I'm glad that you feel that way and I appreciate it. But you and I both know that's not the unanimous viewpoint. And now that the court has ruled, it's pretty naive to think this isn't going to become a case where that is exactly what's going to happen.

I don't. If it's legal for you to do it, you have the right to do it. I've posted this at least twice now. The government is bound to fulfill your rights under the law. It is not bound to make sure that a person who has a conscientious objection be the one to do it.

And if that job opening comes open today, and the primary job requirement is to process marriage licenses, then I would agree that a person who has a conscience issue doesn't need to be applying for it. But the people who are county clerks today in most cases took that job in an environment where this was not an issue. So again, if this is a situation where they don't have to be the one to process it, and it still gets done, why would that be an issue to you?

 

We probably disagree on the underlying issue, but this is definitely true. Most of the states that banned gay marriage went further than just banning it. They prohibited civil unions as well. In fact, Texas was about as hostile as one could be. Our common law didn't recognize gay marriage, so it was never legal or at any risk of being legal. However, our Legislature banned it - OK, fair enough. However, we then passed a state constitutional amendment, which involved tons of grandstanding politicians, a huge statewide campaign, and an election. It truly was a no-compromise, take-no-prisoners, and "f**k the queers" approach. Other than the common law declining to recognize gay marriage, none of this was necessary, but it helped turn out the base for Rick Perry and people like him. Ultimately, I think this sort of thing polarized the issue and caused long term damage.

 

That's actually been coming up a lot in the last few years with muslims in check-out lines. The answer has been to transfer them to another department - which has in some cases still result in a lawsuit. Do you honestly believe that if HEB fired a clerk for not being willing to touch pork that they would win that lawsuit?

 

Is that an active case making it's way through the legal system or a theory? I recall a case against Abercrombie and Fitch where the court said they couldn't restrict a woman from wearing her hijab. On the surface, I don't have a problem with the employer attempting appropriate work modifications but if there are none then it should be OK to let the employee go. That would apply to clerks in modern day too. If the job changes like most do, an employer should have the opportunity to say "does this employee have the right skillset for the new job?"

 

It was an actual suit, although it was at Costco, not HEB - but I don't know what became of it. I want to say it was 2014, but might have been earlier this year. I'm very curious to see how a court would rule on it, but I find it really hard to believe that a company would ever let that get to trial. So my guess it it's been settled since.

 

I can accept that. The question I'd have is that if the State has already adopted marriage and tied rules to it wouldn't it be easier for various religious organizations to change? BTW- I think the Civil Union idea is a ruse as Mr. Deez pointed out.

This is kind of prescient as I'm in the process of reorganizing a team at a new company I just joined. One of the items is that I need some new skills that nobody currently has. There are a few that honestly don't fit into the new structure who will be riffed. I see this in the same light. If the new skill (i.e. issue a marriage certificate to a homosexual couple) is something they can't do then a layoff is certainly appropriate if the work can't be handled by other means.

 

Are people that out of touch with religion and or marriage? Churches often reject performing marriages for straight people. Most of them have always been selective. A catholic church is not going to marry two people of a different religion (say two hindus). They may reject just because they do not approve of the straight couple. It really does not matter as one can go to the courthouse anyway (putting aside the whole clerk religious beliefs argument for just this one point of discussion). Retired judges can issue marriages licenses but they do not have to do so because maybe they are retired and do not feel like it. As someone stated, the state would just have to provide one person (probably a judge) to provide the ceremony. This arguments in quotes just does not make any sense since no one (as in churches, retired justices, etc) has ever had to perform marriages in general. Besides, if we want to remove religion, why are any religious leaders involved in a government issued contract anyway? Why not go only through judges? You have to go to the courthouse anyway. The people can just do religious ceremonies separately.

Whether or not someone truly believes they are married after the religious ceremony or after the government proceeding will be personal belief (though they legally would be after the government proceeding).

 

I think most LGBT and their supporters would agree to this. My cousin, a gay Catholic man certainly does. From my perspective, it's the religious right that were unwilling to accept even the civil ceremonies.

 

Thanks for posting the full opinion of the Supreme Court concerning this decision. My sincere hope is that those posting their opinions on this directive will read or have read this full opinion before making their decisions regarding this ruling. I look forward to responding to your post concerning the rationale the court used, as well as the rationale that you use in disputing how the justices came to their conclusions.
Unfortunately, my time is very limited right now, and your response warrants point by point considerations of precedent.

I sincerely appreciate your posting the full opinion for all to read. Perhaps, in the future, posting the full opinion at the beginning of such a thread would be more beneficial to all who choose to respond. It might even entice many to, actually, read the full opinion vs simply responding to "talking points" or media/political responses and rhetoric.

 

Htown77 said: "I have discussed this topic with some of the foremost constitutional scholars out there on both the right and the left for the past few years. They will tell you there is on fundamental right to marriage in the constitution, just as there is no fundamental right to abortion, contraception of freedom of contract. Those that support the Court do so because they believe lawyers and judges are superior at making law than the people."

My views on substantive due process are messy, and change all the time, which indicates to me that I should keep my mouth shut about it. Nevertheless, I have to say that while much of what you said above has merit, the paragraph I quoted is inaccurate and unfair. I don't know who you consider the foremost scholars, but I do know that there is a wide range of opinions among constitutional scholars, and your caricature of why some support substantive due process is unfair. As in most issue like this, very smart people of good will can, and have come to different conclusions. I am enjoying your discussion, however. Carry on.

 

^ i should note that the above is said in private and takes coercion.

After this opinion, im tired of playing along and wished to get to the crux of the matter. Those legal scholars that are passionate about the Court and Appellate Advocacy tend to believe in the superiority of the lawyers/professors/the courts deciding these matters over all. I truly believe many on the supreme court feel this way, and their opinion is evidence of it. I WILL SAY, not all, certainly not all. The amount of people that do believe in ultimate judicial supremacy in the legal world however is alarming.

I can say I had some pretty good UT law professors on both the right (well this one will not be hard to guess) and left, that wanted more popular participation in our constitution. However, there were also those that did not want such participation. There is also quite a bit of time being devoted among legal academics to justify the court taking the people's role in amending our constitution. There is a long argument about how the people have a voice in the media/litigation/social movements etc, but again most will admit it certainly falls short of the people's voices being heard through a vote.

I guess what was so disturbing about this opinion was that it seemed to follow the format of recent literature arguing the court as a vehicle of popular sovereignty to amend the constitution. The court does not have the power to amend the constitution they seem to be granting themselves in line with certain recent law review articles. My comments were simply, I am aware of where this is coming from in the legal community. What's scarier is the next step that the court has the power to strike down a constitutional amendment it sees as unconstitutional.

(Quick addition: Roberts seems very fixated on the Court not overreaching and spending all of it's "political capital." It seems likely he will attempt to prevent further power grabs from the court, if only because this fixation. However, we shall see what happens.)

 

Because "the power to tax is the power to destroy," to borrow the Supreme Court's verbiage. Also, the freedom of religion should be a two-way street. Churches shouldn't get taxpayer money (unless they're performing a governmental function of some kind), and they shouldn't have to pay in. They should be financially separate.

There is a place where the God-haters could have a point. Not all tax exemptions are the same. Some don't levy taxes against the organization at issue, while others don't tax the organization and allow contributors to deduct the contributions. Actually levying a tax on a church would be pretty controversial and perhaps unconstitutional. However, I could respect their advocacy that donors not be allowed to deduct contributions. Of course, they'd also have to be consistent and give ups the tax exemptions to the groups they give money to.

 

I wasn't trying to hide anything. A simple google search, and anybody can find the opinion. Furthermore, I didn't put out talking points or media responses or rhetoric. Most media people and political commentators are dumbasses and don't know how to analyze a court decision. I read the case and commented with my own thoughts on the issue.

 

As stated above, what media people or political commentators can understand or discuss these points? Look at this thread. The opinion came out friday at 9 am. Mr. Deez started it at 10 am with his thoughts. I responded before 11 am with my thoughts.

I took the time to read the opinion and then began discussing it with friends/posting on hornfans. As stated over and over, my concerns are the implications for judicial power because of the reasoning they used. In all honesty, it was quite a while before I looked at anything the media said. In fact, when I have looked at the media, all I have see are stories of different gay couples getting married and discussions of dignity devoid of any real legal analysis either way.

 

Loosely relevant to the Supreme Court discussion in this thread, "Supreme Ayatollah" Anthony Kennedy is not a fan of affirmative action and the Court will be taking up the Abigail Fisher case again. It will be interesting to see what happens a year from now.