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AULT&CTIME=2015-06-26-10-02-52 Published: Jun 26, 2015 Author: AP staff Post Date: 2015-06-26 10:23:13 by redleghunter Keywords: None Views: 8035 Comments: 101 WASHINGTON (AP) -- The Supreme Court declared Friday that same-sex couples have a right to marry anywhere in the United States. Gay and lesbian couples already could marry in 36 states and the District of Columbia. The court's 5-4 ruling means the remaining 14 states, in the South and Midwest, will have to stop enforcing their bans on same-sex marriage. Click for Full Text! Poster Comment: No surprises. Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 65. #58. To: redleghunter (#0) DISSENTING OPINION OF JOHN ROBERTS (EXCERPTS) Roberts dissent at 3, Understand well what this dissent is about: It is not about whether, in my judgment, the institution of mar­riage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through theirelected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer. Roberts dissent at 4, Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—moreprecisely—who decides what constitutes “marriage”? The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. Roberts dissent at 9-10: Petitioners first contend that the marriage laws of their States violate the Due Process Clause. The Solicitor Gen­eral of the United States, appearing in support of petition­ers, expressly disowned that position before this Court. See Tr. of Oral Arg. on Question 1, at 38–39. The majority nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause. The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality, however, the majority’s ap­proach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that char­acterized discredited decisions such as Lochner v. New York, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s posi­tion indefensible as a matter of constitutional law. Roberts dissent at 10: Petitioners’ “fundamental right” claim falls into themost sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understand­ing” or “Nobility and Dignity” Clause in the Constitution. See ante, at 3, 14. They argue instead that the laws vio­late a right implied by the Fourteenth Amendment’srequirement that “liberty” may not be deprived without “due process of law.” Roberts dissent at 15: The majority’s driving themes are that marriage isdesirable and petitioners desire it. The opinion describes the “transcendent importance” of marriage and repeatedly insists that petitioners do not seek to “demean,” “devalue,” “denigrate,” or “disrespect” the institution. Ante, at 3, 4, 6, 28. Nobody disputes those points. Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant. Roberts dissent at 16: In short, the “right to marry” cases stand for the im­portant but limited proposition that particular restrictionson access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. Roberts dissent at 18: In sum, the privacy cases provide no support for the majority’s position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 196 (1989); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 35–37 (1973); post, at 9–13 (THOMAS, J., dissenting). Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to rede­fine marriage and no basis for striking down the laws at issue here. Roberts dissent at 19: Perhaps recognizing how little support it can derivefrom precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights taken by this Court in Glucksberg. Ante, at 18 (quoting 521 U. S., at 721). It is revealing that the majority’s posi­tion requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majorityof taking a careful approach. Roberts dissent at 19-20: The truth is that today’s decision rests on nothing more than the majority’sown 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 themthis 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. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold thislaw,” which “is an illegal interference with the rights ofindividuals . . . to make contracts regarding labor upon such terms as they may think best”). Roberts dissent at 20-21: One immediate question invited by the majority’s posi­tion is whether States may retain the definition of mar­riage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14­4117 (CA10). 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. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond be­tween three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subor­dinate people who find fulfillment in polyamorous rela­tionships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J.1977 (2015). I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either. Roberts dissent at 22: The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down dem­ocratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. Roberts dissent at 25: Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thought­ful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante, at 19. The answer is surely there in one of those amicus briefs or studies. Roberts dissent at 25-26: Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unac­countable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” Ante, at 8. In our democracy,debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either thelegislative branch or the executive branch in the positionof a television quiz show contestant so that when a given period of time has elapsed and a problem remains unre­solved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693,700 (1976). As a plurality of this Court explained just lastyear, “It is demeaning to the democratic process to pre­sume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Roberts dissent at 26-28: When decisions are reached through democratic means, some people will inevitably be disappointed with the re­sults. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how oursystem of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting). But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth ac­knowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs. Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommo­dations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses. Roberts dissent concluding at 26-28: If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex mar­riage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the oppor­tunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. I respectfully dissent. nolu chan  posted on  2015-06-26   18:09:57 ET  Reply   Untrace   Trace   Private Reply   #60. To: nolu chan (#58) The common denominator about the USSC decision is simple to understand: the government owns the institution of marriage and not religious institutions or considerations. The result allows anyone to marry just about anyone along as they are of legal age and pass a blood test which is simple to perform at the state level. The Institution of Marriage is not owned by religious doctrine which (for the most part) specifies that marriage is between a man and a woman in America within the reign of holiness and vowels, particularly within the Christian Church. The outcome shall be to change the definition of religious marriage or marriage within a church to something like --> fucking for God. buckeroo  posted on  2015-06-26   21:50:02 ET  Reply   Untrace   Trace   Private Reply   #63. To: buckeroo (#60) The common denominator about the USSC decision is simple to understand: the government owns the institution of marriage and not religious institutions or considerations. The result allows anyone to marry just about anyone along as they are of legal age and pass a blood test which is simple to perform at the state level. There has never been a federal marriage license. It has always been a state affair and the claim of federal constitutional authority to dictate a federal definition of marriage is on very shaky grounds. I think they did away with blood tests. nolu chan  posted on  2015-06-27   2:45:01 ET  Reply   Untrace   Trace   Private Reply   #65. To: nolu chan (#63) (Edited) The court is saying that a chosen sexual lifestyle entitles an individual to the 14th amendment right of Equal Protection, and every state must comply. I see a major problem developing. Society (the people) can no longer set moral standards. misterwhite  posted on  2015-06-27   9:10:40 ET  Reply   Untrace   Trace   Private Reply   Replies to Comment # 65. #66. To: misterwhite (#65) I see a major problem developing. Society (the people) can no longer set moral standards. Developing? LOL.. CZ82  posted on  2015-06-27 09:15:26 ET  Reply   Untrace   Trace   Private Reply   End Trace Mode for Comment # 65. 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