Vanity thought #1406. “Supreme” Justice 7

Next part of the majority opinion is, perhaps, the most “legal” one. It relies on interpretation of several previous cases some of which had nothing to do with marriage at all, but the court wanted to find a suitable interpretation of rights so that right to marry could be understood as right to marry a person of the same sex.

Maybe it makes sense legally but to me the court’s reasoning looks like a non-sequitur. At one point the opinions says that, historically, right to marry was interpreted by the court in its “comprehensive” sense. Maybe so, but even in that “comprehensive” sense it didn’t even think about including same-sex relationships, it never ever occurred to anyone fighting against ban on interracial marriages or marriages for inmates of marriages for fathers unable to pay child support etc.

At another point the court says that rights cannot be defined only by those who exercised them in the past because in this case received practices would serve as their own justification and new groups could not invoke rights once denied. Maybe so, but it doesn’t mean one can make up a new right out of the blue and claim that it’s protected by the constitution.

It’s at this juncture that the court says that rights must also include “a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” Again, maybe so, but this approach means that the court takes upon itself to interpret liberties and “urgencies” of our own era instead of the constitution, but even if it was okay it doesn’t make same-sex relationships into marriage because our era is still undecided on this as SSM legislation has been rejected in a large number of States, even majority of the States, as appears from the dissent. Why do judges claim to be more in touch with the times than people themselves?

To me it looks as if basic reasoning here went like this – proponents of same-sex relationships want them to be called marriage, the rest of the society scoffs at the idea, and therefore constitution must come to their aid. The justification for recognition of SSM, therefore, lies in the fact that someone asked for it but was ridiculed in return.

Once again, this is the sign of our times where everyone wants rights, and not just right to do whatever they want, but the right to be recognized and respected for their choices, however stupid. It’s not the right to be married that is under discussion here, it’s the right not to be ridiculed. This is in addition to the right not to be lonely mentioned earlier. One of the dissenting judges dealt with this newfangled interpretation of liberty better then me.

Then there’s a murky part about the Due Process clause and Equal Protection clause where the court says they are connected in the profound way and create some sort of synergy, and therefore same-sex marriage. How? That’s why I used the word “murky”, because the opinion doesn’t spell how it arrived to such conclusion at all, as in it offered no specifics in interpretation of these two clauses as related to same-sex relationships whatsoever, only the same cases of interracial relationships etc which stopped at the traditional man-woman union and not an inch further. Weakness of this paragraph was noted in the dissent, too.

Here the basic reasoning misses the point that in all those cases marriage was never defined as between a man and a woman of the same race, or a man and a woman who are not in jail etc. All those conditions were extraneous and didn’t even attempt to redefine what marriage is, but same-sex relationships do. Contrary to the majority opinion, they are not precedents for making up new definitions but for enforcing the existing ones.

In the end, the opinion once again says that bans on same-sex marriage “burden the liberty” of the same-sex couples, which is the same newfangled interpretation of what liberty is I mentioned above, and the opinion makes it very clear what this burden is – denial of benefits. Some critics picked up on that and argued that the Constitution does not promise equal benefits to everyone and does not protect equal access to benefits, certainly not the 14th Amendment. Here’s once again what the amendment says: “nor shall any State deprive any person of life, liberty, or property, without due process of law”. Note that there is no “benefits” on the list of things the States shall not deprive people of. Neither does the following “nor deny to any person within its jurisdiction the equal protection of the laws” means providing equal benefits.

This just does not follow.

And once again, the court says that otherwise gays and lesbians will be disrespected. This is not the right provided by the 14th Amendment either (14th is explicitly mentioned as legal basis here) and it goes against people’s right to free speech and the right to think whatever they want about gays. Not that we, as devotees, care about free speech, but on the strength of court’s own premises this argument does not hold.

The opinion then mentions one precedent from 1972 when Supreme Court refused to rule against Minnesota State’s ban on same-sex marriages “for want of a substantial federal question” and considered it overruled.

Next part of the opinion deals with the fact that SSM is a hot issue for the society and that in issuing this ruling the court stops this democratic process from going forward. The opinion acknowledges the argument but says that it doesn’t matter if the fundamental rights are infringed, which goes back to the point that right to same benefits as straight couples is not fundamental in any sense. The court decided that it is and people can shut up and go home.

The court once again brings the case with decriminalization of gay sex but misses the “criminal” part of it – gays were not free to engage in sex while they are now free to live as married couples, the only thing lacking is benefits and a nod from the society. It’s fundamentally different from being thrown to jail for doing something, not the same ballpark, not even the same game. You can’t compare actual harm to gays in these two cases even if they might feel strongly about both of them.

Next part is important, it’s about the claim that allowing SSM would harm the institution of marriage itself, and I don’t want to start it today so I’ll stop here.

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