The Supreme Court, Gay Marriage, and Anthony Kennedy

I can't figure out what position you are trying to take on this. Sounds like "I'm unhappy they decided the case, but I'm happy they did. Laws against it were unconstitutional, but the supreme court should not have considered the constitution because that isn't democratic. "

barfo

 

All I'm saying is if Roberts were voting his ideology, he'd have voted (deciding vote) ObamaCare unconstitutional and wrote gay marriage laws unconstitutional too.

He didn't. I understand why.

 

The sentences that start with "Celebrate." Like "Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits."

I don't see anything like the "marriage is between a man and a woman" malarky. He actually sounds happy for the people.

I'm not complaining about the decision. I'm suggesting that those who think Roberts is a bigot are confused.

https://en.wikipedia.org/wiki/John_Roberts

John Glover Roberts Jr. (born January 27, 1955) is the 17th and current Chief Justice of the United States. He took his seat on September 29, 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist. He has been described as having a conservative judicial philosophy in his jurisprudence.

 

He didn't get the decision "wrong" - he got it different. To him the question the court decided took an activist approach, and he disagrees with judicial activism. For the same reason, he refused to vote against ObamaCare - though unconstitutional, it is something that the people and their legislators can fix.

"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 their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law," he wrote.

"Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today," Roberts wrote. "Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."

"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," Roberts wrote. "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."

Compare to Scalia:

"When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so," he wrote.

"They [the majority] have discovered in the Fourteenth Amendment a 'fundamental right' overlooked by every person alive at the time of ratification, and almost everyone else in the time since."

 

I think we do need to be careful what things the court can by fiat make as law. I will always be on side on the side of individual freedom, including giving up freedom to government as we continually do in a "progressive" manner. Progressive isn't very democratic, which is Roberts' point.

Funny how people complained about the court ruling in Bush v Gore, where they did get involved where the state was struggling with implementing its democratic institution, and now complain about the view that the court shouldn't get involved in such things. If you want the court to be activist, that's the kind of thing they will do.

Consistency is a big deal.

Now consider this, too. If Roberts chose to be activist, I think he would have voted for gay marriage and against ObamaCare. You want to make that trade, or would you prefer to let our elected representatives duke it out in congress and with/against the president and his veto?

 

Marriage isn't an inalienable right. It's a religious concoction or a form of contract created by and recognized by the state.

The state grants certain benefits for those who are married: family law, divorce, hospital visitation and decision rights, probate, etc. Those benefits aren't anything to do with Natural Rights.

There's the rub.

My 14th amendment take is that this contract recognized by the state needs to be inclusive; that all the state's citizens aren't treated fairly if they allow marriage for some but not others.

My 1st amendment take is that no religious institution has to perform marriage ceremonies for anyone or can pick and choose those ceremonies they will perform.

Your consistency argument is questionable to me, and highlights Roberts' correct reasoning. You don't want 5 lawyers to decide and make law based upon how their sphincters twitch when they hear the details of the cases.

 

The NYTimes says it better than I.

http://www.nytimes.com/2015/06/27/us/chief-justice-john-roberts-defends-steady-restraint.html?_r=0

 

Read the NY Times link above.

 

Allowing elected officials to regulate political speech undermines democracy. Succinctly put.

 

CNN confuses butt plug and dildo banner for ISIS flag at Pride

 

The Loving case was substantially different, @crandc.

It wasn't an issue of interracial marriage denied, it was an issue of it being criminalized. The Lovings were charged with a crime for their marriage, plead guilty, and were sentenced to prison.

The court similarly intervened to make sodomy laws illegal.

Bush v Gore - those who argue against Roberts' reasoning might find this an eye opener. Or maybe see the hypocrisy in it.

Justice Ruth Bader Ginsburg:

.. [D]isagreement with the Florida court' s interpretation of its own State' s law does not warrant the conclusion that the justices of that court have legislated. There is no cause here to believe that the members of Florida' s high court have done less than "their mortal best to discharge their oath of office," and no cause to upset their reasoned interpretation of Florida law...

The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts' interpretations of their State' s own law. This principle reflects the core of federalism, on which all agree. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." ...

SAME LOGIC AS ROBERTS