M.D. Rawlings
Classical Liberal
homo marriage? that must knock um dead at the trailer park!Notwithstanding, the leftist members of the Court have in fact made statements here and there over the last several year that strongly suggest that they're open to the idea of dragging the Fourteenth's Equal Protection Clause into the fray, albeit, while simultaneously asserting what would necessarily be, as you rightly observe, an utterly arbitrary rationale to preclude the equal treatment of things like polygamy, though given the left's general hostility toward parental authority and the modern standard of the age of consent, even such a gesture of political expediency would be moot.
The obvious counter to this insanity would be to simply point out that since the plaintiff's state does not recognize "homo marriage," there's no basis for the plaintiff to demand that the federal government do so. What marriage? It's up to each state, not the federal government to "define" marriage.
Well, no, that's wrong, of course, but that rash of historical revisionism is now legally binding.
Most of the leftists on this forum think that the legal basis for the Court to declare that the federal government must necessarily recognize all "homo marriages" has been put down, when in fact it hasn't been. Many even believe that the legal basis for the Court to declare that all states must recognize "homo marriage" has been put down, when in fact it hasn't been, at least not in any sense that is consistent with the historical practice of stare decisis. There's a gap there that has yet to be bridged, a missing link in the chain of logic.
But lefty rarely does logic anyway.
Notwithstanding, if, suddenly, out of nowhere, any given state can, by default, via its decision to recognize "homo marriage", compel the federal government of all the people to recognize "homo marriage" in terms of federal laws and programs, that is to say, if in Windsor, the Court can jump off the rails of the Republic's historical sociopolitical track, what's stopping it from jumping of the rails of the track of standard stare decisis?
In this case, as we have both observed, much is stopping it from doing so, but that's no guarantee.
After all, with regard to the Fourteenth's Equal Protection Clause, which requires each state to provide equal protection under the law to all the people within its jurisdiction, why can't the Court now insist that the federal government do the same under the law for all the people within its jurisdiction, in spite of what any given state may assert about "homo marriage"? Essentially, the Court set up a system in Windsor in which the federal government does treat "married" homosexuals differently from state to state depending on the designation applied by the respective state. That's a rhetorical question. We already discussed the why. Again lefty still doesn't get it, especially the point of "what marriage?" in the case of those states that do not recognize it.
Under standard procedure, they would have no standing in the first place.
My only point here: see how convoluted things get once government starts redefining things that are determined by nature? And right or wrong, that will be the argument of the consistently leftist members of the Court should they attempt to go there.
Certainly those pea brains Ginsburg and Kagan would probably go there, while it is less certain that Sotomaryer or Beyer would be so foolish.
In truth, it's all nonsense from the jump, one non sequitur after another, but that's what happens when in practice absolutes are disregarded by relativistic jurisprudence, beginning with the nonsense that the several states' regulatory power over marriage is synonymous to the power to define what marriage is. Marriage is defined by nature and nature's God, not by the state.
I don't think the Court is going to get as convoluted as you paint here. They said it simply and succinctly. Marriage is up to the states unless the 14th applies. The question that remains is if the 14th can be applied to behaviors [just some in LGBT's case] in addition to race, gender, religion and country of origin. And as I've said, that's a can of worms.
They mentioned 13 year olds marrying in New Hampshire. Using your logic, would all 13 year olds across the nation then be able to have standing to petition that they too qualify for legal marriage? If the fed recognizes married 13 year olds from New Hampshire, does that mean that automatically all 13 year olds in the US may marry?
No, of course not. I think their deliberations are going to be much simpler than you think on this matter. It's the reason they made the 13-year old comparison. I think they are very simply going to reiterate Windsor and remind everyone that gay marriage is up to each state as their discreet community sees fit or not. And if they were serious about that choice being retroactive to the founding of the country with respect to which couples may marry, then that also will be binding law.
Actually, none of this is my logic. I'm talking about the potential logic of the leftists on the Court. My allusion to parental authority and the age of consent doesn't directly pertain to the issue of "homo marriage." I expect it's going to go down just as you say. Indeed, opening this up to the Fourteenth is opening up a can of worms. It's highly unlikely that the Court will do that. It will be interesting to see who the truly nutty justices are though.
You would know.