The constitutional inevitability of same-sex marriage

C_Clayton_Jones

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Laurence H. Tribe
Posted Friday, August 26th, 2011 2:41 pm

The case for same-sex marriage follows directly from Lawrence’s potent recognition of the right to dignity and equal respect for all couples involved in intimate relationships, regardless of the sex of each individual’s chosen partner. Sounding in the constitutional registers of due process and equal protection, Lawrence sought to secure a fundamental and yet fragile dignity interest whose boundaries necessarily extend far beyond the bedroom door. Notwithstanding a few half-hearted qualifications that Justice Scalia quite rightly dismissed as inconsistent with its underlying reasoning and as trivial barriers to same-sex marriage rights, Lawrence is thus incompatible with state and federal laws that refuse two men or two women the full tangible and symbolic benefits of civil marriage.

Laws that limit these benefits to opposite-sex couples will, I suspect, come to be viewed as an anachronism that just barely survived the twentieth century and collapsed under the weight of their striking inconsistency with evolving public consensus, advances in civil rights, and core constitutional principles. Just as we now look back on Loving and celebrate its teaching that the fundamental right to marry transcends boundaries of race that once seemed obvious and essential, so too should the restriction of marriage to opposite-sex couples be recognized as jarringly out of sync with the respect for dignity that Lawrence articulated so memorably. Whether conceptualized as a fundamental right to marriage steeped in traditions of liberty, or as an embrace of equality that refuses to discriminate against opposite-sex couples on grounds of sex and sexuality, same-sex marriage rights are firmly grounded in the Constitution. The time has come for the Court to recognize this fact.

Other arguments, shorn of their rhetorical focus on “harm” to the “institution of marriage” and their pseudo-scientific claims about the supposedly essential characteristics of each sex, consist of little more than expressions of moral disapproval of homosexuality and of same-sex couples. In addition to the obvious barriers that such arguments face – including the Court’s rejection in Romer v. Evans of animus as the justification for discrimination on the basis of sexual orientation, and Judge Vaughn R. Walker’s devastatingly thorough rejection of the empirical evidence that purports to render these claims scientifically credible – Lawrence also stands as an imposing hurdle. Justice Kennedy did indeed speak of demeaning those who are married, but his opinion said nothing of the supposed “harm” to marriage that would follow from its extension to same-sex couples. Rather, he emphasized that “it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” By thus invoking the essential role that intimacy and love play in marriage as an institution that is simultaneously private in its personal significance and public in the face it presents to the world, Justice Kennedy pointed beyond purely sexual intimacy to the dignitary concerns that Lawrence safeguards and that are squarely implicated in the case for same-sex marriage. Just as morally rooted hostility to homosexuals flunked constitutional scrutiny in Lawrence even when dressed up in “scientific” studies that purported to show the health risks or social harms wrought by same-sex sexual relations, so should such hostility be disapproved by the Court as a permissible basis for ongoing discrimination in the domain of marriage rights.
More at the link:

The constitutional inevitability of same-sex marriage : SCOTUSblog
 

SW2SILVER

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This really clears things up, then! What the hell is that supposed to mean? Vicissitudes my ass. IF I want to marry my fucking wheelbarrow, one day that is going to be “Constitutional”? Or, it isn’t. Depends. Maybe. We have this nailed down here. Thanks for the disambiguation thread, buck-o.
 
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Oddball

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Strange..

Back in the 60s and 70s, the left deemed marriage antiquated and passé....Now that one of the DNC's prized identity pressure groups makes a fuss, marriage is next to the gold standard of social acceptance.

Go figure.
 

rightwinger

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Over ten percent of the population now has gay marriage available to them. Once California institutes gay marriage, we will reach a tipping point. With gay couples moving between states and the military having to extend benefits to gay couples it will only be a matter of time before courts will be overwhelmed with cases on gay marriage rights

Ten years from now, everyone will wonder what the fuss was about
 

SW2SILVER

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California uber ales. Maybe not. Do we really Want to do this? I mean, give gays this "right"? Me personally, no. WHY? But given modern" vicissitudes" heaven knows, ANYTHING goes. To borrow a line from Broadway. Gays never hurt me. But, they never earned nor deserve the right of marriage. They have all the same rights I do, anyway, why are they bitching? NO gay marriage. No fucking way, Jose.
 
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rightwinger

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California uber ales. Maybe not. Do we really Want to do this? I mean, give gays this "right"? Me personally, no. WHY? But given modern" vicissitudes" heaven knows, ANYTHING goes. To borrow a line from Broadway. Gays never hurt me. But, they never earned nor deserve the right of marriage. They have all the same rights I do, anyway, why are they bitching? NO gay marriage. No fucking way, Jose.
What did you do to earn the right to marry?
 

SW2SILVER

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California uber ales. Maybe not. Do we really Want to do this? I mean, give gays this "right"? Me personally, no. WHY? But given modern" vicissitudes" heaven knows, ANYTHING goes. To borrow a line from Broadway. Gays never hurt me. But, they never earned nor deserve the right of marriage. They have all the same rights I do, anyway, why are they bitching? NO gay marriage. No fucking way, Jose.
What did you do to earn the right to marry?
You are trying to make a point here, I suppose. I have as many rights as YOU do, no less, no more...Want a medal?
 
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rightwinger

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California uber ales. Maybe not. Do we really Want to do this? I mean, give gays this "right"? Me personally, no. WHY? But given modern" vicissitudes" heaven knows, ANYTHING goes. To borrow a line from Broadway. Gays never hurt me. But, they never earned nor deserve the right of marriage. They have all the same rights I do, anyway, why are they bitching? NO gay marriage. No fucking way, Jose.
What did you do to earn the right to marry?
You are trying to make a point here, I suppose. Good for you!
No...just trying to figure out your rambling brain farts
 

SW2SILVER

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Rightwinger, how many guys do YOU want to marry then? Please. Don't be modest or anything. Put it out there, girlfriend! Testify!
 

George Costanza

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This really clears things up, then! What the hell is that supposed to mean? Vicissitudes my ass. IF I want to marry my fucking wheelbarrow, one day that is going to be “Constitutional”? Or, it isn’t. Depends. Maybe. We have this nailed down here. Thanks for the disambiguation thread, buck-o.
I call bull shit. There are only two reasons for opposition to gay marriage - intolerance and bigotry. End of story. All of the other "arguments" against it are, well, bull shit.
 

SW2SILVER

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Costanza whatever, aren’t you running out of platonic diatribes? No yet? Wow, it's a record!
 
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Quantum Windbag

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Laurence H. Tribe
Posted Friday, August 26th, 2011 2:41 pm

The case for same-sex marriage follows directly from Lawrence’s potent recognition of the right to dignity and equal respect for all couples involved in intimate relationships, regardless of the sex of each individual’s chosen partner. Sounding in the constitutional registers of due process and equal protection, Lawrence sought to secure a fundamental and yet fragile dignity interest whose boundaries necessarily extend far beyond the bedroom door. Notwithstanding a few half-hearted qualifications that Justice Scalia quite rightly dismissed as inconsistent with its underlying reasoning and as trivial barriers to same-sex marriage rights, Lawrence is thus incompatible with state and federal laws that refuse two men or two women the full tangible and symbolic benefits of civil marriage.

Laws that limit these benefits to opposite-sex couples will, I suspect, come to be viewed as an anachronism that just barely survived the twentieth century and collapsed under the weight of their striking inconsistency with evolving public consensus, advances in civil rights, and core constitutional principles. Just as we now look back on Loving and celebrate its teaching that the fundamental right to marry transcends boundaries of race that once seemed obvious and essential, so too should the restriction of marriage to opposite-sex couples be recognized as jarringly out of sync with the respect for dignity that Lawrence articulated so memorably. Whether conceptualized as a fundamental right to marriage steeped in traditions of liberty, or as an embrace of equality that refuses to discriminate against opposite-sex couples on grounds of sex and sexuality, same-sex marriage rights are firmly grounded in the Constitution. The time has come for the Court to recognize this fact.

Other arguments, shorn of their rhetorical focus on “harm” to the “institution of marriage” and their pseudo-scientific claims about the supposedly essential characteristics of each sex, consist of little more than expressions of moral disapproval of homosexuality and of same-sex couples. In addition to the obvious barriers that such arguments face – including the Court’s rejection in Romer v. Evans of animus as the justification for discrimination on the basis of sexual orientation, and Judge Vaughn R. Walker’s devastatingly thorough rejection of the empirical evidence that purports to render these claims scientifically credible – Lawrence also stands as an imposing hurdle. Justice Kennedy did indeed speak of demeaning those who are married, but his opinion said nothing of the supposed “harm” to marriage that would follow from its extension to same-sex couples. Rather, he emphasized that “it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” By thus invoking the essential role that intimacy and love play in marriage as an institution that is simultaneously private in its personal significance and public in the face it presents to the world, Justice Kennedy pointed beyond purely sexual intimacy to the dignitary concerns that Lawrence safeguards and that are squarely implicated in the case for same-sex marriage. Just as morally rooted hostility to homosexuals flunked constitutional scrutiny in Lawrence even when dressed up in “scientific” studies that purported to show the health risks or social harms wrought by same-sex sexual relations, so should such hostility be disapproved by the Court as a permissible basis for ongoing discrimination in the domain of marriage rights.
More at the link:

The constitutional inevitability of same-sex marriage : SCOTUSblog
Unlike you, this man knows that his opinion is not the be all and end all.

By the way, SCOTUS Blog has been running a symposium on the issue for a while. I have not read all of the posts, but I have read most of them, and find all of them very interesting.

Here are two that present arguments against the court making the decision now.

States’ rites? Federalism and marriage litigation : SCOTUSblog

Same-sex marriage and religious liberty : SCOTUSblog

History tells us that the court generally waits for states or Congress to define a right before they inject themselves into the fray. There is no reason for them to break that pattern now, so they will probably duck Perry v Brown just like they ducked the issue of interracial marriage in Naim v Naim.

Naim v. Naim - Wikipedia, the free encyclopedia
 

Quantum Windbag

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This really clears things up, then! What the hell is that supposed to mean? Vicissitudes my ass. IF I want to marry my fucking wheelbarrow, one day that is going to be “Constitutional”? Or, it isn’t. Depends. Maybe. We have this nailed down here. Thanks for the disambiguation thread, buck-o.
I call bull shit. There are only two reasons for opposition to gay marriage - intolerance and bigotry. End of story. All of the other "arguments" against it are, well, bull shit.
I actually pointed out a couple that were based on neither intolerance or bigotry in your thread. Did you miss them?
 

ABikerSailor

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California uber ales. Maybe not. Do we really Want to do this? I mean, give gays this "right"? Me personally, no. WHY? But given modern" vicissitudes" heaven knows, ANYTHING goes. To borrow a line from Broadway. Gays never hurt me. But, they never earned nor deserve the right of marriage. They have all the same rights I do, anyway, why are they bitching? NO gay marriage. No fucking way, Jose.
What did you do to earn the right to marry?
You are trying to make a point here, I suppose. I have as many rights as YOU do, no less, no more...Want a medal?

Actually, he's wondering why a male and a female over the age of 18 can get married, enjoy tax benefits as well as other legal privledges and a male and a male over 18, or a female and a female over 18 are not afforded the same rights.

If you're hetero, you have the "right" to marry. Gays in many places do not. Why is it that one group of people is given more legal rights than the others?
 

Quantum Windbag

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What did you do to earn the right to marry?
You are trying to make a point here, I suppose. I have as many rights as YOU do, no less, no more...Want a medal?
Actually, he's wondering why a male and a female over the age of 18 can get married, enjoy tax benefits as well as other legal privledges and a male and a male over 18, or a female and a female over 18 are not afforded the same rights.

If you're hetero, you have the "right" to marry. Gays in many places do not. Why is it that one group of people is given more legal rights than the others?
Great point. No one should get tax benefits of any type just because they are married.
 

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