Patterico's Pontifications


Gay Marriage Arguments Today

Filed under: General — Patterico @ 8:10 pm

I have no particular insight for you; Kennedy made a reference to the definition of marriage having been constant for “millenia” but I suspect it’s a head fake and he’s in it for the glory. We’ll see come June. If you want to listen, audio is here and here, transcripts here and here.

UPDATE: By the way, in that first audio clip, it’s worth your time to scroll ahead to 27:00 and listen for about a minute. Trust me. Go all the way to 28:00. I don’t want to spoil it by describing it.

28 Responses to “Gay Marriage Arguments Today”

  1. Ding.

    Patterico (9c670f)

  2. JUSTICE SCALIA: What about Article IV? I’m
    19 so glad to be able to quote a portion of the
    20 Constitution that actually seems to be relevant. “Full
    21 faith and credit shall be given in each State to the
    22 public acts, records, and judicial proceedings of every
    23 other State.” Now, why doesn’t that apply?

    Scalia in full sarcasm mode.

    Patterico (9c670f)

  3. My preferred outcome:

    Question 1, 5-4 no, the 14th amendment does not require all states and persons therein to accept SSM. All federal decisions to the contrary vacated, all existing marriages held valid. It’s a state thing.

    Question 2: 9-0 yes, all states must accept marriages made under the laws of another state to be valid.

    They will probably find a way to do that backwards.

    Kevin M (25bbee)

  4. Kennedy made a reference to the definition of marriage having been constant for “millenia” but I suspect it’s a head fake and he’s in it for the glory.

    Yes, I’m sure it’s just a head fake. Because after noting the millenia-old definition of marriage, he waxed philosophical, “it is hard to say, ‘We know better.'”

    But then, this:

    But Kennedy also invoked terms like “dignity” and “ennoblement” when pushing the attorney defending state bans of same-sex marriage to defend their constitutionality.

    Given a choice between writing an opinion upholding judicial modesty and an opinion that waxes poetic about dignity and ennoblement, my bet is that Kennedy will write the latter opinion.

    It’s amusing that these arrogant judges think they have the moral authority to bestow “dignity” and “ennoblement” on SSM by redefining marriage and eliminate the central defining feature marriage. The central purpose that made it not only dignifying and ennobling but foundational.

    There’s really no reason to see marriage as anything more than a cheap joke if its only function is to allow two adults to celebrate themselves. Rather then marriage being foundational it will be so trivial as to be completely irrelevant. Brought to you by another cheap joke; nine unelected lawyers who looked back over the millenia and didn’t find it hard to say “We know better.”

    Steve57 (08cad4)

  5. five of nine unelected lawyers, which makes it an even cheaper joke.

    Steve57 (08cad4)

  6. UPDATE: By the way, in that first audio clip, it’s worth your time to scroll ahead to 27:00 and listen for about a minute. Trust me. Go all the way to 28:00. I don’t want to spoil it by describing it.

    Patterico (9c670f)

  7. I would be willing to bet good money that Anthony Kennedy’s primary motivation for upholding Roe v. Wade was to preserve the unlimited judicial power he needed to advance his vision of sexual justice in America.

    Andrew (557f7c)

  8. Liberal judges suck, and the Supreme leader roberts should be arrested for his illegal kids.

    mg (31009b)

  9. Kennedy’s analogy about Brown and Loving was stupid. In the case of interracial marriage you did not have almost every state start passing laws and state amendments about preserving the sanctity of pure white womanhood right after Brown.

    With SSM they did exactly that, even in blue states like California. It is only courts that have struck down these laws that have allowed marriage in all but a tiny handful of states.

    So, Someone should have truly embarrassed the heck out of Kennedy for that inane statement. But I guess no one wanted to piss off the swing vote. I hope Scalia had a word with him in the cloakroom.

    Kevin M (25bbee)

  10. An alternative take on Kennedy: He wanted to make it clear that he understood the arguments for, and was sadly voting against SSM out of respect for the democratic process. Clearly that was what Roberts is trying to achieve. Another “Roe” that hangs over the court for 30 years is in no one’s interest, not even gays.

    Kevin M (25bbee)

  11. I defy anyone to argue something, anything, positive is emerging from this current sociocultural milieu.

    Its turtle strangling plastic bags all.the.way.down.

    DNF (208255)

  12. “I, ____, take you, ____, to be my lawfully wedded(husband/wife), to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.”

    Interesting that this traditional Catholic vow seems to focus on mutual emotional and material comfort, and not a thing about marriage being for the purpose of raising children biologically related to both persons. It’s almost as if traditionally, marriage was about more than procreation, and that insisting now that biological procreation is the sine qua non of marriage is a redefinition.

    Northener (54cc9d)

  13. Northerner, you will not live to see a Catholic Church perform a same sex marriage, whatever the words.

    Kevin M (25bbee)

  14. I defy anyone to argue something, anything, positive is emerging from this current sociocultural milieu.

    A healthy distrust of government?

    Kevin M (25bbee)

  15. When I read the Kennedy quote “…it is hard to say, ‘We know better.’”, I took him to be saying it’s hard to say we know better now. In other words, he found it difficult to look back on a thousand years of tradition and exclaim “Nope, we know better now, that was all a pile of crap.”

    Or something like that….

    Mike (7c4039)

  16. Northerner,

    While vows are the heart of the Catholic Rite of Marriage, you don’t get to this point without the mention of children. Before the vows, the couple are asked about their intentions:

    (1) (Name) and (Name), have you come here freely and without reservation to give yourselves to each other in marriage?

    (2) Will you love and honor each other as man and wife for the rest of your lives?

    (3) Will you accept children lovingly from God and bring them up according to the law of Christ and his Church?

    When the couple consents to this, the priest then says, “Since it is your intention to enter into marriage, join your right hands, and declare your consent before God and his Church.”

    And then the man and woman exchange vows. The acceptance of children is considered to be part and parcel of marrying someone. It would be redundant to mention children in the vow. So, no, the Catholic Church is not now changing the definition of marriage to include children because it is desperate to justify supposed bigotry towards homosexuals.

    Virginia SoCon (8eb3c5)

  17. We don’t seem to have a lot of the gay, mental defect or invasive cancer genes in my bloodline but, yeah, i’d probably attend a loved one’s gay wedding.

    It’d mean a day or two off work.

    DNF (208255)

  18. 14. There is that. Be nice if we could plug that gene in via the water supply, or something.

    DNF (208255)

  19. Virginia SoCon, Northerner is engaged in the kind of cheap, deceptive debating trick one must engate in to create the illusion he has a point.

    It’s laughable that he tries it, thinking that he can take something out of context and use it against people who know more about the subject than he does.

    Where did you get that Northerner? Off a website?

    Steve57 (818fa4)

  20. There are a couple of good articles on the subject at today’s NRO.

    A few key quotes.

    …An older view of marriage has steadily been losing ground to a newer one, and that process began long before the debate over same-sex couples. On the older understanding, society and, to a lesser extent, the government needed to shape sexual behavior—specifically, the type of sexual behavior that often gives rise to children—to promote the well-being of those children. On the newer understanding, marriage is primarily an emotional union of adults with an incidental connection to procreation and childre

    We think the older view is not only unbigoted, but rationally superior to the newer one. Supporters of the older view have often said that it offers a sure ground for resisting polygamy while the newer one does not. But perhaps the more telling point is that the newer view does not offer any strong rationale for having a social institution of marriage in the first place, let alone a government-backed one.

    Which is what I’ve been saying for quite some time. Kennedy is an arrogant fool if he thinks he can bestow “dignity” and “ennoblement” on gay marriage by depriving it of the very reason society ever thought marriage was important at all.

    And one more dig at Kennedy.

    When the Court ruled in 2013 that the federal government could not define marriage as the union of a man and a woman for the purposes of its own programs, Justice Kennedy’s opinion was full of references to the prerogatives of the states. If the Court now rules that states do not have the authority to define marriage as the union of a man and a woman, either, it will be clear that those references were for show, and that the Constitution is the plaything of a willful Court.

    Then we get to the real point of the exercise. It isn’t as if the progressive left has fixated on gay marriage because they actually care about gays. Gays are just useful to them.

    In yesterday’s oral arguments in Obergefell v. Hodges (better known as the “gay-marriage case”), the solicitor general of the United States committed a classic “Kinsley gaffe”: He accidentally told the truth.

    …Here is the revealing exchange, widely reported yesterday:

    JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was not entitled to tax­ exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same­-sex marriage?

    GENERAL VERRILLI: You know, I ­­ I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I ­­ I don’t deny that. I don’t deny that, Justice Alito. It is ­­ it is going to be an issue.

    Those unfamiliar with the Bob Jones case or the law applicable to tax exemptions may not understand the full magnitude of that statement…

    The point of SSM is the same as the HHS contraceptive/abortifacient mandate. In the latter case the government didn’t even argue that the mandate actually served the stated purpose. They argued that it promoted equal rights for women.

    And any religious organization that’s opposed to equal rights for women can’t possibly be charitable, can it?

    The whole point is to attack any religious entity that won’t perform gay marriages, abortions, fund women’s contraceptives, or otherwise won’t compromise its convictions and do the government’s bidding a hate group and eliminate it’s charitable organization tax exemption.

    Recall how Obama thinks the tax exemption for charitable giving should be eliminated in any case.

    He’s doing what he’s done in every election. Eliminate the competition. And as a good Marxist he’s doing the same as President. “All within the state, nothing outside the state, nothing against the state.”

    Steve57 (818fa4)

  21. I think marriage is toast. Iran has a gloss, temporary marriage, that endures for an hour, evening or weekend.

    It appeases the mullahs and everyone is happy.

    At that point who gives a rip when the traditionally married are the oppressed(vis a vis entitlement) class?

    DNF (208255)

  22. I wouldn’t mind near as much if they were just up front about it.
    But ever since the Garden, Alinsky’s patron spirit has majored in “obfuscation”.

    I wonder if somebody has a copy of Sec/Sen/Mrs. Clinton’s undergrad thesis on Alinsky?

    MD in Philly (f9371b)

  23. 22. I wouldn’t mind near as much if they were just up front about it.

    MD in Philly (f9371b) — 4/29/2015 @ 4:13 pm

    Yeah, if they were up front about it then it never would have worked.

    It’s never about what they claim it’s about. They gave the game when they argued for the HHS mandate.

    Steve57 (818fa4)

  24. 21. I think marriage is toast.

    DNF (208255) — 4/29/2015 @ 4:08 pm

    The left has been toasting it for a long time.

    One of the iconic moments in the Baltimore riots was the “slap heard round the world.”

    But one thing that flew under the radar is that the mom who delivered it is a single mother of six. That’s one of the reasons a lot of black women have that woman’s ‘tude. They have to be both mother and father. Her kid was out wilding because the only male role models in his life are the older guys he runs with in the street. Moms is fighting a losing battle.

    What the kid needed wasn’t so much that slap. He needed a father who could have taught hin early on that you either listen to me now, or you’re going to have to listen to a prison guard later.

    But, hey, Life of Julia! What the libs have done for the women in the inner city, convince them that government can replace husbands, Obama wants to bring that nationwide.

    SSM is just another nail in the coffin for marriage. Baltimore is our future.

    Steve57 (818fa4)

  25. I think churches should drop the word “marriage” entirely and instead have ceremonies to celebrate Holy Matrimony. They should treat “marriage” EXACTLY the same as they do a civil union — go down to the courthouse and pull the papers, it has nothing to do with God.

    Then, of course, the gays will scream that they are being denied “matrimony.”

    Kevin M (25bbee)

  26. “Justice Alito: Why Not Let 4 Lawyers Marry One Another?”

    Pro-SSM attorney attempts to answer; fails miserably.

    Justice Samuel Alito: Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?

    Mary Bonauto: I believe so, Your Honor.

    Alito: What would be the reason?

    Bonauto: There’d be two. One is whether the State would even say that that is such a thing as a marriage, but then beyond that, there are definitely going to be concerns about coercion and consent and disrupting family relationships when you start talking about multiple persons. But I want to also just go back to the wait and see question for a moment, if I may. Because—

    Justice Antonin Scalia: Well, I didn’t understand your answer.

    Alito: Yes. I hope you will come back to mine. If you want to go back to the earlier one –

    Bonauto: No, no.

    Alito: — then you can come back to mine.

    Bonauto: Well, that’s what — I mean, that is — I mean, the State –

    Alito: Well, what if there’s no — these are 4 people, 2 men and 2 women, it’s not–it’s not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let’s say they’re all consenting adults, highly educated. They’re all lawyers. What would be the ground under–under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?

    Bonauto: Number one, I assume the States would rush in and say that when you’re talking about multiple people joining into a relationship, that that is not the same thing that we’ve had in marriage, which is on the mutual support and consent of two people. Setting that aside, even assuming it is within the fundamental right –

    Alito: But–well, I don’t know what kind of a distinction that is because a marriage between two people of the same sex is not something that we have had before, recognizing that is a substantial break. Maybe it’s a good one. So this is no — why is that a greater break?

    Bonauto: The question is one of–again, assuming it’s within the fundamental right, the question then becomes one of justification. And I assume that the States would come in and they would say that there are concerns about consent and coercion. If there’s a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis. I assume there’d be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don’t apply here, when we’re talking about two consenting adults who want to make that mutual commitment for as long as they shall be. So that’s my answer on that.

    I love the part where the Pro-SSM lawyer objects to four people marrying on the grounds it’s a break from what marriage has traditionally consisted of.

    But as I raised on a different thread, if this is about LGBT rights, and being able to marry who you love, then why can’t a bi woman (lawyer in Alito’s question) marry both a man and a woman. And if the attorney who is a man is bi, why can ‘t he bring the man he loves into the big happy arrangement. That’s how you get to four.

    There is no reason, as the pro-SSM lawyers stumbling answer demonstrates.

    …there are concerns about consent and coercion…

    Does not the dumb broad know there have always been concerns about consent and coercion for millenia? If you look at the elements that are requisite for a valid marriage in the Catholic church (THE marriage authority for centuries in Europe) the answer to that question is critical.

    What makes a marriage invalid?

    Some common reasons for annulment in the Catholic Church are:

    1. At least one partner didn’t fully & freely consent.
    2. Someone wasn’t mature enough to understand the full extent of what they were doing.
    3. There was never intent to be faithful.
    5. One or both partners did not intend to be open to children.

    So in this regard to Alito’s question, Bonauto’s answer (although she clearly doesn’t know it) is that the state would have no new issues with four people marrying.

    She raises some minor points which could easily be addressed. But I wish Alito had asked her this; in states like California where a child can have more than two legal parents, why can’t they all be married?

    Funny how these “family disruption issues” that has the pro-SSM attorney so concerned now didn’t bother the LGBT crowd when Gov. Moonbeam signed SB 274 into law in 2013. The “traditional marriage” (I hate that term as it’s just the only valid form of marriage no matter what the SCOTUS says) raised the same issues then that Bonauto raised in response to Alito’s question.

    But who listens to them anymore? If we get SSM, we get multiple marriages. That’s the short answer.

    Steve57 (818fa4)

  27. Essentially, the only objection the pro-SSM crowd can raise against polyamorous marriage is that they think it’s “icky.” And their sense of aesthetics should prevail.

    But the “marriage is one man and one woman” crowd needs iron-clad reasons or else they’re bigots.

    Such is the illogic and hypocrisy on display.

    Steve57 (818fa4)

  28. I think churches should drop the word “marriage” entirely and instead have ceremonies to celebrate Holy Matrimony. They should treat “marriage” EXACTLY the same as they do a civil union — go down to the courthouse and pull the papers, it has nothing to do with God.

    Then, of course, the gays will scream that they are being denied “matrimony.”
    Kevin M (25bbee) — 4/29/2015 @ 11:12 pm

    I think this is an absolutely awesome idea!!!

    Mike (7c4039)

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