Patterico's Pontifications

11/6/2014

Sixth Circuit Upholds Gay Marriage Ban

Filed under: General — Patterico @ 9:13 pm



To the endless barrage of court cases holding gay marriage is a constitutional right, add one contrary view to the mix:

The same-sex marriage movement lost its first major case in a federal appeals court Thursday after a lengthy string of victories, creating a split among the nation’s circuit courts that virtually guarantees Supreme Court review.

The 2-1 ruling from the U.S. Court of Appeals for the 6th Circuit reversed district court rulings that had struck down gay marriage bans in Michigan, Ohio, Kentucky and Tennessee.

More important, it gives Supreme Court justices an appellate ruling that runs counter to four others from the 4th, 7th, 9th and 10th circuits. Those rulings struck down same-sex marriage bans in Virginia, Indiana, Wisconsin, Oklahoma, Utah, Idaho and Nevada, leading to similar action in neighboring states.

The opinion, in my view, is too far wordy and filled with apologetics — but one key passage stands out:

Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded; it says: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.

And that should be the beginning and end of the analysis.

So yes: now, the Supreme Court will probably take the cases up. And yes: Anthony Kennedy will get his day in the sun yet again, as he substitutes high-flown phrases and fuzzy yet peculiarly self-righteous reasoning to twist the Fourteenth Amendment into something it was never intended to be.

It won’t be the first time, and it won’t be the last.

73 Responses to “Sixth Circuit Upholds Gay Marriage Ban”

  1. Ding.

    Patterico (9c670f)

  2. Dong.

    Yoda (cffabe)

  3. I hope Kagan writes the majority opinion.

    DejectedHead (532aac)

  4. Promote the 2 judges on the Sixth Circuit that actually upheld the Constitution to replace any of the 5-6 morons on the Supreme Court that ignore the Constitution when it suits them.

    NJRob (cee3e3)

  5. I don’t see that the 14th has much to do with it, as long as a State recognizes gay marriages performed in other states.

    Article IV, Section 1:

    Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

    Alex and Terry cannot marry in M, O, K, or T; that is those state’s requirements. But they must recognize their existing marriage from (say) Minnesota’s court system. Just as Minnesota has to recognize a South Dakota Farm Child Driver’s License (age 16 vs age 12.) And New York has to recognize a Minnesota Concealed Carry Permit. Oh, wait, they don’t have to do either of those latter things.

    We’re just ignoring the text of the Constitution, aren’t we.

    htom (9b625a)

  6. I don’t see that the 14th has much to do with it, as long as a State recognizes gay marriages performed in other states.

    Article IV, Section 1:

    Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

    Alex and Terry cannot marry in M, O, K, or T; that is those state’s requirements. But they must recognize their existing marriage from (say) Minnesota’s court system. Just as Minnesota has to recognize a South Dakota Farm Child Driver’s License (age 16 vs age 12.) And New York has to recognize a Minnesota Concealed Carry Permit. Oh, wait, they don’t have to do either of those latter things.

    We’re just ignoring the text of the Constitution, aren’t we.

    htom (9b625a) — 11/6/2014 @ 10:03 pm

    I’ll start considering the argument when states start considering others’ concealed carry permits.

    NJRob (cee3e3)

  7. NJRob, are you not wearing your glasses? Read htom’s comment again.

    Steve57 (c1c90e)

  8. 6. 5.

    …Alex and Terry cannot marry in M, O, K, or T; that is those state’s requirements. But they must recognize their existing marriage from (say) Minnesota’s court system…And New York has to recognize a Minnesota Concealed Carry Permit. Oh, wait, they don’t have to do either of those latter things…

    htom (9b625a) — 11/6/2014 @ 10:03 pm

    I’ll start considering the argument when states start considering others’ concealed carry permits.

    NJRob (cee3e3) — 11/6/2014 @ 10:21 pm

    It appears you didn’t pick up on something.

    Steve57 (c1c90e)

  9. You’re correct. I’ll just say that it was 1 am east coast and I’ll blame it on fatigue.

    Or I can just accept responsibility that I screwed up.

    It still feels like htom is saying that all states must accept other states rulings due to the “full faith and credit clause” though.

    NJRob (cee3e3)

  10. The framers also couldn’t know that failmerica would lard up marriage wit
    prerogatives and tax preferences and sundry other emoluments

    happyfeet (09ace0)

  11. phones are stupid

    happyfeet (09ace0)

  12. All cats are grey in the dark, right feets?

    Colonel Haiku (2601c0)

  13. more study is needed

    happyfeet (09ace0)

  14. All Full Faith and Credit means is that State B must recognize that you were within the law in your (former) State A. Nothing more.

    nk (dbc370)

  15. And I wish that people would stop saying “ban” in reference to same sex marriage. You cannot ban something which has no independent existence. The Sixth Circuit upheld the states’ refusal to enact, i.e. create, same sex marriage. Saying “ban” is like saying Illinois bans annual gifts of $1,000,000 from the state treasury to old lawyers. I wish somebody would do something about that injustice, BTW.

    nk (dbc370)

  16. We’re just ignoring the text of the Constitution, aren’t we.

    The states are not required in assessing dissolution petitions to apply the standards in force in the state where the marriage license was issued, which is to say that the obligations which the parties to a marriage bear are those recognized in the state where the dissolution petition is filed. The content of the legal status in question is thus determined by the laws of the state of residence. The state of residence can give ‘full faith and credit’ to your San Francisco marriage ceremony and also rule that the parties to such a ceremony have in the state in question not one blessed enforceable entitlement which arises from such a ceremony.

    Art Deco (ee8de5)

  17. As with a strictly business-financial partnership, a lot of the legalese of a sexual-social one could have been devised or configured by the pro-SSM, pro-GLBT crowd if such people weren’t really into the whole mess mainly to soothe their self-esteem and promote their primarily liberal-gone-berserk agenda.

    Mark (c160ec)

  18. Article IV, Section 1:

    Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

    Congress addressed this with DOMA, which did 2 things.

    1. Other states didn’t have to recognize same sex marriage.
    2. The federal government didn’t recognize same sex marriage.

    To bad it was deemed unconstitutional.

    My question has to do with the definition of marriage, of which with the exception of polygamous marriages has always been recognized as the union/covenant between a man and a woman who were not closely related. Yes there were. Was against interracial marriages, which were wrong, but those laws didn’t change the definition of marriage. Same sex marriage does change the definition of marriage. To even know what it is, you have to prefix it with “same sex”, which tells me that it is different from marriage otherwise why would it have to be prefixed to have meaning? If you have to prefix marriage, it isn’t marriage, it’s something else.

    Tanny O'Haley (c674c7)

  19. DOMA was a joke. A fraud. A pulling of the wool over the people’s eyes. A sucky, filthy trick by by sucky, filthy politicians to stop talk about a Constitutional Amendment defining marriage as between a man and a woman. And it was held unconstitutional on Anthony Kennedy grounds. Who, as his testosterone decreased with old age, started liking young men who reminded him of his youth and likely was introduced to some by David Souter.

    What the Full Faith and Credit Clause does is allow me go to Colorado to smoke pot until I cause a Doritos shortage in Boulder, without being arrested by Illinois for doing it. It does not permit me me, when I return to Illinois, to drive before all traces of it have been eliminated from my body.

    nk (dbc370)

  20. The states did not, and do not, need DOMA not to recognize other states’ laws as their own in any area of the law. They have the Tenth Amendment for that.

    nk (dbc370)

  21. And I wish that people would stop saying “ban” in reference to same sex marriage. You cannot ban something which has no independent existence. The Sixth Circuit upheld the states’ refusal to enact, i.e. create, same sex marriage. Saying “ban” is like saying Illinois bans annual gifts of $1,000,000 from the state treasury to old lawyers. I wish somebody would do something about that injustice, BTW.

    nk (dbc370) — 11/7/2014 @ 6:19 am

    I agree. The heading should say “The Sixth Circuit Refuses to Redefine Marriage”.

    Tanny O'Haley (c674c7)

  22. DOMA was a joke. A fraud. A pulling of the wool over the people’s eyes. A sucky, filthy trick by by sucky, filthy politicians to stop talk about a Constitutional Amendment defining marriage as between a man and a woman.

    nk (dbc370) — 11/7/2014 @ 8:37 am

    Just like when Obama said Obamacare wouldn’t require abortions. Now in California, despite the Hobby Lobby ruling, they are requiring churches to provide abortion services.

    Tanny O'Haley (c674c7)

  23. There are only two outcomes of a Supreme Court case here:

    1) As the 6th Circuit suggests, that this is not justiciable at this time, and should remain a political decision. Or

    2) Given that gays have equal protection under the laws, denying them the right to marry cannot be sustained. See Loving.

    I can argue either, and will not be upset at either outcome. I would prefer 1) but will accept 2).

    BTW, if the gays have any brains they will let Ted Olson argue their case — there is no need to argue to the leftist justices and Ted knows the right side of the court quite well. The people to convince are Kennedy, Roberts and Thomas, all of whom might vote for (2) given the right argument. Thomas would be susceptible to an argument based on privileges or immunities, Roberts to a need to settle it now, and Kennedy to a freedom argument.

    Scalia is probably going to vote no, and Alito certainly is.

    Kevin M (d91a9f)

  24. There is no way, however, that the Supreme Court will rule that SSM should be barred. They will probably rule that state Constitutional amendments are presumptively invalid even if they say that legislatures should sort it out (Romer v Evans)

    Kevin M (d91a9f)

  25. My ideal decision:

    Vacate ALL state and federal judicial decisons (but leaving existing marriages intact), call the issue not justiciable except for the Romer rule, and say that state legislatures and/or the people themselves need to sort this out.

    Won’t happen though. I see a 7-2 or 6-3 decision in favor of the expansive reading of the 14th Amendment, opinion by Roberts.

    Kevin M (d91a9f)

  26. Romer was a strange case which may have been weakened, fatally, by an opinion last term. Romer held that if a minority manages to carve a niche in a small part of the state, it is a deprivation of equal protection for statewide law to deprive it of the special treatment it obtained in that place. Wadda, right? Like I said, Anthony Kennedy grounds. I can’t remember the case from last term which basically ruled the other way, offhand.

    Loving could have been decided on rational basis. Skin tone and hair texture have no rational relationship to any imaginable reason for marriage between a man and a woman. (No matter what Margaret Sanger might say.)

    When the Utahns abolished polygamy, it was only prospective. They did not invalidate existing multiple marriages; only forbade future ones. So pre-existing same sex marriages are a non-issue.

    Finally, no state law allowing same sex marriage would be invalidated. Each individual state, under its statuteS or constitution, could have it or not have it. WHICH IS THE WAY IT SHOULD BE.

    nk (dbc370)

  27. No, that’s not what Romer said at all.

    It said that specifying, in a state constitution, a law-abiding group and barring them from certain activities (in this case teaching school) was subject to more than a rational basis test, since it generally required a supermajority to repeal.

    Kevin M (d91a9f)

  28. Note that Romer did not invalidate ALL such prohibitions in state constitutions. It is probably still OK to prohibit non-lawyers from being elected as judges. But it is questionable whether a state could prohibit lawyers from being elected to the legislature, however reasonable that might seem.

    Kevin M (d91a9f)

  29. Romer v. Evans, Kevin?

    nk (dbc370)

  30. 23. …2) Given that gays have equal protection under the laws, denying them the right to marry cannot be sustained. See Loving.

    Kevin M (d91a9f) — 11/7/2014 @ 9:28 am

    Loving works against gay marriage, not for it. Miscegenation laws banned mix race couples precisely because marriage is concerned with producing and raising children.

    Say what you want about the racists who at various times and in various places passed laws prohibiting whites from marrying non-whites because they would produce racially impure children, but they understood the purpose and object of marriage.

    To pretend that Loving somehow supports gay marriage is to mutilate history. But then, the courts mutilate history when they claim that the people who drafted the 14th Amendment somehow included SSM in the equal protection clause. So with sufficient disregard for the facts, one can claim that Loving somehow supports gay marriage. Just like with sufficient disregard for the facts, one can claim that failing to legalize gay marriage somehow violates the equal protection clause.

    It all depends upon how much of a lobotomy the courts perform on the legal system.

    Steve57 (c1c90e)

  31. Perhaps that was an argument in Loving, but it wasn’t the only one. There was a general freedom argument to be made (8th, 10th amendments), as well as a 14th Amendment privileges or immunities argument, particularly since it was about race.

    But take the effect of the anti-miscegenation laws, versus the effect of the anti-SSM laws.

    In the Loving case, the law prevented individuals from marrying SOME of the individuals they might otherwise consider. AFAIK, no person claimed a biological imperative to marry across racial barriers. So a person barred from marriage to X, might find happiness with Y or Z.

    In the SSM case, the basic assertion of the plaintiffs is that the law prevents them from marrying ALL of the individuals they might normally consider. There is no non-fraudulent marriage they could legally consider (and even a traditional marriage would be unlikely to produce offspring).

    So, from a freedom argument, the anti-mixing laws were a minor annoyance in comparison.

    BUT, I do not want to turn this thread into YET ANOTHER rehash of the old argument. While Alito or Scalia might follow along with the child-rearing argument, that seems to have been rejected by all sides in the current case. What the disagreement is here is a process one. The underlying issue seems decided: SSM is a valid thing.

    Kevin M (56aae1)

  32. *9th, 10th amendments*

    Kevin M (56aae1)

  33. 35. …The underlying issue seems decided: SSM is a valid thing.
    Kevin M (56aae1) — 11/7/2014 @ 3:54 pm

    But as the arguments you’re presenting demonstrate, it has no rational basis.

    Steve57 (c1c90e)

  34. And that should be the beginning and end of the analysis…

    … if you’re an Originalist. Which not everyone is. Which is fine.

    Marketplace of Ideas!

    Leviticus (f9a067)

  35. 32. …BUT, I do not want to turn this thread into YET ANOTHER rehash of the old argument.

    Kevin M (56aae1) — 11/7/2014 @ 3:54 pm

    Whether it’s an old argument or not is irrelevant.

    23. …2) Given that gays have equal protection under the laws, denying them the right to marry cannot be sustained. See Loving.

    Kevin M (d91a9f) — 11/7/2014 @ 9:28 am

    If there are arguments you don’t want to rehashed, don’t bring them up.

    The first sentence of your number two argument was rejected by the sixth circuit on the solid ground that it absurd to argue that “the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.”

    If we then “see Loving” as you suggest then we realize that marriage was once understood to have a rational basis. And that racist and non-racist alike understood that rational basis.

    Only if we pretend that the people who on the one hand had a rational understanding of the implications 14th amendment on the other hand had no rational understanding of the purpose of marriage does SSM become valid. But that requires an argument equally absurd as insisting the people who adopted the Fourteenth Amendment DID undestand it as requiring the states to change the definition of marriage.”

    It simply comes down to a choice of reality-defying absurdities. Which absurdity will the courts choose to compel states to change the definition of marriage?

    Steve57 (c1c90e)

  36. To sum up:

    Arguing this case to various justices:

    To Ginsberg, Breyer, Sotomayor and Kagan: We showed up and did not drool a lot, vote for us.
    To Kennedy: Freedom!
    To Roberts: You just have to read a couple words into the 14th Amendment.
    To Thomas: This is a perfect example of the privileges of citizens that should be enforced against states. This may not work.
    To Alito and Scalia: The other guys showed up and did not drool a lot, vote against us.

    Kevin M (56aae1)

  37. Steve–

    Suppose they do not see marriage as being primarily about child-rearing? Don’t you see that this single leg cannot support your entire thesis?

    Kevin M (56aae1)

  38. That absurdity would do just as well as any other if you’re hell bent on imposing a definition of marriage that has no rational basis on a society that never would have marriage in the first place and treated it as a legally distinct entity unless it had a rational basis for doing so.

    But if that’s the case, you might as well pretend that SSM was always required by the drafters of the 14th Amendment. They both have are equally unrelated to reality.

    Steve57 (c1c90e)

  39. gay marriage is the new thing

    happyfeet (09ace0)

  40. 38. Steve–

    Suppose they do not see marriage as being primarily about child-rearing? Don’t you see that this single leg cannot support your entire thesis?

    Kevin M (56aae1) — 11/7/2014 @ 4:44 pm

    The short answer is no.

    I have no idea what these people think marriage is about. Neither do they, apparently. From what little they’ve been able to articulate it’s about far more frivolous matters than the people who bothered as a legal matter to treat this relationship differently than any other relationship. And had they had the same understanding of marriage as our black robed mullahs they wouldn’t have bothered to waste their time on such a trivial matter.

    But if we’re going to substitute some unelected lifetime appointees’ understanding of marriage for theirs, it’s equally valid (and by that I mean no more absurd) to substitute these same appointees understanding of the 14th Amendment to replace the understanding of the people who drafted and passed the 14th Amendment into law.

    Just like the case with marriage, the 14th Amendment was created to serve a specific, rational purpose. And just like the case with marriage, if they saw what these judicial appointees would one day twist the 14th Amendment into they no doubt wouldn’t have bothered in the first place.

    Steve57 (c1c90e)

  41. *…And just like the case with marriage, if they saw what these judicial appointees would one day twist the 14th Amendment into they no doubt wouldn’t have bothered creating it in the first place….

    Steve57 (c1c90e)

  42. It is unfortunate that the writers of the 14th did not limit its extent in its text. One wonders why they did that. (Lawyer’s full employment act considerations?)

    When did marriage acquire a legal definition? When did that replace the religious definition? Why is this not a First Amendment case?

    htom (9b625a)

  43. 38. Steve–

    Suppose they do not see marriage as being primarily about child-rearing? Don’t you see that this single leg cannot support your entire thesis?

    Kevin M (56aae1) — 11/7/2014 @ 4:44 pm

    Also, could you please be accurate. The argument swaying the courts is not that marriage is not primarily about child rearing. The argument SSM advocates are advancing, and that the courts are adopting, is that marriage has nothing whatsoever to do do with procreation and/or child rearing. Rather, marriage is solely about the emotional satisfaction of the adults who enter into it.

    And since that’s the argument, that marriage has nothing to do with having and raising children, then gay marriage opponents have no rational basis to deny marriage to same sex couples.

    If having and raising children was a purpose of marriage at all, a definition of marriage restricting it to a man and a woman would have a rational basis.

    Steve57 (c1c90e)

  44. 43. When did marriage acquire a legal definition?

    htom (9b625a) — 11/7/2014 @ 5:33 pm

    From the start. When this relationship became a concern to the civil authorities, they described the relationship, its purpose, and why as a legal matter they became involved.

    http://www.gutenberg.org/files/30802/30802-h/30802-h.htm#Chapter_the_fourteenth

    The three great relations in private life are, 1. That of master and servant; which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him. 2. That of husband and wife; which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. 3. That of parent and child, which is consequential to that of marriage, being it’s principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated. But, since the parents, on whom this care is primarily incumbent, may be snatched away by death or otherwise, before they have completed their duty, the law has therefore provided a fourth relation; 4. That of guardian and ward, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural.

    http://www.gutenberg.org/files/30802/30802-h/30802-h.htm#Chapter_the_sixteenth

    The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, says Puffendorf[b], laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. By begetting them therefore they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents. And the president Montesquieu[c] has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children; for that ascertains and makes known the person who is bound to fulfil this obligation: whereas, in promiscuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way;—shame, remorse, the constraint of her sex, and the rigor of laws;—that stifle her inclinations to perform this duty: and besides, she generally wants ability.

    It is just as absurd to inflict an ahistorical, counter-factual definition of marriage on a society that created the institution for a specific purpose as it is to inflict an ahistiorical, counter-factual definition of the 14th Amendment on a society that created the law for a specific purpose.

    Steve57 (c1c90e)

  45. In other words, marriage existed before the state usurped it. It is a First Amendment issue. Of course, we knew that when the government went after the Mormons and forbade multiple wives … but did not require choosing one of the already existing wives. Bow down, bow down, to the Lord High Definitoner!

    htom (9b625a)

  46. I believe the federal govt. outlawed polygamy and it was struck down by the courts on the grounds marriage was an issue reserved to the states under the constitution.

    Gerald A (d65c67)

  47. gay marriage is the new thing

    happyfeet (09ace0) — 11/7/2014 @ 4:57 pm

    I hope you see that you have to add a qualifying word to marriage to describe same sex marriage. The word “gay” changes the meaning of the word marriage. Left by itself, the word marriage is defined as a union between one man and one woman. To change its meaning you have to add “gay”. So what you’re asking for is not marriage.

    Tanny O'Haley (c674c7)

  48. Kevin,

    If the “equal protection” clause of the 14th amendment gives the right to same sex marriage, or equal outcomes for all, why did they need to pass the 15th and 19th amendments?

    There were laws against homosexuality when the 14th amendment was passed, why weren’t those laws repealed until over 200 years later?

    The 14th amendment was put in to make sure blacks were treated as citizens not to make same sex marriage legal.

    If same sex marriage is to be made legal, it needs to be done by the states, not the judiciary.

    Tanny O'Haley (c674c7)

  49. Steve57 (c1c90e) — 11/7/2014 @ 5:54 pm

    Thanks for the posts.
    As we’ve discussed earlier, progressives have dismissed Natural Law and put themselves in the place of declaring (in other words, making up) what is true in the universe, instead of seeking to observe and understand. The Declaration of Independence has no meaning for those who hold that nothing is self-evident, except that which people happen to agree with.

    The alternative view is that there are things which are self-evident, and to deny them is folly.
    In one way, trying to “prove” that marriage is only between a man and a woman is like trying to “prove” that a colorful sunset is beautiful. Some things are what they are. If society and government want to recognize (some) human same sex partnerships as having similar or the same secondary benefits under law, they can legitimately do that. Passing a law that says colorful sunsets are not beautiful is another matter.

    MD in Philly (f9371b)

  50. I believe the federal govt. outlawed polygamy and it was struck down by the courts on the grounds marriage was an issue reserved to the states under the constitution.

    Gerald A (d65c67) — 11/7/2014 @ 7:59 pm

    I heard someone (defending SSM bans) say that but I can’t find any evidence of it.

    Past court cases allowing polygamy bans have been used as an argument that SSM marriage bans are constitutional. A number of anti-polygamy laws were enacted at the federal level but it doesn’t seem like the court challenges were based on the right of states to determine their own marriage laws.

    Gerald A (d65c67)

  51. Tanny,

    I disagree with a lot of the way the 14th Amendment has been used, and regret that the proper way to advance freedom issues using it would have been the privileges clause that the SC unceremoniously read out of the amendment in the 1870’s.

    But within the current usage, they have a case.

    Kevin M (d91a9f)

  52. Tanny gay marriage is good I think

    it’s just a nice wholesome choice for gay people what encourages the I and of decisions what enhance prosperity independence and economic security and in a way that fosters conservative values

    I give it two thumbs up

    happyfeet (09ace0)

  53. Happy,

    the problem with that is assigning political approval functions to courts is not a conservative value.

    Kevin M (d91a9f)

  54. MD in Philly @50, you are of course correct in what you say.

    My purpose here though is more limited.

    The Sixth Circuit looked at the intent and the history of the 14th Amendment and concluded that there’s no way it compels states to redefine marriage.

    If that reasoning stands, then the court would be committing an obscenity by ignoring the intent and the history of marriage itself to conclude that it somehow includes SSM. One can cite the Loving decision. But then the Loving decision also cites precedent. And if you follow the trail it leads all the way back to Blackstone (and earlier). The courts have had a very consistent understanding of the intent and history of marriage.

    What I see happening hear, if the Sixth Circuit’s reasoning stands, is that the SSM proponents will resign themselves to the fact that they failed to airbrush the intent and history of the 14th Amendment into oblivion and fill the hollowed-out shells of the words of that amendment with a replacement.

    So they’ll then see where they can get away with doing that next, until they find a sufficiently plausible “host” onto which they can graft their entirely modern invention so a court can pretend it was there all along.

    For all I know they may succeed in getting the court to go along with the idea that the primary purpose of marriage is so an American can get his or her future spouse a green. And of course there is a correlation under US law that goes back several decades between marriage and green cards. So with sufficient creativity and disregard for facts, history, and the meaning of words the courts can conclude it’s absolutely silly and homophobic for “traditionalists” to “deny” marriage to gays since marriage has nothing to do with procreation and child rearing but its all about gaining US residency and citizenship.

    Of course, just like with all the arguments for gay marriage itself you couldn’t take it back very far before finding it has no basis in history. The argument for SSM doesn’t have roots that extend back further than the 1970s. You certainly couldn’t take it back to the middle of the 19th century, where the Sixth Circuit court refused to go. And marriage itself has even more ancient roots in US and English law than a mere constitutional amendment.

    If the Sixth Circuit court’s reasoning toward the equal protection clause stands, it would be the height of absurdity to s@#$can that very approach and fail to apply it to marriage itself.

    Steve57 (c1c90e)

  55. I heard someone (defending SSM bans) say that but I can’t find any evidence of it.

    Not on Google you won’t. Google is gayer than Obama gazing at a picture of Putin and does not link stuff that hurts the gay agenda.

    Whoever controls your information controls your destiny. — Sergei Brin

    nk (dbc370)

  56. “Then you will be handed over to be persecuted and put to death, and you will be hated by all nations because of me. 10At that time many will turn away from the faith and will betray and hate each other, 11and many false prophets will appear and deceive many people. 12Because of the increase of wickedness, the love of most will grow cold, 13but the one who stands firm to the end will be saved.”

    DNF (b18ba5)

  57. Mr. M the Roberts court is perverted and sad on its best day

    the goal should be to keep these things out of courts

    which is why the mean-spirited and bigoted DOMA law was a very very bad idea

    but that said it’s not at all unusual for civil rights to advance through the courts in America

    it’s quite normal really

    happyfeet (831175)

  58. Mr. Feets, I’m sure we can all look forward to the day civil rights advance sufficiently through the courts when I, too, can be arrested for criticizing gay marriage.

    It’ll probably happen when I’m dragooned into catering a gay wedding reception.

    The Constitution couldn’t be clearer. It’s in the 1st Amendment. It says right there in black and white that nobody should have to put up with my “hate speech.”

    What kind of burrito do you plan to have when that glorious day arrives?

    Steve57 (c1c90e)

  59. i want a kale tofu wrap

    i’m on a kale kick lately

    happyfeet (831175)

  60. i think that’s hyperbole though what you said about the dragoonings

    let’s just wait and see how it plays out

    happyfeet (831175)

  61. Experiential criterion scale, ‘spose that could be had on EBay?

    DNF (b18ba5)

  62. Happyfeet,

    How is this “mean spirited”?

    Section 1. Short title
    This Act may be cited as the “Defense of Marriage Act”.

    Section 2. Powers reserved to the states
    No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

    Section 3. Definition of marriage
    In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

    Here’s the definition of mean spirited:

    mean-spir·it·ed
    adjective

    inconsiderate and unsympathetic.

    “he’s an egotistical, mean-spirited, abusive man”

    Tanny O'Haley (c674c7)

  63. because it’s so tacky

    if somebody’s been married in another state it’s only polite to treat them like other married people, not single them out just cause they’re gay

    it just comes down to having good manners

    happyfeet (831175)

  64. Doesn’t specificall answer the question.

    Tanny O'Haley (c674c7)

  65. Tanny, you may already know this, but in case you don’t…
    feets is not known for well reasoned logic, more like irreverent comments which are often funny when not on serious matters, but often quite irritating when they are (on serious matters).

    It’s a little bit like “Natural Philosophy according to Happyfeet”, he proclaims what is (apparently) self evident to him and thinks should be to the rest of us as well.
    But he is typically rather insulting to transvestites.

    If I engage in serious debate with feets, it is more to respond to something for the sake of onlookers.

    MD in Philly (f9371b)

  66. 66. ‘ Natural Philosophy’ was the endeavor engaged by Newton with his Principia prior to the advent of our term ‘Science’.

    Perhaps a better choice from our idiom might be ‘Primitive’ as we classify the art represented in Grandma Moses’ pastorals?

    DNF (b18ba5)

  67. If I engage in serious debate with feets, it is more to respond to something for the sake of onlookers.

    MD in Philly (f9371b) — 11/8/2014 @ 3:51 pm

    I know, I do the same. Happyfeet uses magical thinking.

    Tanny O'Haley (c674c7)

  68. Your blog has been called out by theweek.com:
    http://theweek.com/article/index/271560/gay-marriage-is-going-to-the-supreme-court-mdash-and-its-probably-going-to-win

    I love this quote: “Indeed, most framers and ratifiers of the Fourteenth Amendment thought that segregated schools and bans on interracial marriage were consistent with the equal protection of the laws, but this doesn’t make Brown v. Board of Education and Loving v. Virginia wrong.”

    Burned! Enjoy your legally sanctioned bigotry while it lasts. You don’t have much time left.

    David in Houston (1eca81)

  69. Tsk, tsk. Such a hater and ignorant of history too.

    Tanny O'Haley (66d55f)

  70. I’d also like to point out that the judge used slippery slope arguments and an appeal to tradition in order to make his case plausible. Neither is a legally acceptable rationale to continue discrimination. Had a state attorney used those same arguments at the circuit court (or any court for that matter), they would have been called out for their ignorance of the law — which actually happened in the 7th Circuit Court, thanks to Judge Posner. You don’t have to be a legal scholar to understand that Judge Sutton isn’t the sharpest tool in the shed. Sharpest bigot on the circuit court, perhaps. History won’t look kindly on the final bigot that stood in the way of gay Americans winning their civil equality.

    David in Houston (1eca81)

  71. If you don’t agree with David you are a hateful bigot. Just ask him, and he will tell you

    JD (285732)

  72. I’m sure DavidinHouston fully supports the efforts of the Mayor to crack down on the choice of subject matter delivered by Pastors from the Pulpit in their Sermons and Homilies –
    And DAMN that inconvenient First Amendment!

    askeptic (efcf22)


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