When Did It Become Unconstitutional?

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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189 Responses

  1. Avatar Mike Schilling says:

    In short, Scalia’s question only seems clever.

    No, it really doesn’t. Well, maybe if it were a blog comment.Report

    • Avatar Barry says:

      The answer, of course, is ‘when did Plessey v. Ferguson become unconstitutional?’ (sp?)
      When did it bans on interracial marriage become unconstitutional? (it isn’t like Thomas is going to vote for us, so f- him).Report

      • Avatar Jason Kuznicki says:

        Well, I’ll say this much.

        When it’s a lefty defending a liberal decision, it’s constitutional. And why? Because the Supreme Court said so.

        Wouldn’t say that about Plessy. Would say that about NFIB v. Sebelius.Report

      • Avatar Madfoot says:

        I would argue that Plessey v. Ferguson was always unconstitutional. Sometimes the Supreme Court gets it wrong. Does anyone on this site really believe that Citizens United was decided correctly, just because the Supreme Court laid down their verdict?Report

        • Avatar James Hanley says:

          Yes, several of us on this site believe CU was decided correctly.Report

          • Avatar Ryan Noonan says:

            I’d say the charitable reading of his claim is that no one thinks CU was decided correctly simply because the Supreme Court said so. I don’t really think that’s what he meant, but it’s what my comment immediately above his meant, so I’m going to pretend that’s what he meant.Report

            • Avatar Michael Drew says:

              That reading is advanced in its plausibility by the fact that it is what he said.Report

            • Avatar James Hanley says:

              Ah, that’s probably the correct reading, and I apologize to Madfoot for misunderstanding.

              But to play Devil’s Advocate, I could take a legal realism approach and argue that in fact CU was correctly decided because, and only because, it was what the Supreme Court decided.

              As Justice Jackson said, “We are not final because we are infallible, but we are infallible only because we are final.”

              (For the record, I quit my study of constitutional law when the postmodernists persuaded me that texts do not have inherently/objectively correct meanings. So I’m only being half-facetious here.)Report

              • Avatar Michael Drew says:

                Whoa. There’s a big word there that I completely did not get the impression is what happened the last time I saw you talking about what happened when PoMo caused you to suspend your close conlaw studies. It starts with P.

                On the substance, in that pure legal-realistic world, it’s interesting to consider the considerations by which the “correct” in that statement derives useful meaning (which is to say, that the decision was correct as distinct from some other possible decision that really would have been incorrect).Report

              • Avatar James Hanley says:

                Sorry, I don’t follow. What word starts with P?Report

              • Avatar Michael Drew says:

                James,

                Sorry for the delay here (if you even ever see this). It’s “persuaded.” I got the impression form a previous thread that it was more like you shook your head thinking, “It’s ridiculous that this stuff (PoMo) gets taken seriously in the legal academy by people actually trying to figure out what the law is/says/means.” That you were persuaded by the postmodernists totally changes how I understand your approach to how law works. I’m sure the misunderstanding was on me, but I in any case misunderstood.Report

            • Avatar Madfoot says:

              That’s exactly what I meant. Thanks for clarifying.Report

        • Avatar BlaiseP says:

          Devil’s Advocate: at the time of Plessy, the 13th, 14th and 15th Amendments were not in the US Constitution. Much as we might believe “All men are created equal”, that’s not in the Constitution. Slavery was implicit in the 3/5th Compromise. The 14th Amendment had to deal with that explicitly in Section 2.

          We might not like Citizens United but this isn’t a question of Wrong or Right, however much we might want our version of Right to emerge triumphant. Nobody walks out of the courtroom happy after a good decision. It’s a question of what is constitutional.Report

  2. Avatar greginak says:

    I like the Sandefur piece. My guess, dare i say feeling, is that if a liberal type wrote that he would be derided, by some, for proposing a living constitution.Report

    • Avatar zic says:

      This. Thank you, greginak.

      We start with all property-owning white men are created equal; and move from there to a growing comprehension of what ‘equal’ means; it means former slaves, women, the right for races to intermingle, the rights of gays.

      It is a living thing, and as various groups that have been less-than-equal find voice and stake their claim to be equal, our understanding of the potential of what all are created equal really means grow.Report

    • Avatar Dave says:

      http://papers.ssrn.com/sol3/papers.cfm?abstract_id=656136

      I like the Sandefur piece. My guess, dare i say feeling, is that if a liberal type wrote that he would be derided, by some, for proposing a living constitution.

      Conservatives tend to love libertarian arguments about the scope of Article I and nothing more. So yes, I tend to agree with you even though Sandefur himself is far from a living constitutionalist.Report

    • Avatar Brandon Berg says:

      I’m not inclined to deride him, because he is fighting the good fight, on this issue and many others, but I do think he’s wrong about this. There’s no evidence that this was an intended effect of the Fourteenth Amendment, and I think it’s pretty clear that if we were actually able to ask those who voted to ratify it, they would not admit any such intent.

      Sadly, there is not perfect concordance between what the Constitution requires and my own preferences regarding how the government should operate.Report

      • Avatar Matty says:

        Didn’t the authors of the amendment make public statements that it would not legalise interracial marriage – and yet in time it did? If so what are the implications – that intended effect is not the only or even best way to apply an amendment or that Loving was wrongly decided?Report

    • Avatar Jason Kuznicki says:

      Sandefur considers himself a market liberal. More or less exactly like I do. Here he discusses the question you suggest:

      http://papers.ssrn.com/sol3/papers.cfm?abstract_id=656136Report

      • Avatar Michael Drew says:

        Does he consider himself to be the thing greginak is fairly read to refer to with the term “a liberal type”? Keep in mind that in that paper, Sandefur states straightforwardly that, “that term (liberal) today refers to a political philosophy emphasizing extensive government intervention in economic and personal lives of citizens.”Report

  3. Avatar Stillwater says:

    That’s a good post. It doesn’t quite make up for the lunacy of his coverture arguments, but it’s a start. I especially like his use of the phrase “no fact of the matter” regarding certain Constitutional disputes. It’s something I’ve said before as well and agree with.Report

  4. Avatar Burt Likko says:

    Which means the sarcastic answers Scalia incorporated into his sarcastic question are sincerely correct. The notion of Equal Protection applying to the Federal government is part and parcel of the Due Process Clause of the Fifth Amendment, so same-sex marriage bans have been unconstitutional for as long as there’s been a Fifth Amendment, meaning since 1791.Report

    • Avatar Jaybird says:

      You would think that more of the “the 2nd Amendment means flintlocks and frontloaders!” folks would show up for the constitutionality of gay marriage debate.Report

      • Avatar Mike Schilling says:

        Rifles is arms is nukes. (Unless you think that nukes are different, you squish!)Report

      • Avatar Stillwater says:

        Man, you just can’t be happy that people agree about gay marriage, can you?Report

        • Avatar Jaybird says:

          I am always happy when people abandon anti-liberty arguments. (Even if only temporarily.)Report

          • Avatar Stillwater says:

            Temporarily?Report

            • Avatar Jaybird says:

              They always seem to pick the arguments back up.Report

              • Avatar Stillwater says:

                And you guys never seem to set any of yours down. No matter how wrong.

                Oh wait. You can never be wrong about maximizing liberty, can you?Report

              • Avatar Jaybird says:

                “Reasonable limits on liberty” always seem, in practice, to be some variant of “I’m not using these liberties but you are and that pisses me *OFF*.”

                Gay marriage, the War on Drugs, Too Much Soda, and it doesn’t matter if 98% of everybody is using these liberties without a problem… it’s that 2% that requires our use of police dogs and battering rams.Report

              • Avatar Chris says:

                I’m not using police dogs or battering rams. OUTLAW THEM!Report

              • Avatar Jaybird says:

                But what if we have to use them in some hostage situation and we don’t know how to use them because we’ve never used them before and so we should practice on the wrong house for non-violent misdemeanor arrests, right?Report

              • Avatar Chris says:

                Sounds perfectly reasonable to me. Make sure we shoot their dogs in front of their kids, too. Otherwise, it’s not like the real thing.Report

              • Jaybird,

                I agree that “reasonable” is often used in a very expansive way so as to permit, in practice, almost anything. Still, I think there can and should be reasonable limits on liberty.

                Moreover, I think many (most?) libertarians believe the same thing. They might be less quick to seize on the word “reasonable,” and ideally they (and anyone who uses “reasonably”) would actually articulate what parameters are entailed by “reasonable,” say, by stating that a “reasonable” limit is one that prohibits a person from harming another physically) but I think they do.

                So yeah, there’s danger in simplistic recourse to “reasonable” in justifying things, just like there can be danger in simplistic recourse to “the needs of society” or to “liberty.” Maybe it needs to be pointed out, and perhaps in the context in which you pointed it out, you may have done good.

                But I’m still not convinced that there are no acceptable limits on liberty on the basis of what’s “reasonable,” even though I accept “reasonable” can become something of a shibboleth.Report

              • Avatar Stillwater says:

                James, over here. This is interesting. Pierre Cornielle wrote in response to Jaybird

                But I’m still not convinced that there are no acceptable limits on liberty on the basis of what’s “reasonable,” even though I accept “reasonable” can become something of a shibboleth.

                Hmmm. I challenge some of the base assumptions implied by various expressions of libertarian philosophy and I’m just a pain in the ass liberal. Pierre challenges some of those implied assumptions and … what?

                Sure, a comparing my snarky one liner upthread against his more thoughtful expression makes me look like an asshole. But how many times have I made the exact same argument Pierre is making right here, patiently and clearly and non-snarkily? Like … oodles of times, or only bunches?Report

              • Avatar Jaybird says:

                (I wrote a comment to this earlier this morning but it was eaten by my login apparently timing out)

                My problem with “reasonable” as an argument is that it plays out like a tactic. See if you recognize this:

                1. Argue that your position is the reasonable one and that the burden of proof is on the libertarians to explain why it isn’t

                2. When the libertarians shrug and pick up the burden of proof and open with something like “first, let’s look at our premises”, mock them for always bringing everything back to first principles.

                3. Declare that they haven’t done anything except demonstrate how unreasonable they are

                4. profit

                Have you seen that game play out? I sure have.Report

              • Avatar Stillwater says:

                Jaybird, it’s an easy question to answer: it’s just a yes or no. Are there reasonable limits on liberty or not? Forget for a moment the politics of how some people argue; that some people leverage their use of certain terms for maximal effect (hmmm…..); that other people can and often do make arguments based on falsities and confusions.

                Do you think there are reasonable limits on liberty?Report

              • Avatar Jaybird says:

                “HA! You agreed that there are reasonable limits on liberty! Therefore, this is one. Therefore, if you don’t agree with it, you’re unreasonable! Q TO THE E TO THE D!!!!”

                Whatever reasonable limits on liberty we’re likely to want to discuss were, in some cases, a handful of ratchet turns ago, in others, scores of ratchet turns ago.

                So asking me whether it would ever, in theory, be okay for this ratchet to ever turn (It’s a yes or no question, after all) seems pretty disingenuous as we’re yelling STOP TURNING IT as it is being ratcheted up.

                In this one case, SSM, we (as a society!) are discussing whether we should release one of the ratchets a little bit.

                The answer is “of course!!!” but, when libertarians follow up with “we should loosen all of them”, the answers come “why can’t you be happy that we’re loosening this one?” and the ever popular “surely you’re not saying that we shouldn’t ever tighten the ratchet from the zero position!”Report

              • Avatar BlaiseP says:

                Let’s attempt to stipulate to a few axioms, Jaybird.

                Axiom 1: Every useful regulation is justifiable on a scientific basis, not some hokum about First Principles. Where the science may be demonstrated to fail to account for certain exceptions, the regulations must change in accordance with the new general case.

                Axiom 2: Thou art not the boss of me, nor I of thee. Insofar as anyone’s going to do any bossing, it will be a judge who interprets the facts in the light of the law, see Axiom 1.

                Axiom 3: Men are not angels. We submit to authority on that basis.Report

              • Avatar Stillwater says:

                So asking me whether it would ever, in theory, be okay for this ratchet to ever turn (It’s a yes or no question, after all) seems pretty disingenuous as we’re yelling STOP TURNING IT as it is being ratcheted up.

                So the answer is “No”? Or is it “yes, but qualified with some restrictions on ratcheting”? Or is it, “well, it might seem there are some reasonable restrictions to liberty, but because in practice those restrictions are always (!!!) accompanied by excessive anti-liberty ratcheting, they’re are actually no a priori justified restrictions to liberty”? Which is it?

                but, when libertarians follow up with “we should loosen all of them”,

                See, that comment makes my point rather nicely. You believe we should loosen the ones that, from your pov, will maximize liberty, and likewise we should keep the ones that maximize liberty. But that’s a platitude. Or the expression of a sentiment. Or both.Report

              • Avatar Jaybird says:

                In this case, it’d be like discussing Same-Sex Marriage being illegal and, in response to your argument that “no, two guys should be able to get married”, the response would come “are there ever *ANY* reasonable limits on who can marry other people???”

                It’s the “What about incest?” argument except for *FREAKING EVERYTHING*.Report

              • Avatar James Hanley says:

                Stillwater,

                I’m fully persuaded through my long internet association with Pierre that he is sincere in trying to understand libertarianism–because he has a real sympathy for it, even though ultimately he doesn’t fully agree–and that he doesn’t come at it with an ulterior motive of trying to find “gotcha” points.

                I may not be the right person to make these arguments anymore (if I ever was). I think I’ve become enough of a flash point that the very fact that it’s me making these arguments might undermine the effectiveness of them. So maybe I should just stop now. But those are my thoughts, if they can be disentangled from my persona at all.Report

              • Avatar Stillwater says:

                Jaybird, we just have this strange communication breakdown in some of our discussions. I really don’t have any idea how your response was relevant to the comment I just made. And that’s fine, on some level.Report

              • Avatar Jaybird says:

                A few days ago we were having a conversation and you pointed out that the example I gave in an argument was one where liberals and libertarians agreed.

                Now, for me, the example was illustrative of how the argument works. In that case, the Liberals and Libertarians agreed. So when we get to your question here:

                So the answer is “No”? Or is it “yes, but qualified with some restrictions on ratcheting”? Or is it, “well, it might seem there are some reasonable restrictions to liberty, but because in practice those restrictions are always (!!!) accompanied by excessive anti-liberty ratcheting, they’re are actually no a priori justified restrictions to liberty”? Which is it?

                I find it more illuminating to do some light word substitution and show how this very argument is used in the gay marriage debate.

                It seems to me that what you’re asking here is “oh, so are there *ANY* limits on marriage? Can a guy marry his *MOM??? HIS *DOG*???”

                And I’m sure that we both listen to NPR and we both snicker as we hear one of the anti’s ask that question as he holds a sign in front of the Supreme Court.

                But when we talk about something that isn’t marriage and swap out an in general argument over “liberty”, suddenly the same questions that I’ve cut and pasted from you and italicized and everything get asked… but they present pretty closely as identical to the whole “what about your mom? what about YOUR DOG???” questions.

                We’re not even talking about releasing every single ratchet back to the zero point. Asking whether it’s theoretically okay for any of the cranks to ever be turned, ever seems as disingenuous as asking about dog marriage.Report

              • Avatar Stillwater says:

                I find it more illuminating to do some light word substitution and show how this very argument is used in the gay marriage debate.

                Maybe that’s the communication breakdown. A discussion about how terms and arguments are used at the political level is an interesting topic of discussion, no doubt. It’s a sociological project, and as such, exists at the meta-level: people tend to use discourse D to convey content C which is highly correlated with motivation M, etc etc.

                For the purposes of this discussion, I don’t give a rats patooey about how other people use terms and arguments. And I don’t particularly care about your thoughts on how other people use terms and arguments. I’m asking for your views about reasonable restrictions on liberty.Report

              • Avatar Jaybird says:

                Oh, my views? That I would much rather attend the problems of us failing to install reasonable limitations on liberty than the problems dealing with what have turned out to be unreasonable limitations on liberty. (To use Prohibition as an example, I am sure that, before the fact, Prohibition seemed reasonable (at least to the level of “reasonable people can disagree” reasonable). It’s only after the fact that we can pretty much say “Nope! That was pretty unreasonable in practice.”)

                Which is not to say that there are not *PROBLEMS* with too much liberty: of course there are. With that said, I do not hold a whole lot of faith in our ability to titrate juuuuuuust enough reasonable limitations into the mixture… and thus I’m forced to pick upon which side I’d rather err. I’d rather err on the side of you and yours (and everybody else out there) having too much liberty than err on the side of me and mine thinking that we’d be able to get a good (let alone satisfactory!) set of laws, rules, and regulations for you and yours to follow.Report

              • Avatar Stillwater says:

                Man, that was nice. Clear, concise, no allegories or metaphors or word substitutions.

                So, the answer is no. Or more precisely, that you’d prefer the absence of any laws restricting any liberties to any set of laws restricting some liberties. Is that right?Report

              • Avatar Jaybird says:

                At this point, it feels like it’s important to hammer out some word meanings. If we, as a society, decide that we’re going to drive on the right side of the road, is that a liberty issue? Are weights and measures definitions violations of liberty? Is telling a grifter not to grift a violation of his liberty?

                Because if I say “well, I think that there are obviously *SOME* reasonable restrictions that we can put out there…”, I immediately hear the punchline to the joke:

                “We’ve established that. Now we’re haggling.”Report

              • Avatar Stillwater says:

                I wasn’t gonna hit you with any punchline. I was content to leave that comment hanging in space all on its own as an expression of your views. Especially in light of Hanley’s responses to some of my comments and your discussion with Pierre.Report

              • Avatar Jaybird says:

                The problem is that we’re nowhere *NEAR* there, that will *NEVER* be on the table, and that is *NOT* something that we *EVER* have to worry about.

                As such, I am just stuck saying “well, we should loosen more ratchets because the ratchets have been turned waaaaaaay too tight.”

                And, of course, instead of discussing whether the ratchets have been turned too tight, we discuss me personally and whether I’d think that even one turn would be too tight… even as the ratchets tighten.

                “Stop tightening them!”
                “You’re an anarchist. You’ve admitted as much.”Report

              • Avatar James Hanley says:

                you’d prefer the absence of any laws restricting any liberties to any set of laws restricting some liberties. Is that right?

                I read Jaybird very differently. “Erring on the side of” doesn’t, to me, seem to indicate “none. period.” rather than “some, but very little and very cautiously.”

                Jaybird’s not (if I’m reading him correctly) making an absolutist claim, yet you (if I’m reading you correctly) are imputing an absolutist claim to him. Because “any set of laws restricting some liberties” is essentially an infinite set of possibilities, and you’re saying he is a priori rejecting every single one of the possibilities in that infinite set. But saying he’d rather make the error of too much liberty rather than too little liberty != absolute unrestricted-in-any-sense liberty.

                And I can’t see a reasonable reading that gets you there.Report

              • Avatar Kimmi says:

                I think haggling is good. I think having people ready to punch each other is good. Blood’s messy though, so take the fights outside.Report

              • Avatar Stillwater says:

                Thanks James. That was helpful.Report

              • Avatar James Hanley says:

                Ummmm…intertoobz no convey tone*…snarks or fer realsies?

                __________________________
                *And I really am not confident I wrote that comment clearly and coherently.Report

              • Avatar Stillwater says:

                Well, it was snark hiding behind politeness, I guess. I appreciate your attempts to defend libertarianism and libertarians from what you view as unwarranted criticism. I get that. But Jaybird and I were doing just fine mucking along as we were. I’m not sure there was any utility in a comment that claimed I was wrong about Jaybird’s views because you understood his words differently. I prefer to just look at the words. He said what he said; I summarized his views with what I said. I asked him if I got his view correct, and he tacitly agreed.

                But you apparently thought both of us were wrong.Report

              • Avatar James Hanley says:

                I don’t think he’s wrong, because I don’t think he’s agreed with you. And I’m just looking at his words, too. What did you think I was looking at?Report

              • Avatar Jaybird says:

                I’d feel bad for not jumping in here if you guys weren’t doing better without me.Report

              • Avatar Kimmi says:

                Stillwater,
                I read it the way James did as well.
                Try looking again?Report

              • Avatar Stillwater says:

                Ah. So you’re saying Jaybird actually does think there are reasonable limits on liberty.

                Now, don’t go splainin to me and Dear Reader all the ways you think I’m misunderstanding Jaybird and libertarianism. For one, it’s a bit insulting. For another, I actually have a point here that you might not either see or agree with. For thirders, I actually do understand libertarianism and what like to view confusions are actually objections.

                Oh sure, you can get all subtle about what it means to “prefer” and all that, but I think going down that road demonstrates my earlier point about platitudes and sentiments.Report

              • Avatar Stillwater says:

                Kimmi: you seem to be agreeing with Hanley that Jaybird does think there are reasonable limits on liberty.

                I wonder what Jaybird thinks about what you guys think he thinks?Report

              • Avatar Jaybird says:

                It certainly seems that by focusing on whether Jaybird would be irritated if we ratcheted up to 1 from 0, we can ignore what Jaybird is saying about how we’re on 49 right now and that’s too damn many ratchets.

                “But would you complain if we were at 3?”
                “How is that relevant?”
                “ANSWER THE QUESTION!”
                “I don’t want to answer the question. We’re on 49! That’s too high!”
                “Would you say that 2 was a good place for the ratchet to be?”

                I have reconciled myself to the fact that the government will never be a Night Watchman. We will never see Anacapatopia. I’m more irritated that we’re on 49 on this ratchet.

                I’m pleased, however, that we appear to be a few steps closer to finally abandoning the reasonable restriction on marriage that it be between a man and a woman.Report

              • Avatar Kimmi says:

                still,
                asking me what jay thinks about what James thinks about… haha!
                I would not dare to say that I understand what libertarianism is all about.

                Is it about blackmail? Slavery? The rich triumphing over the poor at all cost?

                … I’m glad that one doesn’t post here. I wish he had less power though, so I wouldn’t need to hear about him and his ideas… or fight them.

                People around here seem like a decent lot, with possibly silly but well held views. Nobody here’s an anarchist, and plenty of folks will support a government given income floor. That’s not exactly “freedom uber alles”.Report

              • Avatar James Hanley says:

                @Jaybird,
                We will never see Anacapatopia.
                Ewww. I’ve camped on Anacapa. Place smells like bird shit and there’s no source of fresh water. Funny place for a utopia.

                I’m more irritated that we’re on 49 on this ratchet.
                Yes, yes, yes, yes, yes. I rarely understand your train of thought, I’m afraid, but I totally and completely understand this.

                “Do you think eating meat is bad for your health?”
                “Dude, focus! I’m tied to a freakin’ train track!”Report

              • Avatar Shazbot5 says:

                Jaybirds views cannot be parsed. They can only be felt.Report

              • James,

                Thanks for the comment.

                The rest of this part of the thread has gotten a little too meta, so I’ll bow out.Report

              • Avatar Stillwater says:

                we can ignore what Jaybird is saying about how we’re on 49 right now and that’s too damn many ratchets.

                On what scale? 0-50? A 1000? That’s the whole point Jaybird: from you’re pov there is always too much government intervention, even if – it seems to me! – we were only in a nightwatchman’s state. Any and all government intervention is unjust. But here’s the thing: even you don’t believe that.

                Let’s suppose any old scale you like. 49 represents a benchmark of that scale of intolerableness. It’s flat out unjust. (Ya with me?) Compare the current state of affairs that’s completely intolerable to previous states of affairs. Take any time slice of history and compare it to what we’re experiencing now. Is it really the worst time to be alivewith respect to freedom and liberty? Are our freedoms more constrained now (it’s at 49!!!) than they’ve ever been before?

                Look, you like to cite Stalin and Hitler and even some domestic stuff(!!) as examples of why we should all be skeptical of state power. Fair enough. I don’t think any liberal would argue with you about those particular specifics. But you use those specific arguments as the basis for a general critique of government which is entirely unsupported by the evidence you appeal to. People have been violating each others liberty since the dawn man. And the state is a remedy – the only remedy known to date! – to those violations.

                So, have things gotten better or worse as we track the changes of history? If you agree they’ve gotten better, what’s the most identifiable characteristic of modern society that’s led to increases in liberty? Could it be … a functioning state?Report

              • Avatar James Hanley says:

                Stillwater,

                That’s very Hobbesian, but if that’s the basis for your claims then it needs to be true. And there is reason to doubt the accuracy of that history, or at least whether it presents anything like a complete picture.Report

              • Avatar Mike Schilling says:

                Same-sex marriage isn’t, in my opinion, a question of liberty. But we’re already indented so far that I’m going to start over again at the bottom. XYZZY —->Report

              • Avatar James Hanley says:

                Oh wait. You can never be wrong about maximizing liberty, can you?

                I know you’re being snarky here, but truthfully, there’s just no sting to it. Sorry, but from a libertarian perspective you just come off as someone who doesn’t see liberty as important. And that makes us raise an eyebrow rather than flinch.Report

              • Avatar Stillwater says:

                If you’re just reducing libertarianism to a sentiment – or even a platititude – then I have no objections.Report

              • Avatar James Hanley says:

                Actually, it looked to me like you were the one doing that. I suppose that theoretically I do have an objection, but we’ve been over that ground often enough that I won’t bother. I just wanted to note how curiously ineffectual the attempted poke was.Report

              • Avatar Rod Engelsman says:

                Would you grant that there’s quite a bit of room between “Liberty is the highest value in any situation, full stop” and “Liberty isn’t important at all”? Because the vibe I get from many of you guys (not necessarily you, James Hanley, but it depends on your mood), is that if we don’t agree with your position down to the last jot and tittle, then we don’t value liberty at all.

                All or nothing is daft in my opinion.Report

              • Avatar James Hanley says:

                Rod, I agree. And that’s why Stillwater’s jab doesn’t land. It’s ultimately implying a straw man, that we don’t see any limit in liberty, ever, as justified.

                It’s as though I snarked that liberals “could never be wrong about maximizing equality.” Folks would rightly point out that while equality is an exceptionally important value for liberals, they do recognize that it has it’s limits (thus, when we slip in references to Harrison Bergeron, there’s a critical response).

                One of our League libertarians let me know yesterday that he’s leaving, at least for a while, both because a small number of commenters here have made it unbearable (not Stillwater, mind you) and because the arguments have come to seem like the movie Groundhog Day, and Stillwater’s comment here smacks of that, IMO.

                I don’t expect the libertarians and liberals here to actually resolve their differences, but I would like to think that by now those of us who have been here a while would at least have come to agreement on understanding of what the other side believes. But after all this time to see a comment like Stillwater’s….He and I have debated enough that it boggles me that he’d still have such an inaccurate view about, or at least make such an inaccurate poke at, libertarians. And, hell, he demands ths libertarianism not be tht narrow, but anytime I personally am not that narrow–which I see as evidence that libertarians aren’t so narrow–I get a used of not being a true libertarian. It’s a nice Catch-22. I don’t know if it stems from a considered determination to not grant libertarians their actual beliefs, or if it’s a sign that humans are a hopeless group.

                And maybe you liberals see us as doing the same thing. I can’t say I’d be surprised. I kind of hope you do, because then perhaps you’ll have context that helps my comment make sense to you.

                It would be great if we could come to some common understandings about what each side actually believes–not agreement with those beliefs, but agreement that those are in fact the other side’s actual beliefs. But to do that, some of us are going to need to stop trying to define the other side for our own convenience. Absent that, it will continue to be Groundhog Day, and there’ll be lots of smug self-congratulations, but no meaningful discussion or learning.

                Honestly, as much as I enjoy a lot of the folks here, I’m on the verge of joining my fellow libertarian in walking away, because it’s deeply unpleasant being in the minority and constantly staring down lies about oneself, when one has repeatedly tried to correct those lies.Report

              • Avatar Michael Drew says:

                FWIW, I have learned a ton about what it really is to be liberatarian (mainly what I’ve learned confirms my bias that we’re all just liberals, but that’s another story), but even having learned that, I *still* have trouble hearing the word “libertarian” and not think that it has to mean the total maximization of the liberty variable and the dismissal of all other variables (all those extra syllables to ornament the liber root!), and have to remind myself hat the people who use it most lovingly feel differently about it. But I’ve determined that, apart from the fact that the root says otherwise, some people simply have an equal-opposite reaction to the word “liberal” (i.e. that it ultimately can only really mean marginal redistribution of wealth from the haves to the have-nots until the point of Maoist equality), and that they have to be charitable to operate on the understanding that it doesn’t to us. So at some level we all just have to operate with some semantic discomfort to make this experiment work.

                Incidentally, I’m about 89% sure who the libertarian in question is. If I’m right, it’s an unfortunate, though I think not all that surprising, loss.Report

              • Avatar Rod Engelsman says:

                I would hate to see you leave, this place would just be another echo chamber.

                I actually like libertarians. I feel I owe you guys a debt of gratitude for teaching me to always question my background assumptions. I’ve modified many of my political views due to discourse with libertarians. And even when I haven’t it has forced me think more deeply and to sharpen my arguments.

                Finally, I hope you will consider that, at least for myself, the crop of libertarians I find here is unique. I don’t know how well you represent your tribe demographically, but if your views were more widely represented by libertarianism on the Internet I wouldn’t have formed many of my misconceptions in the first place. I guess this medium naturally attracts the more extreme element and often when someone says, “I’m a libertarian.” it’s that extreme element that first comes to mind.

                I’m also striving to not be a “typical” knee-jerk liberal. You’re helping me with that.Report

              • Avatar Michael Drew says:

                Rod,

                The professor talks that game, but I’ll believe it when I see it.;) (Which is not to say there isn’t clear personal benefit that I experience when I get away from these pages for a few days. I can certainly see James getting that and making the leap one day. I can see myself doing it as well. I do think he overstates how outnumbered he is, though.)Report

              • Avatar Ryan Noonan says:

                Well, I think one of the sure signs that everything here actually works just fine is that I’m constantly just sitting at my computer, staring, with my mouth agape, because like 75% of the people here are knee-jerk libertarians who clearly don’t understand anything about anything.

                We’ve also managed to chase away pretty much all of the conservatives, which is certainly a major victory.Report

              • Avatar James Hanley says:

                Michael and Rod,

                You guys aren’t the problem. In fact very few people here are the problem. It’s not actually about the ideology of any particular person, but about whether they’re interested in having discussions or having fights. I’m just saying it’s getting to be more wearisome than fun because of a small number of people.

                Kind of the same reason I dread family reunions, except in that case it’s because of the religious social conservatives among my kin.Report

              • Avatar Michael Drew says:

                I hear that, James. There are some fighters hereabouts, no doubt.

                I would be pretty bummed to find out I’m still part of the problem. I was pretty sure I was in the clear by now…;)Report

              • Avatar Stillwater says:

                But after all this time to see a comment like Stillwater’s….He and I have debated enough that it boggles me that he’d still have such an inaccurate view about, or at least make such an inaccurate poke at, libertarians.

                Christ a mighty, James, lighten up. It was a) a response to a poke from Jaybird which b) struck me as question begging given that c) I’ve rarely (like … rarely) seen a libertarian change their mind which makes me think that d) no views within the theory can possibly be wrong because e) the theory is robustly tautological at some level.

                None of this ought to be new to you. I’ve expressed these views consistently for just about as longs as I’ve been here. If that’s disappointing to you, then limit your emotional investments to things you can control.Report

              • Avatar James Hanley says:

                Fortunately, the League’s liberals regularly admit they’re wrong about liberal principles, so this is solely a libertarian problem.

                Sigh.

                See, this is what I mean about trying to understand what each side believes without having to agree with those beliefs.

                The fact that you liberals can’t persuade libertarians to change their beliefs no more implies that libertarianism is tautological or that none of it can be shown to be wrong than libertarians’ inability to persuade liberals to change their beliefs implies that liberalism is tautological or that none of it can be shown to be wrong.

                Just because you firmly believe there’s an error doesn’t mean you have demonstrated it in an objective way that requires any right-thinking person to agree. We’re not talking about evolution vs. creationism here, or about whether Obama won the presidency fairly or stole it through a Muslim communo-fascist plot. The fundamental disagreements are over values, and those aren’t subject to objective determinations of truth/falsity.

                Yes, we libertarians tend to value liberty even more highly than liberals do, who of course value it highly themselves. That means we don’t find exceptions to it to be justifiable as often as liberals do. That doesn’t mean all libertarians see it as overriding every over value in every single instance at all times under every conceivable circumstance, just as it doesn’t mean all liberals see those other values as always overriding liberty in every single instance, etc., etc.

                It’s a point we’ve made repeatedly, ad nauseum, and still you don’t seem to grok it. We shouldn’t have to make an explicit statement of it each time we talk about wanting to maximize liberty; by now you really should just understand that our maximization does include some limits, just a lot fewer than your approach would.

                Just because we don’t say it explicitly every time doesn’t mean we actually don’t mean it–it’s always there, as a baseline assumption. I think any reasonably charitable person by now would grant us that and stop implying differently. A lot of other liberals here have–probably most of them. So why can’t you? Why can’t you just drop the “Oh, liberty is the only thing to you guys” schtick, since that in fact is something that is demonstrably untrue?Report

              • Avatar Stillwater says:

                See, this is what I mean about trying to understand what each side believes without having to agree with those beliefs.

                We don’t have to agree that I was merely responding to a deliberate poke from Jaybird, James. It would be great if we could, then all the heavy “liberals are such a pain in the ass” stuff might be shelved for a few days.

                It’s a point we’ve made repeatedly, ad nauseum, and still you don’t seem to grok it.

                Amazing.Report

              • Avatar Kimmi says:

                Stillwater,
                Links i posted seem to have persuaded some folks to shut up about how “raising the minimum wage” always increases unemployment.
                James,
                I dunno, I’ve changed my spots half a dozen times around here.Report

              • Avatar Dave says:

                One of our League libertarians let me know yesterday that he’s leaving, at least for a while, both because a small number of commenters here have made it unbearable (not Stillwater, mind you) and because the arguments have come to seem like the movie Groundhog Day, and Stillwater’s comment here smacks of that, IMO.

                James,

                I think we have a few things to discuss. Offline. What’s the best way to reach you?Report

              • Avatar James Hanley says:

                Dave,

                You can use the email address in my comments.Report

              • Avatar Dave says:

                Thanks James. I was able to get it out of a comment I received in an email so we’re good.

                I very much look forward to the discussion.Report

              • Avatar Rod Engelsman says:

                Kind of the same reason I dread family reunions, except in that case it’s because of the religious social conservatives among my kin.

                I hear ya. I may have already told this story, but I (actually my whole family) got dis-invited from the extended family Thanksgiving because my niece who was hosting it was afraid I would “gloat” over Obama winning. I wouldn’t have, but it could easily have gotten tedious with my bro-in-law.

                Actually it was kinda nice, just me and the missus, our two kids, and our prospective son-in-law. I’m a patriarch!Report

              • Avatar Will Truman says:

                Rod and James, I get that with both directions from the in-laws. Never being uninvited, but the very liberal faction* talking freely in ways that make me uncomfortable. And my not-liberal father-in-law who, though I like him generally and agree with him a lot, has a tendency to make me forget that I have opinions of my own when I am stuck in a car with him for three hours.

                As for my own family, we don’t really discuss politics. I didn’t know my father was a Democrat until I was in my teens. Mom (a Republican) has always been more outspoken, but you don’t talk politics with Mom. You listen while she talks politics.

                * – Which is most of them. My wife’s parents are generally an exception. There is a cultural divide that goes beyond politics.Report

              • Avatar Chris says:

                Every time one of these conversations about what libertarians think, or what libertarianism is, pops up (and they pop up here much more than the equally annoying “what progressivism/liberalism/conservatism is” conversations), I’m reminded of something I read once by an little-known mustachioed German dude:

                Let us still give special consideration to the formation of concepts. Every word immediately becomes a concept, inasmuch as it is not intended to serve as a reminder of the unique and wholly individualized original experience to which it owes its birth, but must at the same time fit innumerable, more or less similar cases—which means, strictly speaking, never equal—in other words, a lot of unequal cases. Every concept originates through our equating what is unequal. No leaf ever wholly equals another, and the concept “leaf” is formed through an arbitrary abstraction from these individual differences, through forgetting the distinctions; and now it gives rise to the idea that in nature there might be something besides the leaves which would be “leaf”—some kind of original form after which all leaves have been woven, marked, copied, colored, curled, and painted, but by unskilled hands, so that no copy turned out to be a correct, reliable, and faithful image of the original form. We call a person “honest.” Why did he act so honestly today? we ask. Our answer usually sounds like this: because of his honesty. Honesty! That is to say again: the leaf is the cause of the leaves. After all, we know nothing of an essence-like quality named “honesty”; we know only numerous individualized, and thus unequal actions, which we equate by omitting the unequal and by then calling them honest actions. In the end, we distill from them a qualitas occulta [hidden quality] with the name of “honesty.” We obtain the concept, as we do the form, by overlooking what is individual and actual; whereas nature is acquainted with no forms and no concepts, and likewise with no species, but only with an X which remains inaccessible and undefinable for us. For even our contrast between individual and species is something anthropomorphic and does not originate in the essence of things; although we should not presume to claim that this contrast does not correspond o the essence of things: that would of course be a dogmatic assertion and, as such, would be just as indemonstrable as its opposite.Report

              • Avatar BlaiseP says:

                Heh. There is one little problem with that Leaf Analogy: we know how to characterise leaves, based on fractal geometry.

                Honesty, well it’s a banana.

                First Principles are a wretched basis for any belief system.Report

              • Avatar Chris says:

                I think you’ve missed the point, which is not surprising, as when it comes to the crime of essentialism, you are one of the worst offenders here.Report

              • Avatar Kimmi says:

                Oh, that’s easy.
                “Veterans benefits are the new welfare.”

                … still liking Citizens United, boys? Your ideology will be judged by your betters, by which we mean the wealthier elements in your faction.

                I can certainly name libertarians as despicable or misguided fools. At which point it really doesn’t matter what they believe in, for they lend decent cover to evil.

                I’ll judge you by your deeds and not your words. I hope you’ll do the same with me.Report

              • Avatar Kimmi says:

                And, just to be clear, I’m talking about libertarians providing cover for people who call themselves libertarians. Not people who call themselves conservatives or republicans (for which folks could rightly call me out).Report

      • Avatar Barry says:

        And right back atchya.Report

    • Avatar George Turner says:

      Well, one of the snags is that nobody has the Constitutional right to marry whoever they want, otherwise I’d be suing Charlize Theron for violating my right to wed her. Gays aren’t prohibited from chosing mates, just required to choose from the same set that everyone else has to chose from (Unwed people above the age of consent, of the opposite sex, who aren’t already legally married, who are of sound mind, etc).

      The law doesn’t say that gays can’t wed, it just applies to them the exact same matrimonial rules as everybody else. You could say the rule is too equal and doesn’t acknowledge differences in the population, other than the difference between genders, ages, and existing marital status.

      That everyone should have to operate under the same standards, under the existing rule system, is the real question. I don’t see it as an equal protection case, since the law doesn’t discriminate, even perhaps where it should. Like a mindless bureaucrat, it doesn’t care who’s gay and who’s not, it just points to an old poster on the wall of the county courthouse that lists the requirements for getting a marriage license, right next to the one for a fishing license.

      For example, nobody is allowed to have more than one spouse, even if one group, and only one group, wanted two wives, the law is applied the same to both groups and this is not considered discrimination. If some people want to marry their goldfish, is it automatically discrimination under equal protection not to recognize it?

      The question is whether marriage should include the opposite sex rule along with age, no siblings, parents or children, or first cousins, and not already married. Everyone with a parent (which is all of us) is already prohibited from marrying that parent (dead or alive), so not a single person is without some kind of prohibition on who they can marry. Currently such prohibitions cover about three forths of potential partners, and the real issue is whether to loosen the rules for everyone (even straights would be allowed to marry the same sex) or keep the rules for everyone the way we currently have them.

      An equal protection case would argue “The law says we’re different, but we’re exactly the same!” This case argues “The law says we’re exactly the same, but we’re different!”Report

      • Avatar BlaiseP says:

        That’s almost as interesting a bit of concern trolling as Brooksie’s on Press the Meat t’other day.Report

      • Avatar Tod Kelly says:

        Wait, what? How do you not see it as a discrimination case?

        The Episcopal Church recognizes gay marriages and wishes to perform them for both heterosexual and gay couples; their parishioners wish for them to do so. In what way is the government stepping in and telling them they can for one class of citizens, but are forbidden to do so for another not discrimination?

        Even if you believe that same sex couples should not be allowed to be married – even if it turns out that you could prove that outlawing gay relationships entirely is what’s best for society – it is still discrimination by the very definition of that word. To say otherwise is to pretend that words have different meanings that they do for the sake of debating points.Report

        • Avatar George Turner says:

          Because the government isn’t distinguishing between classes of citizens. For the purposes of the law, it doesn’t even acknowledge that such classes exist. How is not disciminating at all equal discrimination? The problem is that they don’t discriminate, not that they do.

          What we have is like arguments that the lack of affirmitive action is discrimination in a completely color-blind society.Report

          • Avatar LWA says:

            By that logic, California could pass a law requiring that anyone can marry anyone they choose, provided they meet certain criteria (Unwed people above the age of consent, of the same sex, who aren’t already legally married, who are of sound mind, etc).Report

          • Avatar clawback says:

            Is it discriminatory if it requires them to be of the same race?Report

            • Avatar Jason Kuznicki says:

              This. The argument about complimentarity has never flown before, not even in matters of gender. Ultimately, my own view of prohibitions on same-sex marriage is that they discriminate by gender, and that that’s not permitted either.Report

          • Avatar Tod Kelly says:

            If I pass a law that says people of different skin colors cannot marry, is that discrimination? After all, the law applies equally to everyone. It’s not the fault of the bureaucrat in city hall that a white woman and a black man don’t meet the qualifications, even if they are posted right next to the fishing license qualifications.

            Same with laws about who can live where, or who can be be eligible for political office. Hey, you could even make a law that anyone can be president – so long as they happen to be a member in good standing of the Catholic Church. It’s not discrimination, because the law applies equally to Catholics, Jews and Protestants alike.

            You can use this logic to discriminate against any group of people.Report

            • Avatar Jaybird says:

              I read one thought that asked whether the appropriate response to Loving v. Virginia wouldn’t have been to recategorize “black people” into the same “race” as “white people”, thus legally allowing these two people to wed without changing the law.Report

              • Avatar RTod says:

                That would have been awesome to do for a day just to see the looks on everyone’s faces.Report

              • Avatar Mike Schilling says:

                You’d still have marathoners unable to marry sprinters.Report

              • Avatar zic says:

                Just imagine what would happen when the bass players want to marry the flautists.Report

              • Avatar Kimmi says:

                Races don’t have much of a genetic basis anyhow (as in people of a certain race don’t show more relatedness to others of the same race). They’re basic phenotypes, but nothing more.Report

              • Avatar Troublesome Frog says:

                That wouldn’t be as crazy as it sounds. There were some oddball rules like that on the books. In Perez v. Sharp, the problem was that Perez was classified as “white” under the logic that people of Mexican heritage were Spanish enough to count. Those hair-splitting decisions based on basically nothing eventually become necessary if you try to enforce this type of law.Report

            • Avatar George Turner says:

              But that’s not the type of law we’re discussing. The law as it stands doesn’t recognize any difference between gays and straights, and so makes no distinctions. In your example the law specifically had to recognize differences in skin color to ban interracial marriage. It had to make a discrimination.

              Currently the only discrimination the law makes is between men and women, classifying the world into only two types of people. It doesn’t touch on concepts like gender identity, which is my point. Current law doesn’t sufficiently discriminate, so raising an Equal Protection argument is problematic because the current law treats people too equally, as if there’s only the one difference between them. It’s like trying to push a black/white racial case when the only distinctions the law makes are between tall people and short people.Report

              • Avatar Mike Schilling says:

                It doesn’t touch on concepts like gender identity, which is my point.

                The current law does not treat people equally; if makes an unnecessary distinction between men and women A change to the law would remove that without introducing any new distinctions Marriage between those who wish it would be available to all. Do you seriously think that there’s going to be a “prove you’re gay” test?Report

              • Avatar Rod Engelsman says:

                Currently the only discrimination the law makes is between men and women, classifying the world into only two types of people.

                But there’s the arbitrary discrimination right there. It’s akin to a law that defines rape exclusively as a crime committed by men against women. While the the idea of woman on man rape is debatable in some circles, there’s no dispute that a man can rape another man. So such a law would be discriminatory.Report

              • Avatar Will H. says:

                I think we settled that in another thread; that man-on-man rape is far more common in this nation that man-on-woman rape.
                It just doesn’t fit with the preconceived notions, so such data is easily discarded.Report

              • Avatar Rod Engelsman says:

                But you see my point, right? That a law defining rape as a crime that only is committed by men against women would be discriminatory in a manner that was arbitrary and capricious?Report

              • Avatar Will H. says:

                I’m really not sure why that’s allowed.
                That came to light with the domestic violence laws in Texas years ago. Willie Nelson’s wife had decided to leave him, and she waited til he came home drunk and passed out. Then she threw a sheet over him, tied him to the bed, and whaled the tar out of him. Not domestic violence under the law. That’s a crime that can only be perpetrated by a man acting against the woman in Texas.
                I don’t remember the reasoning behind that one.Report

              • Avatar Rod Engelsman says:

                IANAL, but I wonder if the difference hinges on the distinction between a law that says “thou shalt not” and prohibits something versus a law that says “thou mayest” and grants a privilege.

                Because the reason gays and lesbians currently can’t marry in most states isn’t because there’s a law that criminalizes gay marriages, but rather the lack of a provision in the law that enable the state to recognize those marriages. They can currently go a church and have a wedding and call themselves husband and husband or wife and wife but none of that carries any legal weight.Report

              • Avatar Kimmi says:

                will h.
                that is absolutely, totally horrible. I’d march for his rights (as in, yeah, I’d actually show up.)Report

              • Avatar Kimmi says:

                Rod,
                That’s why we don’t have common law marriage in PA anymore…
                some stupid-con was convinced that folks would use it to backhand same sex marriage.Report

              • Avatar Jason Kuznicki says:

                But that’s not the type of law we’re discussing. The law as it stands doesn’t recognize any difference between gays and straights, and so makes no distinctions. In your example the law specifically had to recognize differences in skin color to ban interracial marriage. It had to make a discrimination.

                Currently the only discrimination the law makes is between men and women, classifying the world into only two types of people. It doesn’t touch on concepts like gender identity, which is my point.

                The current law (at least in most states) absolutely does touch on gender identity. Consider:

                Me: “I want to marry this guy.”

                City Hall: “You can’t.”

                Me: “Why not?”

                City Hall: “Because he’s a guy.”

                Gender identity. Right there.Report

          • Avatar Stillwater says:

            How is not disciminating at all equal discrimination?

            Hmmm. It’s hard to know if your serious about this. PErsonally, I think you aren’t.

            But! The definition of “discrimination” is that certain opportunities or permissions (or privileges) or prohibitions apply to people based on arbitrary properties. So if gummint policy or social practice fails to discriminate at all, that’s the limiting case of equal discrimination (which is also the limiting case of equal protection).

            That might be wrong, but that’s the way I see it.Report

            • Avatar George Turner says:

              But the prohibitions or privileges are applied regardless of arbitrary properties. Straight men and gay men are equally prohibited from marrying other men, exactly as if gender identity or desires were completely arbitrary and irrelevant. All men, gay or straight, are allowed to marry fat ugly chicks with bad personalities.

              Hunting and fishing laws don’t recognize or enshrine a vegan right to hunt vegetables, but we don’t run around screaming that vegans are being denied their fundamental rights, it’s just that when we set up hunting and fishing laws we weren’t thinking about strawberries and lettuce or thinking that berry and leaf picking issues were so problematic that they needed state definition and protections. No states currently offer a strawberry hunting license, but almost all have deer hunting licenses. Should we expand the definition of hunting so we can include vegans? Perhaps, but it wouldn’t seem that the Equal Protection clause would be the most obvious way to pursue the issue.Report

              • Avatar Patrick Cahalan says:

                George, this is just ridiculous, because your whole argument presupposes that marriage between a man and a woman is *not* an arbitrary property of marriage. So it’s not an argument, it’s a tautology; it’s not arbitrary to require men marry women, because men marrying women is the definition of marriage.

                OPRE.Report

              • Avatar George Turner says:

                It might be a tautology, but tautologies are valid in formal logic. The law is full of them, especially in the sections that define the terms. The question is whether we expand the meaning of the term, and what it defines in law, to be more inclusive by being more discriminating in dividing people into four main groups instead of two (or six instead of four, if you count underage people as a major group, given their numbers).

                The other question is whether existing law qualifies as discrimination under the Equal Protection clause, or whether society can set some arbitrary standards that apply equally to all, even if significant segments of the population find those arbitrary standards unjust. As an example, Mormons and Muslims both recognize polygamy to an extent, and any law that prohibits it necessarily limits their marriage arrangements. Must such laws be overturned simply because there are groups who’d attest that they’re being unfairly oppressed by the majority?

                Such decisions are pretty easy for us to make on the small scale but the Supreme Court does have to be cognizant of the precedents their ruling will set. If the people can’t pass a state constitutional amendment defining legal definitions, who does, and how do we do it without holding such redefinitions open to any group that seeks a change?Report

              • Avatar Rod Engelsman says:

                But that’s not actually the question before the court. The law CAN discriminate, but there needs to be a compelling state interest; it can’t be “arbitrary and capricious.”

                Prohibitions on incest aren’t based on icky-ness, they’re based on potential for likely genetic harm to any offspring. (Or at least that’s how it would be argue today, I imagine. Historically, it may well have been the ick factor.)

                Prohibitions on underage marriage follow directly from the inability of minors to enter into binding contracts.

                Prohibitions on polygamy and polyandry are probably the most difficult to legally justify. Perhaps on grounds of potential injury to offspring due to inherent instability of such relationships?

                Whether the remaining marriage taboos are discriminatory isn’t the real issue. The issue is whether the discrimination can be justified on the grounds that it materially injures either society or some innocent persons.Report

              • Avatar Will H. says:

                That’s somewhere of where I see it going.
                The Court will likely rule that the plaintiffs lack standing to bring suit, or fail to allege an distinct and compensable injury.Report

              • Rod – Prohibitions on polygamy are justifiable as a matter of practicality – civil marriage, which is effectively a set of rights and obligations conferred by the State, is contingent on there only being one person who receives those rights. If you add additional spouses, then those rights immediately come in conflict with each other. Laws against polygamous religious marriage might be eventually fodder for a ruling of unconstitutionality, but those laws are presumably pretty easy to get around and difficult to enforce anyhow; but laws against polygamous civil marriage have a pretty clear basis as being necessary and proper to the existence of civil marriage at all.Report

              • Avatar BlaiseP says:

                From whence arises this contingency? Any other sort of contract could be entered into by multiple parties. Insofar as the rights are spelled out in that contract, as with multiple room mates, what makes the marriage contract any less amenable to more than two parties?Report

              • Avatar Patrick Cahalan says:

                Marriage, fundamentally, isn’t just about the benefits you get from the government or the children you may or may not have.

                It’s about agency.

                Marriage allows you to point to another person and say: “in all matters, in the event I am unable to make a decision, this person gets to do so. Should I not make allowances for my possessions prior to death, this person is my external will.”

                Polygamy would require embodiment of your agency in a committee. Now, that’s doable to some extent, but we’ve been working on that for the last couple hundred years at a higher level of abstraction with hits and misses.Report

              • Avatar Ryan Noonan says:

                This is actually one of the most fascinating things I’ve discovered in my almost-one year of marriage. I have effectively unlimited power to override the wishes of anyone who isn’t my wife on issues surrounding our finances or whatever. And what’s more, everyone knows and respects this. I can be getting guff from some credit card bureaucrat or something, and I say “my wife”, and all of a sudden every complaint just evaporates.Report

              • Blaise – In addition to what Pat and Ryan correctly note, or maybe underlying the examples they provide, is that the civil marriage contract is, in most instances, a set of default contract terms provided by the state. Some of these terms can be modified through pre-nups and post-nups, but others (particularly the terms that create third party obligations) inherently cannot. Then there’s the messy question of how to handle tax benefits if you have one person legally married to multiple other persons.

                Basically, unlike SSM, allowing civil polygamous marriage would require altering a good chunk of not only the purpose, but also the structure, of civil marriage law.Report

              • Avatar BlaiseP says:

                There’s nothing in there, Mark. Marriage is a contract. A prenup is a separate contract: that’s why we call it a Prenup, so it’s in effect before the marriage contract.

                Tax benefits, ecch, that’s just squid ink, too. Depending on the circumstances, married people can and routinely do file separate returns.Report

              • Yes, prenups are a separate contract, but that’s just the point – civil marriage is a set of laws that constitute the marriage contract. Those laws set up a variety of things, ranging from rules on intestate succession to living wills, not to mention hospital visitation rights and a bunch of other stuff. Some of that you can get around through other contracts and documents, but at that point we’re not talking about civil marriage anymore.

                It’s important to keep the distinction between civil marriage and religious marriage in mind here. I conceded above that it’s possible prohibitions on polygamous civil marriage could eventually be overturned as unconstitutional, but those prohibitions are generally not what we’re concerned with when we’re talking about extending marriage rights to polygamists. No one, after all, is arguing that churches should be prohibited from performing same sex marriages if they so desire.

                And on the question of extending civil marriage benefits and rights to polygamous relationships, the SSM debate just has no relevance – polygamous relationships cannot receive civil marriage benefits and rights without completely rewriting those rights.Report

              • Avatar Patrick Cahalan says:

                I was thinking of the post Mark wrote a little bit ago explaining how marriage isn’t just like your ordinary everyday sort of contract, and how this is why we should look at it differently from ordinary everyday sorts of contracts, and I was thinking, “Well, it *could* be. But if you actually wrote up the sort of formal contract that actually details all the things we currently subsume into marriage, a lot of people who are currently married would freak out about what they had gotten themselves into.”

                Marriage is sort of like an anti-contract. It doesn’t enumerate its conditions. It doesn’t enumerate its responsibilities. (In fact, they’re not immutable, either, because not everybody everywhere needs to recognize them. I’m not just talking about traveling to faraway lands and being amused by the idea that your wife is now akin to your property, or chuckling over the fact that your husband no longer owns anything except the real estate, I mean… you move over a state border and your rights and obligations change.)

                It’s more of a giant GFY to everybody who thinks they get to make decisions about you. No, you don’t. He does. She does. Maybe which decisions depend on where, and maybe that’s a conversation that we ought to have and/or detail in our law a lot better than we do now, sure.

                But I think the idea of default agency delegation is an important one in civil society. Because you’re not always going to think of everything beforehand, and somebody has to play the role of the decision-maker sometimes, because you can’t. I’m absolutely convinced that defaulting that over to some mechanical arbitration of state-encoded rules is a bad idea. I think having this sort of relationship is different from a regular contract, and I think that is a good idea.

                Which makes me all the more ranty about the Terri Schiavo case, now that I think about it. All these people frothing at the mouth about the sanctity of marriage…Report

              • Avatar BlaiseP says:

                So what? Do you realise marriage does not create a power of attorney? That’s a separate contract. I’ve been a contractor for lo these many years, rest assured, every one of my contracts has a clause closely resembling this one: This contract was prepared in accordance with the State of Louisiana, Revised Statute 39:1490B

                As for religion, the Unitarians, who are always pushing the boundaries on every sort of societal restraint, are advocating for plural marriage.

                The cases before SCOTUS, yesterday and today, concern the nature of these contracts. Though I am not an attorney, it seems important to note this has nothing to do with religious marriage and everything to do with the viability of civil marriage licenses. Setting aside a contract is tricksy business, best left to the professionals. Trust me on that. Neither of us are lawyers. But this much I know, a contract can be voided if it’s not executed in accordance with some state’s statute law.Report

              • Avatar Jaybird says:

                Which makes me all the more ranty about the Terri Schiavo case, now that I think about it. All these people frothing at the mouth about the sanctity of marriage…

                We could probably have a fun sidebar thread with this but one of the arguments that bugged me about the whole “he’s her husband!” argument was the whole “he’s living with another woman with whom he has many children” thing. The argument that he was no longer “really” married to Terri but was “really” married to the woman with whom he lived and with whom he had many children is an argument that made sense to me. His marriage, at that point, seemed to me to be a legal fiction. (Note: I’m not blaming him for getting up and moving on.)Report

              • Avatar BlaiseP says:

                Heh. Famous last words: Legal fiction. Divorce is also a contract.Report

              • Avatar Patrick Cahalan says:

                The argument that he was no longer “really” married to Terri but was “really” married to the woman with whom he lived and with whom he had many children is an argument that made sense to me.

                You know, that makes sense to me, too. But I don’t regard transference of the status of who-I-am-currently-married-to as terribly germane to that case.

                Sure, he may have moved on. That doesn’t mean that we get to decide for *Terri* who she *might* prefer making decisions for her. She already decided that. She didn’t change her mind, and we have no particular reason to assume that she wouldn’t still stick by whatever informing principles she had that led her to pick that particular guy.

                Lacking any other sufficient guiding documentation, he’s still married to her, unless she’s already dead (my opinion), so he gets to decide.

                Otherwise, we’re usurping her original decision to let him decide by saying, “Oh, in this case, we can ascertain that any right-thinkin’-folk would surely want this other person to make this decision…”Report

              • Avatar Rod Engelsman says:

                Mark and Patrick,

                Those are all great points wrt to poly-marriage. I particularly like Pat’s comments about default agency.

                Maybe a year ago a similar discussion broke out over at BHL and a number of their more doctrinaire libertarians were arguing that the state should just get out of the marriage business altogether. “What business is it of the state’s whether or whom I decide to call my spouse?” That sort of thing.

                Well, I tried to articulate that the marriage contract wasn’t really so much between the spouses as it was between the couple and the rest of society. Nowhere did my explanation reach the simplicity and eloquence of the concept of default agency.

                It also touches on why the state bothers to involve itself in the business of marriage in the first place. The societal benefit from marriage lies in the way default agency relieves society at large (read: legal system) from having to get involved in a lot of ways it might otherwise be called upon.

                And while SSM clearly serves that same purpose as well as OSM, it’s not clear that poly marriage would work as well. It’s easy to see how courts could be called upon to settle disputes among multiple spouses, for instance. More pain for little, if any, gain.Report

              • Avatar BlaiseP says:

                Tautologies as you have described them are not allowed in formal logic. The marriage license is granted by the state. You have formally defeated your own proposition. I wish at turns the people who invoke logic and rhetoric had more training in it.

                Insofar as the state denies anyone a license, they are denied on the basis of a law to that effect. Brothers and sisters may not marry on the basis of consanguinity. It is equally valid to deny a marriage license to a pair of brothers or a pair of sisters on the basis of consanguinity as it is to deny them marriage on the basis of their equal gender.

                Marriage is fundamentally a contract. Prop 8 denies a certain fraction of our population the right to form such a contract. If some group decided to promulgate the marriage of brothers to sisters, we could bring out the geneticists who could point to the problems thus created on a scientific basis should such marriages produce children. Incest was a taboo long before it was shown to be based on a scientific principle, that incest magnifies the effect of recessive genes. Endogamy to that degree is bad for business: it has been prohibited in law. I wish it was similarly prohibited in veterinary.

                But nobody’s advocating for such incestuous marriages. On a scientific basis, there is no good reason to prohibit brothers from marrying brothers: no children will arise from such a marriage. The Prop 8 folks attempted to make a case against gay marriage based on unscientific grounds: witness Scalia’s fear mongering about the dangers posed to children with same-sex parents.

                I have similar scientific objections to the prohibition on polygamy or polygynous marriage. Freedom of association. Marriage is a contract, remember? I don’t much like polygamy, having seen a good deal of it in Africa: the Hausa practice it. One husband has one uwar gida, his first and alpha wife, who rules it over the matanca, subordinate wives. But then there’s the mowa, the favourite wife, usually the youngest. And it’s the children of the uwar gida who prosper and the boys chief among those: the rest of the children catch as catch can.

                Somali polygamy follows the same pattern. Lots of demonstrable oppression going on in Hausa and Somali polygamy: Mormon polygamy I haven’t seen. Not sure I like the family dynamics of this arrangement since it discriminates and doesn’t distribute rights equally — and this is the usual dynamic of polygamy.

                Nobody says the people of California can’t modify their constitution. The question before this court is based on the constitutionality of that modification.Report

              • Avatar Troublesome Frog says:

                All men, gay or straight, are allowed to marry fat ugly chicks with bad personalities.

                But women aren’t. Hence the problem. Men and women don’t have the same rights in this case.Report

      • Well, one of the snags is that nobody has the Constitutional right to marry whoever they want, otherwise I’d be suing Charlize Theron for violating my right to wed her.

        But if you and Ms. Theron wished to marry, and weren’t otherwise legally committed,* then you could.

        *oops! I opened the door to the polyamorist parade of horribles!Report

      • Avatar NewDealer says:

        I have one thing to say and it is this:

        I hope you are a very clever piece of performance art instead of using these are serious arguments.

        Wow………………………..Report

      • Avatar Barry says:

        “Well, one of the snags is that nobody has the Constitutional right to marry whoever they want, otherwise I’d be suing Charlize Theron for violating my right to wed her.”

        Gaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaawwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwd.

        The stupid, it burns!Report

      • Avatar Kolohe says:

        “If some people want to marry their goldfish” – only if they want a spouse that constantly carps on their every fault.Report

      • Avatar Ryan Noonan says:

        This is a terrible argument. The objection here isn’t that the law doesn’t treat gay and straight alike; it’s that the law imposes an arbitrary distinction based on sex. The equal protection case, to use your own frame, argues “The law says men and women are different, but they’re exactly the same (for the purposes of marriage)!” No one gives a hoot about whether people are secretly gay or straight, just what the law permits them to do.

        This is not difficult to understand.Report

    • Avatar zic says:

      Is sarcasm constitutionally allowed for Supreme Court Judges hearing cases a case? Or has Scalia overreached his 1st amendment rights?Report

      • Avatar Will H. says:

        Judges can and do get away with a lot worse.
        It’s just not always publicized.
        But judicial immunity is absolute for judicial functions, even if done maliciously and intentionally.Report

  5. Avatar Michael Drew says:

    As a gotcha question or an implied argument, it does only seem clever, or even doesn’t. It’s a dud as a gotcha.

    But as a question that, taken in earnest, might actually elucidate exactly what the constitutional project/argument that seeks to establish that states violate the Constitution by defining/restricting marriage in this way says, it seem to me that it’s a potentially quite clarifying and on-point question.

    Of course, in the event coming from Scalia, it was the former, but that doesn’t mean we can’t consider it in the latter way as well.Report

    • Avatar Will H. says:

      I live in a state where the SC has found a “right to procreate;” and so now we have to supply every prisoner a place where they can go procreate.
      I think it’s a bad policy, all the way around.

      That makes me very leery of the SCOTUS find a right to marry– not so much what it will do immediately, but of all the idiocy that will be read into that.

      Although states are required to observe federal law under the Fourteenth Amendment (supremacy), they are not “persons” who are subject to suit.
      Counties, municipalities, etc. are, but they are immune from punitive damages– only compensatory damages can be awarded against them.
      It comes under personal injury law; SOL & all.

      “Equal protection” is nothing but a code phrase. It doesn’t mean anything of what it sounds like; not under the law anyway. It’s always a term that’s defined.
      One of the big turning points in civil rights litigation was when it was determined (and I forget exactly when) that the language of 42 USC 1985(3) (part of the Civil Rights Act of 1871):

      any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws

      implies “a racially based, invidiously discriminatory animus behind the defendants’ actions.”
      Similarly, I’ve seen a lot of caselaw on Title VII employment discrimination claims alleging a “hostile work environment,” where it looked like it should just be an open-and-shut case. But then they look at it, analyze it, and say that these isolated incidents do not rise to the level of an “environment.”

      Not saying it’s right. I’m just saying that’s the way it is.

      It’s more odd to me the things that it takes to get people even marginally interested in civil rights litigation. It’s been with us a long time, and it’s not going away.
      But it’s pretty screwed up.
      Defendants typically have a decisive advantage, in the control of evidence and application of immunities.

      Seriously, do you think it would violate your civil rights if a cop fabricated evidence against you, then lied on the witness stand in order to convict you?
      It isn’t. Not according to Briscoe v. Lahue. First, that would be a collateral attack on your conviction, which is prohibited. Secondly, the cop has witness immunity, if you can beat the qualified immunity question.

      Now, if you think that’s a legitimate concern, look at the things that get peoples’ dander up to where they’re all of a sudden concerned about civil rights.
      Tell me that’s not a legitimate concern.Report

      • Avatar Michael Drew says:

        I don’t disagree that, like all key legal phrases, “equal protection” inevitably gets stretched to apply to various complaints. But here I think it’s kind of right in the semantic wheelhouse. It’s not that there’s a right to marry, it’s that if you’re going to be in the marriage-recognizing business as a jurisdiction, you have to do it equally for all. I actually don’t think it’s open-and-shut that “We recognize as marriages unions between people of different sexes” doesn’t equally protect people (i.e. whether, if a state is going to recognize marriages, that not recognizing unions that don’t conform to that definition doesn’t give people equal protection of the law, but just to be clear, I think it doesn’t), but whether it does or not is fairly clearly and legitimately the question here. I don’t think this is about a right to marry.

        I am curious about whether anyone has ever considered the idea of just straight-up federal involvement in the recognition of marriage. It wouldn’t have to replace state recognition, but could sit atop it. Obviously, states would have to recognize the federal recognitions, though they could continue to recognize them as they saw fit (consistent with federal law). This would give people everywhere recourse apart from the whims of local opinion, while not eliminating states’ prerogative to define marriage as they saw fit.Report

        • Avatar Michael Drew says:

          …I raise this because if we’re proposing to say how the states must define marriage federally, it’s not totally clear to me what’s left of federalism on the matter – the definition of marriage, if not exactly how it’s treated in law.Report

        • Avatar BlaiseP says:

          The Federal government already recognises marriage in taxation and the rights of servicemen’s families.Report

          • Avatar Michael Drew says:

            Fair point. But that is recognition of marriages already recognized by some state, is it not (as further delimited by DOMA)? It’s sort of the derivative of recognition. I’m talking about recognizing/creating for governmental purposes marriages as an initial matter – you’d go to a federal office to get a license the way you currently go to the city-county building or whatever?

            Obviously, this would not be immune to politics, not saying it would be.Report

            • Avatar BlaiseP says:

              A marriage license between two US military personnel, or civilians for that matter, is granted by the host country. Sgt. XY, US Army marries PFC XX, US Army in Germany, which does grant same-sex marriage. They both need their commanders’ permission to marry. It’s a very big deal, to the point where some service personnel will go back to CONUS and get married in a US State, but it’s not unheard-of to bring a German marriage certificate back to the personnel officer and get their records set up so they can hopefully get transferred together. This isn’t always possible, of course.

              So under the existing rules and regs, which are currently in a state of flux, what with the repeal of DADT regarding gays in the military, I’m not sure what the status of that same-sex marriage would be. If the genders of the spouses were blacked out, it would be recognised by the military insofar as I understand the regs and I do not pretend to be an authority on this subject. All I know is what was true, back in the day.Report

              • Avatar Michael Drew says:

                I was going to add “or other jurisdiction” to “state” and now regret not having done so. The point is still about the U.S. as an initial recognizer. DOMA would still say that a SSM recognized in Germany isn’t recognized for federal purposes as well, no? Or no?Report

              • Avatar BlaiseP says:

                Aye, there’s the rub. Will Hollingsworth v. Perry decide the matter? It might not. There is the case of United States v. Windsor, ( also this from SCOTUSblog) which will address this DOMA issue.Report

  6. Avatar mark boggs says:

    It speaks volumes that you think there is equal claim of harm in saying that not being able to marry Charlize Theron, because she WON’T CONSENT to marry you is the equivalent of two consenting adults of the same gender not being allowed to marry.

    There is an important distinction in those two examples that you seem to overlook.Report

  7. Avatar kenB says:

    I don’t think Sandefur captured Scalia’s point — it’s not so much that he’s expecting the law to spell out the rule literally as that he doesn’t like the idea that the “law” can change without any actual changes to the written laws. We like it in this case because it fits our preferred result, but it’s not the ideal way for a democratic society to work — ideally, changes to the law should happen through the legislature, not through the opinions of a small number of people who are mostly immune to the political process. Think of how frustrating this is when the justices are on the “wrong” side of an issue — they’re there for life and all you can do is wait for enough of them to die and hope that their replacements are better. At least with Congress you have a vote every couple of years.Report

  8. From Sandefur’s post:

    Law is not an historical record, and lawyers are not in the business of counting tree rings. Law is more like a narrative in which the question of whether Lady Macbeth has children is a meaningful question with an answer.

    I get what he is saying, but I also think that history* is, or at least can be, very much like an ongoing narrative. In that sense, law is historical: it has a moment (and usually a place) and it changes and evolves. I’d suggest such is true of even civil codes, but it seems especially true–or at least more obviously true–in common-law systems.

    Greginak suggested above that if a liberal had advanced a similar argument, she or he would have been branded as a “living constitutionalist.” I think I agree (but I also think Sandefur is trying to have it both ways by insisting that law is an ongoing narrative and also finding concrete, and presumably timeless principles….but perhaps I misread him?). I’m not necessarily opposed to living constitutionalism, but I would insist on distinguishing between two kinds of living constitutionalism:

    1. “Soft” living constitutionalism: law is an ongoing narrative, but it is bound in the terms of that narrative as it already exists, with consideration of the text (and the interpretations that have been elaborated on is) and even, to a limited degree, original intention inasmuch as that can be related to the text. It’s sort of more expansive version of something like “textualism.”

    2. “Hard” living constitutionalism: law is simply what the ones who hold political power say it is. In terms of constitutional law, it is what the Supreme Court says it is, and by extension, it is what people who can afford to bring cases to the court say it is.

    I find the “hard” version unacceptable (I deliberately made a caricature…..I’m not sure how many people actually accept the “hard” version, although anti-living constitutionalists seem to think that’s what “living constitutionalists” believe). I identify with the soft, however.

    I’m not a lawyer, of course, so don’t take it to court.

    *I’m fudging a bit, he didn’t say “history,” he said “historical record.”Report

    • Avatar Jason Kuznicki says:

      Again, I’d recommend Sandefur’s article on liberal originalism:

      http://papers.ssrn.com/sol3/papers.cfm?abstract_id=656136

      The answer is that our founding principles imply concrete applications, but not all of these were apparent at the time of the founding. And it turns out that these later-appreciated applications are often quite liberal, as they are here.Report

      • Avatar James Hanley says:

        Is Sandefur’s view congruent with Barnett’s?Report

      • Avatar Ryan Noonan says:

        What’s weird to me is how obvious this all is just by analogy to things people think are totally uncontroversial. I mean, we all think the 1st Amendment applies to the internet because the principles of the 1st Amendment can be mapped sensibly onto it, and it doesn’t matter that the framers didn’t comprehend that one day we’d have an internet.

        Now, you could theoretically make an argument that the 14th Amendment doesn’t work the same way with interracial or same-sex marriage because black people and gays surely had already been invented in 1868, so the framers clearly knew about them, but to my mind that looks like you’re ignoring the actual reasons why the 1st applies to the internet in favor of a much less compelling argument about the historical contingency of when things were invented.Report

      • Avatar Michael Drew says:

        This means that the answer to Scalia’s question was a straighforward “1868, Your Honor; it’s just that now is when we’ve gotten around to litigating it,” rather than the mishmash about “when we as a culture determined that that sexual orientation is a characteristic of individuals that they cannot control” etc., no?Report

        • Avatar James Hanley says:

          “1868, Your Honor; it’s just that now is when we’ve gotten around to litigating it,”

          That would have been a truly awesome answer.Report

      • Thanks, Jason. I haven’t read it yet, but I shall. Perhaps after I’ve read “Right to Earn a Living,” which I just bought. (I plan on citing it in the conclusion with my soon-to-be (I hope successfully) defended dissertation.)Report

      • Avatar BlaiseP says:

        Turn the argument inside out: Liberals are the Originalists, looking not to the Declaration of Independence but to the Preamble of the Constitution for guidance in the overarching ethos of the Constitution.

        We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

        And now Sandefur….

        *516 This view has been useful particularly to modern liberal advocates of “living constitutionalism,” who view American legal history as the gradual growth of “equality” through social change. [FN129] But there are three grounds on which this argument fails. First, it misunderstands evolution. While it is true that evolution applies to moral ideas as well as biology, [FN130] this does not require the abandonment of the idea of objective truths. An example by Daniel C. Dennett illustrates this point:

        A parody will expose the fallacy: “The people at Boeing are under the ludicrous misapprehension that they have figured out the design of their planes on sound scientific and engineering principles … when in fact memetics shows us that all these design elements are simply the memes that have survived and spread among the social groups to which those airplane manufacturers belong.” [FN131]

        Society does change. But I am not convinced Liberals are trying to foist off any vision of equality based upon those changes. At any rate, I am not convinced by Sandefur’s rude and groundless assertions to that effect. In programming, Equality is either a comparison or an assignment operator, often more than two. There is the notion of comparability, implemented in the Comparable interface, thus are objects sorted.

        Liberals make a clear enough distinction between these two sorts of equality. We aren’t trying to say the Creator endowed us with anything. Liberals would say We the People do the ordaining and establishing, thank you very much, etc.. Liberals aren’t muddying the waters, playing tendentious little games with terms like “Natural” and “Organic”.Report

  9. Avatar Mike Schilling says:

    —–> XYZZY

    We all know people, here if not in real life, who are already in same-sex marriages. They call themselves married. They think of themselves as married. They have had a religious marriage ceremony, if they wanted one, They adopt children, share child-rearing duties with their spouses, and thus have expanded their marriage into a family. There are times and places where none of this would be possible; we’re all fortunate not to live there. Anyway, they’re married. The liberty part is taken care of.

    What Americans in SSMs don’t have is the legal protections that people in OSMs have: Community property. Primary medical rights. Favored inheritance treatment. Automatic shared custody of children. Joint income tax rates. etc. etc. Because of an accident of birth, they’re denied the same rights that other Americans have. The word for that is discrimination. And of course, I’m against that: I’m a liberal. Opposing discrimination is what we do.

    The question isn’t whether the government should allow SSM. That ship has sailed. The question is whether it should refuse to recognize SSM, as if it were still 1960 and SSM were Red China. Yes, thre government should recongize SSM as fully equal to OSM, because otherwise it’s denying American citizens equal protection under the law. You know, the 14 Amendment.Report

    • Avatar zic says:

      This.

      I have several friends and a sibling who’ve spent thousands each on attorney’s fees to get a small set of the protections my husband and I take for granted. And despite all the duly signed and notarized papers they carry, their legal instruction still gets ignored in hospitals, by airports, etc. etc. etc.Report

    • Avatar James Hanley says:

      Mike,
      I think I get what you’re saying, but I also think that many of us see all those other things as part of liberty. I can walk into my kids’ hospital room, no questions asked. Somebody else can’t. I’d say their liberty is constrained. Discrimination is generally a denial of one group’s liberty, rather than denial of everyone’s liberty.Report