Justice Scalia Is Vindicated, Fortunately


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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29 Responses

  1. Avatar Jason Tank says:

    Section two is one of those things they wrote without really needing to write. There’s already centuries-old legal precedent for a state to fail to recognize a marriage made in another state. It still happens today, especially in cases of underage marriage. A woman can marry at 13 in New Hampshire with parental consent, but if she moves to Texas (age of consent is 18, period), Texas can refuse to honor the marriage. They don’t always do this (my mother drove to Oklahoma to marry at 16 and had no problems), but they always have the option. Other reasons to void a marriage can include being too closely related (some states allow 1st cousins to marry, others do not), or if one spouse is deemed mentally unfit to consent.

    Of course, SCOTUS overturned the ability of states to nullify mixed-race marriages back in the 60s. The option is only on the table if the state feels there’s a pressing moral objection to the union. Being of the same sex, especially in if the state’s constitution forbids it, could be a strong reason to void. Either precedent could apply.

    I wasn’t expecting a serious challenge until next year. The IRS has a long history of only recognizing marriages that are recognized in the state of residence, and it would be weird for them to change this rule for this one case. (But it wouldn’t surprise me all that much, given the current administration.) So, a same-sex couple in Texas would still be considered unmarried, even if they were lawfully married in New York. That would set up yet another taxation case like the one that nullified section three.Report

    • Avatar Michael Cain says:

      In the hypothetical “Texas doesn’t recognize a marriage from New Hampshire because the bride was 13” situation, would the refusal to recognize be a temporary thing? That is, once the bride and groom were both 18, would the marriage be recognized? Or is it tainted forever because of the bride’s age at the time the ceremony was performed? Just curious about what the legal arguments are either way.Report

      • Avatar Kim says:

        You may then need a new ceremony.

        It just gets worse with Common Law marriages, ya know?
        Never had a ceremony to begin withReport

      • Avatar Kim says:

        “Texas: calls it an “informal marriage,” rather than a common-law marriage. Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a three-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. A 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.”

        So, I have no blooming idea. ask a fucking lawyer.Report

  2. Avatar North says:

    Well in principle the potential outcome is laudable but I can’t help but be worried about backlash. We SSMer’s have come so far, so fast and I’m grateful for that but when I read about this kind of effort my natural paranoia kicks in, there is such potential for things to go wrong.
    But then again, how does one balance that fear against the needs of real people. I’m not particularly old, time is something I have in good measure, so how can I counsel patience to my fellow travelers for whom it is scarce?
    Sure fear of the SSM issue getting locked into a Roe vs Wade style deathclench is reasonable but ultimately I just hold my breath and try and believe that the rightness and sympathetic simplicity of SSM doesn’t lend itself to the same intensity of passions.Report

    • Avatar BlaiseP says:

      As someone for whom Roe v. Wade still matters, that which is taken by force must be held by force. The enemies of personal liberty are everywhere. They’ll always be there. It’s pointless to grumble about it: the assholes will always push back, the Confederacy of Dunces who oppose all the progress in the world.

      People sometimes wonder why I’m so mean. I’ll tell you. I’ve found the only antidote to persistent stupidity is a vicious kick in the slats. Lather, rinse and repeat. I just don’t take it any more. Patience is not a virtue. It usually just postpones the inevitable.Report

      • Avatar Barry says:

        “People sometimes wonder why I’m so mean. I’ll tell you. I’ve found the only antidote to persistent stupidity is a vicious kick in the slats. Lather, rinse and repeat. I just don’t take it any more. Patience is not a virtue. It usually just postpones the inevitable.”

        A thousand times this. If there’s one thing we’ve learned over the course of this millenium 🙂
        it’s that evil never dies. Ever. It might be forced down into the sewers, 99% of its believers might be converted, but there are always those who believe, and always those who might not believe but would profit.Report

      • Avatar North says:

        I’m 100% in support of the outcome of Roe v. Wade, Blaise, if the moral theologians want to put their sweaty hands all over my sisters reproductive choices I’ll be right there on the barricades with you. One can, however, think that the European compromises are tolerably good law (abortion legal early on and zero prospect of it ceasing to be legal but with increasing restrictions later in the pregnancy with escape hatches for the Mothers health or enormous fetal abnormality) and in the Roe v. Wade world those compromises are simply not possible.*

        I want SSM and homosexuality to become so normalized that it fades from the public mind and is as innocuous as red headedness. A Roe v. Wade of SSM would be disastrous in the long run to my mind if it resulted in NOM or some other such “pro marriage” group gaining the intransigent trench warfare might of the pro-life cause.

        *primarily, it must be noted, because pro lifers simply will never cut that deal but it is what it is partially because of the way Roe v. Wade fell out.Report

      • Avatar Kim says:

        You? you’re merciful.
        The only cure to stupidity is death.
        Intelligence is far easier to fix.Report

    • Avatar Barry says:

      “Well in principle the potential outcome is laudable but I can’t help but be worried about backlash. We SSMer’s have come so far, so fast and I’m grateful for that but when I read about this kind of effort my natural paranoia kicks in, there is such potential for things to go wrong.”

      Why the heck do people worry about backlash? Of course there’ll be backlash. And if it gets really strong, it might *partially* remove *some* of the gains. BTW, the idea that Roe v. Wade caused a backlash because people didn’t like the legal ruling has been discredited by political scientists (and by historians)[1].

      Ta-Nesi Coates once made a comment about the Civil War and Jim Crow, that after 1865, black people couldn’t be bought and sold. In 1860, they could. The situation was bad, but it was significantly less bad.

      [1] You can verify this yourself – go to anybody you know who doesn’t like Roe v. Wade ‘because it’s bad law’, and see what they think about Bush v. Gore, or Shelby v. DoJ.Report

      • Avatar BlaiseP says:

        What’s missing from all such TNC happy talk about how black people were better off is belied by how Jim Crow operated and under what auspices. It is the same mechanism we now see in the Coathanger Crowd: they shut down abortion clinics by enacting state regulations against the physicians who perform them. And, of course, when all else fails, they can just detonate a bomb or murder an abortionist.

        Not a bit of difference, really, with civil rights for gays and lesbians. DOMA might be on the ropes, as slavery was at a federal level. The battle has only moved down to the state level. There’s a difference between a retreat and a rout. The DOMA crowd has not gone away.

        The Battle of Gettysburg, bad as it was, was ultimately a Union failure. Having repulsed Lee’s advance, the Union failed to capitalise on it. Meade and Reynolds allowed Lee to retreat in good order, a disastrous mistake. Their failure would prolong the Civil War for years.Report

      • Avatar North says:

        Why do we worry abotu backlash? Well, because it’s a real concern. Public opinion is moving in our direction and that’s a huge deal. What if we could accelerate the legal removal of DADT at the cost of the backlash stopping the swing of public support in our direction? In the short run that would benefit gays but it would be at a devastating long run cost. I think people can be too sanguine about the liberal application of legal force, especially if it outruns the electorate.

        But yes, I already pointed out that telling my fellow gays that legislative gains are more lasting and court fewer bad side effects ignores that it’s slower and for some people time isn’t something they have in surplus. So I just wring my hands.Report

    • Avatar NewDealer says:

      The Roe “backlash” narrative is overstated according to a good amount of legal scholars.

      There are some people (Ruth Bader Ginsburg most notably) who believe that abortion was seriously hurt by the Roe decision and they would have won in the legislatures sooner rather than later. Other legal scholars believe that this is false and that the people who opposed abortion always opposed abortion.

      Gay Marriage will probably be the same. There will always be a sizeable percentage of the country opposed to the idea just like there are still people opposed to interracial or interreligious marriage.Report

      • Avatar North says:

        I’m more optimistic than you are ND. SSM doesn’t have quite the same life/death aspect to it that abortion does, it doesn’t involve “babies” and gays have a funny sort of advantage over other minorities in that they can pop up anywhere, even within the families of their greatest enemies (and unlike women, who share this advantage, relatives of gays have a hard time actually persuading themselves that their preferred policies are good for gays) which makes demonization a lot more problematic.

        I think that SSM could actually flat out win this arguement, in the most fundamental sense of wining, unless we somehow get ham handed and end up alienating the populace with misadventures in shriekiness or oversensitivity.Report

        • Avatar NewDealer says:

          Of course, there are a lot of women who are opposed to abortion as well. This inadvertently sets off a million debates on its own.

          I think you are right. There are probably still people who are opposed to interracial marriage but they (usually) know that it is best to keep quiet on the issue. The same will probably be true for SSM. Most people will just accept it in the future as why was this ever a big deal.Report

  3. Avatar BlaiseP says:

    Mike DeWine, the current Ohio State’s Attorney General, used to be a US Senator and is famously bigoted against same-sex marriages. He will put up a fight, I feel sure.Report

  4. Avatar DavidTC says:

    Scalia’s comment was astonishing. He basically said: If we strike down DOMA on the basis of the fact it has absolutely no purpose whatsoever except to harm gay people, than states might have their laws challenged under the same logic.

    And everyone waited and waited for him to actually finish that thought with ‘. however, that logic would be wrong’ or ‘, however, unlike DOMA, state laws do have some purpose’ or ‘, however, under some convoluted states right argument, states do have the right to randomly hurt people for no reason’ or _something_. We expected some explanation of why that logic would be _wrong_.

    And he _didn’t_ give any. No reason at all.

    In other words, a Supreme Court justice stood there, in front of everyone, and said ‘We shouldn’t grant civil rights in this case, to get rid of an unjust law, because it trivially would lead to people getting rid of _other_ unjust laws. Unjust laws that I don’t want us to get rid of.’

    It’s akin to saying ‘If we give black people the ability to vote they supposedly have constitutionally, they’ll vote to undo segregation!’ Uh…okay? Good point?

    How is this asshole on the Supreme Court?Report

  5. Avatar Stillwater says:

    Nice post Burt. I broadly agree, with one reservation: I still think that invoking the conclusion that TradMed-ers are motivated by animus towards gays is not an optimal argumentative strategy at either the legal or moral level. It seems to me that the argument being put forward by Black is that since a) there are demonstrable harms incurred on gays resulting from a SSM-ban, and b) there is no sound legal or practical justification for that ban, then c) animus towards gays in fact is or (even worse!) logically must be the motivation for the policy. I don’t see how c) follows from the premises, nor do I see how it’s relevant given the observable fact that SSM bans result in demonstrable harm to gays.

    Eg., you wrote: I’d argue that only a showing that Ohio was near to adopting a repeal of its constitutional ban on same-sex marriages would demonstrate that Federal intervention was not necessary to redress discriminatory animus writ into the law itself.

    Is the term “animus” necessary in that sentence? Wouldn’t the argument still stand (mutatis mutandis!) if you used “harm” instead? It seems to me it would, with the added bonus that using that language establishes and clarifies the exact burden imposed on TradMed advocates, namely: given that SSM bans are harmful to gays, can those bans (and harms) be justified by a legally compelling affirmative argument?

    It seems to me that invoking animus as a relevant criterion here is dubious at best and question begging at worst, while being legally besides the point as well. The legally relevant issues in the SSM marriage debate (it seems to me, anyway) is whether SSM bans can be justified by a sound argument. It appears that they cannot be so justified. But that tentative conclusion – which is really not that tentative at all since, as you say upthread, all the relevant arguments are already well known and new arguments are very unlikely to be introduced – holds irrespective of any considerations of the role animus plays in evaluating those arguments.Report

    • Avatar Burt Likko says:

      “Animus” is different than “effect”: “motive” is different from “result.”

      The argument is that denying the social label of “marriage” to a same-sex relationship is inherently a denigration of that relationship, the government singling those relationships out and saying, “These aren’t as good as mixed-sex relationships so they don’t deserve to be called ‘marriages’.” When I was new to the issue of SSM many years ago, I thought, “Hey, what’s in a name?” but now I agree that this really is an official disparagement and there is just nothing quite like the social importance of the word “marriage” in Western culture.

      So at least in this case, “animus” is inescapable. It is impossible to ban SSM without simultaneoulsy and inherently disparaging same-sex relationships.Report

      • Avatar Stillwater says:

        Thanks for the reply. I guess I remain steadfast in my disagreement. (Unless there are some subtle semantic differences that are escaping me.) I remain unconvinced about the argumentative utility or the legal merits of reducing the issue to one of animus. Harm, on the other hand – whether directly intended or as a consequence of some other intention – strikes me as a much clearer, more objective, sufficient – as well as more demonstrable! – criterion than malicious intent.Report

  6. Avatar Michael Cain says:

    Good post. My take from this is that the states are now going to be punished for being lazy — they wished to bestow certain secular benefits for particular reasons, but rather than identifying the reason specifically, they just said, “The qualification for these benefits is that people be married.” Over the years, the benefits have included preferential tax rates, automatic transfers of assets in the case of death without a will, power to make medical decisions on someone’s behalf, etc. Or perhaps they were covering up for some cases of personal laziness — as in, let’s not clog the courts up dealing with allocation of assets when someone who was too lazy to prepare a will dies, or we’ll decide in advance who can make the medical decisions absent a properly prepared medical power of attorney.

    You have to wonder a little about why such benefits are confined to just pairs of people. Why shouldn’t a larger group, a la Heinlein’s line marriage, be eligible?Report

    • Avatar Jason Tank says:

      That’ll be the next wave of marriage reform. Once we get it down to “any two people”, the logical argument would be, “why just two?” The answer: tradition! Or child-rearing! And, in this possible future, you could see how well those arguments wouldn’t work.

      Long-view, I could imagine a scenario where corporations would opt to become gigantic marriages….Report