JimHackerMP wrote:

All I will say is the Constitution now means nothing.

Just because of this one decision?

No, it's more than "just" this decision. However, when the USSC finds new "Constitutional rights," when the President is free to skip Congress on the Iran deal and go to the UN Security Council, when the Administration will sue a State to prevent it from enforcing the law while permitting many cities and counties to not enforce the same laws, we're pretty near to an end of anything resembling "constitutional rule." Instead, we seem about to embark on something entirely new.

Equal Treatment is not a "new" right.

The Executive is fully empowered to negotiate with foreign powers, hence the existence of the State Department - reaching agreements that do not get approved by Congress as treaties is also a well established and common practice.

That last whine is a bit vague for me to tie down, but essentially you are claiming that this is all a new turn of events, when it just is not.

danivon wrote:Equal Treatment is not a "new" right.

The "right to dignity" is certainly a new right.

The USSC ran roughshod over the 10th Amendment. If you read the opinion written by Kennedy, it reads more like a Hallmark card than a legal decision based on reason.

The Executive is fully empowered to negotiate with foreign powers, hence the existence of the State Department - reaching agreements that do not get approved by Congress as treaties is also a well established and common practice.

Yes, but the means this President chose demonstrated his contempt for the Constitution. He went to the Security Council before Congress. The reason is plain: once the Council voted, Congress' decision was largely irrelevant.

That last whine is a bit vague for me to tie down, but essentially you are claiming that this is all a new turn of events, when it just is not.

Meh, it's not your country Obama is out to undermine.

I believe the good Doctor was saying that equal treatment for Gay Marriage is a new right. Certainly you would agree that the homosexuals did not have that right before the Supreme Court decision. After all, if they had the right already, why the Supreme Court case?

Perhaps to him (and many others) it IS a new right.

Somehow, miraculously, the concern about an out-of-control federal government will fade if a Republican president is elected....even though the Republican president will be just as fond of executive power...I must have missed it here when DF complained about the Patriot Act, torture, rendition, the Bush Administration lying about Iraq possibly being a nuclear threat, lying that Iraq was involved in 9-11, the use of budget reconciliation to get the tax cuts through, etc, etc..

And there is no fundamental right to dignity. Cite me to a constitutional lawyer who interprets it that way. The right is the right to marry. I look forward to your citing portions from the opinion to support your interpretation. If you can't then that is a concession that you're interpretation is incorrect. If you want, I'll prove it to you that you're wrong by citing from the opinion. But I'll give you the first opportunity.

It is certainly a new interpretation--that the right to marry applies to gays. So denying it to them violates their fundamental right to marry. And violates their equal protection rights in discriminating against them as a group in exercising their fundamental right to marry. But there is no right to dignity--we don't need to start creating strawman rights to attack.

freeman3 wrote:Somehow, miraculously, the concern about an out-of-control federal government will fade if a Republican president is elected....even though the Republican president will be just as fond of executive power...I must have missed it here when DF complained about the Patriot Act, torture, rendition, the Bush Administration lying about Iraq possibly being a nuclear threat, lying that Iraq was involved in 9-11, the use of budget reconciliation to get the tax cuts through, etc, etc..

Please. If you want to argue, don't present a laundry list of bull.

I did and do have reservations about the Patriot Act. I'm not comfortable with ANY government having as much leeway as it grants. In fact, if Rand was not so "out there" on a few issues and I didn't wonder if he shared his father's apparent anti-zionist conspiracy theories, I'd be a Rand Paul supporter.

We have argued about waterboarding. We disagree. Rendition is far superior to the current Administration's swapping terrorists for nothing program.

We've argued ad nauseum about Iraq. No one can show any serious evidence that Bush "lied." If he did, so did the Russians, Brits, etc. Most every respectable intelligence service believed Saddam had WMD.

This list is a crockpot full of liberal nonsense and half-truths.

I am talking about what is actually happening . . . right now.

And there is no fundamental right to dignity. Cite me to a constitutional lawyer who interprets it that way.

I'll cite a Supreme Court justice.

In ringing language, Justice Anthony Kennedy said same-sex couples respect marriage and “ask for equal dignity in the eye of the law.” That right, he said, is granted by the Constitution.
FROM PAGE 33 OF THE DOCUMENT
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

I just won.

But there is no right to dignity--we don't need to start creating strawman rights to attack.

1. You need to learn what a "strawman" is. When I can go to the opinion and show from Kennedy's writing that what I said is true, you either don't understand "strawman" or are ignorant of the actual writing. Take your pick.

2. You clearly came at this emotionally, hence your meaningless screed at the beginning.

3. No amount of convoluted reasoning can countermand what Kennedy wrote.

Sorry, DF, but declaring victory is so Bushian...

"equal dignity" is not the same as "dignity". And if we are talking about the government according "equal dignity under the eyes of the law", that is the same as the government applying "equal treatment".

danivon wrote:Sorry, DF, but declaring victory is so Bushian...

"equal dignity" is not the same as "dignity". And if we are talking about the government according "equal dignity under the eyes of the law", that is the same as the government applying "equal treatment".

"Equal dignity" is not the same thing as "equal treatment." If he meant "equal treatment," he would not have said "equal dignity."

So, step off.

Note well:

3. No amount of convoluted reasoning can countermand what Kennedy wrote.

He wrote what he wrote. You can spin, contort, and twist, but he wrote what he wrote.

Doctor Fate wrote:Note well:

3. No amount of convoluted reasoning can countermand what Kennedy wrote.

He wrote what he wrote. You can spin, contort, and twist, but he wrote what he wrote.

Indeed
I read it. "equal dignity under the law" means something different to just "dignity".

Taking a single word out of the original context is spin. So indeed, you cannot change what he wrote either.

danivon wrote:

Doctor Fate wrote:Note well:

3. No amount of convoluted reasoning can countermand what Kennedy wrote.

He wrote what he wrote. You can spin, contort, and twist, but he wrote what he wrote.

Indeed
I read it. "equal dignity under the law" means something different to just "dignity".

Taking a single word out of the original context is spin. So indeed, you cannot change what he wrote either.

I'm fine with it. He invented the "right to equal dignity." See, that implies a "right to dignity." One cannot have a "right to equal dignity" if there is no "right to dignity" with which to compare and make sure it is in fact "equal."

So, I win again.

Please, you are omitting the key qualifier "under the eyes of the law" and also forgetting that equal dignity could be zero dignity for all.

Anyone would think gay marriage harms you one iota. Or that other people getting as much dignity in their marriage as you get for yours undermines it. Luckily, dignity is not a limited commodity and this is not a zero-sum game.

danivon wrote:Please, you are omitting the key qualifier "under the eyes of the law" and also forgetting that equal dignity could be zero dignity for all.

If you want to make those arguments, feel free. However, I refuse to bother refuting arguments you won't expend the energy to make.

Anyone would think gay marriage harms you one iota.

I have been consistent: this is a constitutional issue.

Doctor Fate wrote:

danivon wrote:Please, you are omitting the key qualifier "under the eyes of the law" and also forgetting that equal dignity could be zero dignity for all.

If you want to make those arguments, feel free. However, I refuse to bother refuting arguments you won't expend the energy to make.

I am clearly making the first. After all, it's what he wrote. As for the second, this is the essential point - it is about equal treatment (in this case the accordance of dignity), not simply dignity. And equally zero dignity is perfectly possible under that wording, so it does not imply some dignity absolutely. You infer it because... Well, because you want to spin it.

Now, please explain what is Unconstitutional about government treating people equally.

Anyone would think gay marriage harms you one iota.

I have been consistent: this is a constitutional issue.

Indeed it is, and the 14th Amendment applies (and it promoted the rights of people over those of States, which itself is an oft overlooked aspect of the 10th Amendment which mention the people as well as States).

First all of the opinion is divided into five parts . The first part gives the procedural history of the case, the second part discusses the history of marriage, the third part is the central part of the case where the court discusses why a ban on marriage violates a gay person's substantive due process and equal protection rights, the fourth part discusses the Court believes it is necessary for the court to act and not wait for further litigation and/or legislative action, and the fifth part discusses the issue of whether the Constitution requires states to recognize valid out-of-state marriage. The quote that DF and other conservatives have pulled is not from within any of the five parts of the opinion but from the concluding remarks after the five main parts of the opinion where the court did all of its analysis. In particular, any discussion of rights would be in part three of the opinion. To think that the court would sneak in a right in its concluding remarks when it did not discuss it elsewhere in the opinion is beyond absurd.

Let's look at the analysis under Part III where the meat of the opinion is. "Under the Due Process Clause of the Fourteenth Amendment, no State shall deprive any person of life, liberty, or property, without due process of law.” Fundamental liberties include "most of the rights enumerated in the Bill of Rights." These liberties extend to "individual dignity and autonomy, including intimate choices that define personal identity and beliefs". So here we have the court discussing the right of privacy.


"The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution." What follows is a great line of the opinion: "The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed." We see there the justification for extension for substantive due process, for the right of privacy.

The court then says "Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. The court then discusses the Loving case (inter-racial marriage) where a right to marry was found. The court also discussed the Zablocki case where it was found that the right to marry was infringed when fathers who were behind in their child support payments were not allowed to marry.

The court mentions that the right to marry had been previously thought only to apply to opposite-sex marriages. But the court said that "This Court’s cases have expressed constitutional principles of broader reach. In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond." In other words, prior court cases had identified principles supporting the right to marriage and the Court is going to then examine whether an analysis of those principles support extending the right to marry to gay couples.

"This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples."

The four principles were: (1) right to personal choice regarding marriage is inherent in the concept of individual autonomy, (2) right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals, (3) protecting the right to marry is necessary because it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education, and (4) marriage is a keystone of our social order.

Thus far, the court has found that the right to marry is a fundamental right and that extending that right to gay couples is justified under an analysis under the four-fold principles that supported its identification as a fundamental right in prior cases.

The opinion then turns to Equal Protection. "The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. In support of that contention". "Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other."

The Loving case is then looked at to support the contention that prohibiting gay marriage violates equal protection rights.. "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." And "The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions."

The court went on to note how the institution of marriage had worked an injustice towards women until fairly recently. "Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. "

This analysis is then extended to gays by discussing the Lawrence case (banning criminalization of private gay sexual activity) Kennedy writing that "Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State."

Next, the analysis is extended to gay marriage: "Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry."

The court concludes Part III with the fundamental holding of the case: "These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same basis as opposite-sex couples." How clearly could the court be as to the reasons for its holding and the rights under which gays are entitled to the holding?

So, there is nothing about the made-up right of dignity in Part III where the court analyzes the case under principles relating to fundamental rights and equal protection

The court then issues some concluding remarks. This is clearly not where analysis is done or fundamental rights are announced. They are rhetorical flourishes. Justice Kennedy writes: "They ask for equal dignity in the eyes of the law. The Constitution grants them that right."That is not meant to say that the right conferred is "equal dignity". It is the right to be treated equally, to not be denied the right to marry because they are gay. The rights that enable them to be treated equally, to be treated with dignity have been extensively analyzed under Part III of the opinion. Those rights are the right to marry under the Due Process Clause and the right to be protected from unequal treatment under the Equal Protection clause.

There is no support in the text for interpreting the opinion as conferring a right of dignity and interpreting it that way is basically an act of desperation by opponents of the opinion. If that is the best argument you can make against the decisions...well, you can see why the Supreme Court ruled the way it did.