De Jure Matrimionque
by The Steampunk Vicar
This Morning, hearing on the Aetheraudiogram the News of the Supreme Court of the United States’ Decision in the Case of Obergefell v. Hodges, I was struck, perhaps surprising No One, by the core legal Arguments of each opposing Side. Find contained herein my own Analyses, in short, of the Legalities to be found in the Case, followed by a brief Reflexion of my own.
They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.”
This, it seems to me, is the very Heart of the Debate before the Court. Is the Right of two Persons to marry contingent on who the Persons to be married are? Is the Court establishing a new Right to Same-Sex Marriage, or opening the old Right of Marriage to all comers?
J. Kennedy and the Majority of the Court seem to assert (I found this harder to find than one might expect), that, truly, we are not creating a new Right, but expanding the old, and granting it to those Persons who desire, so to speak, to be permitted into the Meadow from which they were previously excluded, based not on what they wanted to do, but on whom they wished to do it with.
There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?
Indeed, this is the Question. I find puzzling the Idea that ‘applying marriage Laws equally’ might be a distinct Category from ‘permitting two Persons to be married, regardless any other Facts about them.’
it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.
I feel that C.J. Roberts mis-interprets J. Kennedy, here, arguing not that these Couples are damaged by their Peers (which he does not), but, in Fact, by the Application of Laws (which he assuredly does). The Decision here has Little to say regarding Discrimination by Individuals, and much to say regarding Discrimination by Laws.
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
The TL;DNR (Too Long; Did Not Read) Edition of the Dissents can be summarised as above: This Decision had Naught to do with the Constitution, particularly J. Thomas’ more thorough linguistic Analysis. Perhaps, in Truth, this is the Weakness of our Constitution. If only we had Access to the Language of Angels, we might be able to Name our Government, Laws, and Rights in the Forms and Ideas of Plato! Alas, we are but Mortals, and are forced to communicate with the Imperfections of the Queen’s English.
…it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.
I was most entirely lost by this Argument, speaking of the Fourteenth Amendment. To what possible Practice does he here refer, so cruelly prohibited? This, I feel, is the heart deep Fear of many Opponents of marriage Equality – that, as Some have argued, Marriage as an Institution is on the Route to Destruction in this Country.
As a Citizen of the United States, I must admit that I face that Idea with some Ambiguity. What would it mean if my Government no longer had any Say whatsoever in Marriage, and that Right and Privilege and holy Bond was reserved to my Church? I know Many for whom this has worked. What prevents us from removing government Tyranny over Marriage?
Also, it is, in my Opinion, worth noting that JJ. Alito and Scalia do not respectfully dissent.
In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.
I am still much enamored of the Vision of Marriage as a fenced-off Meadow, into which some Couples are admitted, and others are not. Today, the United States has declared that the Meadow is more open than once it was, not granting a Right that did not previously exist, but permitting Access to a current one.
The Steampunk Vicar
Surprising absolutely no one, I am an avid Supporter of the equal Right to marry, within or without the Church. I cannot but rejoice in today’s Decision. I am unmoved by the Arguments opposed, save One.
I feel that in my Lifetime, Opposition to marriage Equality will fade until, like interracial Marriage and Coverture, such Objection lies upon the Ashheap of History. Today’s Decision does, indeed, force all the States to accede to the Will of a growing Majority of the Citizens nationwide, to the manifest legal Opinions of a Majority of Judges around the Nation, and to the Promptings of a Moral Law that argues, at its Core, for Justice and Fairness.
I am sorry, I think, though, that there is a Sense of an End to the Conversation – that the Supreme Court having ruled, no more is there to be said. I hope that I am wrong – that Conversations and Debates and Discussions and Democracy will go on in this Issue. I believe that I am right on Marriage Equality – I might be wrong. If ever I forget those two Facts, I will be on the dark Path to Error, and can only hope that I will in timely manner be corrected.