[Lnc-business] Gay Marriage - US Supreme Court

[Joshua Katz]

Okay, now I have read the ruling.  While I am certainly pleased with the
outcome, the court's ruling strikes me as short on legal content.  The
argument appears to be that the 14th amendment allows a court to declare
unconstitutional anything which is deemed to violate a general sense of
liberty, since it says that liberty may not be taken away without due
process.  It also argues, plausibly I think, that threats to liberty can be
discovered over time - perhaps it is relevant to that particular claim that
the author of this opinion voted against overturning state laws banning
sodomy in Bowers, famously asking a clerk "have you ever met a homosexual?"
 In any case, this makes sense to me - the Hippocratic oath includes, for
instance, not recklessly spreading infection, even though Hippocrates
didn't know the germ theory of disease.

So this sort of sets SCOTUS free from the responsibility to put forth a
legal argument, and instead makes it into a learned council that makes
decisions based on its best notions of policy.  Needless to say, I find
that concerning, even though, as I said, I fully support the outcome, and
believe an argument could have been made for same-sex marriage being
Constitutionally protected without taking this step.

Scalia, in my opinion, makes a worse argument in dissent, since he seems
confused about how freedom of association works.  His counsel to "ask the
nearest hippie" as evidence that marriage takes away freedom to intimacy
rather than increasing it seems fundamentally to deny how freedom of
association works.  If I make a voluntary agreement (such as joining an
organization and following its bylaws) I haven't given up freedom, I've
exercised it.  Similarly, if I get married, I haven't given up the freedom
to have sex, I've used that freedom to form an association I desire.

I think that the arguments about trying to use this ruling to force states
to recognize gun rights do not match the text, since the argument relies
heavily on the particulars of marriage, as I expected it would.  Once
you've cracked open the system and replaced law with the policy preferences
of judges, there need be no parallel between cases.  A council of learned
elders considers seriously the merits of each case, rather than having any
hard and fast rules as to what freedoms need to be protected.

Which brings me to the largest concern the LP should have with this
ruling.  Our platform calls for the separation of marriage and state.  I
have my doubts about whether or not this goal is attainable and how exactly
it translates into policy, but it's our platform.  It is, I think,
perfectly reasonable, in my view obligatory, to also hold that, so long as
government does grant marriage privileges, it must do so on an equal basis,
and so same-sex marriage must be respected - and perhaps other forms of
marriage as well.  The concern, though, is that the argument made in this
ruling depends heavily, not just on the desirability of marriage, but in
particular on the importance of civil marriage to society.  The reasoning
here is built upon a foundation we wish to oppose.  While we should,
absolutely, cheer the outcome, it is very difficult for us, I think, to
consistently cheer the particulars of this decision, which strengthen the
case for the state's role in marriage.  We should, I guess, follow
Roberts's advice - celebrate this important right and the extension of
equality, but not the means by which it was argued for.

The reasoning in the ruling, by the way, also doesn't lend itself well, in
my opinion, to support for polygamy, despite Scalia's claims to the
contrary.  Scalia claims that the number '2' is arbitrarily scattered
about.  I respectfully disagree - one of the key premises in the ruling is
that marriage is a unique thing for the individual involved, which seems
hard to extend to an argument for allowing a person to marry more than one
person.  A desire to marry 2 people cannot be described as a desire for
something of unique value - at least, not in an obvious way.




Joshua A. Katz
Westbrook CT Planning Commission (L in R seat)

On Sun, Jun 28, 2015 at 6:57 PM, Scott L. <scott73 at earthlink.net> wrote:

>
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> Has the Alabama State Senate been reading our Platform?
>
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> http://truthinmedia.com/alabama-senate-approves-bill-to-abolish-marriage-licensing/
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>       Scott Lieberman
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>  ------------------------------
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> “I also have not yet read the opinion, but from what little I've read in
> the news so far, the SCOTUS didn't say government has no business licensing
> marriage at all.  Platform plank 1.4 (among other things) says:
>
> "Government does not have the authority to define, license or restrict
> personal relationships."
>
>
> I don't think we can yet say that our position is now the law of the
> land.  The approach that OAI took is a good one.
>
>     Alicia”
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> The Supreme Court issues opinions, not verdicts (except in trials, of
> which they have very few).
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> We will be out with a press release applauding that the position the
> Libertarian Party has held for over 40 years is not the law of the land.
>
> -Nick
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>
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