In looking through the Supreme Court’s opinion on same-sex marriage, I’m trying to figure out how their reasoning compares to my own posting in support of same-sex marriage.
The majority point out that
the annals of human history reveal the transcendent importance of marriage. [Angelika Graswald would agree, but perhaps for different reasons]
The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.
Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago: … In [an 1888 case] the Court echoed de Tocqueville, explaining that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.”
These aspects of marital status include: … child custody, support, and visitation rules [Bizarrely included because the federal Family Support Act of 1988 explicitly require that states make it just as profitable to collect child support after a one-night encounter as after a 10-year marriage; every jurisdiction nationwide also has the same rules for custody and visitation regardless of the existence of a marriage between the litigants; see the “History of Divorce” chapter.]
Roberts notes that
[Marriage] arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.
Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.
As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. [Left out one big change: marriage can be dissolved any time by one party unilaterally]
Scalia says
Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.
Thomas restricts his opinion to narrow legal questions and doesn’t shed any light on what he might think of as “marriage.”
Alito points out that
If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.
Except to a limited extent for Scalia and Alito, the Supreme Court in making this ruling inhabited a parallel universe in which no-fault divorce did not exist, in which states did not provide multi-million-dollar financial incentives for breaking up a child’s home (see Real World Divorce), and in which certainly nobody would get married in order then to pick up a green card through the Violence Against Women Act. Many of the quotes are from the 19th century. The Supreme Court exhibits a lordly indifference to family law and to their brethen who are divorce litigators. The word “divorce” does not occur in the opinion (except as part of a cited book title), though it is the only time that courts get significantly involved as a result of a marriage. The word “alimony” does not occur. The multi-billion dollar child support industry is mentioned just once, without a note that Census data show that 93 percent of the recipients are of one gender or that guidelines make it twice as profitable to have three children with three different co-parents compared to having three children with one sex partner. If there are any Americans who get married for financial reasons, or with an eye toward a near-term divorce lawsuit targeting their spouse’s premarital property and future income, we can’t learn of their existence from reading this opinion.
The Supreme Court has thus invited all American couples, regardless of their birth genders or current genders, to join a 19th century world of “for better or for worse and til death do us part” marriage (chart).
The divorce litigators whom we interviewed were similarly welcoming, but for different reasons (from History of Divorce):
“When I read arguments by opponents of gay marriage,” said one attorney, “I don’t recognize their description of straight marriage as some sort of sanctified institution. With no-fault statutes that kept the old alimony, property division, and child support rules, straight people made a mockery of civil marriage a long time ago. Marriage today is a way for a smart person with a low income to make money from a stupid person with a high income. What difference does it make whether the gold digger and mark are of the same sex?”
Readers: What will be the implications of this decision, aside from the obvious additional marriages and divorces in some of the fringe states? And what’s next for marriage? Can the majority’s reasoning be applied to further expand marriage, e.g., to polygamous unions?
Gay-marriage advocates aren’t interested in real equality; they just want to gang up with the heterosexual marrieds in sticking it to the unmarried minority.
Gay-marriage advocates are like certain light-skinned Blacks in the Jim Crow South who weren’t opposed to discrimination, per se, they just wanted to be classified as white so they didn’t have to suffer it themselves. I guess gay-marriage advocates like their equality Animal-Farm-style, where everybody is equal, but married people are more equal than others.
Why should married people of any gender combination be awarded any privileges, rights, benefits or other advantages that favor them over unmarried people? Advocates for gay marriage are scarcely more principled than those who want to reserve marriage exclusively for straights. Both of these selfish groups want to set themselves on a pedestal above the unmarried and then claim special treatment because of their self-exalted status. Gay-rights advocates should be calling for the inequities of marriage to be eliminated, not merely extended to their own special-interest group.
Michael Kinsley gets it mostly right: http://www.slate.com/id/2085127/
It’s really something to watch gay and straight couples squabble over benefits that they are both perfectly happy to deny to singles. You’d think that with marriage being such a purportedly fabulous thing that they’d be thrilled just to be married. But apparently that’s not enough for these greedy people. The heterosexual married majority and the gay wanna-be-marrieds also see fit to vote themselves special privileges and public money for being so special. And all of this is at the expense of the unmarried, who are denied economically valuable privileges and who pay taxes that subsidize substantial marriage perks while receiving none themselves.
If gays and straights want to celebrate their love, that’s great. Just don’t send single people the bill!
It’s not like “traditional marriage” is one universal/unchanging thing. I suspect that some of the male justice’s wives wouldn’t want the “traditional marriage” of even 100 years ago. Also, it’s not like many people would deny marriage to an infertile heterosexual couple or require married couples to breed.
I’ve said that the Supremes would do this for many years. There’s just no way they could NOT have, given that the federal government feels that any and everything MUST fall within their jurisdiction, Constitution be damned.
I’ve also said, for years, that if we’re going to take the training wheels off of “marriage,” who is to say it exists between _two_ people? I mean, why would homosexuals want to prevent ANY sort of arrangement between loving, committed, consenting adults? It DIRECTLY leads to the question of why HASN’T the issue of polygamy come up before now? It would seem to me that Mormon fundamentalists have been handed a playbook for getting their definition of marriage to be accepted now, under precisely the same sorts of human-rights- and love-based arguments. Who are we to deny THEIR rights?
Which, of course, leads directly to questions of marriages involving pets and robots and inflatable dolls. Granted, those things don’t fall under “consenting adults,” but who’s to tell anyone who or what they should love? They already do fake marriages to game characters in Japan. And if you don’t think it won’t happen here, if we were to allow it, you’re on legal marijuana.
I’m not arguing reducto absurdum. It just seems to me that — logically — we’ve just traded one “arbitrary” definition of marriage for another, and the ones who have been pushing so long and hard for this are being just as exclusionary as heterosexuals have been.
(Also, I don’t understand what legal benefits I’m enjoying, being married, over singles, as per the linked article in the other comment, and the article never explains. The only thing I can think of is, like, hospital visitation, but that’s not very solid. In fact, the only thing I can think of is a negative, and that’s a tax penalty for filing jointly.)
David K.: “marriages involving pets”.
Your dog would have to be able to consent.
David K.: ” Granted, those things don’t fall under “consenting adults,” but who’s to tell anyone who or what they should love?”
Why not also dispense with consent in heterosexual marriages? Congratulations, you have just approved of rape!
@David K.
If you’re married and you and spouse are of retirement age, I believe the death of either spouse gives the survivor a slightly increased social security payment.
@davep: It would seem the Japanese already beat you to your troll finish.
http://www.dailymail.co.uk/news/article-2425336/Worlds-tragic-bride-married-years-coma-family-turned-life-support.html
@Mark: Well, I guess that’s something. I’m still looking. It’s been a heavy-handed argument in the debate. I would think there would be some more-substantive examples.
David K,
Bob and Bill spent their lives working alongside each other at Acme Industries making the same salary and paying the same taxes, including the same Social Security and Medicare payroll taxes. Bob got married and divorced every ten years and none of his wives worked. Bill was a lifelong bachelor. Both retire at 65.
Bill and Bob both collect the same Social Security and Medicare benefits, but Bob’s four ex-wives also collect those benefits as does his current wife. The bottom line on all of this is that over the lifetime of Bill, Bob and Bob’s wives, the Federal government pays out hundreds of thousands of dollars in cash benefits and medical coverage to five women who may never have worked a day in their lives.
Here’s some general info:
http://money.usnews.com/money/retirement/articles/2008/01/09/marriage-and-social-security-benefits
http://finance.zacks.com/can-wife-receive-social-security-benefits-based-her-husbands-work-history-2446.html
There are similar inequities in private sector pension and healthcare policies. If someone wants to provide Social Security, Medicare, pensions and pre-Medicare medical benefits to multiple spouses, why shouldn’t they pay more than an unmarried coworker?
One thing is clear – when the elites of our society decide that they want something, they get it one way or the other. In hardly any states did the voters approve gay marriage but now (despite the fact that marriage was supposed to be left to the states under the Constitution) the Supreme Court, superseding all state laws, “finds” a Federal constitutional right to gay marriage that would make the Founding Fathers spin in their graves.
My reading on con law was always that it was a bunch of ex post facto rationalization and BS dressed up as something real with balancing tests and strict scrutiny and all sorts of other imaginary frameworks, blah, blah, blah that in the end don’t mean a thing other than the S. Ct. does what it wants to do, and what it wants to do are the things that won’t get you disinvited from DC cocktail parties.
I think that 300 years from now, when the “Decline and Fall of the American Empire” gets written (in Arabic or Chinese) this day will be seen as an inflection point.
The main difference between gay marriage and straight marriage is that there is no possibility of producing natural children of both parents in a gay marriage. Fewer and fewer children are being produced in the West (esp. those who are the progeny of Europeans) and fewer of those are being raised by their mother and father, which has the biologically intended program for the last 50,000 years or more. The Supreme Court can overrule state law but they can’t overrule the laws of nature and karma is a bitch. The future belongs to those who show up for it.
Why stop at this? How about 3 or 4 people all “really really in love”?
What about if I think i truly love my cat and she loves back?
“Readers: What will be the implications of this decision, ….”
Personally, I just hope to see more equality and less persecution. An example would be the couple from Ann Arbor that were involved in the decision. There was no legal structure that would allow the two of them to have joint custody over adopted children. Another example would be the two guys in Lansing that had been a “couple” for about twenty years. They tried to arrange the will(?) to leave the house to the non-owner, but the owner died a few months back and apparently the paperwork was filed incorrectly. It seems likely the other guy will lose the house. (maybe they just needed a better lawyer)
I voted in favor of SSM in Michigan’s 2004 election. There was research out then that pointed out ~350 different ways that SSM was financially penalized. So basically they could wake up each day of the year and wonder what the new way of getting financially screwed would be. It just didn’t seem fair.
In retrospect, it seemed wrong to even vote on the issue. Tyranny of the majority is the term, I believe. As such, I think the Supreme Court decision along the lines of equal protection is correct.
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@David K: you mention a tax penalty for marriage. This is variable, depending on the income of each spouse. For our marriage, it is about $5000/year less taxes we pay. So no penalty.
@Mark (#5): Social Security is complex and I mostly pay attention to scenarios similar to my own. But I don’t think your statement is accurate – “death of either spouse gives the survivor a slightly increased social security payment”. A married couple will each be eligible for a benefit, say X and Y. A spouse can take 1/2 of the other benefit, or their own, probably taking the larger value. Then if one dies, a spouse taking the half benefit gets bumped up to the full amount. But if the spouse that died was already taking the full benefit, that value doesn’t change. (I think!)