LA judge upholds state SSM ban

[True Federalist (진정한 연방 주의자)]

My guess is that the Supreme Court rules that while a federal ban on same-sex marriage is unconstitutional, a state-wide ban is constitutional and ruling that the constitution does not give federal courts the authority to strike down state-level bans on same-sex marriage.  I doubt Kennedy would have any problem signing off on such an opinion.  In cases like Bush v. Gore*, D.C. v. Heller*, Shelby County v. Holder, Citizens United v. Federal Elections Commission, Sebelius v. Hobby Lobby, etc  the five conservative justices have proven that they will pay the Constitution no more mind than toilet paper when it conflicts with their personal political agendas.  The question isn't whether the Supreme Court's conservative majority will once again violate their oaths of office, but merely how far they will go.  Even if they rule that statewide bans are unconstitutional, it will only be because the Republican Party believes it is in its political interest to put this issue to bed (I suppose that would be another "who cares why people do good things" situation as Al put it in another thread).

*Alito and Roberts weren't on the Court at the time of the two * rulings.

That's insane.  Maybe you're right on the ruling, but that reasoning is insane.

Essentially, you're saying that the Supreme Court would rule that the 14th Amendment applies to the Federal government, but not the states.  I see where you're going with that because it's a Solomon-like splitting of the baby.  But, you need to think about the legal question and factual circumstances reaching the Supreme Court.  There is no Federal ban on same-sex marriage, so that's not going to be a ruling under any circumstances.  The power of the 14th Amendment to reach state action is not remotely questionable.  Not going to happen.

Windsor was not decided on 14th Amendment Equal Protection grounds, but with some dubious quasi-Federalist reasoning that the Federal government could not apply a different standard for marriage that the states do to strike down the relevant part of DOMA on 5th Amendment Due Process grounds.

However, at worst (from the standpoint of SSM advocates) I could just barely see Kennedy rule that while States don't have to recognize SSM begun within their borders that they do have to treat a SSM done in another State the same as any other marriage.  Frankly, the only way I could see Kennedy doing that instead of a full requirement of recognizing SSM is if doing so would cause Roberts to join him for a 6-3 decision.

[True Federalist (진정한 연방 주의자)]

Windsor was not decided on 14th Amendment Equal Protection grounds, but with some dubious quasi-Federalist reasoning that the Federal government could not apply a different standard for marriage that the states do to strike down the relevant part of DOMA on 5th Amendment Due Process grounds.

I wasn't talking about Windsor, I was talking about a future Supreme Court case.  I thought that was fairly obvious. 

But you were worried about the Supreme Court repudiating what it had already done, and that was based on 5th Amendment jurisprudence.  If the court declines to use the 14th Amendment in overturning State SSM non-recognition, it wouldn't be repudiating what it has previously done in Windsor.

I'm gonna be blunt here for a second- the people arguing that Kennedy would vote to maintain a state's SSM ban have no idea what they're talking about.

This sudden avalanche of gay marriage bans being overturned didn't come out of nowhere; it literally happened because that's exactly how Justice Kennedy engineered it in his majority opinion for Windsor.

As Ernest mentioned previously, Kennedy didn't use one of the more obvious or expected avenues of legal logic to reach that decision, but instead he went out of his way and circuitously based it on 5th Amendment Due Process grounds. I believe this was quite clearly intentional because it telegraphed to the Federal judiciary exactly how to overturn state bans on same sex marriage.

The 5th Amendment Due Process Clause is a restriction on the Federal government and it goes like this:

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The cool thing here is that there's another Due Process Clause, in the 14th Amendment, that applies to the states:

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The interpretations of these two clauses is identical and the only distinction of their jurisprudence is that the former applies to the Federal government while the latter applies to the states.

Except that Kennedy cloaked his ruling in enough faux Federalism to cloud the issue.  Rather than directly asserting that same-sex couples have an innate right to have their marriage be recognized, he went in a round about way and basically asserted that by recognizing a same-sex marriage, it was conferring property upon the happy couple, namely the privileges and benefits conferred upon married couples, and that the Federal government could not deny the use of that property.

That's why I can see the possibility that Kennedy might support a narrower ruling that States don't have to do the initial recognition themselves, but they have to recognize SSMs done in other States. That's essentially the current situation in Mexico, where only a few jurisdictions allow SSMs to be performed there, but all of them have to recognize them if they'd been recognized elsewhere, so there's even international precedent for that approach.  As I said earlier, I don't see Kennedy going for such an approach unless it would allow Roberts to join a 6-3 decision.  Even then more likely is that Supreme Court accepts several cases, some of which involve marriages done elsewhere and some of which involve marriages begun in the State and Roberts joins the majority in the former cases but not the latter.

[True Federalist (진정한 연방 주의자)]

My guess is that the Supreme Court rules that while a federal ban on same-sex marriage is unconstitutional, a state-wide ban is constitutional and ruling that the constitution does not give federal courts the authority to strike down state-level bans on same-sex marriage. I doubt Kennedy would have any problem signing off on such an opinion.

That's insane.  Maybe you're right on the ruling, but that reasoning is insane.

Essentially, you're saying that the Supreme Court would rule that the 14th Amendment applies to the Federal government, but not the states.

Did you not write the words in red above?  Granted, you didn't mention Windsor by name, but there is no other Supreme Court case concerning SSM that the court has ruled on directly. (Perry being an indirect upholding based on lack of standing of the appellant.  As I pointed out, Windsor did not use the 14th but the 5th.

[True Federalist (진정한 연방 주의자)]

Why did marriage in Anglo-American historical times exclude gay couples?  That's the question you need to answer. 

Why is that the question?  Wouldn't the larger question be, "Why has marriage been a predominantly opposite-sex institution throughout history until very recently, both in historical contexts where homosexuality has been condemned as well as those where it has been tolerated"?

Which is a more plausible explanation?  Your mystery reason or my common-sense reason that I would venture to say is obvious.  You want to divorce this from some judgment of homosexuality, but that's just impossible, particularly when you want to rely on these vague reasons about what marriage might could possibly somehow something something.  Same sex marriage just wasn't considered until the 20th century.

We both agree that it wasn't considered. The question is why it wasn't considered.  I don't find your explanation of homophobia plausible as a general explanation (though certainly it is as a contributing one) since it is not applicable to all contexts where this social pattern exists.

The reason why is that for most of history women were second class or even considered as nothing more than property.  Until recently marriage was not a union of two equals but a method of placing a woman under the protection of a male superior.  However, once marriage came to be seen as a union of two equals, the primary secular rationale for not allowing same-sex marriage evaporated.

[True Federalist (진정한 연방 주의자)]

If you went back to the 1700s and talked about people of different religions marrying because they liked each other or found each other attractive, you would have been considered bonkers.

That isn't even remotely true. Even where there were prohibitions against it, they would have understood exactly why someone would want to marry someone of a different religion based on fondness or attractiveness. It is more our time that doesn't understand them.

There weren't prohibitions against inter-religious marriage. The idea wasn't conceivable. There was no way to get married. If a Jew and a Catholic in Russia in 1790 wanted to marry, who would have conducted it? How would they have registered it? I'm all ears.

Since you specified Russia, both convert to Russian Orthodoxy.  More generally in 1790, the bride converts to her husband's religion and the the father allows the marriage only if he finds such a conversion acceptable.  The idea that a husband and wife need not share the same religion first requires the idea that the wife remains a separate person from her husband once she has married him.

[True Federalist (진정한 연방 주의자)]

Thinking on it some more, it's not so much that traditionally women were viewed as property (tho that view goes a long way to explaining polygynous societies) as that men and women were almost always seen as complementary aspects of humanity in which the sum of two different parts created a whole greater than the two were separately (or which was at least different than).  One simply could not obtain that by uniting two likes.

[True Federalist (진정한 연방 주의자)]

Thinking on it some more, it's not so much that traditionally women were viewed as property (tho that view goes a long way to explaining polygynous societies) as that men and women were almost always seen as complementary aspects of humanity in which the sum of two different parts created a whole greater than the two were separately (or which was at least different than).  One simply could not obtain that by uniting two likes.

This is a ridiculous discussion.  Do you think that the Church of England in the 1700s would approve a marriage between two men, but for, these ideas about how men and women are complementary aspects of humanity?  That's blatantly silly.

Silly or not, you don't have to look very far in the Bible to see that particular worldview.

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Granted, with society generally no longer viewing the sexes as complimentary parts of one whole, neither complete without the other, that particular reason for restricting marriage to a pairing of opposite sexes no longer applies.  Yet to deny that reason was a factor historically is to deny history.  Furthermore, that viewpoint of complementary gender roles was also a reason why homosexuality was often, tho not always, viewed negatively historically by many cultures.

[True Federalist (진정한 연방 주의자)]

Actually that wasn't your point.  Your point was that laws banning same sex marriages derived from homophobia.  My point was that laws banning same sex marriages derived from a view of sexual complementariness, which in some instances also led to homophobia.  Where homophobia occurred, it sprang from the same source, yet it was not the reason the law recognized only opposite sex marriage.  It is no coincidence that those who continue to hew to the traditional view of marriage by and large also have held to the view of sexual complementariness.

[True Federalist (진정한 연방 주의자)]

Actually that wasn't your point.  Your point was that laws banning same sex marriages derived from homophobia.  My point was that laws banning same sex marriages derived from a view of sexual complementariness, which in some instances also led to homophobia.  Where homophobia occurred, it sprang from the same source, yet it was not the reason the law recognized only opposite sex marriage.  It is no coincidence that those who continue to hew to the traditional view of marriage by and large also have held to the view of sexual complementariness.

Are you positing that "gays are icky" and "I don't want my kids to think being gay is ok" we're not a factor in the referenda of the 2000s? The advertising campaigns indicated this was a winning message. I'm talking about the referenda and amendments passed then, not the original absence of same-sex marriage from earlier laws.

No I was referring to the original reasons such laws were passed.

Actually that wasn't your point.  Your point was that laws banning same sex marriages derived from homophobia.  My point was that laws banning same sex marriages derived from a view of sexual complementariness, which in some instances also led to homophobia.  Where homophobia occurred, it sprang from the same source, yet it was not the reason the law recognized only opposite sex marriage.  It is no coincidence that those who continue to hew to the traditional view of marriage by and large also have held to the view of sexual complementariness.

No, my point is that the two ideas are inextricably linked vis-a-vis gay people.

Actually, they aren't inextricably linked.  While it is not the case for Western society historically, there are examples of societies in which complementariness was not linked to homophobia.  Those societies however did so by believing there were more than two modes of human existence, yet in them these additional genders had specific marriage roles that either precluded them from marriage altogether or allowed it only with one of the heterosexual genders.  Complementariness only becomes linked with homophobia when a society only envisions two genders, inextricably linked to sexual anatomy.

[True Federalist (진정한 연방 주의자)]

So, surely, you can't take any practice from 1840 as it pertains to gay people in society and just copy-paste it into our society today without a thorough reexamination.  I'm sure you agree.

I agree.  Where I disagree is with the premise you seemed to hold to earlier in this thread that the views of 1840 can be disregarded without any effort at examination.