Friday, June 26, 2015

SCOTUS logic and lunacy on same-sex marriage

You won't believe what the SCOTUS justices wrote...alas, maybe you will. The 100-plus page majority and triple dissent decision clearly and cleanly illustrates the bifurcation of the Supreme Court into a logical side and an emotional one. On the five-member Spock side sit Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. The usual suspects are on the loony end — Roberts, Alito, Thomas, and Scalia.

With the Supremes' huge white space borders, each page is only half filled, so you're looking at only about 50 pages. Plus the majority's greatest hits are in the five-page syllabus, so you are left with the various crazy comments in three dissents (29 for Roberts, 9 for Scalia, and 8 for Thomas; they pig pile by joining each other's dissents).

Majority highlights

Do read every delicious, reasoned word of the decision syllabus, only five pages. It covers all the key points and major legal citations of the 33-page majority decision, which includes several pages of appendices.

Despite anti-gay claims that marriage has been immutable since prehistory, the majority eviscerates that with a quick overview of major changes just in American history (syllabus, p. 2).

A clear historic, legal parallel between gay rights and same-sex marriage led to this majority decision (syllabus, p. 2).

The groundwork for the decision, as in others such as Loving, reside in the 14th Amendment's Due Process Clause — "...certain personal choices central to individual dignity and autonomy...including intimate choices defining personal identity and beliefs." Also, "(h)istory and tradition guide and discipline the inquiry but do not set its outer boundaries." In the same section, citations for how the SCOTUS "has long held the right to marry is protected by the Constitution (syllabus, p. 2). Note that the latter is key to the dissenters, who pretend there is no legal background for this major conclusion.

On pages 3 and 4 of the syllabus, the majority set out the four principles and traditions "that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. Do read these, which include case-law citations.  Very briefly:

  1. "(T)he right to personal choice regarding marriage is inherent in the concept of individual autonomy."
  2. "(T)he right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals."
  3. "(T)he right to marry...safeguards children and families and thus draws meaning from related rights of childbearing, procreation, and education." This has the corollary that (p)recedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate."
  4. (M)arriage is a keystone of the Nation's social order." "It is demeaning to lock same-sex couples out of a central institution of the Nation's society, for they too may aspire to the transcendent purposes of marriage."

"Respondents' argument that allowing same-sex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples' decisions about marriage and parenthood." (syllabus p. 5). Note that the majority decision, pp. 26-27, has a great time tearing apart this red herring.

The comity/full-faith-and-credit issue of states' recognizing SS marriages legal elsewhere is on the same page and dealt with fully on pages 27-28 of the main decision. "The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character."

For brevity, I won't break out the majority decision in detail. It's well written and worth reading. It does offer many specific citations in support of their finding. It also anticipates most of the dissents and puts the lie to them, although that does not stop the four loons from hooting. However, note that from page 6, there are long passages detailing the transformations and evolution of marriage from Colonial to recent times, from when marriages were about property transfer and women were property too...key background that snorts at the myth that marriage has been fixed for hundreds or thousands of years.

Also, check the majority, page 18, on debunking "tradition" as the abiding rule of rights. "If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians."

The next page features an extremely generous nod to the anti-gay bigots. "Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right." I would not have been so kind to such cruel folk, but the Kennedy, sane, wing of the court has reconciliation in mind apparently.

Page 22 includes exposition on how from Lawrence, homosexuals legally have the same right as heterosexuals to intimacy (see marriage).

Page 23 deals neatly with reasons why to finally act. Instead of waiting indefinitely for yet more court case, more state legislature actions and more plebiscites. A keen punchline comes on page 24 — "The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right."

Dissenting Lowlights

The three separate, but incestuous in co-support, dissents show deceit and emotion over reason. Roberts' big, honking 29 pager is a states rights screed. If you read the majority syllabus and then just the Roberts intro you'd think he didn't pay any attention orally or on paper to the majority. Yet if you wade through it all, you find he outright lies and contorts.

The 18-page Thomas dissent is terribly embarrassing for both him and the Court. He clearly is the only truly stupid member of the SCOTUS. He pounds away repeatedly at 18th Century definitions of liberty, as though life and law froze then. He pretneds that the old trumps all development in society and law. You can sense why he doesn't speak from the bench or ask questions. He is too ignorant to make decent points.

Finally, the Alito 8 pager is puerile. He revels in cheap insults of the majority and what he sees as their legal and even moral shortcomings. He's the nasty kid catcalling from the back of the auditorium.

If you only read one dissent, slog through the Roberts one. It represents the loony SCOTUS wing at its most illogical and emotional. More telling though, he starts on page 2 and repeats in several places that judges, even at his level, have to know their place. He uses winger terms and depicts SCOTUS justices who would do their job of interpreting law as activists, as unelected and unaccountable, and as pseudo-legislators.

Note on page 2 that he views public pleading with state legislatures and courts is OK in his book. Again, know your place. He seems unclear on the SCOTUS as a co-equal branch of the government with duties.

He spreads out a series of red herrings, starting on page 3 with "The right it announces has no basis in the Constitution or this Court’s precedent." You see later if you have the patience that he has in fact read the majority decision, and that he has to know that they are very plain in why the five ruled on the constitutionality.

Likewise, from page 4, he uses other anti-gay and winger concepts, such as marriage being immutable for millennia. That is legally and historically inaccurate, and there has never been a universal definition of marriage, as the majority decision so clearly stated and cited.Yet, he panders to SSM opponents.

Furthermore, he slings the procreation canard around repeatedly, starting on page 5. Forget what an insult that is to those who cannot or choose not to reproduce as well as the IVF and adoptive millions. There is no legal support for requiring having children to marry or stay married. Not relevant, Johnny. He ends the page with a quote, "Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve." He seems oblivious that this pertains as much to two homosexuals as to two straights. In fact, the pro-family, pro-marriage position encourages SS marriages, parenting and adoptions.

So bereft of facts, he frequently turns to 19th Century writings including a dictionary to bolster his antediluvian marriage view (as on pages 6 and 7).

He is at his worst though in avoiding his duty as not only a member but the chief justice of the SCOTUS. He seems to fear interpreting law and the Constitution. Consider on page 10, "Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law." He attempts to set himself up as superior to the other justices when the effect is to say he is hiding from the hard judgment.

In numerous places in his dissent, Robert worries the 1905 Lochner v. New York, which overruled a state law to limit oppressive work hours in bakeries. He could have it (starting on page 13) that the case epitomizes the SCOTUS' excesses. "But to avoid repeating Lochner’s error of converting personal preferences into constitutional mandates, our modern substantive due process cases have stressed the need for 'judicial self-restraint.'" This repreent his main forum for calling out states rights!

On page 16 among other places, he tries and fails to draw distinctions with Loving v. Virginia as well as segregated schools and the SS marriage issues at hand. He too glibly writes, "Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was." That is wrong on many levels, not the least of which is ignoring the evil intents and effects of the related state laws.

He can't stop himself from bigoted cliché. He even turns to the specter of plural marriage as the next logical, perhaps inevitable step (pages 20-21). He mires himself in the lingo of anti-gay wingers on he next page in passages that pile on the stereotypes, as in, "The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now."

Throughout, he also conflates religious rituals and civil ceremonies (look at p. 27 for examples). He surely knows better and surely doesn't care. He doubles and triples down on that on the next page. He poo-poos the harm and hindrance gay couples experienced for decades, as he plays Chicken Little by pretending that religious institutions and clerics are not thoroughly protected in speech and action by Constitution and statute. Shameless

Lesser dissents

Scalia is far too clever for other humans. He must have a real lickspittle clerk to write up his drivel. He uses loaded terms throughout, such as "today's decree," in multiple places.He gets into it on page 2 with "This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves." He shows no subtlety or legal basis.

He asserts wildly. For example, on page 4, he writes, "But the Court ends this debate, in an opinion lacking even a thin veneer of law." Unlike his rant, the majority decision is full of citations and reasoning for each of its points.

He may have been at his weakest on page 6, when he implies that the right way to get to marriage equality is through Constitutional amendment. Yes, that onerous process that is both unsure and that takes decades, if it ever finishes. At the bottom of the same page, he shows he is unclear that the judiciary is a co-equal branch of government with clear duties to interpret the law.

Let us leave aside his two offenses on page 7. One is a deep slur on California and how it does not count. Another makes a Nazi reference to "today's judicial Putsch." Alas, Scalia thinking he is too, too clever doesn't play well.

Least is Thomas' dull-witted display of ignorance and obfuscation. He spends much of his dissent with a straw man of his view of liberty as defined in the 18th Century. Honestly, and it starts on his page 1.

Like Roberts, he too falls on states rights as a prime virtue. Consider page 3 where he points to 30 states that passed DOMA-style laws to preclude SS marriage. In other words, a majority of states, if you use his lingo redefined or really defined for political aims marriage. He says the majority decision " wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only 'due process' is but further evidence of the danger of substantive due process." Yet, even as dull a human as Thomas, or at least his clerk, had to know there was a great deal of solid evidence behind the majority ruling.

Thomas returned several times to the Locke and 18th and 19th Century definitions of liberty. See pages 9-11 for examples. Unless someone is held captive and deprived of locomotion, there's no problem, writes he. Instead, he (page 10) claims those who brought the suit in this case want "government entitlements" not liberty.

He even tries (pages 14 and 15) to delve into our Colonial past. He cites those who came for religious freedom, seeming to overlook that religious freedom for others, such as Roman Catholics, was meaningless and could instead lead to banishment or even death.

Thomas' dullness may be at its worst when he tries to ridicule the finding of the majority that same-sex couples are due dignity. He pulls the literal, left-brained routine. That word does not appear in the Constitution, therefore it is not relevant here (pages 16 and 17). Then he shows want an ass he is by gross historical slanders — "Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away." Legally, historically and morally, he could hardly be more wrong.

The majority decision is clear, clean, well reasoned and well cited. The dissents are not and show the loony wing of the Court at its basest and dumbest.

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