A question that interests me in the wake of Obergefell
Rather than hang another comment on Pik's post where it would be diversionary anyway, I'm just going to start a new thread to focus on it. I picked this excerpt from Chief Justice Roberts' dissent from Ann Althouse's blog (she favors SSM). The empasis is mine.
The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
This is obviously 10th Amendment territory. But my specific question is this. Let's say a state - Alabama might be the likeliest candidate - just says, yeah, we agree with Roberts. We're just going to keep our historic definition. Not sue, mind you, simply ignore Obergefell entirely. Terrible precedent, to be sure, and Roy Moore could expect some absolutely devastating Tweets.
But, really, what happens next? Paratroopers? Hardly. Economic sanctions? What? Against whom or what?
In short, what could a state actually suffer for simply ignoring Obergefell and not recognizing SSM?
But, really, what happens next? Paratroopers?
ReplyDeleteOrval Faubus got the 101st Airborne.
True, but how would that work in a marriage license situation? Not quite the same as protecting black students and escorting them in and out of schools. The Feds could do something, but what might that be? Issue ersatz federal Alabama marriage licenses? Perhaps escort gay partners in and out of hospital rooms?
DeleteIn other words, all scenarios seem to presume an automatic docile acquiescence, with or without Drehering. But, for example, forcing an entire state full of businesses to provide marital financial benefits seems to me to imply an almost occupational level of engagement. Would the Obama administration really go that far? If it did, what might be the backlash for his party?
In an age of brutal Tweeting, neither such resistance nor counter-enforcement is really contemplated. But what if, tastelessly, conservatives actually resisted something for once?
It's actually not a Tenth Amendment question. It's a Supremacy Clause question. The Constitution is the supreme law of the land, and the U.S. Supreme Court is the final interpreter of it. Rightly or wrongly, this power over the definition and right of marriage has been delegated to Federal law under the Constitution, so whatever is said of it in Obergefell is not a State law issue—except to the extent that States are required to comply with its restrictions.
ReplyDeleteAs for what could be done to enforce it against intransigent state officials short of sending in troops, that's a good question. Contempt or similar citations against Probate Court judges, issued by Federal Courts, are a possibility. Fines or other penalties flowing from Federal actions against anyone defying the law could be used. There are bound also to be a good many county employees and jurists in any state that has significant opposition who simply will not want to join their protesting colleagues in any fight against the Federal law. I should scarcely try to make any sort of prediction about how the outcome would be arrived at or what exactly it might be except to say that any person being denied a same-sex marriage license who sought the advice of qualified counsel would be told by such counsel that his interests could be vindicated in Federal Court.
Yes, I'm afraid you may be right, at least as to the point about the predominance of the Supremacy Clause.
DeleteThis then leaves what states might be willing to do and separately what individual Christian conservatives might be willing to do. It still remains within their sole discretion whether states, on the one hand, offer marriage licenses at all (and if they don't, how could they then be forced to recognize licenses of other states they themselves do not offer or recognize?) and, on the other, whether they offer and recognize material marital benefits beyond a minimal range in property and succession law (which may bear more on my first parenthetical question).
I've mentioned some time previously the likelihood that, as the pool of marital beneficiaries of public and private goodies grows ever larger, one can reasonably predict both that remaining non-beneficiaries like singles are more likely to clamor to be admitted into the club, since their salaries and taxes continue to fund the party, and the suppliers of those benefits might also be inclined to systematically reduce the per capita value of the benefits as the sum total increases.
I still think the most practical outcome of this whole decision will be the detonation of those complications ignited when the simple one man/one woman standard was breached. Considered religiously or not, that was an element of the world previously understood historically gene deep which, as I've said, has now had it's simple, natural biological limits invalidated, with no equally valid limits applied in their place. Outside Christianity and other religions, marriage now can mean and include any human relationship, which can only have an effect within law tasked with regulating the distribution of recognitions and benefits of a cancer suddenly bursting forth from its host cell and metasticizing throughout the remaining corpus of law. There will be rearguard attempts by civil legislatures and courts to apply what containing therapies they can concoct, but inevitably, once nothing is true, everything must be permitted.
Here's a corollary which seems to me to necessarily follow from my last observation: rather than perverting the meaning of marriage or otherwise rendering it meaningless as people like our friend Erin offten seem to be gnashing their teeth about, just the opposite would seem to be the case it seems to me. That is, Christian conservatives through our faith are able to remain rooted in the sacred and traditional one man/one woman definition of marriage while any who abandon that also necessarily and inevitably abandon their own internal psychological and spiritual orientation to exactly the same sort of rootless, boundless nihilism I just described in the administrative political sphere above.
DeleteNaturally, those supporting SSM will want to parasitize their new world order on the old: "We now have the same human dignity you formerly enjoyed exclusively, because now we are married just like you". It then remains incumbent upon Christian conservatives, despite whatever martyrdom they may suffer from the most vicious of Tweeting, to gently, unequivocally, and perennially remind them, "No, you don't, you never will, because you simply can't. Sorry. Sucks to be you".
One important thing to keep in mind is that the kinds of protest we are talking about will take place at the local level rather than being a comprehensive act across any state (unless a legislature or executive actually tries to impose some rule or law of statewide application that directly opposes Obergefell). That is, for instance, the denial of a marriage license would be by a Probate Court judge refusing to sign it or a Clerk or Deputy Clerk refusing to issue it. The State of Ohio (where I live and practice law) issues marriage licenses: whether any one gets issued to a same-sex couple is up to the Probate Court of the county where it is requested. A county recorder, likewise, might refuse to accept a "husband and husband" deed to real property. These are the sorts of individual episodes that could then be subject to exposure to the press or litigation in Federal Court for violation of the new law. It is also, of course, possible that a recalcitrant judge could be subject to impeachment or, if he is not the Presiding Judge (or whatever title conferring sufficient authority), a judge with the ability to assign cases could step in and see to it that the same-sex-related request is granted. Employees of any government agency could be disciplined, instructed, or fired by their bosses. Problems like this would be less likely to take place in local Federal agencies, which would be far more likely, due to the chain leading up to Washington, simply to follow the new Federal law. Appeals from judgments in State courts could also be made on the basis of Obergefell. In other words, State-level efforts to oppose this would likely be diffuse, and the avenues for remedying them would be readily available.
DeleteExcept for direct resistance on the part of religious institutions - otherwise unwilling churches being forced to marry gays, for example - I wouldn't envision much of that sort of standing in the schoolhouse door, either on the part of big political leaders or small functionaries.
DeleteRather, I would imagine a death to Obergefell from a thousand cuts and a thousand small acts of monkeywrenching, and, as I've mentioned several times here, particularly anything likely to introduce positive feedback into the implicitly unstable system Obergefell represents, like forcing municipalities and other providers into funding and administering infinitely complex and expensive fruits of the law.
Just it should have been the case that it was not up to SCOTUS to fix Obamacare in King v. Burwell, so it is not the case that it is up to religious conservatives to absorb the pathologies and costs of Kennedy's dreaming. The gift with all its implicit flaws now made explicit must be returned to the courts which gave it to us for them to own and deal with.
I am so incensed at this (not unexpected) Obergefell ruling that I am ready to go to the barricades. Allons enfants de la patrie, aux barricades!
ReplyDeleteNo, not what y'all (Drehersprache) are thinking. I am not going to start a rebellion. Not until I find the appropriate Ft. Sumter.
Since that quintet of five perfervid juris(im)prudents carried the day against the more perspicuous quattuorvirate (the imprudents being three Jews and two soi-disant Catholics and the quartet being four scholastic Catholic men), the reality of same-sex "marriage" has been engraved upon the twelve tables of the law of this quondam constitutional republic.
Quondam constitutional republic. The Supreme Court delivers its judicial ukaz with the force of a Constitutional Amendment.
Should We the People not have the right to vote on this? Even Ireland allows that much.
If it took an amendment to gain women the right to vote, should less be required to allow unnatural copulation the right to "marriage"?
Perhaps I have misconstrued the purport of "Justice" Kennedy's opinion. No matter. In these times and morals (o tempora! o mores! orates our Tully) the only rational way to regard the "Supreme Court" is neither as strict constructionist nor broad constructionist, rather as misconstructionist. Else how to construe a right to murder the unborn?
The law of the land is that babies may be slaughtered indiscriminately before and after birth but fecal fecking is a constitutional right replete with tax exemptions.
Aux barricades! Why fear the state's dragoons! We might be astonished at how many will cross the lines and fight on our side.
And, BTW, screw the craven Benny Opt. It's but the delusionary asylum of a depantsed dastard. A soi-disant Francophile whom any Frenchman would despise.
Here's the implicit question in my mind. At some hypothetical point - for the sake of illustration, let us use the example that it has been adjudicated by SCOTUS that milk may only be purchased from government retailers - people simply no longer regard the law as a legitimate curb on their behavior. Marijuana is already a longstanding real life example, consumed at will and feebly enforced.
DeleteIt doesn't really seem to me yet that either King or Obergefell have imparted that sentiment to a critical enough mass of people, but the question remains open whether that is because the rulings were not yet outrageously illegitimate enough or whether those affected have already become docile enough as to no longer be reactive in critical enough numbers.
But one can see clear prefigurations - what might bes - of the fabric of legal legitimacy tearing apart in both rulings.
Here's a situation about which I'm wondering. What if a man gets gay-married to a guy, then separates but doesn't get a legal divorce, then he "goes straight" and wants to get a real marriage in the Catholic church. These kinds of conversions have happened before and will continue to happen. There would be no impediment in the mind of the church since his former "marriage" wasn't sacramentally valid, however there is an impediment WRT the law. He'd still be legally married, and I suppose his former partner could sue him and make demands based on their legal status.
DeleteMaybe this isn't a big deal; if a Catholic gets a civil marriage to a divorced person outside the church, then separates, I don't think he even needs to go through an annulment process to get married validly within the church. I just think these people's main motive is hatred of the church, as Keith points out, and they love test cases with a demonic passion.
I think this situation is even more likely with lesbian relationships, BTW. There was a child custody case already a few years back where some woman was forced to give visiting rights to an ex-partner due to the former legal relationship.
DeleteSomeone explain to me why, post-Obergefell, why any two (for now) people of any acquaintance cannot legally get married in order to reap marital benefits - health insurance, for example.
DeleteAgain, Obergefell has explicitly demolished limits formerly implicit in civil marriage - that, at the most, marriage was limited to one man and one woman.
Now, that limit has been expressly removed, but no limits have formally/legally been put in its place.
The opportunities are currently wide open for any who wish to pose a challenge.
Roland answered your question, Keith. Why not? Because five of nine say not. Or five of nine say OK. (The argument will work better if one of the partners is near death* -- at least it seemed to with Kennedy.) Whatever.
DeleteAs C.J. Roberts said, the Constitution has nothing to do with it. Neither do logic or precedent.
I don't even know anymore why I went to law school ...
*Hey, there may even be a miraculous recovery after the fact. Like the PanAm 103 bomber who was released from Scottish prison to go home to Libya because he was dying, and made a miraculous recovery once he got there.