atomic_fungus (atomic_fungus) wrote,

#4788: It's all connected.

Looking over Advice Goddess today, I see the following post titles:
DEA License Plate Tracking Is An Assault On The Liberty Of All Of Us
Freedom Of Speech Is A Cherished Value In The US -- As Long As You Don't Speak Too Freely
There's No Special Snowflake Parking Exemption For Religion
We've Come So Far -- To The Point Where Holding Somebody's Hand Can Be A Sex Crime
And then, further down:
Of Course There Is: Supremes Say There's A Constitutional Right For Same-Sex Marriage
Unless I am mis-remembering, she self-identifies as libertarian, yet she doesn't seem to understand what is wrong with the Supreme Court deciding that there's a constitutional right to marriage.

At issue here is the fact that SCOTUS overstepped its bounds. Karl Denninger points out that if SCOTUS had merely said, "all states must recognize marriages performed in other states", that would simply have been a reaffirmation of existing constitutional law: states have to recognize the legality of other states' laws and cannot, for example, harbor a fugitive from justice from another state simply because what he did there is not a crime here.

SCOTUS was well within its constitutional function and mandate to make such a declaration, that (for example) Texas must recognize as valid all marriages performed in (say) California, even the ones with two grooms or two brides. This is a logical extension of the federal principle, the same way Illinois cannot emplace a tariff on items coming into it from Indiana.

That is not, however, what SCOTUS ruled.

What SCOTUS ruled is that there can be no constitutional law prohibiting gay marriage--and, by logical extension, any kind of marriage--and that states must therefore issue a marriage license to any two people who care to marry.

Read the text: "The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State." See that first clause, "requires a State to license a marriage between two people of the same sex"? It says "two people", not "two adults" or "two persons who are otherwise of legal age" or anything of the sort. Then it all comes down to how you define "people", doesn't it? The second clause mentions "lawfully licensed" but if all states are required to issue marriage licenses for "two people" of the same sex (see first clause) where does that leave you?

Dennginer's assertion is that the SCOTUS ruling diminishes other rights, things like cohabiting and one-night stands and any of the other myriad of relationship freedoms we currently take for granted. I'd like to say that he's crazy, but he's not; five years ago I would have been shocked and dismayed at the Obamacare decisions to come out of SCOTUS because I mistakenly assumed that the justices of SCOTUS are educated people who have been taught how to reason logically--but they have demonstrated that they are not (or at least a majority of them are not) and now act as if the black letter law no longer has any meaning other than that which they assign
to it. It is entirely possible that a future court could rule that you must have a license to have a child, for example, and this ruling would support that ruling.

This ruling is judicial legislation, just like Roe v. Wade: it's not only saying that a specific law is unconstitutional, but that there can be no similar law which would be constitutional. It permanently removes the subject from public debate, placing all future discussion off limits. The abortion debate now hovers around the margins, turning on 20-week limits and the legality of killing a child which can live outside the womb, rather than on whether or not abortion is ethical and desirable.

In states which had already legalized gay marrage, some corporations were already requiring that gay couples--who formerly were given spousal benefits in the absence of marriage--be married to receive those benefits. In the wake of this ruling more corporations will make that change--or want to--lest the heterosexual cohabitating expect the same treatment. After all, the reasoning was that "domestic partnerships" were only needed because gays weren't allowed to marry, but ought to have access to the benefits of heterosexual marriages. If gays can now marry the entire concept of "domestic partnership" can be axed and everyone can be treated equally again. But don't expect that to happen; if it does, the lawsuits will fly fast and thick for a while until they get their special exemptions back. For all the protestations to the contrary, this is not about equality.

The next step is to remove the tax exemption from religious institutions. Refusal to perform gay marriages will be the excuse, but it's been a long-term goal of the left all along, and this gives them the lever they've craved. The interesting part comes when a gay couple wants to be married in a mosque; I've seen predictions that an exemption will be carved out for islam because it is, after all, the darling religion of the left.

Religious freedom is explicitly guaranteed by the First Amendment--or at least it was--yet with that inevitable exemption only that one religion will be allowed to continue to practice according to its doctrine.

This article sums up the ruling's take on religion thus: "We’ll let you talk about your wrong religious views. Nothing more."

This ruling is only going to end up hurting liberty in the United States.

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