Posted on 07/11/2022 9:11:57 AM PDT by SeekAndFind
Before the Court’s official decision to overturn Roe v Wade was released, President Biden was already warning that same-sex “marriage” would be next. As he said in May, “It’s not just the brutality of taking away a woman's right to her body ... but it also, if you read the opinion ... basically says there's no such thing as the right to privacy. If that holds ... mark my words: They are going to go after the Supreme Court decision on same-sex marriage.”
Was he right?
On the one hand, Justice Samuel Alito made clear in his opinion for the majority that the overturning of Roe was different than other cases the Court could one day revisit, since Roe involved “potential life.” As David French explained, “In plain English, Alito argues that abortion is dramatically different from cases involving marriage, because abortion involves harm to a non-consenting party, the “potential life” (to use the language from Roe) of the unborn child. Interracial marriage involves consenting adults. So does gay marriage. A person consents to using contraception. Prior cases protect consensual adult sexual activity.”
On the other hand, in his concurring opinion in the Dobbs case, Justice Clarence Thomas urged the Court to revisit previous rulings on same-sex “marriage” and the use of contraception. He wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell . . . .” This is, “Because any substantive due process decision is ‘demonstrably erroneous,’ […] we have a duty to ‘correct the error’ established in those precedents.”
Personally, regardless of whose legal argument is right (in terms of Alito or Thomas), I do hope that the Court revisits the Obergefell ruling. But that is not because of animus I have towards gays and lesbians. It is simply because the Court had no business redefining marriage.
That decision should never have been in the hands of 9 justices, nor is there any way under the sun our Founders would have countenanced such a thing. Could you even imagine how the signers of the Constitution would react to such a scenario?
“Gentlemen, are you comfortable with the idea that, based on the division of powers you have outlined, the Supreme Court could one day redefine marriage so that two men or two women could marry each other?”
The question itself would not have even qualified as a poor joke. It would have been too ridiculous (and, plainly, distasteful) even to draw a smile.
Not only so, but Justice Anthony Kennedy clearly underestimated the degree of backlash that would come against those who did not recognize same-sex “marriage” because of their religious convictions.
As Adam Freeman wrote already on July 1, 2015 (just one week after Obergefell),
“During oral argument in Obergefell, Solicitor General Donald B. Verrilli, Jr., conceded that colleges and universities that oppose same-sex marriage could lose their tax-exempt status. ‘It is going to be an issue,’ he acknowledged. Justice Kennedy’s opinion offered little solace on this front: a single paragraph of a 28-page opinion, in which he promises merely that religious individuals and organizations ‘may continue to advocate’ traditional marriage. But the First Amendment guarantees the right to the free exercise of religion, not merely the freedom to espouse a religious view. If traditional churches are required to perform same-sex wedding ceremonies and religious schools are required to countenance same-sex marriage, surely they are not enjoying free religious exercise.”
He continued,
“Already, a movement is afoot to silence religious opponents of same-sex marriage. Just two days after the Court’s ruling, journalist Mark Oppenheimer took to the pages of Time to argue for the total abolition of tax-exempt status for religious institutions. The American Civil Liberties Union, meanwhile, announced that it would no longer support the Religious Freedom Restoration Act (RFRA), a federal statute designed to protect Americans against laws that ‘substantially burden’ the free exercise of religion, for fear that RFRA will be ‘used as a sword to discriminate against women, gay and transgender people.’ Liberal outlets such as the Think Progress website, calling the law an expression of ‘anti-gay backlash,’ denounced Indiana’s recent attempt to enact its own version of RFRA.”
Freeman’s concerns have been realized, most of all in the court of public opinion. You have been codified by law as a bigot and a homophobe if you differ with the high Court’s ruling. It’s as simple as that.
Not only so, but the Court’s ruling went a long way in normalizing the very concept of same-sex “marriage,” backed, of course, by President Obama’s decision to light up the White House in rainbow colors in celebration.
To be sure, there would be a host of legal issues to address should same-sex “marriage” be reversed, perhaps going back to state by state votes on the issue, as with abortion in the aftermath of Roe. Some changes might even have to be grandfathered in. It would really be a massive conundrum, and I can’t imagine that couples who are recognized as legal today (many of them raising children together) would be deemed illegal tomorrow.
But, to repeat, the Supreme Court had no business redefining marriage, and like the Roe and Casey rulings, this was bad law too.
As for the argument that “love is love,” that is not the issue here, since it’s not up to the Court to determine what is and is not loving. Plus, most all of us would agree that some relationships should not be recognized by the courts or by society, no matter how loving they might be. (Included in this list would be adult, consensual, incestuous relationships, such as two gay brothers or a father and his adult daughter.)
And as far as loving relationships go, I have no doubt that there are thousands of gay couples who love each other dearly and deeply, even sacrificially. In fact, the Obergefell case itself involves a very touching story.
I am also acutely aware of how much the Court’s ruling meant to same-sex couples throughout America, giving them a feeling of legitimization and respect.
I do not minimize any of this, especially as a follower of Jesus who genuinely cares about those who identify as LGBTQ+. They hurt and suffer pain and feel rejection like anyone else, and I don’t relish the fact that my words seem hateful to them on the most visceral level.
But I am even more committed to honoring the God who created us male and female and who never intended for men to be with men and women to be with women. And I am sure that the Court’s ruling in 2015 was a massive step in the wrong direction.
My hope is that it will not take almost 50 years to reverse Obergefell and, more fundamentally, that, just as America has shifted radically towards LGBTQ+ activism in recent years, the tide will turn here as well.
Dr. Michael Brown(www.askdrbrown.org) is the host of the nationally syndicated Line of Fire radio program. His latest book is Revival Or We Die: A Great Awakening Is Our Only Hope. Connect with him on Facebook, Twitter, or YouTube.
It’s been awhile but I recall the dissent in that case was a bit like the majority in Dobbs, it wasn’t an issue for the court and grumbling about the the 14th amendment. I think the petitioners were not even arguing for it under that rationale but it’s what the majority chose as its justification. I suspect that if it was revisited the outcome would be the same (gay marriage intact nationally) but the reasoning would be different.
LGBTQ=Lets Get Biden To Quit.
Don’t care. If same sex couples want to marry, go to city hall , get a marriage certificate and enjoy your lives together. The caveat is that you cannot force a religious institution who does not believe in same sex marriage to perform a religious ceremony. Democrats want separation of church and state, well here is the example.
And in connecting it with the termination of life, Alito clearly stated he viewed it as a moral issue as well as, maybe more than, a legal issue. Well if people view the redefinition of marriage as a moral issue then shouldn't the same rules be applied to their case as well?
Many people have a reliance on gay marriage in how they conduct their interpersonal relationships,
People had a reliance on abortion for a lot longer than that. And reliance should not be an issue, or consenting adults, or anything else other than the simple question of whether the matter before the court is constitutional or not. If it isn't then it must be struck down.
The answer should be yes, because there is no provision in the United States Constitution to give the federal government the right to define marriage. It is not in the real constitution, only the synthetic constitution that has been woven by twisted arguments of the perverted.
Homosexual “marriage” was predictably the springboard for 57 genders; worse is yet to come.
RE: Don’t care. If same sex couples want to marry, go to city hall , get a marriage certificate and enjoy your lives together. The caveat is that you cannot force a religious institution who does not believe in same sex marriage to perform a religious ceremony.
AND *THAT* is the problem.
What if you were the Christian or Muslim owner of a cake shop and a same sex couple asks you to bake a cake for their wedding?
Or what if you were the Christian or Muslim photographer and a same sex couple asks you to be the photographer of their wedding?
etc. etc. ( These are real cases of course )
If gays do not target religious people and use the power of government coercion to service or “bless” their weddings, things would be fine. But that is NOT what in effect is happening.
Is polygamy a right protected by the constitution?
Anything not specifically stated in the 18 enumerated powers of Congress, and in the constitution explicitly, does not fall under the federal government’s power and therefore falls under the 10th amendment. So yes, all marriage and a whole bevy of laws including Obamacare are unconstitutional and fall under State, county, and local control.
If a state wants to make gay marriage legal have at it.
+1
“It’s been seven or eight years since gay marriage went national. “
It was about 50 for abortion.
“Many people have a reliance on gay marriage...”
Many people have a reliance on abortion.
“...gay marriage would necessarily have to be recognized between states under full faith and credit.”
Maybe. I wonder what will happen when, say, a grandparent wants to enter a same sex marriage with a grandchild so the latter gets better healthcare insurance and survivor benefits. The biological rationale for banning incestuous marriage wouldn’t apply in the case of same sex marriage. If it’s allowed, that might open the door for opposite sex incestuous marriage for reasons of “equality”.
“It’s been awhile but I recall the dissent in that case was a bit like the majority in Dobbs...”
It’s been awhile for me too but I recall that the majority in that case didn’t make sense.
Roe was overturned because there is nothing in the constitution that makes it a right. It was made up by the Warren Court and our pussy leaders wouldn’t touch it for fear of the electorate.
Is there a case currently working its way through the system?
If no, then "No."
-PJ
So when are the states taking over NASA, the air traffic control system, the Air Force, FDA, Border Patrol, and all the rest?
Marriage is not a matter for privacy: it is a public recognition of a relationship, and obligates society to grant certain privileges, and should (although not as much these days) come with responsibilities on the part of the married couple.
Workability was an absolute mess under Roe and Casey. Changing medical technology, differing opinions of doctors on when life is viable, differences in medical care available based on income or geography, etc., all made it impossible for the Court to set clear boundaries. That almost has to be done by legislation, which was a strong argument in support of reversing Roe. In contrast, things like gay marriage are very bright line rules. Under the Court's precedents, that means workability is a factor arguing against reversal of gay marraige.
The other issue are the reliance interests. Under Roe, each pregnancy is a discreet event. That means people can take into account of the impact of the new rule for each pregnancy. That also is why a lot of states have put in a delay before implementing the ban. They didn't want to be on sketchy legal ground with having people be pregnant and entitled to an abortion, and all of a sudden having that rule changed.
I'm not saying that stare decisis means Obergefell cannot be overturned. I'm just pointing out that the legal analysis is much different than under Roe.
Justice Samuel Alito made clear in his opinion for the majority that the overturning of Roe was different than other cases the Court could one day revisit, since Roe involved “potential life.”
~~~~
The Supremes did not rule that abortion is illegal. The Supremes ruled that the Constitution places the question under authority of the states. Applying the same principle to gay marriage, this court could easily reverse itself. The Constitution places authority over marriage with the states.
Let’s be clear: Obergefell was an abomination of jurisprudence... utter, complete contempt for democracy and the U.S. Constitution. By in effect demanding a substitution, literally thousands of laws were rewritten. Simply repealing Obergefell would require courts to consider whether hundreds of state laws written with the new definition of marriage intended to implement that new definition, merely respect it, or grudgingly deal with it as a menace.
But simply repealing Obergefell would NOT mean gay marriage is neither repealed, nor continued. Whatever marriages took place in Obergefell would continue to be valid, and many states would continue to authorize marriages which would be binding in the 50 states.
“Is polygamy a right protected by the constitution?”
“The Fourteenth Amendment’s Equal Protection Clause requires states to practice equal protection. Equal protection forces a state to govern impartially—not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.”
Well, that's not really certain, is it? If marriage is purely a matter of state law, then if a state passed a law saying it was not going to recognize those marriage it wrongly issued and that it was not going to give full faith and credit to marriages from other states...what then? Is that the business of the federal government at all?
and many states would continue to authorize marriages which would be binding in the 50 states.
The question of whether or not they'd be binding in the 50 states is an open one. The full faith and credit issue was supposed to be addressed with the Defense of Marriage Act, although Kennedy ditched that in direct contradiction of his opinion in Obergefell.
Honestly, if Obergefell was repealed, we are in uncharted territory. There's a pretty good line of case law that a state does not have to recognize a contract from another state that goes against a strong public policy of the domicile state.
So...who the hell really knows?
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