[Emitt Evan Baker]

The Navajo were among quite a few tribes that had a flexible view of gender and the individual. The word nádleehí was used for folks who where outside the box. Contact with the Church and European schools eroded that comfort. I was just reading about that last week. Looking for more info on the practice.

[Steve Mangan]

In England up to the 13th century marriage was conducted as a simple handfasting ceremony witnessed before family and friends - then it was decreed it had to be witnessed before a clergyman or magistrate - there are at least two 13th century known examples of male couples holding a handfasting ceremony (before the clergyman/magistrate as witness provision was introduced).

[Bill Carpenter]

Thanks for your response, Don. You ask if Loving was wrong because it contradicted the will of the people as ascertained by opinion polls. That is a good analogy to Obergefell in that it relates to the ability of a couple to enjoy the legal status of marriage contrary to applicable statutory enactments. Based on pure speculation, I imagine a similar debate probably occurred at the time between those who felt it was improper for the court to overturn enactments by the people's elected officials on the basis of the discovery, by unelected, unaccountable judges, of newly discovered constitutional rights. Those in favor would have felt that the appointment of justices by elected presidents and their vetting by elected senators was sufficient "representation" of the people to legitimize the intervention. There is also a belief, in the "liberal" tradition, that Supreme Court judges are experts in discerning the underlying "natural laws" that serve as a control on all other laws. Our other cultural traditions dispute the court's special expertise compared to the people's representatives assembled for deliberation.

We don't know what would have happened if there had been no Supreme Court decision. I'm not aware of any widespread feeling that Loving was a major violation of states' rights and the people's rights of self-government. You may be correct that this decision will eventually fade as an item of urgency. People will continue to associate, or not, with gay couples as they prefer, just as they self-segregate, or not, with respect to race. Civil society goes its way regardless of legal pronouncements. I do think violation of people's concept of self-government has a cost. It's a cost, as you indicate, that groups of cultural traditions impose on other traditions. Some groups feel that it's OK to shove some of their bad feelings on to other shoulders. Why not? I expect people to demand more self-government in the face of the many assaults on it, and if that spreads to economic and environmental issues as well as cultural, things could get interesting.

It's interesting that you say the gay conflict will fade. What is the anti-bullying movement based on? Are younger generations actually more homophobic than older generations? I remember a couple of outbursts of persecution in early years that were more like dog pack behavior, shutting off as quickly as they were turned on.

You are speculating in various areas I did not discuss. Sorry if I don't have much to add. Weighing the desires and harms to different groups is classically the role of legislators, not courts. Courts are supposed to declare the law, and in these cases say, this law is or is not contrary to the Constitution. Weighing group interests is a totally different process for which legal training provides no tools.

To respond to your historical thoughts, as I understand Spengler, a guide in many areas, there is a deconstructive inspiration in Western Faustian civilization. Exacerbating the tension between modernity and tradition and between law and morality, and even between cultural factions within a society, may be consistent with Western destiny. The rhetoric of equality is more pre-Western, leveling individuals under the dome of the One True Whatever, striving for what Spengler calls the Aramaean consensus. The reality, to a Westerner, is more atomizing and ironizing, deconstructing the dome into its constituents. We'll see if anything comes of it. Cheers, Bill

Charlie, "yellow peril" reflects the White American view of the Chinese, beginning with large-scale immigration in the 19th century, as menacing, prolific heathens with revolting customs. I believe the disgust was reciprocated.

[Don Jones]

Thanks, Bill, for your kind response though I wouldn't be too sure I'm speculating on those points you don't address.

For ease I will address a number of your points and respond briefly.

Weighing the desires and harms to different groups is classically the role of legislators, not courts. Courts are supposed to declare the law, and in these cases say, this law is or is not contrary to the Constitution. Weighing group interests is a totally different process for which legal training provides no tools.

But Loving v. Virginia could also be seen as adjudicating contrary interests. It was a violation of state’s rights. The anti-miscegenation laws in those states that had them were overturned by that decision. In 1958, only 4% of Americans said they approved of marriages between whites and blacks.

Of course, they remained on the books for decades afterwards but that didn’t stop “inter-racial” marriages in those states. This decision did have to weigh one consideration against the other. Similar to Obergefell. In any case, as I made clear, I would have preferred a legislative solution state by state but the Court took the case. It should not have but since it did, I’m happy about the outcome.

There is also a belief, in the "liberal" tradition, that Supreme Court judges are experts in discerning the underlying "natural laws" that serve as a control on all other laws.

I’m sure Scalia knows all about Aquinas and Natural Law. The liberals aren’t the only game in town.

Courts are supposed to declare the law, and in these cases say, this law is or is not contrary to the Constitution.

Yes. But 5 Justices think this decision is not contrary to the Constitution and the other 4 think it is. Same principle. Different outcome.

True, the elites don't always get it right. They can get it terrible wrong but in Loving v. Virginia they were correct even as the American people were not disposed to accept "inter-racial" marriages. The people lagged behind but caught up. In this case the judges did know better.

What is the anti-bullying movement based on? Are younger generations actually more homophobic than older generations?

The anti-bullying movement is the excess of progressive meddlesomeness. Bullies have always been around and always will be, and we can’t assume that only gay youth are bullied. Ask many a heterosexual who is/was bullied. The nation’s future generations are definitely much more pro-gay. The Boomer generation is divided; hence, our culture war. The post-Boomer generations are less so.

… there is a deconstructive inspiration in Western Faustian civilization. Exacerbating the tension between modernity and tradition and between law and morality, and even between cultural factions within a society, may be consistent with Western destiny.

I’m no fan of deconstruction. Spengler is an interesting reference as it implies the decay of civilizations. Presumably many would say the acceptance of gays is just that. What have you. I’m not buying it. Spengler’s organic view of history, while arresting, is too unifying. Totalizing ideas are suspect even if they are helpful. Hegel. Marx. You can’t ignore them either but I would rather be practical, eclectic, and low key: in short, a bourgeois.

Marriage as understood in our civilization is a bourgeois ideal and is one reason the Left hated the gay marriage movement as much as the Right still does. What gays now seek is normalization. Marriage normalizes a person’s existence – yes, even an unhappy marriage may be normal. Or, as Howard Stern once put it with respect to marriage, “Let the gays be as unhappy as anyone else!”

Joking aside, while the following might sound like one hand clapping, the modern Western notion of progress is a tradition. What may seem to some as a back slide into barbarism (i.e. civil marriage for gays) can be seen as an arc of increasing emancipation of despised minorities, who have proved to a critical mass of the electorate that they are not a harm to people, children, families, society, or civilization. Gays are one such group.

My best to you, Bill. Don

[Julie Steiner]

Cross-posted.

My own interracial marriage is legal not because of the 1967 SCOTUS decision in Loving v. Virginia...but because of the 1948 California Supreme Court decision in Perez v. Sharp. California was a bit ahead of the curve.

But again, the restrictive marriage laws in question were changed by a court decision, not a popular vote; and again, it was the decision of a divided court (4-3). Given the popular opposition to miscegenation at the time, it's debatable whether a vote would have overturned this law before Loving came along.

Then again, Perez was cited extensively as a precedent in the Loving decision, so Loving would almost certainly not have gone the way it did without Perez, even though Brown v. Board of Education had come along in the meantime.

Perez was also cited in 2008, when the California Supreme Court ruled the following in the case In re Marriage Cases:

1. Sexual orientation is recognized as a suspect class for purposes of the Equal Protection Clause of the California Constitution.

2. Offering a legal relationship called "marriage" to opposite-sex couples while consigning gay couples to "domestic partnerships" impinges upon the fundamental right to marry by denying such legal relationships equal dignity and respect.

The distinction between marriage and domestic partnerships risks the right to privacy regarding sexual orientation for those in domestic partnerships.

Both because a suspect class is targeted and because fundamental rights are impinged upon by the challenged provisions, the strict scrutiny standard of review applies, under which those provisions limiting marriage to opposite-sex couples must serve a compelling state interest and be necessary to serve such an interest. Neither being the case, laws limiting marriage to opposite-sex couples are unconstitutional.

I am struck by the fact that--unlike the Perez, Loving, and In re Marriage Cases decisions--the SCOTUS's Obergefell decision makes no such identification of a "suspect class" or "strict scrutiny"--i.e., there is no statement in Obergefell that laws restricting the rights of a particular group tend to be motivated by discrimination, and thus deserve a closer look.

I wonder why Obergefull stops short of saying that. It's such an obvious opportunity to identify homosexuals as a group that has been historically singled out for discriminatory treatment...and yet it doesn't.

The silence seems significant to me.

Perhaps the religious nature of the typical objections to homosexual partnerships may somehow protect homophobia from being identified as a basis for discriminatory laws, in the way that Loving and Perez identified white supremacism as a basis for anti-miscegenation laws.

But I don't think that's a good explanation, because anti-miscegenation laws were religiously based, too. The original trial judge in Loving (whose decision the Lovings appealed) wrote:

Almighty God created the races white, black, yellow, malay and red, and He placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.

Still thinking about this.

[Pedro Poitevin]

Great post, Julie.

Charlie Southerland, if I may: I hope I'm right to assume that you don't disapprove of interracial marriage. Do you disapprove of the SCOTUS decisions in Perez and Loving?

[Charlie Southerland]

Pedro, you are correct that I don't disapprove of interracial marriage.

My issue is not even whether same-sex couples have the right to marriage.

At issue is that SCOTUS took the rights of the "People" out of the hands of their elected representatives. It is clear in the Federalist papers and in the Federal Constitution that those rights to determine the issue is reserved for the several states. The Court never should have taken up the issue. This is one of the reasons that the Civil War was fought, states rights. While slavery became an issue, it was not the cause of the war. The Court in the Gay Marriage case perverted the 14th Amendment for their own popularity, in the case of Kennedy, and in the case of Kagan, who could never adjudicate the issue without prejudice or malice. Sotomayor to a lessor extent affirmed.

The Church has been placed in an untenable position over the ruling. When I say "the Church" I mean the people who make up the Church body. That includes "all" Christians, or all of American Christianity. All Christians do not agree whether same-sex marriage is legitimate.

The Church is separate from the state by design. Yes? But in our Republic, Christians have a say when voting. Because of this ruling, the means by which same-sex marriage was legitimized, the Church will never give it legitimate recognition. Gays may think they have won a big victory and perhaps they have, but now the alienated Church will be motivated to buck against everything that is tried from now on. It will be a living nightmare. This will be way worse than Roe v Wade. It will be long lasting and contentious. The Court in Roe v Wade regrets getting involved in that decision for the same reason I tell you now. It was a states rights issue. The Supreme Court is playing chicken with 300 million people who may not want to play anymore.

[Janice D. Soderling]

Charlie said:

The Church is separate from the state by design. Yes? But in our Republic, Christians have a say when voting.

EVERY eligible voter has a say, whether Christian or not.

Charlie said:

Because of this ruling, the means by which same-sex marriage was legitimized, the Church will never give it legitimate recognition.

It isn't the business of any religious body to make a Supreme Court ruling legitimate. In the United States, power is divided among the executive, the legislative and the judicial branches. There is no Christian equivalent of the Grand Mufti to pronounce religious acceptance or rejection of laws.

Charlie said:

The Court in Roe v Wade regrets getting involved in that decision for the same reason I tell you now. It was a states rights issue.

Wrong again, Charlie.

I don't know your source for claiming that the Supreme Count regrets ruling on Roe vs Wade which is NOT a state's rights issue, but a women's rights issue. It involves the personal freedom of individuals having control over their own body and life and rather than having religious hysteria be a deciding factor. The problem arose by having the loophole about the individual state being allowed to regulate procedure. That is why it is back in their lap now http://www.dallasnews.com/news/polit...reme-court.ece

Tuesday marks the 40th anniversary of the Roe v. Wade Supreme Court decision. In a 7-2 ruling on January 22, 1973, the justices declared laws prohibiting abortion violated a woman's constitutional right to privacy. They also said states could regulate abortion procedures in the interest of a woman's health or in protecting a potential human life starting at the end of the pregnancy's first trimester.

Are you aware that abortion was originally a common law right? There is an excellent documentary on the Internet which I can't immediately locate, but if and when I find it, I'll put it up for your elucidation. You should also be aware that the Roe vs. Wade ruling was a 7 to 2 ruling.

Charlie said:

The Supreme Court is playing chicken with 300 million people who may not want to play anymore.

How on earth did you arrive at that figure? According to the U.S. Census Bureau’s annual projections, the United States will enter 2015 with 320,090,857 people.

Get real and realize that bans on interracial marriage, gay marriage, and abortion rights are all part and parcel of the same religiously-fueled package that has its roots in the migration of protestant Puritans to escape religious persecution. They set up their own brand of intolerance (in which women and children were not entitled to have a say).

Persecuted people are almost always intolerant once they gain power as countless examples of history show. And they almost always have some some religious tract thump to prove they are just doing the will of some invisible deity.

[Pedro Poitevin]

Charlie: Thank you for engaging me, but I want to press you a bit harder. You hint that your opposition to the recent SCOTUS ruling is anchored in concern for constitutional integrity. This being the case, it seems to me this may or may not put you in an interesting position with respect to SCOTUS's interracial marriage rulings. It could be, for example, that you strongly believe that interracial couples ought to have been allowed to marry at the time of these decisions, but that you disagree with the decisions because (in your mind) they were the same kind of overreaching you criticize SCOTUS as engaging in now. If this were the case, I wonder what your precise position is on what ought to have happened back then. Leave the matter to each individual state, in such a way as for some states not to recognize the marriage of interracial couples in other states? Submit the matter to some kind of national referendum? Wait until the Christian majority changed its collective mind about what God approves or disapproves of? Or perhaps there are some subtle legal reasons why you think these two prior decisions of SCOTUS weren't overreaching and the current one is. This is why I asked you not about your stance on interracial marriage but about the decisions themselves.

Pedro.

[Charlie Southerland]

Pedro, It doesn't matter what my opinion is. it matters what the founders intent was. I am a Constitutionalist. The Founders made the constitution hard to change for specific reasons. They did not want it to be changed by the fickleness of the majority to the detriment of the minority. They wanted stability built into the document. They wanted checks and balances upon each equal branch of government so that no one branch (congress) no one man(the president) and no one judge (pick one) could misuse the constitution for his/their/her own purposes. They also didn't want a militant minority to be able to harm the stable majority. It really is that simple.

We can play this game of do you believe all day long. It doesn't matter. We have a document that was ratified by Congress to go by. We go by it. When a branch gets out of line, the document is there to tell them they are out of line. Protecting and enforcing the document is proving to be extremely difficult these days.

The leftists around here only want the constitution to reflect their views of morality, and when they agree with a decision, fine. But generally, they would rather the constitution be abolished and replaced by their own ideologies. They're getting there little by little.