Smasharoo wrote:
To rule in favor of SSM in this case, he would be countering that position by basically saying that the federal government, this time in the form of a handful of judges, knows better than and has more authority than the states when it comes to marriage.
So, utterly consistent with Loving v Virginia? Sounds right.
Except that in Loving the state actually made the mere act of cohabiting as "man and wife" illegal and subject to legal penalty. Additionally, the relationship between man and wife is not fundamentally different based on their skin colors, so denying marriage based on that was ruled to be "invidious discrimination". The relationship between two people of the same sex is fundamentally different and changes the structure of marriage and thus is not necessarily invidious discrimination, even if the result is disparate impact based on sexual orientation.
The biggest point is that in order to prove discrimination you have to show that the intent is to discriminate. Yet, as Scalia pointed out, no society in history prior to the Netherlands in 2001 ever legally recognized gay marriage. Yet, despite this, many societies in history did not treat homosexuality negatively. So one cannot conclude that the act of exclusion of same sex couples from legal marriage is due to animus. There's a whole section of exchange that touches on this:
Quote:
MS. BONAUTO: Well, Your ÂÂ Your Honor, the thing about marriage is that it's controlled and regulated by the States. The States create the definition of civil marriage and certainly are accountable for those definitions and any exclusions which follow. And, of course, we all know there were exclusions in cases like Loving and Zablocki and Turner where in each case with prisoners, the people behind on their child support payments, with a mixedÂrace couple who wanted to be able to join this institution, and even though some of those exclusions were quite traditional, they could not ÂÂ
JUSTICE SCALIA: Well, it was ÂÂ not all societies banned mixedÂrace marriages. In fact, not even all States in this country banned. But I don't know of any ÂÂ do you know of any society, prior to the Netherlands in 2001, that permitted sameÂsex marriage?
MS. BONAUTO: As a legal matter, Your Honor?
JUSTICE SCALIA: As a legal matter.
MS. BONAUTO: I ÂÂ I am not. I am not. At ÂÂ it would not.
JUSTICE SCALIA: For millennia, not ÂÂ not a single other society until the Netherlands in 2001, and you're telling me they were all ÂÂ I don't know what.
And, a bit later.
Quote:
JUSTICE SOTOMAYOR: Now, counselor, in ÂÂ in terms of this millennium, what's been the status or the view of gay people in most of those countries? Have they been subject to the kinds of discrimination that they were subject to here? Were they welcomed into the worldwide community? Was it free of discrimination?
MS. BONAUTO: Well, if you're speaking of the world, not every legal system around the world has the kind of system with its explicit constitutional guarantees for all persons of liberty and equality, and that immediately sets the United States off from so many other countries. And of course there are now, I don't know if it's 17 or 18 countries that actually do authorize marriage for sameÂsex couples in Europe, in South America, New Zealand.
JUSTICE ALITO: But there have been cultures that did not frown on homosexuality. That is not a universal opinion throughout history and across all cultures. Ancient Greece is an example. It was ÂÂ it was well accepted within certain bounds. But did they have sameÂsex marriage in ancient Greece?
MS. BONAUTO: Yeah. They don't ÂÂ I don't believe they had anything comparable to what we have, Your Honor. You know, and we're talking about ÂÂ
JUSTICE ALITO: Well, they had marriage, didn't they?
MS. BONAUTO: Yeah, they had ÂÂ yes. They had some sort of marriage.
JUSTICE ALITO: And they had ÂÂ and they had sameÂsex relations, did they not?
MS. BONAUTO: Yes. And they also were able to ÂÂ
JUSTICE ALITO: People like Plato wrote in favor of that, did he not?
MS. BONAUTO: In favor of?
JUSTICE ALITO: SameÂsex ÂÂ wrote approvingly of sameÂsex relationships, did he not?
MS. BONAUTO: I believe so, Your Honor.
JUSTICE ALITO: So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?
MS. BONAUTO: I can't speak to what was happening with the ancient philosophers. What I feel like ÂÂ
JUSTICE KENNEDY: But it's ÂÂ you ÂÂ you said that, well, marriage is different because it's controlled by the government. But from a historical ÂÂfrom anthropological standpoint, Justice Scalia was very careful to talk about societies. Justice Alito talked about cultures. If you read the ÂÂ about the Kalahari people or ÂÂ or ancient peoples, they didn't have a government like this. They made it themselves and it was man and a woman.
At the risk of repeating the test for invidious discrimination, while it's impossible to know for sure, it doesn't look like the justices were buying it in this case, and Kennedy certainly seemed skeptical. It's simply not the same as Loving and no amount of declaring it to be so makes it so. Marriage had long been between men and women, even men and women of different races. Discriminating on that basis was clearly just about discrimination. That's not the case here though.
Edited, Apr 30th 2015 1:38pm by gbaji