It has been a long time since I've posted anything here!
I’ve
taken the opportunity to analyze the lies, misstatements of fact, and incorrect
assumptions contained in Chief Justice Roberts’ dissent in today’s marriage
decision.
At
numerous points, Chief Justice Roberts repeats one lie, over and over – as if
by repeating it would somehow make it true.
This is a propaganda tactic, and should be recognized as such.
“the meaning of marriage that
has persisted in every culture throughout human history”
“to retain the historic
definition”
“For all those millennia, across all those civilizations, “marriage” referred
to only one relationship: the union of a man and a woman”
“a social institution that
has formed the basis of human society for millennia, for the Kalahari Bushmen
and the Han Chinese, the Carthaginians and the Aztecs.”
“This universal definition of marriage as the union of a man and a woman
is no historical coincidence.”
“The premises supporting this concept of marriage are so fundamental
that they rarely require articulation.”
“None
of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman.”
“the understanding of marriage that has existed
for our entire history”
One need
only study some history to realize that the Romans had several different forms
of marriage, the People of Israel and Judah had numerous different kinds of
marriage. Most cultures and
civilizations have had all sorts of different kinds and forms of marriage, and
different rules as to who could marry whom, and what the relative rights of the
parties are. And there is no universal “one
man, one woman” rule, whether it be for life or otherwise, “throughout human
history.”
And yet,
this false and irrational lie is one of the central features of Chief Justice
Roberts’ opinion.
Chief
Justice Roberts writes “Although the
policy arguments for extending marriage to same-sex couples may be compelling,
the legal arguments for requiring such an extension are not.” But it isn’t merely policy – it’s a matter of
having a better understanding of the Constitution and of the evolution of
marriage in this country since colonial times, than the Chief Justice is
willing to admit.
He
writes: “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.”
It can
certainly be called irrational as the central assumption is false – the meaning
of marriage has changed over time and has differed greatly among different
cultures and societies throughout human history,
He
writes that “The people of a State are free to expand marriage to include
same-sex couples, or to retain the historic definition.”
First, it’s really not an “historic definition.” And when a state runs afoul of the 14th amendment,
as it did in Loving v. Virginia, the
SCOTUS does have a right to set things to rights. If we recognize the
principles of due process and equal protection under the 14th Amendment, it’s really
not possible to rationally decide against marriage equality.
“The majority’s decision is an act of will, not legal judgment.
The right it announces has no basis in the Constitution or this Court’s
precedent.” - Just because Chief Justice Roberts chooses to be willfully blind
to the Constitution when the Constitution doesn’t suit his prejudices, his
opinions should not be given any credence.
All the Chief Justice needed to do to grasp the constitutional basis for
today’s decision, would be to read and understand his colleague Antonin Scalia’s
Cassandra-like dissents in Lawrence
and Windsor. Justice Scalia has been predicting the
inevitability of gender-neutral marriage being recognized as required under the
Constitution since before the Massachusetts court decided to follow his
reasoning.
Chief
Justice Roberts exhibits a startling lack of knowledge of world history when he
writes: “the Court . . . orders the
transformation of a social institution that has formed the basis of human
society for millennia, for the Kalahari Bushmen and the Han Chinese, the
Carthaginians and the Aztecs.”
He
ignores the precedent of Loving when
he writes “The majority today neglects that restrained conception of the
judicial role. It seizes for itself a question the Constitution leaves to the
people, at a time when the people are engaged in a vibrant debate on that
question.”
When Loving was decided, a large majority of
white Americans disapproved of interracial marriage – and it was not until the
late 1990’s that a majority of white Americans became reconciled to the idea –
thirty years after the decision. It’s
pretty clear to me that, had Chief Justice Roberts been on the Loving court, he would have tried to
keep each race on its separate continent, and left anti-miscegenation laws to
the states to mull over in due time.
“For all those millennia, across all those civilizations,
“marriage” referred to only one relationship: the union of a man and a woman” –
as we’ve seen, just repeating a lie does not make it true.
The human race must procreate to survive. Procreation occurs through
sexual relations between a man and a woman.”
It appears that Chief Justice Roberts has never heard of
artificial insemination, in vitro fertilization, and other medical
methodologies that eliminate the need for heterosexual copulation.
“When sexual relations result in the conception of a child, that
child’s prospects are generally better if the mother and father stay together
rather than going their separate ways.”
That assumes that there is a “mother and a father” in the first
place, and not some random copulation resulting in a baby – and children do as
well or better when they have two mommies, or two daddies – and other family
constellations are also good for babies.
“Therefore, for the good of children and society, sexual relations
that can lead to procreation should occur only between a man and a woman
committed to a lasting bond.”
There is nothing wrong with that being a marriage – but it is a
lie to call it the only constitutionally-protected kind of marriage –under the
due process and equal protection provisions of the Constitution, the law of
marriage must be applied in a gender-neutral manner as well as in a
race-neutral manner.
And when
he writes this:
“And by bestowing a
respected status and material benefits on married couples, society encourages
men and women to conduct sexual relations within marriage rather than without.
As one prominent scholar put it, “Marriage is a socially arranged solution for
the problem of getting people to stay together and care for children that the
mere desire for children, and the sex that makes children possible, does not
solve.””
Roberts would apparently in his premise that marriage is solely
for the “be fruitful and multiply” crowd, forbid infertile people,
post-menopausal women, and others who are unable to “procreate” from having the
same equal protection under the law as everyone else.
He glowingly writes about chattel slavery - “Early Americans drew heavily
on legal scholars like William Blackstone, who regarded marriage between
“husband and wife” as one of the “great relations in private life,””
Lovely – the Chief Justice holds to the ideal of common law
marriage prior to 1848, that “the two become one – and that one is the husband.”
Typical of a patriarchal misogynist, but not expected from the Chief Justice.
“The majority observes that these developments “were not
mere superficial changes” in marriage, but rather “worked deep transformations
in its structure.” Ante, at 6–7. They did not, however, work any
transformation in the core structure of marriage as the union between a man and
a woman.”
Not true – first, the “core structure” is a union of two people –
possibly more, but multiparty unions are not the topic of the day (at least
until Roberts brings them in). At one
time, the relative bundles or rights were based on whether one was a husband,
or a wife. By the 1970’s the sex-based “reproductive
rights” issue was resolved by giving women control over their own bodies,
regardless of whether they were married.
Then by the 1980’s, marriage laws had become largely gender-neutral – i.e.,
the same rights and responsibilities, regardless of whether one was “husband”
or “wife.” At that point, it became obvious that even the connubial right – the
right to marry, ought to be gender-neutral under the Constitution. Indeed – at the point at which marriage became
a union of equals, it first became possible to understand the constitutional
implications to which the Chief Justice and the other dissenters are blind.
When Chief Justice Roberts approvingly cites Baker V. Nelson, the appeal of which which was summarily dismissed by
SCOTUS in 1972 – he does not take into account the fact that it was 1972,
marriage laws at the time did not create a union of equals. It was not possible for the SCOTUS at that
time to even see the issue on its radar.
Then Roberts whimpers that “They argue instead that the
laws violate a right implied by the Fourteenth Amendment’s requirement
that “liberty” may not be deprived without “due process of law.” “
Well, that IS true – and that right is exactly what drove the Loving court. As Justice Scalia correctly predicted in his
dissent in Lawrence, striking down
statutes against same-sex relations would inexorably lead to marriage rights –
as there was no longer any reason to deny connubium.
I am appalled at Roberts’ citation comparing the majority decision
to Dred Scott (I am not quoting it here) – does he have no shred of decency? That is the SCOTUS equivalent of calling the
majority “Nazis” in violation of Godwin’s Law
it appears that since Roberts has no argument except those based on
lies, he feels free to descend to that level, but cloaked in enough legalese to
make it seem erudite.
Here is something true – but not as Roberts seems to imply: “Expanding
a right suddenly and dramatically is likely to require tearing it up from its roots.”
What is untrue is applying this principle in the current
case. The common law of marriage in
America has been changing gradually since 1848 – and over time, the rights of
the parties have been made gender neutral.
By the late 1980’s, it first
became possible to recognize even connubium
as gender-neutral – but this took another 20 or more years before Justice
Scalia first recognized it in his dissent in Lawrence.
Making connubium
gender-neutral isn’t something sudden or dramatic. It has been inevitable since the 1980’s that
marriage rights are no longer sex-based – and one can thanke Roe v. Wade as
much as the evolutionary changes over time started by Elizabeth Cady Stanton
and Ernestine Rose in 1836. The fact is
that when it isn’t criminal to be gay, or to have same sex relations, and when
the bundles of rights and responsibilities in marriage are identical on a
gender neutral basis, it no longer becomes possible to defend against the right
to marriage being gender neutral – to deny the right would be to violate due
process and equal protection.
In discussing the ‘right to marry’ cases, Roberts clains “In
short, the “right to marry” cases stand for the important but limited
proposition that particular restrictions on access to marriage as
traditionally defined violate due process.”
Roberts interpolates the “as traditionally defined” in an effort
to make a distinction when in fact there is none. None of the cases prior to the late 1980’s
could have contemplated gender-neutral marriage, because until that time, marriage
rights were inherently unequal. And we’ve already established that there is no “traditionally
defined” marriage “thoughout human history.”
When Roberts lies with “the marriage laws at issue
here involve no government intrusion” it seems to glibly
fall from his pen onto the paper – but it’s yet another lie. Government licenses marriage, and often
licenses those who can perform weddings.
Government creates and recognizes bundles of rights and responsibilities
that are associated with marriage. If “marriage”
was merely a Catholic sacrament with no government involvement, [perhaps he
could have a point – but in the real world?
With the following, Roberts dips into playing a Cassandra role –
will polygamy be next?
“One
immediate question invited by the majority’s position is whether States may
retain the definition of marriage as a union of two people. Cf. Brown v.
Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117
(CA10). Although the majority randomly inserts the adjective “two” in various
places, it offers no reason at all why the two-person element of the core
definition of marriage may be preserved while the man-woman element may not. Indeed,
from the standpoint of history and tradition, a leap from opposite-sex marriage
to same-sex marriage is much greater than one from a two-person union to plural
unions, which have deep roots in some cultures around the world. If the
majority is willing to take the big leap, it is hard to see how it can say no
to the shorter one.”
You’ll note that he trips himself here – far from being
universally “one man, one woman” throughout history, he writes “plural
unions . . . have deep roots in some
cultures around the world” as if we haven’t been
reading abous this “universal; definition” thing through his entire opinion.
At least he didn’t bring in marriages to dogs, other animals,
trees or inanimate objects. And he also
steps back from the Cassandra precipice, but only slightly, with “do
not mean to equate marriage between same-sex couples with plural marriages in
all respects. There may well be relevant differences that compel different
legal analysis.” He does imply that perhaps
there might be no difference.
So while we’re at this point, let’s address plural marriages. The principles would be different, and unlike
merely extending connubium on a
gender-neutral basis, plural marriages would require a whole host of legal
changes. It could be done – and there
are models that could be based on various kinds of business arrangements or
religious orders. This isn’t the topic
here, but since Chief Justice Roberts chose to go there, I’m perfectly willing
to discuss this with him one day.
This case deals with gender, not number. I’m surprised he didn’t bring up duration,
but that, too, is an issue that isn’t on today’s table.
Once we get past the lies about “universal definition” and polygamy,
we get to a “religious liberty” argument that could have come straight from the
pages of Chuck Colson and Robbie George’s Manhattan Declaration.
“Today’s decision, for example, creates serious questions about
religious liberty. Many good and decent people oppose same-sex marriage as a
tenet of faith, and their freedom to exercise religion is—unlike the right
imagined by the majority—actually spelled out in the Constitution.”
What Roberts does not understand is that the religious liberty
issue cuts both ways. Why should my
religious liberty to marry my wife be infringed? The right to religious liberty means the
right to believe – but not the right to act on those beliefs to harm
others. Catholics like Roberts don’t have
to marry same-sex partners, and no one should force them. Catholic priests should not have to perform
same sex weddings in their churches (though they shouldn’t be acting on behalf
of the state or licensed by the state in any event, that ought to be held to
violate the first amendment, unless they do nto discriminate – they should be
limited to prerforming their religious rites without state molestation or
interference, but in some future case, when the issue comes up, they should be
free from government licensing or authority).
He then proceeds to defend the haters and bigots - “the
tens of millions of people who voted to reaffirm their States’ enduring definition
of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and
subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian
neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the
character of fairminded people will have an effect, in society and in court.”
Fairminded people? Really? Perhaps
Roberts is the one who would have joined with the majority in Dred Scott – after all, if he thinks the
people who have worked to deny rights to a minority to be “fair-minded people”
there is not a scintilla of evidence that he wouldn’t side with property-owning
slaveowners against their property. And as the majority in Citizens United proved, the Court has a habit of protecting the
rich against the poor and disadvantaged, most of the time.
He
writes “It is one thing for the majority to conclude that the Constitution
protects a right to
same-sex marriage; it is something else to portray everyone who does not share
the majority’s “better informed understanding” as bigoted.”
But
they are – bigoted, that is. It’s no
difference from the enduring beliefs of white supremacists. Perhaps Chief
Justice Roberts is guilty of the very thing that he accuses the majority of
doing – letting his personal prejudices interfere with his ability to render an
impartial decision. His expression of
sympathy to people who are no better than slaveowners or segregationists is jut
one more indication of his willful blindness.
This
is a constitutional issue, not a matter of sentiment.
He
closes out with the sour grapes “Celebrate the availability
of new benefits. But do not
celebrate the Constitution. It had nothing to do with it.”
Sorry,
Chief Justice Roberts, the Constitution has everything
to do with it, It’s sad that you don’t “get
it.”
