Supreme Court marriage cases: the week ahead

by Walter Olson on March 25, 2013

  • If you didn’t see my Saturday post previewing the DOMA and Prop 8 cases that reach the Supreme Court this week, I’ve now got a virtually identical version up at the Cato blog.
  • On Wednesday, immediately after the Court’s oral argument in Windsor, I’ll be moderating a panel at Cato with former Republican National Committee head Ken Mehlman (NPR profile), Freedom to Marry founder Evan Wolfson (BuzzFeed profile), and Cato’s Ilya Shapiro (AFF profile). Details and RSVP here. If you’re in DC, don’t miss it! If not, watch live online at www.cato.org/live and comment via #CatoEvents.
  • A collection of links on the cases is currently headlining the Cato website.
  • I’ll be speaking Wednesday evening about the cases before the Washington, D.C. chapter of Log Cabin Republicans. I also expect to be doing some national broadcast commentary — details to follow.
  • Last week I spoke at a panel in Cato’s social media series with Jimmy LaSalvia (GOProud) and Trevor Burrus (Cato) on conservatives and same-sex marriage, on topics that included the changing poll numbers and demographics. Aside from going through my analysis of November’s election results, I commented on various aspects of the debate such as the difference between civil and religious marriage (“the same as that between a birth certificate and a christening,” I like to say), the non-connectedness of the gay marriage and abortion issues (on which many others seem to agree with me), and the issue of religious exemptions (“As libertarians, we’re ahead of the curve in considering how anti-discrimination law can trample freedom of conscience.”) No video at the moment.
  • By coincidence, that panel happened to be scheduled against a crosstown event making the opposite case at the Heritage Foundation, which suffice it to say is at a very different place from Cato on this topic. On the question of using 11-year-olds to try to tear down other people’s families, by the way, Rob Tisinai at Box Turtle Bulletin has a nice pre-rejoinder to Heritage: “But Gracie, no one is trying to take one of *your* parents away.”
  • I couldn’t help noticing the following from a March 22 Clarus survey of U.S. voters:

    “Do you think each individual state should be allowed to decide whether same-sex couples can legally marry, or not?”

    Should 53%
    Should not 45%

    “Do you think same-sex couples have a constitutional right to marry, or not?”

    Do 53%
    Do not 43%

    If these figures are to be credited, at least 6% of the voting public (and possibly much more) overlappingly believes both that same-sex couples have a constitutional right to marry, and that “each individual state should be allowed to decide” on that same question. I think it may be time for a refresher course in constitutional law.

{ 6 comments }

1 John Burgess 03.25.13 at 12:03 pm

How about an Intro course on the Constitution? “Refresher” assumes there’s some basic knowledge already extant.

2 Bob Lipton 03.25.13 at 12:58 pm

One is a statement of fact. One is a statement of what should be fact. I’m sure that during Prohibition a similar situation applied.

Bob

3 Deoxy 03.26.13 at 11:17 am

While more constitutional knowledge would obviously be helpful to the vast majority of people in this country, having what appear at first blush to be conflicting opinions on something like this does not necessarily imply it (though in most cases, that’s probably true).

I think a great many things should be, but the cost of getting the government to do them (ESPECIALLY the Federal government) is far too high for me to even consider supporting it.

This could quite easily be such a thing.

(Of course, the idea that the Constitution, as written, has such a right embedded in it makes a mockery of the basic concepts of understanding language and enduring law, as clearly, none of the people who wrote it or enforced it for 200+ years would have thought it meant that. Words should have meaning, and changing them should be explicit and intentional. Want a constitutional right for SSM? Pass an amendment. The text as written clearly contains no such thing.)

4 MattS 03.26.13 at 1:43 pm

Deoxy,

Try reading the ninth amendment.

5 David Schwartz 03.26.13 at 9:42 pm

To be fair, they could believe that the Constitution currently guarantees a right to same-sex marriage but that it should be amended to allow States to decide, but somehow I doubt it.

@Deoxy: What makes a mockery of understanding language and enduring law is to think that people meant to enshrine their mistakes. If I say “you are entitled to due process”, that means any process that can be shown to be in fact due is process to which you are entitled, regardless of whether anyone thought it was or wasn’t due at any particular time. If people can later show new types of process that are in fact due, then you are entitled to them as soon as that showing is made.

That’s why the right to free speech includes speaking on the Internet. Nobody intended that, but as soon as it could be shown to be speech, the freedom extends to it. This has nothing to do with whether anyone considered, or would have considered, Internet posting “speech” at the time the first amendment was written.

6 rxc 03.27.13 at 4:06 am

I really don’t care whether the court approves of SSM, but a comment by Ted Olson started me thinking. He said (on NPR) that marriage was not really about children, but instead about love and relationships between people who love one another. Then, I heard one of the SC judges (Sotomayor, I think), ask whether people over 60 should be denied marriage licenses, because they don’t have children.

If marriage is all about people who love one another, and not about children, then why should society prohibit siblings from marrying one another? Why prohibit sons from marrying mothers, or fathers marrying daughters, if they agree not to have children? I could imagine a couple of elderly siblings deciding to get married to avoid inheritance taxes, so why should they be prevented from taking advantage of these opportunities that society has heretofore limited to heterosexual couples?

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