And another spurious thought:
This scheme seems the kind of thing that would keep a man at home - sounds exactly like what society likes to see!
Horse sense is the thing a horse has which keeps it from betting on people. ~W.C. Fields
In McDonald v. Chicago in 2010, Justice Thomas provided a long, detailed analysis of the history and meaning of the Fourteenth Amendment Pr&I Clause. He argued for reviving it and using it, instead of the Due Process Clause, to gauge which rights are truly fundamental, and therefore deserving of greater protection, and which are not. He was especially concerned with the fact "substantive" due process is a legal theory which lacks any guiding principle and therefore invites the arbitrary invention of new fundamental constitutional rights. (In Lochner, it was a "fundamental right" to contract that the Court concocted; in Roe, it was a "fundamental right" to abortion; and here, it was a "fundamental right" to homosexual marriage.)This is what compels the SCOTUS majority to use Due Process, even when the argument contains a significant basis in State privileges and immunities.
The very narrow interpretation the Court gave the Fourteenth Amendment Pr&I Clause in the Slaughter-House Cases has never prevented the Court from reviving that clause and giving it a broader construction. It could have done that at any time, and as Thomas suggested, still could today. It has all along relied on the doctrine of substantive due [/I]process[/I]--a contradiction in terms that distorts the constitutional text--because it offers a convenient way to concoct new "liberties" the state can then deprive no person of, without due process of law. Before long we may be hearing about previously-unknown fundamental rights like going nude in public, or engaging in adult incest.
If you want to believe equal protection played any part in Obergefell except as window dressing Kennedy threw in to try to shore up an indefensible, lawless decision, knock yourself out.So, while the decision does state (as you insist) basis under the 14th Amendment's Due Process Clause, reading the arguments show that the support for that use is clearly based in significant amount on state sanctioned privileges and immunities granted married couples but denied to same-sex couples under State laws. Further, the decision categorically includes the Equal Protection Clause of the 14th Amendment and the arguments in support of that.
I stand by my previous posts.
As for myself, I think the Chief Justice unmasked the equal protection part of Obergefell as the sham it is--which suits it perfectly to the rest of the majority decision:
The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases . . . The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. (my italics)
Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 197 (2009) [“[i]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.”] In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence, 539 U. S., at 585 (O’Connor, J., concurring in judgment)
Last edited by matchlight; 07-02-15 at 12:52 PM.
However, there is the issue of Social Security spousal benefits, of sharing medical insurance, of inheritance, of community property, filing taxes jointly, and a whole lot more that is in the state or federal government's purview.
Better to issue a civil union agreement to anyone who wants to share in the above benefits, and leave the term "marriage" up to the individuals and/or their religious institution. Render unto Caesar and all that.
Can't we just turn Congress off and then turn it back on again?
Since the government isn't a house of worship or endorses any religious belief.....how about firing those government employees that refuse to do their jobs and replace them with ones who will? Unless you're trying to suggest that your entire state is bigoted, that is.