The Supreme Court is debating the right of same-sex couples to marry, and their arguments are unbelievably primitive. We can’t let gays marry because our grandpa didn’t let gays marry!
The Court’s conservatives fixated upon their belief that same-sex marriages are a very new institution. “Every definition [of marriage] I looked up prior to about a dozen years ago,” Chief Justice John Roberts claimed, limited marriages to opposite-sex couples. Advocates for equality, Roberts continued, are “seeking to change what the institution is.”
Meanwhile, Justice Samuel Alito argued that even “ancient Greece,” a society he perceived as welcoming to same-sex relationships, did not permit same-sex marriage. Justice Antonin Scalia insisted that “for millennia, not a single society” supported marriage equality.
Every injustice of the past must be perpetuated forever and ever, amen.
Those dang lazy webcomic artists see this conversation as an easy steal. This is dead on:
By the way, Judge Ruth Bader Ginsburg has a wonderful counterargument that takes a different tack: the meaning of marriage has changed over time, and one person is no longer chattel within the arrangement.
[Same-sex couples] wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.
There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.
It’s a good point, but a dangerous one: the australopithecines on the court, like Roberts & Scalia & Alito, might decide that’s a good reason to revert the marriage contract to one of ownership of the female side.
Once again, though, the Notorious RBG demonstrates why she’s my favorite Supreme Court judge.
Didn’t the romans have legally recognized unions between same-sex individuals? Not that it matters, but you know, as an anecdote…
Isn’t it scary that things are not exactly the way they used to be when you were all young, Supreme Court? Terrifying, isn’t it…that things change…and fucking improve…..
There used to be miscegenation laws, too. I suppose those knothead conservatives would like to go back to those as well.
One thousand years ago, there weren’t any gay marriages. And you know what else they didn’t have one thousand years ago? Supreme Courts, we just had kings who passed laws by fiat. Maybe Judge Scalia should argue against those, too.
There used to be miscegenation laws, too. I suppose those knothead conservatives would like to go back to those as well.
Ask Clarence Thomas.
Didn’t some Native Americans have different ideas about gender role and relationships? Or am I just remembering something from Little Big Man? Anyway, they were here first so we should do it the way they did. Right?
Definitions!
And how was the term voter defined in the past, Chief Justice Roberts?
I can’t believe this is the level at which the minds of the Supreme Court is operating.
Ruth Bader Ginsberg, if only there were more of her. Ideally, an additional four more in the court.
The thing is that the conservatives get an extra thin-veneer of credibility based on the nature of the Supreme Court. The court relies on the precedents set by previous court cases in making their decisions. That is like a wingnut wet dream. Nothing could possibly be better used to support inane traditions, long and historic bigotries, and the status quo at large, then being able to say “hey, we have always done it that way” and have it be considered one of the most serious fucking arguments you can make for your case.
Funny how a bunch of Catholics want to go back to the time of “No dogs or Irish.” Fascists always seem to think that they will be in charge when the revolution comes.
Christianity didn’t recognise any marriages at all until the 12th century, don’t those 1200 years count for tradition?
Besides, Paul recommended that no one get married, “For I would that all men were even as I myself…. I say therefore to the unmarried and widows, It is good for them if they abide even as I. ” 1 Corinthians 7:7-9 and “It is good for a man not to touch a woman.” 1 Corinthians 7:1-2.
Oh dear, Scalia. Stop digging already!
http://www.thestranger.com/blogs/slog/2015/04/29/22134504/jeffrey-toobin-on-justice-scalias-revealing-remark
On the other hand, the questions in this post aren’t necessarily as bad as they look, according to SCOTUSblog. Of course there’s still a long, long way between “not as bad as it looks” and “acceptable in the 2010s.”
As a matter of fact, until the mid-20th Century, in most of the 50 states, it was legally impossible for a man to rape his wife. In case you read that backwards, it means that nothing he did could be construed as rape — it was permitted. I wonder how that would work in same sex marriage?
Doubting Thomas,
In nearly every “We used to…” attempt at reasoning oneself out of progress, we equals white men or possibly rich white men.
DT@5: Yes, some Native Americans allowed biological men to live as women, or to have mixed gender roles. As far as I know same sex marriage was not allowed, however. Wikipedia article here.
I’m still waiting for a legitimate, non-imagufactured reason why the Redhead’s cousin marrying his long time partner hurts the marriage of the Redhead and myself. The tap dancing to try to answer that question amusing for the few who tried, but mostly when asked, he silence was deafening.
I’m betting it’ll be a 5-4 decision. No idea which way it’ll come down, but it’ll be 5-4.
While we’re at it, what damned librul elite decided to let an EYEtalian enroll in Georgetown University in 1953? Probably a commie, or at least a pinko.
If we had more people like Scalia in positions of power then, we’d have fewer people like Scalia in positions of power now. But I imagine Scalia thinks it would be just fine if we lock the gate right behind him.
Scalia also seems very fond of his question “in what year did limiting marriage to opposite-sex couples become unconstitutional?” I think there’s a very straightforward answer: with the ratification of the 14th Amendment. The fact that most of the people involved in the ratification didn’t realize that this was one of the many implications really doesn’t strike me as much of a counter-argument.
The Constitution often supplies only a general principle such as “Congress shall pass no law . . . abridging the freedom of speech,” and then leaves it to the courts to hash out the details (e.g., but “obscenity” isn’t protected, and defamation isn’t protected but there are some restrictions on defamation law). And often times people support a principle without thinking through, let alone supporting, all of the implications. Some of the same leaders who ratified the Bill of Rights turned right around and passed the Sedition Acts making it illegal to criticize the federal government, and President John Adams signed them. Today we have plenty of people who think it would be a horrible violation of the Religion Clauses of the First Amendment if some other religion is imposed on public schoolchildren, but peachy keen and even vital to have their religion imposed. So excuse me if I’m not terribly impressed by how society at large interprets legal rights.
And let’s be honest: it’s not as though gay marriage got a “fair hearing” in society throughout these last couple of millennia. The Founding Fathers didn’t exactly puzzle over this one and render a thoughtful decision. There should be no surprise that over most of the last couple hundred years, the vast majority of people didn’t think there was a right to same-sex marriage, because the very idea was strange to them. Who was going to make the argument? When being gay could get you fired from a civilian job (it still can, in many places), kicked out of the military, and charged with a crime, who wants to come out of the closet and lead the charge for marriage rights?
Ruth Bader Ginsburg
One of the few redeeming features your country has.
screechymonkey
German homophobes have a similar problem: The constitution clearly protects the family and the intitution of marriage, thereby, consitutionally justifying privileges*. Only that at the end of the 1940’s nobody thought about same sex marriage and therefore “family” and “marriage” never got defined as “one man one woman”
*Let’s not get started on how fait it is that a DINK household gets nice tax cuts while a single parents pays more
Experience time travel! Just substitute every occurrence of “gay” with “interracial” and you’ll magically be whisked away to another era.
Doubting Thomas @ 5
There are many different nations and many different ideas and customs across cultures and time. In traditional Ojibwe society, a Two Spirit doesn’t match being gay, nor does it match the experience of binary trans* people. Traditionally the marriages between Two Spirits and non-Two Spirits would be seen as heterogendered, with the non-Two Spirit spouses seeing a very clear difference between themselves and their spouses.
Marriages between two Two Spirits weren’t allowed traditionally, and this same custom was pretty common amongst many different cultures with similar recognition of third genders. There would often be an incest taboo about it, seeing all people of third genders as siblings, but not in all cultures.
The term Two Spirit is a translation of the Ojibwe term, but is used by people from other nations when they talk about it in English. People from nations that didn’t have a similar tradition may dislike the term or reject its use. Also, customs regarding what is and isn’t taboo may have changed from what they were traditionally, or some people may choose to defy customs when they find them restrictive and discriminatory.
Isn’t it odd that these historical examples cited for legal precedent tend to be European?
If the Supreme Court is basing it’s decisions about marriage on the practices of the Ancient Greeks then this article makes disturbing reading:
http://elysiumgates.com/~helena/Marriage.html
I’m pretty conservative: if “it’s always been done like that” then that seems to me like a good basis for starting the conversation. Then it’s on the onus of the person who wants to change to demonstrate pros and cons.
In the gay marriage case, pro: a historically marginalized group gets marginally more integrated into society, as we’ve learned that the basis for marginalizing them is bogus. Con: …[crickets]…
Only one circuit court has gone against, almost daring the supreme court to take it up after all the other circuit courts ruled in favour. I have difficulty believing SCOTUS would overturn the majority of circuit courts on the basis of crickets.
From a feminist perspective, just about everything about Ancient Greece is disturbing..
@PZ:
I thought I ought to note that it is
Justice RBG,
good sir, not judge.
Hi PZ, you linked to your own post when you quoted Ginsberg. Here’s a link with her argument/response: http://www.motherjones.com/mojo/2015/04/ruth-bader-ginsburg-shuts-down-gay-marriage-challengers
And here’s a direct transcript: http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-556q1_2dq3.pdf
As to Roman history, I seem to remember a few stories about eunuch slaves who either served out their time as slaves to become freedmen or were freed upon the death of their master who would then set up housekeeping together and live very respectable lives in the Roman empire. As I remember, these stories were very common in Roman Alexandria. There were homosexual slaves and freedmen who had quite a bit of influence in the governments of some of the emperors.
There were also very famous poets, actors and playwrights in Rome who were reputed to be either homosexual or bisexual.
Reading the works of Ovid and Catullus can give one quite a bit of insight into the ahem, interesting sexual habits in ancient Rome.
Most Romans seemed to have a live and let live attitude about sexual habits. Of course, there seemed to be busy-bodies in nearly every generation who tried to “clean up” Roman morals, such as Cato in the Republic and the first emperor Augustus, who went so far as to exile his own daughter for immorality. Reminds me of our Republicans.
I have no doubt at all if the Dred Scott decision were being made today what side the Alito-Scalia-Roberts-Thomas faction would find for.
antepro@7: “The court relies on the precedents set by previous court cases in making their decisions.”
Actually, Scalia has made it clear on several occasions that he puts no store in precedent. It’s a lie, of course. What he really means is “I can ignore precedent I don’t like, but I expect everyone else to follow precedent when I set it.”
Wait, wasn’t marriage “till Death do us part”?
Traditional African societies include female-husbands who marry one or more wives. The position is available to any woman who gains control of property needed to pay bride-price for a wife. The woman gains the wife’s labor and children. Up to the wife how she produces those children!
Gosh, I remember reading somewhere where the average length of marriage hasn’t changed much (the figure, IIRC, was seven years) over the past few centuries, just now it is divorce rather than death/desertion.
The Redhead and I are over 40+, meaning we are far out on the asymptote.
Yeah I remember when corporations weren’t people…damn activist courts…hmm
I suspect that one of the ways that same-sex marriage threatens traditional marriages is by making it clear that marriage can be egalitarian rather than hierarchical. Don’t want to be givin’ women any funny ideas!
The other way being that gay xtian men will no longer feel obligated to stay married to women, of course.
Didn’t the romans have legally recognized unions between same-sex individuals?
Yes, Constantius II banned them. Presumably if he banned them, they must have been happening(?) There are also references to same-sex marriages in Zhou and Ming periods in China. Legendary celtic warriors married their horses (a few times) and many tribal societies appear to have shamanistic same-sex pairings (e.g: “two spirit people” in native American tribes)
It’s like the christians redefined “marriage” or something.
I just read something that advanced an argument based on sex discrimination: that if Lisa can marry John but Craig can’t, that’s discrimination based on sex because you’re letting Lisa do something that you won’t let Craig do, and that interpretation would mean no new laws need be made to allow same-sex marriage, just the application of already-existing discrimination law.
@cervantes #11:
I’d consider the 1970s to be more late-20th than mid-, the mid-20th century was when the communist bloc was criminalizing it.
As it stands, the US still isn’t done. A number of states require you to overcome resistance by force or the threat of force, (e.g. if she’s asleep, it’s legal), and one requires aggravated levels of force, (i.e. it’s still legal to push your wife to the bed and have your way with her)..
Ah, Justice Ginsburg. My favorite quote from her was during an interview, when asked when there would be enough women on the Court, she replied, “When there are nine.”
It’s such an obviously nonsensical argument to make! Things used to be this way, that’s why they need to remain so. I know the word “progress” is considered hideous by some (it sounds similar to “progressive”, after all), but even these judges would have to understand how easily mocked this line of argument is. They would never accept such an argument as valid for anything else.
I enjoyed how Tom Tomorrow dealt with the argument “but it’s tradition!” in This Modern World:
http://thismodernworld.com/blog/TMW03-03-04color.jpg
I can’t believe that this redefinition thing is debated like an actual argument. Things get redefined all the time. That’s why laws change: we want things to be redefined. Tax rates, speed limits, army budgets, some are redefined on a yearly basis.
re @40:
your mention of “progress” triggered an old joke in my ears. I’m sure everyone has heard it before, so I’ll just repeat it here.
Sorry, wrong thread for that joke. But the SCOTUS ain’t the only source of marriage laws being so discriminatory. (i.e. exclusive).
Sadly, a common problem among people who think guns, violence and revolution are, “good things”, in general. It doesn’t much matter if your intent is dictatorship, or equality – if you get it wrong, its the fascists that end up running things, and they may just turn out to be the **wrong** fascists. Drives me nuts, every time someone advocates overthrowing the system, instead of repairing it, because of this. How do you know, at all, given the nature of fascists, and their allies, and the power they invariably surround themselves with, that the good guys will be the ones that end up on top? You might just end up with the wrong fascists, if your are a fascist, which would be sort of embarrassing… But, if your intent is some delusional Tea Party-esque, “repeal and replace”, of the government, on the theory that what you violently replace it with will be better… Well, there are worse things that the “wrong” fascist in charge, such as failing to notice one, because they helped you to “win”.
Some people don’t like Ruth Bader Ginsburg. Sheriff Mack, bosom buddy of Cliven Bundy, is one of them.
Link
Call me naive, but I thought the Supreme Court ruled on the Constitutionality of an issue, not its historicity. Using Scalia’s reasoning (a stretch, I know) one could say that for millennia most societies tried and often executed people for heresy. We don’t do that in the USA because it would be unconstitutional. We have no state religion.
And then there is the Equal Protection Clause of the 14th Amendment. How on earth does a strict constructionist like Scalia get around that little mountain?
Are we now to believe that the Supreme Court justices simply decide issues on the basis of personal biases and preferences? If so, the Court loses its legitimacy.
Reading the transcript I am surprised by the level of poor argumentation by the judges and by council.
The thing about the history of marriage should have been refuted or at least council should have said they are not anthropologists, and argued the point as irrelevant as many have discussed above.
The slippery slope argument about polygamy should similarly have been crushed immediately. The issue at hand is giving a protected class equal rights. If people subsequently want to marry their family pets or a toaster that would have to be raised and argued separately.
And the judges didn’t let council finish a train of thought on anything. Supreme Court by Gish Gallop. Sheesh.
Kahegi@44: yep, and it’s not just fascists. That’s pretty much what happened in the Spanish Civil War with communists and anarchist forces fighting back the Falangists only to have Stalin’s faction turn on its fellow communists. It also happened in the Iranian Revolution, when an unlikely alliance between liberal Iranians and theocratic Iranians threw out the Shah, only to have Khomeini round up the liberals and shoot most of them. I’m not saying people should never resort to armed insurrection, but history shows you have to be just as careful after the revolution as before.
robertforster@46: Scalia gets around it by not being consistent in his constructionist beliefs.
I see my complaint about the argumentation is not unique problem of this case. From FFRF