Smasharoo wrote:
All of that falls into the 'except' area, which is just societal standards. It's a weak rhetorical and legal case. I think there is a lot more value, rhetorically, to the case that we base laws around gender now. and this is just one more of those. The impeaching case is, of course, that we find some societal benefit to men not strip searching women, but no particular benefit to preventing men from marrying men. It's at that point that I think what you are trying to establish has some value, that we derive no tangible benefit from banning polygamy either, beyond avoiding a taboo and maybe that's enough for a law to be upheld.
Two issues:
1. I think that's why you have to view the issue, not as a ban, but as a recognition/reward. Since that's what we're actually talking about here. The analogy to male officers strip searching women, is a matter of "we're banning that because as a society we don't think it's appropriate", but doesn't actually match the issue of marriage recognition. In the case of the marriage issue before us, the question isn't whether two men or two women *may* marry each other, but whether the state *must* recognize that marriage as qualifying for a status named "marriage", and must grant that couple whatever legal benefits/rewards/restrictions that status entails.
So it's not just a "do we accept this behavior as a society", but "does this status match the use we're trying to apply to it?" And that gets us back to "why did the states create the statuses" and all that other stuff you guys hate to talk about. I just don't think we can hand wave this away with the idea that it's just about social norms and acceptance. It's also about concrete objectives and actions. We should not be asking what the benefit is in preventing men from marrying men. The question should be what benefit we gain from rewarding men who marry men. Once you flip the question around, you can start to see a clear pattern between the various things we don't reward versus those we do. IMO, this is the correct way to view the issue. We're ultimately talking about a reward status, not a ban. Totally different things.
2. In general, I disagree with the "rights are what society thinks they should be" concept. I've run across this idea many times (and I think at least one of the justices in this case mentioned something similar). But IMO, the entire point of having a Judiciary is to tell society when what it's demanding is in violation of rights, or is not a right at all. If the Court just rubber stamps issues based on popularity, then it ceases to have meaning. The people have many ways to advocate for change. If a social position changes sufficiently over time, then the laws can be changed over time to reflect that (popular votes, right?). There is no need for the courts to impose social change based on the concept that society is moving in a direction. In this case specifically, if social views really do change, and the valuation of SSM in society changes such that people elect and pressure their legislatures to change the laws defining their own marriage status, then that will happen without any need for the court to act. I think Kennedy also more or less made this point (well, he went back and forth on it IIRC).
If our argument is that rights are defined by what the people think they should be, then in this case, as the people believe that marriage statuses should be granted to SS couples, the laws will change to reflect that. If sufficient legislative pressure via voting hasn't yet created this change, then that's evidence that society really hasn't accepted that position. Which means, it's not really a right, right? I happen to think the whole concept is flawed, but even if we accept it, then there's no reason for the court to take action. The only thing the court can do is mistakenly think that the people believe in some change in our society that now requires recognition as a "right", and thus be tricked into making a ruling that is in opposition to how people actually feel. Which, IMO, is a really bad thing for the court to do.
I think that the court should be ruling on objective interpretation of rights, not subjective interpretation of public opinion. We can debate what that objective interpretation should result in, but I just reject the idea that "changing social views" make something a right that was not previously. And actually, more importantly to this issue, no one's really talking about a "right to marry". It's about whether or not denying marriage status to gay couples violates equal protection. And that's totally different. No one says that food stamps are a right. But denying them based on financial condition is acceptable, while denying them based on skin color is not. And this isn't because our social opinions about the "right to food stamps" change over time (subjective interpretation), but because the objective purpose of food stamps is to provide food to those who can't afford it, so using financial condition as a determinant of qualification is perfectly acceptable, while doing so based on skin color is not.
Similarly, we should be looking at the objective purpose of granting marriage statuses and determining if a given qualification is acceptable or unacceptable. I happen to think (as I've stated many times), that the states purpose for creating marriage status is to encourage couples who may procreate to do so within a well defined marriage contract so as to maximize the odds that children will have both a legally defined mother and legally defined father on birth. While we *could* extend this status to gay couples, it would be just as much a waste of resources as granting food stamps to the wealthy would be. We're not concerned about that rich person begging for food if we don't provide him with assistance, and we're not concerned about two men producing a child without legally defined parents if we don't grant them marriage licenses.
That's an objective argument. You may disagree with it, but it's not based on liking or disliking anyone, or how people "feel". I happen to think that's a better way for us to approach something as important as rights within a society. Doing so based on subjective emotional appeals is a really bad idea IMO.