IMO what is interesting about this ruling is that AFAIK it doesn’t appeal to any law which hasn’t existed for decades. So, if we accept the premise that the supreme court is only “interpreting” the constitution, it follows that gay marriage should have been legal a long time ago (where I use “should” in the legal rather the normative sense). While some will probably claim it is exactly the case, to me it seems rather clear that the “interpretation” of the constitution is changing with culture and social norms. Now, while I’m sure that in a democratic system cultural transformations should find their way into law, this seems like a weird way for it to happen. Instead of having elected legislators changing the law according to the will of people, appointed judges are reinterpreting existing law. So, while I wholeheartedly endorse the object-level act of allowing homosexual marriage, the meta-level process leading to this act looks questionable. However, I don’t live in the US so maybe something is lacking in my understanding of that system.
However, I don’t live in the US so maybe something is lacking in my understanding of that system.
Unfortunately, nothing is lacking in your understanding of the system. Supreme Court rulings tend to be exercises in motivated reasoning. (At least the ones that people care about—they make unanimous rulings all the time on less important issues.)
While some will probably claim it is exactly the case,
And in fact, a state court in 1993 noted that the prohibition violated the existing notion of equal treatment for the sexes. Now, obviously the fact that it went nowhere at the time (because people chose not to apply it to US federal law) is itself evidence for cultural and social norms shaping judicial behavior. Also, the fact that Justice Kennedy used a slightly different argument for some reason (possibly rhetorical-poetic).
But even if we start counting from the Civil Rights Act of 1964, rather than the 1978 Hawaii State Constitutional Convention, the history of math leads me to think that noticing a logical implication in 1993 was at worst just a little slow.
According to Wikipedia, the basis for the same sex marriage decision was the Fifth Amendment dating back to 1791 rather the Civil Rights Act. But I might be missing something?
EDIT: As hairyfigment correctly pointed out, the right link is Obergefell v. Hodges and the right amendment is the Fourteenth. That’s what comes from shuffling tabs with Wikipedia pages in a drowsy state of mind :)
You’re missing a lot, starting with the fact that you linked a different case from 2013. See Obergefell_v._Hodges.
Now, I think the decision referred directly to the 14th Amendment without mentioning the Civil Rights Act. But the courts reinterpreted the Equal Protection clause of the amendment after people, apparently, used it as a basis for the Civil Rights Act. Interpreting it by its legislative consequences is not completely crazy, since the amendment itself says Congress has the power to enforce it by appropriate legislation. In any case, all this happened long before the recent case.
Follow-up, since this may have been unclear: the idea is that the Court may use actions of Congress as a guide to help decide what “appropriate” means. And in my reading of history, courts implicitly decided that the Equal Protection clause must have supported (in part) the 1964 law, therefore protecting against discrimination by gender must count as appropriate. Certainly the authors of the amendment wrote “persons” when they could have written “men.” Since the 2015 case concerns State laws and not private businesses, saying the State needs to give a compelling reason to restrict you from marrying a given person because of your gender seems if anything better-supported than the 1964 law.
The relation to the Civil Rights Act is an interesting observation, thank you. However, if the court did not cite the Act in its reasoning the connection is tenuous. It seems me that the most probable explanation is still that the Supreme Court is applying very lax interpretation which strongly depends on the personal opinions of the judges.
I was actually talking about what I see as the real historical, cultural process by which the Court reached its decision. (Do you not think the CRA influenced personal opinions about equality?) And I’m saying even this process has some legal support.
But I must stress that the necessary interpretation by the courts happened in the 1970s—or at least that would have sufficed—and thus focusing on this 2015 ruling makes very little sense.
The interpretation of the constitution is changing over time, yes—but it’s mostly changing in terms of being added to, not change for change’s sake. Trying to use the constitution as a way to handle recently discovered new situations doesn’t have to imply that two hundred years of prior interpretation is null and void.
Perhaps I was being unclear; I was not referring to homosexuality as the new situation. That would be silly.
The new situation is that society has changed its definition of marriage—from a narrow definition involving just a man and a woman, to a more broad one that ignores gender. Sure, there were always niche groups asking about it, but a hundred years ago there simply wasn’t enough call for it to push it up to the supreme court.
My overall point is that new situations always come up where you’re not sure what to do, and rather than rip up everything when it happens, the courts try to make it fit within the existing framework as best they can. If something -really- doesn’t fit, it’s the court’s job to hackjob it until there’s proper legislation to cover it. But it’s also the job of the court to run triage; they -could- have legalized gay marriage sooner, but they -should- not have done so, because other things were on their docket up until recently that were higher priority.
Who sets the priority of those things that make it through the courts? Society at large, which is why you need ‘new situations’ such as the definition change I mentioned above.
If you want to toss around ‘should’s for why this didn’t happen sooner, there ‘should’ have been more outcry from the general population saying that this was something they wanted, which of course is absurd.
You’re implying that the US constitution either implicitly or explicitly refers to changing societal norms and it is within the supreme court’s authority to decide what these norms are at any given time and how to apply them to the law. If this is indeed your intent, I would like to see some support for it in the text of the constitution. It sounds like the court is authorized to interpret not only the law but also the will of people whereas in my understanding the latter should be the domain of the legislative branch.
The new situation is that society has changed its definition of marriage—from a narrow definition involving just a man and a woman, to a more broad one that ignores gender.
The main reason it did so was court rulings on this and related subjects. Thus using your definition of “new situation”, your judicial philosophy seems to amount to “the judicial system can rewrite the constitution however is sees fit”.
While I agree that the process seems absurd on the face of it, I don’t think it’s as nonsensical as it appears at first glance.
It’s way, way easier to have a small group of people re-interpret a static text over and over than it is to have a larger group of people, accountable to an even larger group of constituents, write new text that they all agree on over and over.
edit: I guess basically what I’m saying is that democracy is hard and this is a nice out?
IMO what is interesting about this ruling is that AFAIK it doesn’t appeal to any law which hasn’t existed for decades. So, if we accept the premise that the supreme court is only “interpreting” the constitution, it follows that gay marriage should have been legal a long time ago (where I use “should” in the legal rather the normative sense). While some will probably claim it is exactly the case, to me it seems rather clear that the “interpretation” of the constitution is changing with culture and social norms. Now, while I’m sure that in a democratic system cultural transformations should find their way into law, this seems like a weird way for it to happen. Instead of having elected legislators changing the law according to the will of people, appointed judges are reinterpreting existing law. So, while I wholeheartedly endorse the object-level act of allowing homosexual marriage, the meta-level process leading to this act looks questionable. However, I don’t live in the US so maybe something is lacking in my understanding of that system.
Unfortunately, nothing is lacking in your understanding of the system. Supreme Court rulings tend to be exercises in motivated reasoning. (At least the ones that people care about—they make unanimous rulings all the time on less important issues.)
And in fact, a state court in 1993 noted that the prohibition violated the existing notion of equal treatment for the sexes. Now, obviously the fact that it went nowhere at the time (because people chose not to apply it to US federal law) is itself evidence for cultural and social norms shaping judicial behavior. Also, the fact that Justice Kennedy used a slightly different argument for some reason (possibly rhetorical-poetic).
But even if we start counting from the Civil Rights Act of 1964, rather than the 1978 Hawaii State Constitutional Convention, the history of math leads me to think that noticing a logical implication in 1993 was at worst just a little slow.
According to Wikipedia, the basis for the same sex marriage decision was the Fifth Amendment dating back to 1791 rather the Civil Rights Act. But I might be missing something?
EDIT: As hairyfigment correctly pointed out, the right link is Obergefell v. Hodges and the right amendment is the Fourteenth. That’s what comes from shuffling tabs with Wikipedia pages in a drowsy state of mind :)
You’re missing a lot, starting with the fact that you linked a different case from 2013. See Obergefell_v._Hodges.
Now, I think the decision referred directly to the 14th Amendment without mentioning the Civil Rights Act. But the courts reinterpreted the Equal Protection clause of the amendment after people, apparently, used it as a basis for the Civil Rights Act. Interpreting it by its legislative consequences is not completely crazy, since the amendment itself says Congress has the power to enforce it by appropriate legislation. In any case, all this happened long before the recent case.
Follow-up, since this may have been unclear: the idea is that the Court may use actions of Congress as a guide to help decide what “appropriate” means. And in my reading of history, courts implicitly decided that the Equal Protection clause must have supported (in part) the 1964 law, therefore protecting against discrimination by gender must count as appropriate. Certainly the authors of the amendment wrote “persons” when they could have written “men.” Since the 2015 case concerns State laws and not private businesses, saying the State needs to give a compelling reason to restrict you from marrying a given person because of your gender seems if anything better-supported than the 1964 law.
The relation to the Civil Rights Act is an interesting observation, thank you. However, if the court did not cite the Act in its reasoning the connection is tenuous. It seems me that the most probable explanation is still that the Supreme Court is applying very lax interpretation which strongly depends on the personal opinions of the judges.
I was actually talking about what I see as the real historical, cultural process by which the Court reached its decision. (Do you not think the CRA influenced personal opinions about equality?) And I’m saying even this process has some legal support.
But I must stress that the necessary interpretation by the courts happened in the 1970s—or at least that would have sufficed—and thus focusing on this 2015 ruling makes very little sense.
I’m no longer sure what is our point of disagreement.
The interpretation of the constitution is changing over time, yes—but it’s mostly changing in terms of being added to, not change for change’s sake. Trying to use the constitution as a way to handle recently discovered new situations doesn’t have to imply that two hundred years of prior interpretation is null and void.
I’m not sure I understand. Homosexuality is not a “recently discovered new situation” by any standard.
Perhaps I was being unclear; I was not referring to homosexuality as the new situation. That would be silly.
The new situation is that society has changed its definition of marriage—from a narrow definition involving just a man and a woman, to a more broad one that ignores gender. Sure, there were always niche groups asking about it, but a hundred years ago there simply wasn’t enough call for it to push it up to the supreme court.
My overall point is that new situations always come up where you’re not sure what to do, and rather than rip up everything when it happens, the courts try to make it fit within the existing framework as best they can. If something -really- doesn’t fit, it’s the court’s job to hackjob it until there’s proper legislation to cover it. But it’s also the job of the court to run triage; they -could- have legalized gay marriage sooner, but they -should- not have done so, because other things were on their docket up until recently that were higher priority.
Who sets the priority of those things that make it through the courts? Society at large, which is why you need ‘new situations’ such as the definition change I mentioned above.
If you want to toss around ‘should’s for why this didn’t happen sooner, there ‘should’ have been more outcry from the general population saying that this was something they wanted, which of course is absurd.
This is LW. Think meta.
You’re implying that the US constitution either implicitly or explicitly refers to changing societal norms and it is within the supreme court’s authority to decide what these norms are at any given time and how to apply them to the law. If this is indeed your intent, I would like to see some support for it in the text of the constitution. It sounds like the court is authorized to interpret not only the law but also the will of people whereas in my understanding the latter should be the domain of the legislative branch.
The main reason it did so was court rulings on this and related subjects. Thus using your definition of “new situation”, your judicial philosophy seems to amount to “the judicial system can rewrite the constitution however is sees fit”.
While I agree that the process seems absurd on the face of it, I don’t think it’s as nonsensical as it appears at first glance.
It’s way, way easier to have a small group of people re-interpret a static text over and over than it is to have a larger group of people, accountable to an even larger group of constituents, write new text that they all agree on over and over.
edit: I guess basically what I’m saying is that democracy is hard and this is a nice out?