Justice Alito unleashes right-wing tirade to the Federalist Society

[Kingpoleon]

The precedent that allows states to make marriage dependent on sex is the precedent that they have been doing so from the beginning.   The dissent in Obergefell considers this and the historical view of marriage and its role to meet a rational basis test.

As to Lawrence, I don't find it convincing, even if I don't want to see anyone arrested just for gay sex.  It does seem like that sort of thing should be unconstitutional, but I'm not sure it actually is absent something like a 4th amendment violation or a procedural (as opposed to substantive) due process violation.   You mentioned chemical castration and I believe that would fall under "cruel and unusual punishment."

Scalia explicitly condemned Lawrence because it treated homosexuality as a non-criminal matter. In this sense, the gay rights movement has toppled the moral approbation just as Scalia feared it would in writing his dissent in Lawrence: no longer does the mainstream conservative, such as you, want gay people thrown in prison.

Frankly, your sense of morality must be very low indeed. “The states had always been allowed to define marriage as that before” and “This violates the Founder’s intents” literally apply to Loving. The state government must demonstrate a compelling interest in restricting who people are allowed to marry on the sole basis of sex because the primary state interest in marriage is that of a contract. If substantial state interest with regards to marriage was not that of the contract, then there would be no distinction by the state between a contracted marriage and a common law marriage. Since there is such a distinction, and the sole point of distinction is a state-issued contract, the state’s regulation of marriage cannot place undue burden unless one party is unable to consent to contracts or if there is a specific familial relationship between the parties.

[🐒Gods of Prosperity🔱🐲💸]

The precedent that allows states to make marriage dependent on sex is the precedent that they have been doing so from the beginning.   The dissent in Obergefell considers this and the historical view of marriage and its role to meet a rational basis test.

As to Lawrence, I don't find it convincing, even if I don't want to see anyone arrested just for gay sex.  It does seem like that sort of thing should be unconstitutional, but I'm not sure it actually is absent something like a 4th amendment violation or a procedural (as opposed to substantive) due process violation.   You mentioned chemical castration and I believe that would fall under "cruel and unusual punishment."

Scalia explicitly condemned Lawrence because it treated homosexuality as a non-criminal matter. In this sense, the gay rights movement has toppled the moral approbation just as Scalia feared it would in writing his dissent in Lawrence: no longer does even the most homophobic conservative, such as you, want gay people thrown in prison.

Frankly, your sense of morality must be very low indeed. “The states had always been allowed to define marriage as that before” and “This violates the Founder’s intents” literally apply to Loving. The state government must demonstrate a compelling interest in restricting who people are allowed to marry on the sole basis of sex because the primary state interest in marriage is that of a contract. If substantial state interest with regards to marriage was not that of the contract, then there would be no distinction by the state between a contracted marriage and a common law marriage. Since there is such a distinction, and the sole point of distinction is a state-issued contract, the state’s regulation of marriage cannot place undue burden unless one party is unable to consent to contracts or if there is a specific familial relationship between the parties.

"even the most homophobic conservative, such as you"   Ok, wow, if that's true, the gays really don't have anything to worry about anymore if I'm the worst they can expect to come across.   good grief

My sense of morality must be very low indeed because ... I think the government has a legitimate interest in marriage itself as a central social institution to be protected and supported and not merely as just another contract??

Loving is in keeping with originalism.  As it stated, "The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States."   

The Court in that case this also sets forth the traditional legal distinction between racial and other kinds of discriminations, in terms of 14th amendment jurisprudence:

In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to
race.

[Kingpoleon]

"even the most homophobic conservative, such as you"   Ok, wow, if that's true, the gays really don't have anything to worry about anymore if I'm the worst they can expect to come across.   good grief

I mistyped that. My sincere apologies - I revised it as per intention. I meant anyone BUT the most homophobic conservative, such as you - IE, NOT the most.

My sense of morality must be very low indeed because ... I think the government has a legitimate interest in marriage itself as a central social institution to be protected and supported and not merely as just another contract??

Loving is in keeping with originalism.  As it stated, "The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States."  

The Court in that case this also sets forth the traditional legal distinction between racial and other kinds of discriminations, in terms of 14th amendment jurisprudence:

In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to
race.

Originalism is concerned with the intent as well as the text of the authors. The intent of the authors was explicitly against the ruling of the Court in Loving.

Refusing to allow marriage on the basis of gender is insanity, and no state statute restricted marriage on the basis of gender until 1974, after seven same sex marriages were legally contracted. Indeed, the precedent for a clerk legally issuing same sex marriage licenses predates any statutes banning it. So at worst, the Supreme Court overturned statutes no more than forty years old.

As for the idea that the distinguishing characteristic is not contractual? It absolutely is. The issue at hand was contractual marriages, not common law marriages. If the issue was a person discriminating on the basis of sex, a lower bar would have to be cleared. However, for a state government to not recognize a contract on the basis of the sex of the parties involved? I find it hard to imagine a state presenting enough reason for such a basis. The state in question suggested as reason that marriage was explicitly recognized for the purpose of procreation, but it is not: otherwise the state would recognize no marriage as valid without children.

[Skill and Chance]

Hopefully this stuff just turns off Gorsuch and Kavanaugh more. 

[Kingpoleon]

Loving is in keeping with originalism.  As it stated, "The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States."  

The Court in that case this also sets forth the traditional legal distinction between racial and other kinds of discriminations, in terms of 14th amendment jurisprudence:

Please explain to me how criminals in prison have a fundamental right to marry (Turner v. Safley, O’Connor, joined by Scalia, all 7 others on said right), subject to strict scrutiny, but gay people don’t?

Turner, in particular, is notable, because it establishes that the right to marriage is not just fundamental, but held to an even higher standard of protection than the right of free speech.

[🐒Gods of Prosperity🔱🐲💸]

Loving is in keeping with originalism.  As it stated, "The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States."  

The Court in that case this also sets forth the traditional legal distinction between racial and other kinds of discriminations, in terms of 14th amendment jurisprudence:

Please explain to me how criminals in prison have a fundamental right to marry (Turner v. Safley, O’Connor, joined by Scalia, all 7 others on said right), subject to strict scrutiny, but gay people don’t?

Turner, in particular, is notable, because it establishes that the right to marriage is not just fundamental, but held to an even higher standard of protection than the right of free speech.

The two are completely different.  With gay marriage, it's not just a question of whether an individual can get married.  The question is whether gender is related to marriage in an essential way, or merely arbitrary, and how same-sex relationships would fit into that.  Prisoners marrying don't raise these issues.

From my reading O'Connor used a reasonableness standard, not strict scrutiny, in Turner v Safley. The difference the Court found was that the communication regulations met this standard, whereas the marriage regulations did not.

[Kingpoleon]

The two are completely different.  With gay marriage, it's not just a question of whether an individual can get married.  The question is whether gender is related to marriage in an essential way, or merely arbitrary, and how same-sex relationships would fit into that.  Prisoners marrying don't raise these issues.

From my reading O'Connor used a reasonableness standard, not strict scrutiny, in Turner v Safley. The difference the Court found was that the communication regulations met this standard, whereas the marriage regulations did not.

The question asked is whether or not states have a right to refuse marriage licenses on the basis of sex.

That’s a very odd reading. A higher standard for regulating marriage and who can marry who is given than regulating speech and who can talk to who. Ironically enough, the liberal dissent says that the ruling’s higher standard for marriage compared to speech defies the fact that speech is explicitly protected by the Constitution.

Furthermore, O’Connor’s ruling explicitly states that marriage is a fundamental right. Fundamental rights are virtually always held to strict scrutiny. In order to oppose the Court’s ruling, one must legally assert that marriage is not a fundamental right - partially overruling Meyer, Loving, Turner, and Zablocki - and that gender is not a suspect classification subject to strict scrutiny.

[🐒Gods of Prosperity🔱🐲💸]

The two are completely different.  With gay marriage, it's not just a question of whether an individual can get married.  The question is whether gender is related to marriage in an essential way, or merely arbitrary, and how same-sex relationships would fit into that.  Prisoners marrying don't raise these issues.

From my reading O'Connor used a reasonableness standard, not strict scrutiny, in Turner v Safley. The difference the Court found was that the communication regulations met this standard, whereas the marriage regulations did not.

The question asked is whether or not states have a right to refuse marriage licenses on the basis of sex.

That’s a very odd reading. A higher standard for regulating marriage and who can marry who is given than regulating speech and who can talk to who. Ironically enough, the liberal dissent says that the ruling’s higher standard for marriage compared to speech defies the fact that speech is explicitly protected by the Constitution.

Furthermore, O’Connor’s ruling explicitly states that marriage is a fundamental right. Fundamental rights are virtually always held to strict scrutiny. In order to oppose the Court’s ruling, one must legally assert that marriage is not a fundamental right - partially overruling Meyer, Loving, Turner, and Zablocki - and that gender is not a suspect classification subject to strict scrutiny.

Part II of Turner is all about establishing a standard.  Based on previous cases, O'Connor notes

In none of these four "prisoners' rights" cases did the Court apply a standard of heightened scrutiny, but instead inquired whether a prison regulation that burdens fundamental rights is "reasonably related" to legitimate penological objectives, or whether it represents an "exaggerated response" to those concerns.

Stevens criticizes this approach (possibly correctly I think).

I am able to join Part III-B because the Court's invalidation of the marriage regulation does not rely on a rejection of a standard of review more stringent than the one announced
in Part II. See ante, at 97. The Court in Part III-B concludes after careful examination that, even applying a "reasonableness" standard, the marriage regulation must fail because the justifications asserted on its behalf lack record support. Part III-A, however, is not only based on an application of the Court's newly minted standard, see ante, at 89, but also represents the product of a plainly improper appellate encroachment into the fact finding domain of the District Court.

You say

In order to oppose the Court’s ruling, one must legally assert that marriage is not a fundamental right - partially overruling Meyer, Loving, Turner, and Zablocki - and that gender is not a suspect classification subject to strict scrutiny.

Yes, marriage is a fundamental right.  This has never meant that there can be no restrictions on it.   

[Badger]

Loving is in keeping with originalism.  As it stated, "The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States."  

The Court in that case this also sets forth the traditional legal distinction between racial and other kinds of discriminations, in terms of 14th amendment jurisprudence:

Please explain to me how criminals in prison have a fundamental right to marry (Turner v. Safley, O’Connor, joined by Scalia, all 7 others on said right), subject to strict scrutiny, but gay people don’t?

Turner, in particular, is notable, because it establishes that the right to marriage is not just fundamental, but held to an even higher standard of protection than the right of free speech.

The two are completely different.  With gay marriage, it's not just a question of whether an individual can get married.  The question is whether gender is related to marriage in an essential way, or merely arbitrary, and how same-sex relationships would fit into that.  Prisoners marrying don't raise these issues.

From my reading O'Connor used a reasonableness standard, not strict scrutiny, in Turner v Safley. The difference the Court found was that the communication regulations met this standard, whereas the marriage regulations did not.

Translated from s h u a. "FAAAGGGGOOOOTTTS!!!"