The marriage decision

In this half-hour Cato podcast, Caleb Brown interviews Roger Pilon and me on yesterday’s decision in Obergefell finding that states are constitutionally obliged to extend marriage to same-sex couples. I touch on some topics of wider interest (no, I don’t think polygamy is next; the Justices write and behave differently when it’s a really big case; the law’s treatment of churches mustn’t depend on whether their theology suits the government’s taste or not). And lots of more specialized points, such as Roberts’ weird demonization of the famed Lochner case in his dissent (“gay marriage and laissez-faire capitalism, peas in a pod!”), what I call Kennedy’s “gin and tonic” method of mixing Due Process with Equal Protection, and a remarkable story by Roger of getting Scalia to admit he doesn’t think the Court was correct when it recognized a constitutional right to send one’s kids to private and religious schools.

P.S. And here’s a video version of the same conversation:

The Jason Kuznicki paper I mention — on how legal practicalities undercut the idea of the government “getting out of marriage” in the sense of not attempting to certify who is married and who not — is here.

More links: Ilya Shapiro reacts at Cato (which had filed an amicus brief on the winning side urging an Equal Protection rationale, written by William Eskridge Jr. of Yale Law, Roger Pilon, Ilya Shapiro, and Trevor Burrus). David Bernstein has a lot to say about the continuity between Obergefell and the pro-individual-rights tradition of jurisprudence overthrown by the New Deal. Among those who approve of the outcome but would send the whole thing back for editing are Timothy Sandefur and Ilya Somin. Evan Bernick (writing before the decision) on the need for strong religious liberty protection. And David Boaz on how libertarians were there long, long before most others caught up. “The Libertarian Party endorsed gay rights with its first platform in 1972.” That’s not a misprint: 1972.


  • Religious conservative objections to “invented law” and “usurpation” were missing one key element– a coherent explanation of harm they would suffer from the legalization of same-sex marriage.

    • So invented law and usurpation are fine unless someone can demonstrate individual harm?


    • They shouldn’t have needed to show that, and you don’t need to be religious to raise those “invented law” objections. It’s ridiculous to say that gay marriage is a due process thing. The process they are due is the legislative one.

      • Why? People would like to be treated equally. Doing so would confer significant benefits on them while causing not one iota of harm to anyone else. What then is the point of the 14th Amendment if not to address precisely that kind of situation? Where the end of slavery pit the rights of slaves against the property rights of slaveholders, gay marriage pits the rights of couples of marry against absolutely nobody (except uninvolved busybodies who think they should interfere).

        • Doing so would confer significant benefits on them while causing not one iota of harm to anyone else.

          Untrue. If I own a company and have benefits, my expenses just went up. If the government is going to give more tax breaks, either everyone else’s taxes go up or the debt goes up. That’s not even getting into the religious freedom stuff, which is actually important.

          And “it isn’t hurting anyone” doesn’t mean I automatically get to do something. If I wanted to adopt a 40 year old, I wouldn’t be able to, because that’s not what adoption is, even though it would be blatant “age discrimination” and “wouldn’t hurt anyone” and might give us “significant benefits”.

          People would like to be treated equally.

          A gay man could have married almost exactly the same set of people I could have married. The difference only being that he wanted to marry someone not in that set.

          What then is the point of the 14th Amendment if not to address precisely that kind of situation?

          The 14th amendment was put in place during a time when certain people were prohibited by law from, say, learning to read. The framers of the 14th would never have passed it if they had known it would be used for this.

          • First off, get your facts straight. In many states you can adopt a 40 year old, if he is willing.


            AFAIK, this doesn’t accomplish anything except make the adoptee (one of) your default heir(s), and make sex or marriage with him or her illegal. It would seem to be simpler to just write a will (except where the law requires some portion of your estate go to your children), but adoption might avoid some estate taxes.

            Two examples outside the US:

            1. In Japan, it is a common way of transferring ownership of a family business, when the owner is childless or his heirs are not willing and able to take over management.

            2. In the Roman Empire, most emperors chose their successor through adoption rather than passing the throne down to their children. They usually adopted an adult, to ensure that if the emperor died prematurely, the heir was not a child who could not defend the throne.

          • In many states you can adopt a 40 year old, if he is willing.

            I didn’t say you couldn’t do it in many states, I said I couldn’t. And I was wrong since it is allowed in my state, but you had no way of knowing that 🙂

            But my point, which was “‘it isn’t hurting anyone’ doesn’t mean I automatically get to do something”, stands, because states have the right to restrict adoption to minors, and some do, and some allow adult adoption but limit its effects. You have a right to have children, but not necessarily the children that you want, even if all parties are willing. In the same way, I believe you have a right to marry, but not necessarily the spouse that you want, even if all parties are willing.

  • In reading the coverage on SSM, what I have seen omits the failure on Justice Ginsburg’s part to recuse herself after flagrantly presiding over same sex marriages while the issue was before the court. Curious that these unseemly acts on her part have not drawn more criticism, but what do we mere mortals know about recusal?

    • None of those marriages were in states that were at issue in this case. They were perfectly ordinary weddings that could have been performed by anybody authorized by the state to solemnize marriages. By your logic, should the justices avoid ATMs for several months if a case involving banking comes up? Should they refuse to pay their income taxes if a tax case is granted? Should they be permitted to be near firearms when a 2nd Amendment case is on the calendar?

    • Ann Althouse also has some thoughts on the flimsiness of the Ginsburg-should-recuse demands (which echo similarly flimsy demands from some on the Left that conservative Justices recuse from various cases because, e.g., Justice Thomas’s wife has worked for conservative groups):

  • The harm is to the Rule of Law.

    If the Supreme Court continues to rule on cases according to their own policy preferences rather than the text of the relevant laws and Constitution then we end up with an unpredictable legal climate that benefits nobody. What’s the point of having legislatures if the courts can ignore the text of the laws they pass?

    We are supposed to have a Federal Government of limited & defined powers. Marriage (or the definition thereof) is not a part of any of the defined powers and thus according to the 10th Amendment is reserved to the States or to the People.

    States have handled marriage for the last 225 years. They should have been left to do so.

  • It would — I should write “does” confer significant benefits. It confers the right to inherit property from each other without taxes, to enjoy pensions, including Social Security in common and after the other has died. I am a single man. After I go, all my benefits end with me, my estate has death duties imposed on it that reduce what my heirs get. Everyone pays for that. Yes, I know, it’s government money, so “no one pays it”. It’s free money. At least until we run out of it.


  • For lower courts, a judge can recuse himself with some confidence that a bad decision will be corrected by an appeals court. Justice Scalia may have been the first to recognize explicitly that there is no appeal for a bad decision from a USSC ideologically skewed by recusals.

    Scalia’s safeguard against abuse is heightened public scrutiny. But what about a case where the conflict of interest is real and serious? Perhaps a USSC justice should be allowed to have an appeals judge on tap to vote in his place ( but not to draft opinions).

  • Can you comment on the decision some states have taken to stop issuing all marriage licenses?
    Particularly if you think more states will follow suit and whether the federal government will try to force/persuade the states to issue licenses or issue them themselves.

    I see removing all marriage licenses as a generally good thing, though possibly done for the wrong reasons.
    I suppose it does validate the slippery slope that some feared.