Not Even Wrong

On Friday morning instead of work (shh), I read this article that was linked to SCOTUSblog:

Correcting Six Mistakes from the Same-Sex Marriage Oral Arguments Last Week by  James Phillips at the Witherspoon Institute.

I thought it was going to be interesting and soon discovered that it was in fact interesting, but for the wrong reasons.

To get the discussion going in the right direction I want to lay out some terms. Before I dissect this article, I want to quote Black's Law Dictionary on marriage: "The essentials of a valid marriage are (1) parties legally capable of contracting marriage, (2) mutual consent or agreement, and (3) an actual contracting in the form prescribed by law."


Section 1. "Error Number One: Massachusetts Marriage Rates Have Stayed the Same"

Alright, let's do this. Whatcha got:

"During the questioning of Michigan’s attorney, John Bursch, Justice Sotomayor commented that 'In Massachusetts, we’ve got data that it’s—the rates have remained constant since they changed their laws...' Justice Sotomayor is only correct if Massachusetts includes same-sex marriages in that number."

Sorry that's not an error. What she said was factual.

"The marriage scholars were also able to obtain data on opposite-sex marriage rates from three other states that have legalized same-sex marriage, and they likewise have seen declines: Vermont (-5.1 percent), Connecticut (-7.3 percent), and Iowa (-9.2 percent)."

Over the same period of time based on CDC figures the average change in marriage rate for states that did not allow same-sex marriage is -13.07 percent. Even assuming all of these numbers are correct, the declining marriage rate is still slower in the pro-gay states. Has same-sex marriage led to the appreciation of marriage among heterosexuals? No, there is no mechanism for this to occur. If you want to understand long term marriage trends look to anthropology and economics for the answer.

Call me old fashioned, but I believe that at least your first point should be valid, particularly when you are calling people out for being "wrong."


Section 2. "Error Number Two: Because Some Men Leave Their Wives and Children, Marriage Does Not Help Keep Fathers Around"

True, Justice Sotomayor makes a logical fallacy; however a logical fallacy does not make an assertion incorrect. For example the non-sequitur statement "if there are 2 apples and 2 oranges, and ass-fucking is fun, then there are 4 pieces of fruit" does not discount the truth of 2+2=4.

My point being prove the correlation or shut the fuck up.It doesn't matter that Justice Sotomayor made a logical fallacy, since the base statement wasn't proven to begin with.

Further, this section is pointless as it has little bearing on anything. It would possibly have meaning if the first section were correct, because if same-sex marriage caused a decrease in straight marriage, and marriage "keeps fathers around"... I would dig up some facts to find out the truth of the assertion made by Michigan, but it is absolutely pointless. So, I'm moving on.


Section 3."Error Number Three: The Purpose of States’ Recognizing and Regulating Marriage is to Bestow Dignity on Couples"

I actually agree with this entire section:

"Justice Kennedy expressed surprise when Mr. Bursch argued that the states are not in the marriage business to bestow dignity. Justice Kennedy responded: 'I don’t understand this is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. It’s dignity bestowing, and these parties say they want to have that—that same ennoblement. Or am I missing your point?'Yes, Justice Kennedy was missing the point. He was confusing the reason that a couple may desire to be married with the reason that a state would want to recognize and regulate marriage. Those are distinct.

The funny thing is that this bit undercuts pretty much every argument against same-sex marriage.If marriage doesn't bestow dignity, then it's a bundle of rights and obligations.

And what constitutional basis would the government have to deny a class of people rights and obligations?

See where I'm going with this. Good. If marriage bestows dignity the government cannot take it away, and if it is an institution that bestows rights and obligations the government cannot take it away.


Section 4."Error Number Four: The Only Harm to Legalizing Same-Sex Marriage Is Making Marriage More Adult-Centered"

Another laughable section. Even the title is funny as no one argued this.

The rest of the section is conservative butthurt over changing social mores. To paraphrase Heraclitus, go suck a dick change is the only constant.

Get fucking over it.

Also, way to be total fucking dick bags towards adoption.

And thirdly, no-fault divorce is a problem? Nice can o' worms ya got there.

PS. This is section is largely opinion... not really a subject to error.


Section 5. "Error Number Five: There Is a Parallel between Brown/Loving and Lawrence/Obergefell"

Yes, yes there is a definite parallel between civil rights cases.

"At the time of Loving, state prohibitions on inter-racial marriages had been in existence in only some of the states, and then at most for about 300 years if we go back to colonial times in Virginia and Maryland. But man-woman marriage has been the law in every state since the birth of the nation—and in every Western nation for millennia."

Umm... so gays have it had it historically worse and this proves that it's not discrimination? I'm not following your point. Not really even a point I guess. Further more the parallel was established and the article only affirms it.


Section 6. "Error Number Six: Age Restrictions on Marriage Are Equivalent to the Definitional Element of One Man and One Woman"

This is another dumb one to argue. Age restrictions are constitutional; by disassociating age restriction from the definition you're only hurting your position. But that's just the title.

Let's look further:

"Several of the justices questioned whether there was a difference between recognizing exceptions to age restrictions and recognizing same-sex marriages.In short: yes, there is. Not all exceptions are equal. Age has never been a part of the definition of marriage."

Umm... consent isn't apart of the definition of marriage... funny. It's like a someone said something contradictory earlier... like in the actual definition of marriage...

The main reason age is a restriction to marriage is because of consent. The concept of consent makes the restriction rational.

****

To sum up the article, ignore every economic reason for a falling rate of marriage to pin it on Griswald, Loving, Roe California adopting No-Fault Divorce, queers getting hitched. It also unquestioningly assumes that a declining marriage rate is bad. It ignores human history and the constant flux of morality.In short the article is sloppy, ignorant, and fails to make a coherent point.


Ok I'm bored now.

Check out the other article linked to SCOTUSblog, which is Lisa Keen's article on Obergefell v. Hodges.


Laim '15

Why?

On August 22 for SCOTUSblog Lyle Denniston wrote an in-depth article on divining the will of the Supreme Court in regards to certain types of same-sex marriage:

Since early this year, the Supreme Court has stepped back into the same-sex marriage controversy five times.  While it has done little to explain those actions, it has sent some signals about its thinking.  Its most important signals may have been those it appeared to have sent Wednesday, in putting off the issuance of marriage licenses to same-sex couples in Virginia.

Between the nine lines of that order, the Court implied that it will not be rushed into a decision about which, if any, cases it is going to review.  And it left no doubt that the Justices themselves, not the lawyers or their clients, are in charge of the timing.  The Court, in short, has not yet gotten caught up in the race to settle the basic constitutional issue just as soon as it could possibly do so.

Just as a refresher, the Supreme Court upheld the stay for the 4th Circuit and the 10th Circuit, but has allowed marriage to proceed in Pennsylvania and Oregon based on the logic put forward in Hollingworth.On the face it does appear to be a bit of a mix signal. The article goes on to say:

The Court had been urged, by all sides in the Virginia case, to speed up the process of finding a case for review by turning a simple request for delay into an actual, formal petition — a move that could have cut short several procedural steps, and set up the Virginia case as a prime candidate for review.

The Court silently refused the suggestion, simply delaying things in Virginia until after a county clerk actually files a petition for review, in the usual form and on the usual timetable.  That was a clear sign that the Court was doing its best to act as if it were business as usual, even on this hot constitutional controversy.

Obviously it would be nice if the Supreme Court would speed up the process, yet it is the Supreme Court. Perhaps the entire circumstance can best be summed by the sentence, "That was a clear sign that the Court was doing its best to act as if it were business as usual, even on this hot constitutional controversy."

Is a grant of review a certainty in coming months?  There is never a sufficiently strong advance signal to predict that.

In a weird way this article tells us everything and nothing. I do not find it unusual for the the Supreme Court to resist from being pushed into doing anything. And as for giving signals, the Supreme Court is notoriously leak-proof. 

There are two issues that emerge after reading the article: will the court even take up the issue and its significance; and why is there such a sense of urgency around this issue.

After reading the article, it is apparent that certiorari is not guaranteed. Due to the massive number of federal cases that have moved in the last year, it is tempting to say the Supreme Court will act; even though as Mr. Denniston has pointed out, marriage equality is a "hot constitutional controversy."

Though it is unlikely, what would it mean if the Court were to deny certiorari? The practical effect is that all the jurisdiction where marriage equality has been acted on by a court, but where a stay is in place, same-sex marriage will be legal. So if certiorari were denied tomorrow, the map would look like the following:

86.4% of American would live in a state with marriage equality. 

Denial of certiorari would probably be the greatest failing of the Robert's Court. It has been 47 years since Loving v. Virginia and now is the time. I mean for fuck-sake, Felons in prison have a constitutional right for 26 years when the Court granted it in Turner v. Safley, 482 U.S. 78 (1987). Felons before gays... felons, you know the people who can't vote because the have done bad things, people segregated from the rest of the population and locked away because they have done terrible things. They can get married. So, yah, if they don't act fuck 'em.

Addressing the second question, the urgency of the issue comes from the opposing sides, each with their own motivations.  The marriage opponents want the Supreme Court to put a quick end to the spread of marriage equality. The longer lower courts are able to issue pro-equality rulings, the more jurisdictions will issue pro-equality rulings.

For the marriage supporters, it is an issue of cruel fact that every minute of life counts. According to the CDC in 2011 In the US there were 2515458 deaths. Based on the controversially low CDC figure, 1.6% of the population is gay. Currently 43.5% of the US population lives in a state where same-sex marriage is currently available (places where gays can walk on down to the county clerk and actually get married.)

Therefore, around 62 gay people die each day unable to get married, or around 22,740 per year.

This year, two prominent women in the equality movement died. In March, Vernita Gray, who married Pat Ewert in Illinois, unfortunately passed away. While earlier this month, Fredia Hurdle, who was among the Plaintiffs in the Pennsylvania case, passed away unexpectedly before she could marry her partner of 24 years. My morbid point is that everyday for a large number of Americans, our rights come too late.

Liam '14