1) The political implications of this may be pretty significant. Though the numbers didn’t disfavor the GOP until more relatively recently, this issue was singularly a stumbling block with the GOP towards a significant portion of the electorate with outsized influence. They’re not going to go flocking to the GOP now, and wouldn’t if the GOP had switched sides sooner, but going forward more people might actually be willing to hear the GOP out. This, combined with the disparate impact in housing ruling (which may damage the Democratic Party in the suburbs), has enormous potential consequences for future political alignment.

2) I would have preferred that this be settled democratically, but some of my earlier concerns about bypassing public opinion hold less weight since public opinion on the issue has shifted. While marriage tends to be a state issue within certain parameters, this is a case where a patchwork of wildly different laws was not tenable. So I find myself not particularly inclined to get upset at the “judicial activism” here. As a practical matter, it is time.

3) I am happy with the result, though less than happy with the ruling itself. I wish that Kennedy had used a different bases for the decision. I’m a bit surprised that Roberts didn’t go along, though that might have been with the comfort of the outcome not being in doubt and had Kennedy waivered, he might have switched. Many of Roberts’s criticisms about the nature of the ruling seem on-point. I’m not worried that public approval of SSM will lead to public approval of polygamy, but am worried that this ruling may allow public approval to be bypassed.

4) That this was settled the way it was is due in good part to a failure of opponents to read the very clear writing on the wall and navigate the situation better once it was clear how this was going to turn out in the long run. Sometimes compromise puts you in a worse position by moving the Overton Window, but sometimes – as in this case – you’re merely propping up a dam that would will only burst with a greater flood when it comes down.

5) A significant chunk of the Democratic Party should be pretty ashamed of themselves. This all could have happened sooner – and with more democratic legitimacy – if they’d shown an ounce of courage on the issue. I’m not even talking about 2004 when there was a significant price to be paid, but between 2007 and 2012 when there wasn’t a huge price (or maybe even a price at all), and they declined to pay it anyway. They could have helped drive public opinion.

6) Twitter was pretty depressing. A lot of liberals seem less happy about their victory than that the other side lost. A lot of otherwise pragmatic conservatives seem to want to dig in rather than say “let’s move on.” This is in contrast to Facebook, which for once actually seemed more grounded in its response.

7) I don’t have a particular problem with states wanting to change the marriage process to avoid clerks being required to issue marriage licenses to marriages that they disapprove. I didn’t object wildly to plans in Oklahoma to do this, and I thought Alabama’s plan made good sense. The latter didn’t pass, and now we’re in a situation where clerks are refusing to do their jobs and gay couples are either left in limbo or having to county-shop when they shouldn’t. The likelihood of this ruling was known well before know. The time to make these provisions was this spring, when legislatures were in sessions. If you didn’t do it then, that’s not anybody’s problem but the state’s. If they want to try again, they can, but until then the county clerks need to do their job or be removed from their post. I support a right of any pastor – whether at a church, running a business, or itinerant – to refuse to perform these services. But public officials are public officials. A judge or JP may have absolute discretion over with whom to conduct ceremonies, but a clerk should issue licenses or file them without regard to personal beliefs. Our government simply can’t function otherwise.

8) I am unclear on what the social status of a rainbow confederate flag is (which I saw in several pictures during the brief window when gay marriage was previously allowed in Alabama).


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29 Responses to Eight Notes About the SSM Ruling

  1. trumwill says:

    I will hedge on #4 a bit, especially as it pertains to the GOP in particular. I’m not sure anybody, including myself, appreciated how little time they had in 2012. It could well me that they looked at the situation in 2012 and realized that they were going to have to modify their position over time, but thought that they were looking at some time after 2016.

    The same applies, perhaps, to opponents off SSM more generally. Not realizing how badly they were going to lose and how much they needed to be concerned about cutting their losses.

    But some of this is 20/20 hindsight.

  2. Tod Kelly says:

    A few randoms of me own:

    1. I know how people hate the comparison, but listening to the radio today and hearing numerous reasons by a variety of different host, guests and callers for why the ruling was a blow for America/Democracy/Liberty/etc., what I couldn’t stop thinking was this: “That argument is one that also calls for us to strike down Loving.”

    2. “A lot of liberals seem less happy about their victory than that the other side lost.” It’s no doubt uncharitable, but the few times I go through the comments at BJ I find myself thinking, “If these people had a chance between having the Right wake up tomorrow and agree that LGBTs deserved the same rights as the rest of us and having them dig down further in fighting those rights so they could continue railing against them, I’m not so sure they’d pick correctly.”

    3. I’m very much with you on #7. It’s more of a case of “I just don’t see how you get around them having to do it” than anything else.

    4. I’m also in agreement on #5, and not just on this progressive issue. I think in general the Left in general (and the Dems in particular) are allowed to be amazingly lazy simply on the basis that they look so much more progressive in comparison to the other options.

    • trumwill says:

      With regard to my #7, the Alabama plan was basically that no licenses needed to be issued and so clerks didn’t need to issue them, but clerks would be required to hand out blank marriage forms and file completed ones. Which is apparently what they did up until 1975 or so.

      Utah came up with something that was satisfactory to both LGBT activists and clerks, but I’m not sure what.

      Also, on my #6, I should not have used “liberals” and “conservatives” as much as “supporters” and “opponents” as there were libertarians on both sides.

  3. Peter says:

    It will be intestine to see whether the divorce rate in same-sex marriages will be as depressingly high as for regular ones.

    • Peter says:

      Interesting to see. Freakin’ autocorrect.

      • Murali says:

        There is no particular reason to expect gay people to be any less petty, shallow and venal than straight people. I suspect that it would be patronising to expect them not to be.

        • James Hanley says:

          There may be a marginal difference as gay people are less likely to marry hastily in response to an unplanned pregnancy. But very marginal.

        • Mike Hunt Ray Rice says:

          Being a Democrat, I see first-hand how obnoxious, smug, and intolerant most liberals are, so I wasn’t surprised in the least.

  4. Jaybird says:

    One thought that I’ve had:

    I wonder what the demographics of SSM are going to be.

    If you look at, say, the demographics of marriage, you’ll notice that there are parts of town that have a lot more marriage than other parts of town.

    I’m guessing, though I’m not certain, that we’ll see similar things happen with SSM. This part of town will have a bunch of them… that part of town won’t see that many at all.

    (Secret hope: that part of town will actually start having SSM because there is now no reason *NOT* to… and this will start a mini-boom of “maybe we should get married” kind of conversations. This is my na├»ve and storybook part of me secretly hoping and I fully expect to be disappointed.)

  5. Jhanley says:

    Re: #2. I would have preferred it to be done democratically as well, because I prefer that the demos treat everyone equally. But if the demos doesn’t, to hell with them. It’s the job of the Supreme Court to check the demos and its representatives when they deny minority rights.

    Re: #7. My understanding, which could be wrong, is that Alabama clerks are being urged to refuse to give out any marriage licenses, period. Which, if that’s the case, means not just gay couples would have to county shop, but straight couples, too. Which means that form of protest should last just about until John and Jane want to get married and find it difficult to get a license.

    Re: #3. I thought Roberts’ dissent was weak. He put great emphasis on the purpose of marriage being for procreation and child-rearing, but he never once copped to the fact that tens, if not hundreds, of thousands of same-sex couples are raising kids, and have been for a long time. The particularly gross irony is that reportedly his own kids are adopted, so by his logic he deserves marriage less than a same-sex couple raising a kid who’s the biological child of one member of the couple. His argument’s a thoroughly dishonest and vile sham.

    Re: also #3. I didn’t like Kennedy’s ruling. Criticisms that it was longer on nice phrasing than on clear legal logic are correct. Also, I really disliked that he made substantive due process his primary basis and equal protection his secondary basis rather than vice versa. With the substantive due process argument it seems that there’s a necessary conclusion that government recognition of marriage–not same-sex marriage in particular, but marriage in general–is a fundamental right. That sounds like nonsense to me. Far better, I think, to rely on equal protection and say that if government is going to grant legal recognition of marriage and provide benefits it cannot discriminate in doing so.

  6. Mike Hunt Ray Rice says:

    I think this case proves once and for all that Scalia is the wittiest of the justices. Jersey strong ­čÖé

    • James Hanley says:

      He is, but I don’t think he gave a good showing in this case. It was pretty sophomoric wit, well below his peak achievements. I think he’s worn down and more and more is resorting to petty snark rather than incisive wit. He’s like an aging rocker who can no longer write a good kick-ass rock song but churns out ballad after ballad. My wife and I call it “going Sting.”

      • Mike Hunt Ray Rice says:

        Fair enough, but 2015 Scalia still beats out his brethren.

        • James Hanley says:

          For witty writing, yes. Also for childish tantrums and for always doing his best to minimize his influence on the Court.

          He’s SCOTUS’s typical blog commenter, using all caps and never persuading anyone who didn’t already agree.

  7. gregiank says:

    # 5 Well at least they are usually consistent about that.

    # 6 Sort of meh. I’m sure there was a lot of rubbing it in the faces of R’s. But gays have been the target of so much viscous hate over the years i’m not really surprised they are reacting back that way. It shouldn’t be a real surprise, that is people. And it is twitter, so you have to assume a lot of stupid.

    # 1 Many of the R prez candidates are digging themselves a deep hole that will continue to drag them down with the public. I never thought the Hucker was a serious candidate, but him and Cruz and even a joke like Trump are powerful for the R brand.

    • trumwill says:

      Two of the three “clear path to the nomination” candidates had “let’s move on” responses. The ones making the most noise are those most desperate to be heard.

      • James Hanley says:

        Well put.

      • gregiank says:

        Oh yes, very true. But part of the problem the R’s have had is they get branded by the views of their loudest and most desperate voices. People hear what many of them say. They also serve to keep a good portion of the R base riled instead of moving forward.

        • trumwill says:

          You seem more concerned about the riled base than the two main candidates who actually have the most to fear from the base.

          What does that tell you?

        • greginak says:

          Hmmm I’m sure i understand your response. I think it would best for all concerned, except for D electoral considerations, for the R’s to move on. That some loud R’s will continue to fight this is a boon to Hillary and D pols, but it would be better for gays and the country to just move on and make it work.

        • trumwill says:

          It means that SSM is no longer a live issue. Noise will be made in some quarters, but the issue has lost its salience. It’s the law of the land, and it’s more likely than not that yesterday the next party nominee just said “Let’s move on” without much fear of negative political impact within the party for doing so.

          And that’s right now, just after the ruling as tempers within the party are running high. What are they going to say a year from now?

          The good news is that liberals won this battle, which is just fantastic. And a permanent victory, even. The bad news is that it’s hard to have a victory and a battle at the same time. The issue just lost most of its salience.

        • gregiank says:

          That seems reasonable i hope the issue does fade away. If people let almost nobody will ever know the difference except for those who can get married.

          Are you still coming though Anchorage at some point?

          • trumwill says:

            Argh! Sorry, man, I never followed up. Turns out it is going to cost about the same to fly straight to Fairbanks so that’s what we’re going to end up doing. So we’ll be in Anchorage, but we’re not leaving the airport.

        • gregiank says:

          Okay….i’d have been surprised if it was cheaper to stop off here instead of just going on to fbanks. It’s only another hour. I’ve haven’t heard of people laying over in Anch unless they wanted to. Fbanks is a nice town although i’ve only been there in the winter. Hopefully the weather is decent and there aren’t to many fires.

        • trumwill says:

          Oddly, when we were looking a while back, there was a pretty steep discount flying in to Anchorage. But then when we purchased tickets, the discount was marginal… but pretty much all of the flights have us stopping in Anchorage. Which, combined with the mandatory stop in Seattle (or somewhere else on the West Coast), meant we were basically choosing a 3-legged or 4-legged flight.

        • gregiank says:

          Yup…we can usually find flights back to anchorage from the east coast in 2 flights. So getting to Fbanks is going to be 3. Four flights….gah….ack. Anchorage is a pretty fair sized hub that you can rarely if ever get to directly without going to another hub ( seatac, portland, Minneapolis, SLC)

    • Mike Hunt Ray Rice says:

      You have been misspelling your name throughout most of your posts on this topic.

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