[elmin]

If that's how the equal protection clause works, why was it necessary to pass the Civil Rights Act as a law or Woman's Sufferage as an amendment? Based on the state of civil rights at the time, it's clear that the founding fathers did not intend the constitution to provide universal equality for all peoples.

I agree with this decision, but not because I think it's justifiable under the constitution. I see it as acceptable because I believe one of the unspoken roles of the Supreme Court is to be a group of 9 people who are a bit more wise than the average American.

[ddoolin]

Even though Scalia probably agrees with your unspoken rule, he doesn't reach the same conclusion because of it:

(Scalia, I): "...Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers, who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation..."

[themartorana]

There's an often referenced and interesting argument from the TV show The West Wing where a republican woman argues against the ERA (Equal Rights Amendment) based on the same question - passing an amendment saying women are equal somehow implies they weren't under Article 14 of the Constitution.

https://www.youtube.com/watch?v=PQIkLTLf_IQ

[hackuser]

> the founding fathers did not intend the constitution to provide universal equality for all peoples

In fact, they agreed that some people should be slaves to others and only landholding white males should vote. But the founding fathers intentions are not decisive or necessarily even important (and relying on grasping their intentions is, as I understand it, is not a legal principle but just one philosophy of many).

To emphasize the difference in perspectives: This is not a religion; the Founding Fathers are not gods, and they did not hand down scripture to us. They were the citizens of their day, they did what they did (I think they did very well), and we are the citizens of our day, to do what we think best. That's the essence of democracy; the Constitution and country are now ours, not the property or responsibility of 18th century or 19th century or any other ancestors; they belong to the people, to make of it what we will.

If you think about it, it's a very conservative and pessmistic idea to say we must appeal to these ancient authorities to decide things for us, that we can't do it ourselves just as well (and if you read about the people and politics of that era, you will see they were no different than us). A more optimistic and I think democratic point of view is to say (it's a well-known idea but I don't know who I'm quoting ...), "We are the ones we've been waiting for'.

[chc]

The point is not that the Founding Fathers were mortal incarnations of the divine. The point is that the law has to have a meaning or else it is literally meaningless. If we use the law like tea leaves and just read in whatever meaning we want, whether or not it's what the law is actually supposed to mean, that puts us in a precarious position. Maybe today "equal protection" means that gays should be allowed to marry, but tomorrow it means that everyone should be equally protected from being hit on by gays. That's not a good footing for our society to be on.

[drivingmenuts]

> That's not a good footing for our society to be on.

That's actually very good footing for our society to be on. It means that the law can change as society changes over time. Future societies will not be bound to outdated precepts established by people who have never lived in their world.

We tend to think of laws as these unchanging concepts, perfectly created, but they are not. Ultimately laws are created by mankind and interpreted by the same. We may believe that they derive from a higher power, but we have no absolute proof of that higher power and thus, the law must begin and end with Man.

If some deity is willing to descend to the mortal plane and lay down The Law, then he/she or it welcome to do so. Until then, we are stuck with the best that we ourselves can do.

[sfeng]

It's the job of the legislature to change the laws, not the courts.

[hackuser]

> It's the job of the legislature to change the laws, not the courts.

Not according to our system of laws.

The courts are empowered to change laws that conflict with others, particularly with laws superior to the one in question; in this case the laws in the Constitution overrule state laws.

Also, the courts are responsible for interpreting laws, and therefore can change them in that way too.

[hackuser]

> We tend to think of laws as these unchanging concepts ...

I think the best analogy here is, people tend to think of them as code.

[claudius]

> That's the essence of democracy; the Constitution and country are now ours

But isn’t that exactly the point? As I understand the various previous posters, the main argument is not whether the constitution should ensure a right to marry for everyone, but whether it does give out this right.

Further (again my interpretation), it seems that the issue is that the previous interpretation of the constitution did not allow for homosexuals to marry – otherwise it would have been allowed before. ‘The People’ now want to give out this right, but: should it be granted by a court deciding “This sentence, which previously was interpreted as X, now means Y” or should it be done by a change of the actual constitution?

Additionally, does this ruling imply that homosexuals were always allowed to marry (i.e. the constitution/law always allowed it, it was just misinterpreted by the courts) or does it mean that the law has now suddenly changed? Then, should such a change of law be implemented by a court or via the usual democratic process?

(I don’t understand the common law system and the US enough to give any answers to these questions, but they do seem interesting.)

[hackuser]

Good questions. Essentially, I think the idea is that meanings change with context, but at the same time words don't allow just any interpretation.

[steego]

The Civil Rights Act was not a prerequisite for interracial marriage. It was decided in Loving v. Virginia. (http://www.oyez.org/cases/1960-1969/1966/1966_395)

A constitutional amendment was necessary for women's suffrage because the constitution already spoke on the issue