[tptacek]

I think I just said it's not that clear-cut. :)

Another really helpful thing to remember about the Constitution is that it's incoherent. The framers were not logicians and the Constitution was not an exercise in formal consistency. There are provisions and even rights that conflict directly with each other.

And that's by design, too. The idea is to set up an enduring process that will generally converge, like a good distributed commit algorithm, on the citizenry having access to the channels of power. When that system arrives at a circumstance that implicates a conflicting set of Constitutional mandates, the design of the system is "fuck it, let smart judges chosen (at some remove) by the people resolve that."

The justices are supposed to be referees. They aren't supposed to change the outcome of the game. But anyone who's ever watched more than a couple baseball games knows that it's tough to keep refereeing and outcomes separate.

It happens to make sense to me that (a) allowing MS to deny full faith and credit to MA marriages is overt support for discrimination against LGBT people: it's using an implied principle (respect for people's belief in religious sanctity of marriage) to upturn an explicit principle, and (b) allowing MS to effectively monkeywrench the decisions of other states, so that you're effectively un-married if your job moves you from IA to MS, is undemocratic. So I think the refs made a good call this time. But reasonable people can see it differently.

[DanielBMarkham]

As a libertarian, the less government is involved in marriage, the better. So yay!

But Scalia's argument is the stronger here. And there will be a time when this kind of reasoning is used in a way that will not be good.

Historical sidebar: back in the 90s, there was a rash of state governments passing "defense of marriage" laws. There was one at the federal level. At the time, the best argument I heard against such laws was that they were idiotic: there's no way the federal court system would start mucking around with marriage.

As I said, today's decision is a good thing. But I am very disturbed that many very intelligent people thought this was none of the court's business. For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.

[nmrm2]

> Scalia's argument is the stronger here

Scalia's argument is not new and goes back to before the civil rights era. It was wrong-headed then and it's wrong-headed now.

> there's no way the federal court system would start mucking around with marriage.

And maybe if fed and state governments hadn't felt the need to placate the angry mobs by passing super discriminatory laws, the court never would have had the demonstrable harm necessary to step in and make a ruling.

> For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.

That's kind of the hitch though, isn't it? We wouldn't even need the courts if there weren't always fairly smart people (smart enough to get elected, at least) who disagree that minorities should have Rights.

Court decisions to confer Rights are tricky because the procedural question is exactly the substantive question -- if Gay people have a Right to marry, then the court has no choice but to step in. And if they don't, then the court has no choice but to stay hand off. And whether they have that Right depends, basically, on your opinion. As Kennedy pointed out, the due process and equal protection clauses were written in an intentionally non-explicit way.

Edit: For example, it would be absolutely insane today for us to imagine the equal protection clause not providing a basis for banning discrimination based on race. Obviously, either our constitution forbids that practice under the Fourteenth Amendment or else our Constitution is seriously, seriously flawed. Right? Right. Now, go read the Plessy v. Ferguson decision.

[kenjackson]

There is a clear distinction between granting rights and denying rights. The Supreme Court should not be actively denying rights to people, unless it is clearly called out in the Constitution or state law. This is not one of those examples.

And thus far this court has been fairly consistent in granting rights broadly. This ruling stands in that tradition, but this time in a direction ideologically opposed to the right.

[humanrebar]

That's inconsistent with history. Off the top of my head, the Supreme Court ruled to deny rights in the Kelo and NFIB v. Sibelius cases.

[tptacek]

The Supreme Court generally doesn't deny rights. It takes things off the table from legislatures, or puts things on the table.

[scott_s]

You may be interested in "On Constitutional Disobedience" by Louis Michael Seidman (http://www.amazon.com/On-Constitutional-Disobedience-Inalien...). He wrote a NY Times piece which is the short version of his argument around when the book came out, "Let's Give Up on the Constitution": http://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-th...

Seidman is a professor of constitutional law at Georgetown.

[tptacek]

I listened to him talking about that book on Econtalk. It was interesting, though I didn't find much to agree with in it.

[hackuser]

> The idea is to set up an enduring process that will generally converge ...

Could you recommend any books on these issues?

EDIT: Thanks!

[tptacek]

Yes! I really, really liked Ely's _Democracy and Distrust_. I don't know how current its ideas are (it's from 1980), but someone recommended it on some legal thread somewhere and I found it both super easy to read and also very illuminating.

Here's Posner on it, FWIW:

http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?artic...