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PaperclipPerfector  4mo ago (text post)   3244 thread views

Small-Scale Question Sunday for June 22, 2025

Do you have a dumb question that you're kind of embarrassed to ask in the main thread? Is there something you're just not sure about?

This is your opportunity to ask questions. No question too simple or too silly.

Culture war topics are accepted, and proposals for a better intro post are appreciated.

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Apparently some Amish people about 15 years ago were charged with hate crimes for cutting other Amish men's beards.

They tried to argue that the federal government had no constitutional authority to prosecute them, but the judge ruled that since the scissors used to cut the hair, and the vans used to drive to the men, had at some point crossed state lines, this was a valid prosecution under the interstate commerce clause.

I don't really have the time right now to make this into an effortpost for the main thread. But this is crazy. I'm living in crazytown. How we reached the point where such rulings aren't immediate grounds for revolution, I'll never know.

If you like that, then you will love Wickard v. Filburn, where the supreme court ruled that the federal government had a right to prevent a farmer from growing wheat in his own land for his own use because, if a bunch of farmers did that, it would substantially lower the price of wheat in the national market, thus affecting interstate commerce.

And of course, we have all heard about Roe v. Wade and Obergefell v. Hodges, so it's not a problem specific to the commerce clause; a court that can find the right to abortion and gay "marriage" in the fourteenth amendment is a court that can find anything in anything.

If you like that, then you will love Wickard v. Filburn,

I purchased this mousepad my 1L year.

Obergefell is correct. The right to marriage does not distinguish between same-sex and opposite-sex couples just as it doesn’t distinguish between same- or mixed-race ones.

Referencing the shortest AAQC I’ve ever gotten, that is because a same sex marriage is not real under historical understandings of marriage.

What the Supreme Court actually did was impose a new definition of marriage on the states.

I mean, if we had a clean EPC opinion, you might have a case. (Of course, Skrmetti is already casting doubt on whether there's support to push the (often claimed dubious) Bostock reasoning in Title VII into EPC.) But we didn't get that opinion. We got the cluster that is Obergefell. It should be pretty high on the list of people who are pro-SSM-from-a-policy-perspective for "opinions where I agree with the outcome, but disagree with the reasoning".

Is the right to marriage written into the constitution?

As I understand it, Virginia v. Loving says yes.

I will admit that I’m not an expert. But I don’t think the dissents rejected the idea that marriage was a right protected by the 14th. They were more concerned with 1) whether the historical use of the term included the opposite-sex qualifier and 2) whether the due process clause protected positive rights in addition to negative ones. Or maybe that was just Thomas?

As I understand it, Virginia v. Loving says yes

No, I don't care about rulings, I mean the actual text of the actual constitution.

Maybe if one reads the 10th amendment broadly?

I suppose the real question is about what relation the founders would have intended the common law to have to the state governments, and what would they have considered to lie within their powers.

I would say that marriage is firmly under “equal protection under the law.”

That never held water. All people, regardless of their sex or sexual orientation, can marry someone of the opposite sex of any sexual orientation. Gay men are just as free and equally allowed to marry a woman as any straight man. If the gay man doesn't want to marry a woman, that's his choice, but he's legally allowed to.

And pretty much all of the equality under the law anti-discrimination stuff has carveouts for compelling state interests. Like, say, bearing and raising children and ensuring the survival of the species.

Telling gay people that it's illegal to have sex with each other would be one thing: the state intervening in a place where it has little compelling interest or jurisdiction (an argument could be made about preventing the spread of STDs, but it's weak, and promiscuous straight people do that too). But marriage, at least from a legal perspective, is a privilege the state recognizes for people to incentivize the formation of healthy and stable families, which gay people do not do. Arguing it's "equal protection under the law" is like arguing that childless people should get the same tax deductions and/or welfare aid as people with seven children because otherwise you're discriminating against the childless.

This was the same argument that Virginia made in Loving and the court rejected it then. Black people are free to marry other black people and white people are free to marry other white people so what's the problem?

But marriage, at least from a legal perspective, is a privilege the state recognizes for people to incentivize the formation of healthy and stable families, which gay people do not do.

Well, at least that's the conservative fantasy. If you look at the way the laws surrounding marriage actually operate, and have historically operated, it's pretty clear that the legal purpose is to regulate property transfers among family members. The only historical precedent which has to do with natural children is the legal presumption that a woman's husband is the father of her children, absent other evidence. While this may be a useful feature these days, it's no longer a necessary one, as states have been keeping records of these things for over a century, and technology has allowed paternity disputes to be resolve fairly easily. Beyond that, historical laws relating to marriage were based on the presumption that women couldn't own property in their own name, that wealth was basically synonymous with real property, and that widows were likely to be an undue burden on society. Today, of course, we live in a property where women are more economically equal than men, where the family farm isn't the primary source of income (or, realisitically, doesn't exist), cash is more important than real property, birth control exists, Social Security exists, etc. As a consequence, the laws surrounding marriage have changed since the turn of the last century to keep up with the times.

An along the way, we've created a whole host of new rights relating to marriage, notably ones concerning medical matters like the right to make certain decisions and the right of visitation. In other words, as the circumstances surrounding marriage have changed historically, the laws have changed along with it, and if you want to figure out the legal purpose of marriage, you have to look at those laws. If you want to believe in an idealized version where the laws that matter are the ones that have "stable families" or whatever as their obvious goal, you're going to be left with very little.

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This would be an interesting case if some state decided it wasn't going to recognize marriage at all.

Exactly. Maybe there’s something analogous in the way certain states recognize different corporate structures? There are only a few which allow forming anonymous LLCs.

I would say it's a massive rabbit-hole with the outcome being far from certain. How do you determine "equal protection under the law" for people who aren't the same? We're kind of debating it with the trans stuff right now. Does a man have a right to women's facilities, explicitly demanded by various "equality acts", for example? Some people say "yes", other's say "men are not women, so a law demanding the creation of women's facilities does not demand that men are given access to them". I would say that whatever the answer is, it's not written in the constitution, and we should stop pretending that it is.

Roe wasn’t a 14th amendment ruling, it was a right to privacy under the ‘penumbra’ of the constitution. Famously Ruth Bader Ginsburg thought it was badly written and not grounded in anything.

It missed its chance to be the one and only 10th Amendment precedent.

10th Amendment

The one that was supposed to be the most powerful of them all and ended up being the most useless. We've got the concept of "enumerated rights" instead, which is a diametrical opposite of what 10th amendment says. The Federalists were absolutely right - they warned us this will happen, and it happened. Though without the Bill of Rights it probably would be even worse.

The Federalists were absolutely right

The Federalists were against adding an explicit Bill of Rights, and only chose to do so as a compromise. The Anti-Federalists wanted to enumerate the rights, and I think have ultimately been proven right.

The Federalists were against adding an explicit Bill of Rights, and only chose to do so as a compromise.

Yes, but why they were against? Because they argued if you explicitly make a list "there's a right to X, right to Y, right to Z" - and then somebody comes with the question about whether or not the government can regulate R, then people would say "well, it's not X, Y or Z, and there's a list and it must be for a reason, those are clearly more important than others, so R not a real right, it's kinda secondary one, so let's regulate the heck out of it" - completely opposite of what 10th Amendment was intended. And they were right - we hear arguments like these all the time now. If it's not mentioned in the plain text of the Constitution, good luck limiting the government reach into it. The Anti-Federalists were kinda right too, in that that without Bill of Rights, we probably wouldn't be able to hold on even on those enumerated rights either - see Europe as an example. At least this way we got something out of it, even though much less than we were originally supposed to.

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