Tag Archives: SCOTUS

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Do Supreme Court justices understand the reasons for traditional marriage?

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This article from the Public Discourse takes a look at the oral arguments from the same-sex marriage case in progress at the Supreme Court.

Here’s the list:

  • Error Number One: Massachusetts Marriage Rates Have Stayed the Same
  • Error Number Two: Because Some Men Leave Their Wives and Children, Marriage Does Not Help Keep Fathers Around
  • Error Number Three: The Purpose of States’ Recognizing and Regulating Marriage is to Bestow Dignity on Couples
  • Error Number Four: The Only Harm to Legalizing Same-Sex Marriage Is Making Marriage More Adult-Centered
  • Error Number Five: There Is a Parallel between Brown/Loving and Lawrence/Obergefell
  • Error Number Six: Age Restrictions on Marriage Are Equivalent to the Definitional Element of One Man and One Woman

One of Obama’s Supreme Court picks is showing herself a poor thinker:

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

Justice Sotomayor also committed what is commonly referred to as an exception fallacy. This is where someone reaches an overall conclusion about a group on the basis of a few exceptional cases. Thus, when Mr. Bursch was making the argument that redefining marriage to include same-sex couples will disconnect marriage from the long-held norm that the institution binds children to their biological mother and father, Justice Sotomayor responded:

Marriage doesn’t do that on any level. How many married couples do fathers with the benefits or the requirements of marriage walk away from their children? So it’s not that the institution alone does it and that without it that father is going to stay in marriage. He made a choice . . . Some mothers do the same thing.

This is a classic example of the exception fallacy. Of course some men and women walk away from their marriage and their children. But that is the exception, not the rule, and it is certainly counter to the social norm of marriage that gently pushes parents to stay together and raise their children.

It is rather shocking that a justice of the United States Supreme Court would claim that “on any level” marriage does not have that effect and longstanding purpose. It is also disappointing that she would commit such a basic error of logic.

I often encounter the problem among people with no math background. You cite statistics about what outcomes are expected, and they reply with an exceptional outlier to refute the argument. I’m troubled that Supreme Court justices lack the ability to reason in this way, though.

Here’s another pretty obvious mistake:

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

Several justices struggled to see how redefining marriage in genderless terms would cause any harm or have any impact on the institution of marriage. As Mr. Bursch correctly but incompletely argued, legalizing same-sex marriage will alter the institution to be primarily concerned with fulfilling the desires of adults rather than the needs of children.

But that’s not all. As the 100 Scholars of Marriage made clear in their amicus brief, several other important and beneficial social norms will be eroded, if not erased, by same-sex marriage, including:

– Gender-diverse parenting: the norm that children both need and deserve to be raised by a man and a woman, not only because of what they learn from interacting with a parent of each sex, but because men and women parent and interact with their children differently, providing distinct but complementary benefits. By its very structure, same-sex marriage eliminates this norm and its attendant benefits to children.

– Biological bonding: the norm that marriage binds children to their biological mother and father in a family unit. Same-sex marriage and parenting, by definition, means that at best only one of a child’s biological parents will be in the home. While death, divorce, or parental delinquency create exceptions, elevating the exception to the norm undermines that norm and the benefits it produces.

– Postponing or channeling procreation: the norm that procreation should only responsibly occur within the stable bonds of marriage. Same-sex marriage is not, and biologically cannot be, about procreation. By redefining marriage in this way, the institution becomes less about being the socially recommended “place” and “time” where procreation is recommended.

– Placing social value on raising children: the norm that society values and needs children to be born and raised by their parents. Again, same-sex marriage is not primarily about procreation, and its acceptance attenuates this norm for the institution as a whole. Of course, same-sex couples can adopt or one member of the couple can reproduce with someone of the opposite sex, but these are secondary purposes and behaviors.

What impact will the weakening or elimination of these norms have on the institution of marriage, and thus the behavior of society? Put another way, as Justice Breyer asked, “what’s the empirical connection?”

Well, the last major alteration to the institution of marriage—no-fault divorce—did have unintended negative consequences, reducing marriage rates and increasing divorce rates more than expected, with children and women suffering the consequences. Additionally, the Netherlands, the country that has had same-sex marriage the longest, after controlling for other factors, has experienced a drop in opposite-sex marriage rates among young women after adopting same-sex marriage.

The truth is, no one knows for sure what the effect will be—but it clashes with history, common sense, and theory to assume it will be innocuous.

The norm of gender-diverse parenting is important, because fathers and mothers are both needed.

Look at this abstract from a very new study to see why:

The association between family structure instability and children’s life chances is well documented, with children reared in stable, two-parent families experiencing more favorable outcomes than children in other family arrangements. This study examines father household entrances and exits, distinguishing between the entrance of a biological father and a social father and testing for interactions between family structure instability and children’s age, gender, and genetic characteristics. Using data from the Fragile Families and Child Wellbeing Study and focusing on changes in family structure by age (years 0–9), the authors show that father exits are associated with increases in children’s antisocial behavior, a strong predictor of health and well-being in adulthood. The pattern for father entrances is more complicated, with entrances for the biological father being associated with lower antisocial behavior among boys and social father entrances being associated with higher antisocial behavior. Child’s age does not moderate the association; however, genetic information in the models sharpens the findings substantially.

Biological fathers need to present in the home.

It doesn’t look like we will get a good legal decision on this case. The leftist judges are just not thinking clearly.

Polemics

Ryan T. Anderson: background on the same-sex marriage case before the Supreme Court

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This Daily Signal article is a great summary of everything that a lay-person like me or you ought to know about the case that is going to be decided by the Supreme Court.

Here are a few of the points I thought were most interesting:

2. The overarching question before the Supreme Court is not whether a male–female marriage policy is the best, but only whether it is allowed by the Constitution. The question is not whether government-recognized same-sex marriage is good or bad policy, but only whether it is required by the Constitution.

Those suing to overturn male-female marriage laws thus have to prove that the man–woman marriage policy that has existed in the United States throughout our entire history is prohibited by the Constitution. They cannot successfully so argue.

3. As Supreme Court Justice Samuel Alito pointed out two years ago, there are two different visions of what marriage is on offer. One view of marriage sees it as primarily about consenting adult romance and care-giving. Another view of marriage sees it as a union of man and woman—husband and wife—so that children would have moms and dads.

Our Constitution is silent on which of these visions is correct, so We the People have constitutional authority to make marriage policy.

The debate over whether to redefine marriage to include same-sex relationships is unlike the debate over interracial marriage. Race has absolutely nothing to do with marriage, and there were no reasonable arguments ever suggesting it did.

Laws that banned interracial marriage were unconstitutional and the Court was right to strike them down. But laws that define marriage as the union of a man and woman are constitutional, and the Court shouldn’t strike them down.

4. The only way the Court could strike down state laws that define marriage as the union of husband and wife is to adopt a view of marriage that sees it as an essentially genderless institution based primarily on the emotional needs of adults and then declare that the Constitution requires that the states (re)define marriage in such a way.

Equal protection alone is not enough. To strike down marriage laws, the Court would need to say that the vision of marriage that our law has long applied equally is just wrong: that the Constitution requires a different vision entirely.

But the Constitution does not require a new vision of marriage.

Advocates for the judicial redefinition of marriage cannot reasonably appeal to the authority of Windsor, to the text or original meaning of the Fourteenth Amendment, to the fundamental rights protected by the Due Process Clause, or to Loving v. Virginia. So, too, one cannot properly appeal to the Equal Protection Clause or to animus or Lawrence v. Texas.

Nor can one say that gays and lesbians are politically powerless, so one cannot claim they are a suspect class. Nor can one say that male–female marriage laws lack a rational basis or that they do not serve a compelling state interest in a narrowly tailored way, as explained in Heritage Foundation legal memorandum “Memo to Supreme Court: State Marriage Laws Are Constitutional.”

7. Redefining marriage to make it a genderless institution fundamentally changes marriage: It makes the relationship more about the desires of adults than the needs—or rights—of children. It teaches that mothers and fathers are interchangeable.

I think that’s the fundamental question in the marriage debate. The question is, is marriage a relationship that is geared towards producing children, and locking in husbands and wives together in an exclusive, permanent relationship so that those children have two people who are biologically-related to them who are nearby to watch over them and care for them. When I think about what it is like to be a little child, or even a little animal, it is obvious to me that we should be aggressive about encouraging and celebrating couples who have children and then stick together to raise them. It’s a hard, self-sacrificial job. It’s not about self-centered hedonism. It’s about doing the right thing to provide for the needs of children as they grow up. Marriage isn’t about grown-ups being happy, it’s about regulating sex for the benefit of children, and society as a whole. We do better together as a society with natural marriage.

News

Supreme Court rules in favor of religious liberty and against labor unions

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Life News first, on the Hobby Lobby religious liberty vs abortion subsidies case.

Excerpt:

The Supreme Court ruled today that the Christian-run Hobby Lobby doesn’t have to obey the HHS mandate that is a part of Obamacare that requires businesses to pay for abortion causing drugs in their employee health care plans.

The Obama administration was attempting to make Hobby Lobby and thousands of pro-life businesses and organizations comply with the HHS mandate that compels religious companies to pay for birth control and abortion-causing drugs for their employees. However, the U.S. Supreme Court today issued a favorable ruling in Sebelius v. Hobby Lobby Stores, Inc., a landmark case addressing the Constitutionally guaranteed rights of business owners to operate their family companies without violating their deeply held religious convictions.

Writing for the 5-4 majority, Justice Samuel Alito handed down the decision for the high court, saying, “The Supreme Court holds government can’t require closely held corporations with religious owners to provide contraception coverage.”

The court ruled that the contraception mandate violated the Religious Freedom and Restoration Act, a 1993 law and it held that the mandate “substantially burdens the exercise of religion” and that HHS didn’t use the “least restrictive means” to promote this government interest, tests required by RFRA.

“HHS’s contraception mandate substantially burdens the exercise of religion,” the decision reads, adding that the “decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates.” The opinion said the “plain terms of Religious Freedom Restoration Act” are “perfectly clear.”

“If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price — as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies,” the opinion reads. “If these consequences do not amount to a substantial burden, it is hard to see what would.”

[…]The Hobby Lobby decision only applies to companies, including Conestoga Wood Specialties, which had a companion case pending before the Supreme Court. Non-profit groups like Priests for Life and Little Sisters are still waiting for a ruling about their right to opt out of the mandate.

[…]Americans “don’t give up their rights to religious freedom just because they open a family-run business,” Lori Windham, senior counsel for the Becket Fund for Religious Liberty, which represented Hobby Lobby. “This is a landmark decision for religious freedom. The Supreme Court recognized that Americans do not lose their religious freedom when they run a family business.”

Barbara Green, co-founder of Hobby Lobby, also responded: “Our family is overjoyed by the Supreme Court’s decision. Today the nation’s highest court has re-affirmed the vital importance of religious liberty as one of our country’s founding principles. The Court’s decision is a victory, not just for our family business, but for all who seek to live out their faith. We are grateful to God and to those who have supported us on this difficult journey.”

You can read the reactions from people on the left on Twitter, in which they threaten to burn Hobby Lobby stores to the ground. Note that Hobby Lobby is only objecting to covering 4 out of 20 prescribed contraceptives required by Obamacare, just the ones that can cause abortions. They don’t want to pay money to other people to make it cheaper for them to kill unborn children. Makes sense, right? Not to the left.

And now the second decision, which was reported on in the Wall Street Journal.

Excerpt:

Home-based care workers in Illinois aren’t full-fledged public employees so they can’t be forced to pay dues to a union they don’t want to join, a divided Supreme Court said. But the limited ruling stopped short of barring organized labor from collecting fees from government workers who object to union representation.

The court, in a 5-4 opinion by Justice Samuel Alito, said the aides weren’t full public employees even though they are paid by the state with Medicaid funds. Because of that status, the workers—often family members of the disabled—couldn’t be required to pay what are known as agency fees to a public-sector union that provides them representation.

Justice Alito said requiring mandatory union fees violated the First Amendment rights of aides who didn’t want to join or support the union. Monday’s ruling split along ideological lines, with conservative justices in the majority and liberal justices in the dissent.

The high court avoided the broadest possible ruling in the case, declining a request by the challengers to limit the ability of public-sector unions to collect fees from all workers who decline to join labor unions. Labor lawyers said that while unions dodged that bullet in Monday’s ruling, they may not be able to in the future. The ruling “sets the table for more challenges to agency fees down the road. And this fact will not make unions sleep any easier,” said Michael Lotito, a labor lawyer at Littler Mendelson P.C.

[…]The National Right To Work Legal Defense Foundation, an antiunion group in Springfield, Va., sued on behalf of eight Medicaid-paid aides, some of whom are covered by the SEIU agreement, saying the Illinois arrangement had forced parents and other relatives taking care of disabled people into union associations they didn’t want. The foundation said Monday’s ruling would free “thousands of home-care providers from unwanted union control.”

And lastly, somehow I missed a third good Supreme Court decision, which unanimously sided with the the pro-life Susan B. Anthony list. That decision came out in mid-June.