Subject: I do not think you are looking at fully
Author:
Posted on: 2015-06-27 19:50:00 UTC

While it may be a gut reaction to homosexuality, there is another possible reaction. This is a really heavy handed decision by the Court. There are I think legitimate concerns about the Federal-State relationship. Marriage rights had traditionally been governed under State Law, but between Windsor and the recent decision, it is forcing a Federal Standard on the States. So this is arguably a violation of the 10th Amendment, of course these arguments were made during the desegregation era and they failed, but that still has a basis for concern.

Further there is also a Federal Separation of Powers issue as well. This is essentially the Court Legislating, which is beyond their power. Then of course there is, what I am certain is the Scalia/Thomas argument, that this is basically the Court amending the Constitution without actually going through the Amendment process. Of course that has never stopped the Court before mind you, but it does add another precedent for them to reach a bit further. It could theoretically get to the point where the Court decides that they have enough precedents where they can wholesale amend the Constitution at will.

And that is something that could horrify people. Because it gives far too much power to one branch of the Government. Of course I do not think this decision has that effect. Frankly I think this should have been decided quite some time ago. After Loving v. Virginia in the 50s the Court found a fundamental right to marriage. And it is virtually indistinguishable. Really the only difference was in Loving it was interracial marriages rather than same-sex marriages.

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