UPDATED OBERGEFELL ADD CITATIONS

>What did you dislike about the decision from a legal standpoint
>1.
Yet another 10th Amendment incursion. With every such case, the federal government uses to get a foot in the door of state and local policy, and extort money or political favors out of supposed violations.

All of these examples have parallels with positions taken during the civil rights era:

In Congress, legislators can play up the supposed violations of the decision in a state to curry earmarks away from that state and toward theirs.

For the executive, it gives another reason to use federal agents or troops to curb any supposed violations within a state

In the Judiciary, the courts can slowly morph the definitions assigned in the original SCOTUS opinion through reinterpretation, to make actions which were once not considered violations in error.
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I forgot to mention it also gives the federal government another way to extract money from states that are supposed violators

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Parallel with B v BOET
>I wish I had the fucking case link, and it may in fact been a hypothetical case from my old law class but IIRC a school district was accused of stifling equality, citing the very fact that it had few black students compared to the neighboring school district

>The district, IIRC,argued that its actions were all in line with Brown, and that even though students by default were slated to go to their 'zoned' school, i.e. students from the 'black neighborhood' to its school, and from the 'white neighborhood' to its local school, there was nothing barring the parents from the former from applying to the school in the latter

>IIRC Most didn't bother due to the distance between the two districts

>IIRC, there was a significant GPA difference between the districts

>IIRC, the court ruled that the districts were 'separate' in line with Brown's definition, even though the separation was de facto and not de jure

>IIRC the court also ruled that the districts were 'unequal' in line with Brown, and connected the separateness to the inequality

>IIRC the court then ruled for integrative busing or redistricting

>IIRC this led to precedent for jurisdictions to be liable for de facto separation as well as de jure separation
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I thought how a similar scenario could plausibly play out as it came to issuance or recognition of homosexual marriage.

>Small town

>Large distance from next town

>Courthouse remains open 4 days/week 8 hours per day

>Hours limited by statute

>Be gay couple, and for some reason or another (say disability or whatnot) cannot make it to the courthouse in the designated hours

>None of the straight couples had issue with getting a marriage license

>Court "conveniently" always closed when gay couple needs to get married

>Steelbeams.jpg?

>Gay couple gets an attorney and argues that the court is practicing discrimination, and in violation of obergefell

>Court argues its hours are nothing of the sort

>[Higher]Judge decides, superseding statute, the court must remain open longer than expected such that it must accommodate this couple

>New precedent is created that allows statute to be superseded in the name of discrimination if doing so is the Least Restrictive Environment

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>2.
14A overreach

The clauses in question are
>No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
>nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

specifically
>privileges
A. What privileges- at the state level- are denied from a couple in a civil union that are afforded to couples in marriage?

B. How can gay couples assume legally protected access to the privilege of a marriage license when the same is generally not afforded to polygamous couples? After all, the ruling made it so that a partnership license must be recognized and issued- as a 'marriage', regardless of the sex of the partners. However, they are typically denied as not-bona-fide based on the number of applying partners.

>liberty
A.
a. Is requiring licences for a certain status, ability, action etc infringement on liberty?
b. Is the discretionary licensure an infringement on liberty?

B.
Even if the answer to the above is yes (which would turn centuries of understanding of 'liberty' on its head
a. Would the in-applicability to polygamous items invalidate this understanding?

>equal protection

Statutes against polygamous marriage and the precedent upholding their constitutionality are a pretty good example of unequal application of the law as it comes to them, as the only thing they claim is different about them relative to gay or straight married couples is the size of the item.

I forgot the pliability of the definition of
>due process
was also in question, and Thomas detailed contentions with the majority's interpretation in his dissent.
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>3.
The ruling - if I understand it-was that
" The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs."

A. Right to intimacy
(or rather right to participate in intimate behaviors without state infringement)
(itself an understanding and application of the Lawrence v. Texas decision

B. Right to intimacy is contingent on ability to marry
(marriage being the instrument by which intimacy may be fully realized)

C. Adequate protection of right to marry thus requires issuance of marriage licenses to gay couples by all states and recognition of existing marriage licenses of gay couples by all states
(Itself citing Loving v Virginia:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.")

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However, couldn't the same logic be applied to the 2nd Amendment (or perhaps the first amendment, regarding licenses for distribution of various texts, or to own and operate a literal printing press, or recognition as a newspaper etc. )?

" The fundamental liberties protected by the [SECOND] Amendment’s [THE RIGHT OF THE PEOPLE] Clause extend to certain personal [FIREARM OWNERSHIP], including [those firearms and not associated with activities required by the militia, such that they are in the common usage]."

A. Right to bear arms

B. Right to bear arms contingent on ability to own firearms
(Ownership of the firearm being the instrument by which TRTBA may be fully exercised)

C. Adequate protection of right to bear arms thus requires issuance of firearm licenses to eligible citizens by all states and recognition of existing firearm licenses of firearm owners by all states


I would argue using this logic has more grounding with the 2nd Amendment, as it is explicitly constitutionally recognized, than right to gay marriage, which is interpreted to be implicitly constitutionally recognized.


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>4.
Stare decisis vs original intent

Both the practice of stare decisis and the philosophy of Originalism are intended to preserve the integrity of the law. Lawmakers would have little interest writing laws if the text of their laws would be later construed to mean something completely contrary, and without any repeal or amendment by democratic processes, but only interpretation by perhaps unelected judges, the effect of the law changed or negated. Jurists would have little interest in the interpretation of law if their opinions were not recognized and respected by subsequent courts. When there is a clash, the very integrity of the law is at stake.



>A.
Since the days of common law to the second half of the 20th century, marriage has been defined as between a man and a woman, provision and recognition of marriages(and their respective licenses, ceding that marriage licenses are a fairly recent innovation) recognized as reserved powers of the individual states, and marriage not requiring affection or intimacy- as the courts have accepted promises to marry must be based solely upon legal consideration- and the courts also accepted the bona fide nature of arranged marriages abroad.

However with the slow chain of precedent, reinterpretation using Hypothetical syllogism (A=B; B=C; therefore A=C), and then novel application of that reinterpretation to a case, over time the interpretation may have little bearing to what was originally intended by the law. Similar to the 'text vs spirit of the law' debate, when it comes especially to constitutional matters, should deference be given to stare decisis (as Scalia and those to his jurisprudential 'left' would do) or to original intent, as to practice judicial restraint in respect to the law itself (as Robert Bork would do)?

>B.
Even disregarding this, there is the matter of whether stare decisis was practiced with respect to the integrity of the cases themselves being cited. Could, for example,  Chief Justice Earl Warren's concerns about racial inequality be directly translated to concerns of inequality in respect to orientation?

In interpreting precedent based on its spirit to find implicit meaning and ignoring its explicit text, one can exercise judicial activism within the parameters of the law. The question now leads itself to the practicality of doing so. Can law be judged the same way as a the resolution of an algebraic equation through the Chain Rule of the Consequent?
Which leads itself to a philosophical question: if a quilt is replaced over the years, thread by thread, but only one thread at a time, and each thread is determined to be equivalent to the thread it is replacing, at which point does one have a new quilt?

Can one equate one thread to another?

We may take the assumption that it is truly impossible to perfectly equate legal concepts as one would with numbers. We may also assume it is but in the jurist's and the republic's interest that it is done so as much as possible to preserve the law's integrity.  Does the judiciary not have an equal interest in reversing precedent, after seeing a large deviation between the original law and its current meaning after countless interpretations, and interpretations of those interpretations potentially ad infinitum, to the point where the very integrity of the law which the it is trying to preserve is in jeopardy?

Could a higher court not take more proactive means in determining that one or more of the 'threads' replaced by one or more lower courts was not equal to, nor derived from the 'thread' that came subsequent?
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>5.
Constitutional interpretation itself (a bit meta here)

The last issue is what role should or could a Justice take in respect to Constitutional interpretation?

Justice Scalia for example best exemplified restraint in constitutional interpretation in respect to Abortion.
His background as a Catholic informed his personal moral aversion to abortion.

Scalia himself did not see abortion as being a matter resolved by the constitution at all, firstly explicitly nor secondly implicitly. In absence of this, he did not thirdly find the matter resolved by precedent. In absence of this, he did not find the matter finally resolved by any of the writings of the Framers regarding their intent.

Those arguing for the constitutional right to abortion cited the right to privacy implicit within the 14th Amendment and upheld by precedent.

Those arguing for the constitutional barring of abortion cited it as a violation of the 5th Amendment,
"No person shall ... deprived of life, ... without due process of law"
Contingent on the recognizing the personhood of the fetus.

Scalia did not accept either of these arguments as being in comport with constitutional understanding (even though the latter may have fit within his sensibilities, and opined that it should be left to the democratic processes of the states and the People, as per the 10th Amendment.

Is this the most prudent view of constitutional interpretation? Perhaps or perhaps not, but it seemed to be the dominant one for the plurality of the court's existence and the plurality of the Justices during its history.
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>Conclusion
I am no attorney, and in fact am a layman in the field of law. If anyone has any contentions to any of the above, feel free to correct me.