Gays have equal rights.

Thank you! Try the veal! I'm here all week! Tip your waitress! And pleasepleaseplease... Drive safely!

I think a lot of people are going to be very disappointed in what the Supreme Court thinks a "fundamental constitutional right to marriage" really means.
If a man or a woman has a fundamental constitutional right to marry any adult individual of their choice, there is no way to parse out a constitutional law against brother sister marriages other than the "ick" factor (which doesn't have a lot of precedent)
I don't think the Supreme Court is willing to go there.

Isab, you're quite the optimist, given the taco surpremes ruling on obamacare being a tax.

I can buy the 14th ammendment argument but only if the gay rights folks admit that hate crime/speech laws are unconstitutional by that same 14th ammendment. You can't believe in both. Well, you can but then you'd be a big hypocrite.

I'd feel better about this if David Boies weren't on the case. He has either sucked or thrown every important case he has been given.

Most overrated lawyer ever.

That's my opinion of course.

Isab,

The way to argue it as a matter of law is that since people are innately gay or straight, if you deny same sex couples marriage, you haven't just denied me marriage to the particular person I wish to wed, but rather have denied me any meaningful marriage at all. Since you have categorically banned me from marrying any potential romantic partner. With prohibitions against marriage to siblings, you have foreclosed one partner, but not the whole set of partners. Also, unlike in the case of same sex couples, there is a rational reason to do so (very high incidence of birth defects).

Sio,

I'm no fan of hate crime laws, but you definitely want to go 1st amendment there, not 14th. You'll never win that on a 14th amendment basis, unless you're referring to the incorporation of the bill of rights as per the states under the due process clause of the 14th amendment, but I doubt that.

"The way to argue it as a matter of law is that since people are innately gay or straight."

That's going to be hard to prove, though, because orientation isn't a binary condition. What about bisexuals? Presumably they can choose to marry straight or gay. And some people do change their orientation over time.

I think their best chance is to attack it on utilitarian grounds: show that the ban serves no purpose in law, and that there is no governmental or societal interest at stake. Offer up data that shows (presuming that such data exists; I haven't looked) that gay couples have had no negative effect in the areas where they are common: no increase in crime, no worsening of public health. Try to convince the court to establish a First Amendment-like standard under which any ban must be supported by clear and convincing evidence that the ban supports a societal interest. That kind of argument would address some of the concerns that Lawrence v. Texas caused (e.g., that it appears to open the door to polygamy).

Incidentally, if I were on the other side, I think the best chance would be to encoursge the Court to uphold the band on federalism grounds. However, the Court has had a deaf ear for federalism arguments for a long time.

" but you definitely want to go 1st amendment there, not 14th. You'll never win that on a 14th amendment basis, "

Hmm. Given that the overwhelming majority of people charged under hate-crime laws are white males, and that many law enforcement agencies have as much as said that they understand these laws to not apply to women or minorities, I think there is a 14th Amendment / bill of attainder argument to be made.

I think that in light of recent Supreme Court rulings, especially the completely irrational one that allows so-called "drug dogs" to continue to violate the Constitutional right of protection against unreasonable search and seizure, we have no idea what to expect. The Supremes could go with Olson and Boies. They could rule conservatively in favor of 1-man, 1-woman marriage. They could pull out all the stops and OK polygamy. They could pull some Roe-v-Wade style ruling out of their collective asses and invent something totally new. They could decide, to paraphrase another famous Supreme dictum, that a gay person has no rights a straight person is bound to respect. Who knows?

In a world where you can search a vehicle because a dog wags his tail, or condemn a home because a developer wants it, all because the Supremes rule that It Is So, anything goes.

Peter H., no the argument is via the 14th, part of it being what Dave said above. Thats the line they're using for gay marriage to be legal across union. Its all about equal rights. Hate crime laws establish that certain "minority" groups (are women really a minority?) are special victims and thus have special rights. Thus they're superior and crimes against them are viewed as more heinous. Though hate speech laws would likely fall under the 1st.

I'd say the civil rights act in 1965 killed the 1st ammendment argument by killing freedom of association anyway.

"If a man or a woman has a fundamental constitutional right to marry any adult individual of their choice, there is no way to parse out a constitutional law against brother sister marriages other than the "ick" factor"

And so what? Devil's advocate here, but - honestly - why would that be so bad anyway, and what business does anyone have to use force against others who might want to have mutually voluntary incestuous relations as consenting adults? You don't have a right to use force just because you feel "ick" ... the only proper use of force is as defense against harm, and the only really solid argument for harm in the case of incestuous relationships is the possible genetic harm to offspring - so there might be an argument against allowing brother and sister couples (urgh, I can't even type that without feeling gross) to rear children.

You guuuuuuuuuuuuyyyyyyyyyyyzzzzzz, this is a
very serious matter concerning people's deepest integrity.

Is anyone in this photo old enough (or inclined) to care about anything besides feelgood?

The Supreme Court is now the venue of all our MTV impulses.

(MTV used to be this thing that hip young people watch for fashion guidance.)

Now, I'M NOT GAY... Or defensive about it...

But, dammit, I'm secure enough my sexuality to admit that this gives me a semi.

Because of reasons.

Lobster, you are correct of course, and if marriage is a "fundamental constitutional right" "polygamy and incest" almost certainly fall into the category of permitted legal unions.

That was my point, that in order to legalize gay marriage, and prohibit incest, your legal argument needs to be a bit more sophisticated than just; marriage is a fundamental constitutional right.

This whole article in the WSJ, sounds less like a legal argument, and more like populist cheerleading to me.

We need to move beyond defending marriage against gays and lesbians and begin defending it against straight couples who aren't going to breed!

NY Times...

Justice Elena Kagan asked [Charles J. Cooper, a lawyer for opponents of same-sex marriage] how letting gay and lesbian couples marry harmed traditional marriages. “How does this cause and effect work?” she asked.

Mr. Cooper responded that “it will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.” The key to marriage, he said, is procreation.

I did a write up about this a while ago.

"and what business does anyone have to use force against others who might want to have mutually voluntary incestuous relations as consenting adults? "

Of course, the traditional reason, and it was defensible at the time, was genetic: the offsping of such unions were more likely to suffer from crippling genetic defects, and this was observed long before anyone knew anything about genetics. To what extent it applies today is harder to say. Could such couples be permitted to marry under the condition that they not have children? And if they go ahead and have children anyway, what then?

@Cousindave, in regards to the prohibition against incest, once a society gets sufficiently genetically homogeneous, it really does't matter any more. The Amish have this problem. They have pretty much married their own distant cousins for two hundred years, and they have a very high incidence of certain genetic diseases, because of it.
But now that everyone has "a right" to have defective children, and pass off the cost of their care to the state, what can it possibly matter? In defense of the Amish, at least they take care of their own.