While some will probably claim it is exactly the case,
And in fact, a state court in 1993 noted that the prohibition violated the existing notion of equal treatment for the sexes. Now, obviously the fact that it went nowhere at the time (because people chose not to apply it to US federal law) is itself evidence for cultural and social norms shaping judicial behavior. Also, the fact that Justice Kennedy used a slightly different argument for some reason (possibly rhetorical-poetic).
But even if we start counting from the Civil Rights Act of 1964, rather than the 1978 Hawaii State Constitutional Convention, the history of math leads me to think that noticing a logical implication in 1993 was at worst just a little slow.
According to Wikipedia, the basis for the same sex marriage decision was the Fifth Amendment dating back to 1791 rather the Civil Rights Act. But I might be missing something?
EDIT: As hairyfigment correctly pointed out, the right link is Obergefell v. Hodges and the right amendment is the Fourteenth. That’s what comes from shuffling tabs with Wikipedia pages in a drowsy state of mind :)
You’re missing a lot, starting with the fact that you linked a different case from 2013. See Obergefell_v._Hodges.
Now, I think the decision referred directly to the 14th Amendment without mentioning the Civil Rights Act. But the courts reinterpreted the Equal Protection clause of the amendment after people, apparently, used it as a basis for the Civil Rights Act. Interpreting it by its legislative consequences is not completely crazy, since the amendment itself says Congress has the power to enforce it by appropriate legislation. In any case, all this happened long before the recent case.
Follow-up, since this may have been unclear: the idea is that the Court may use actions of Congress as a guide to help decide what “appropriate” means. And in my reading of history, courts implicitly decided that the Equal Protection clause must have supported (in part) the 1964 law, therefore protecting against discrimination by gender must count as appropriate. Certainly the authors of the amendment wrote “persons” when they could have written “men.” Since the 2015 case concerns State laws and not private businesses, saying the State needs to give a compelling reason to restrict you from marrying a given person because of your gender seems if anything better-supported than the 1964 law.
The relation to the Civil Rights Act is an interesting observation, thank you. However, if the court did not cite the Act in its reasoning the connection is tenuous. It seems me that the most probable explanation is still that the Supreme Court is applying very lax interpretation which strongly depends on the personal opinions of the judges.
I was actually talking about what I see as the real historical, cultural process by which the Court reached its decision. (Do you not think the CRA influenced personal opinions about equality?) And I’m saying even this process has some legal support.
But I must stress that the necessary interpretation by the courts happened in the 1970s—or at least that would have sufficed—and thus focusing on this 2015 ruling makes very little sense.
And in fact, a state court in 1993 noted that the prohibition violated the existing notion of equal treatment for the sexes. Now, obviously the fact that it went nowhere at the time (because people chose not to apply it to US federal law) is itself evidence for cultural and social norms shaping judicial behavior. Also, the fact that Justice Kennedy used a slightly different argument for some reason (possibly rhetorical-poetic).
But even if we start counting from the Civil Rights Act of 1964, rather than the 1978 Hawaii State Constitutional Convention, the history of math leads me to think that noticing a logical implication in 1993 was at worst just a little slow.
According to Wikipedia, the basis for the same sex marriage decision was the Fifth Amendment dating back to 1791 rather the Civil Rights Act. But I might be missing something?
EDIT: As hairyfigment correctly pointed out, the right link is Obergefell v. Hodges and the right amendment is the Fourteenth. That’s what comes from shuffling tabs with Wikipedia pages in a drowsy state of mind :)
You’re missing a lot, starting with the fact that you linked a different case from 2013. See Obergefell_v._Hodges.
Now, I think the decision referred directly to the 14th Amendment without mentioning the Civil Rights Act. But the courts reinterpreted the Equal Protection clause of the amendment after people, apparently, used it as a basis for the Civil Rights Act. Interpreting it by its legislative consequences is not completely crazy, since the amendment itself says Congress has the power to enforce it by appropriate legislation. In any case, all this happened long before the recent case.
Follow-up, since this may have been unclear: the idea is that the Court may use actions of Congress as a guide to help decide what “appropriate” means. And in my reading of history, courts implicitly decided that the Equal Protection clause must have supported (in part) the 1964 law, therefore protecting against discrimination by gender must count as appropriate. Certainly the authors of the amendment wrote “persons” when they could have written “men.” Since the 2015 case concerns State laws and not private businesses, saying the State needs to give a compelling reason to restrict you from marrying a given person because of your gender seems if anything better-supported than the 1964 law.
The relation to the Civil Rights Act is an interesting observation, thank you. However, if the court did not cite the Act in its reasoning the connection is tenuous. It seems me that the most probable explanation is still that the Supreme Court is applying very lax interpretation which strongly depends on the personal opinions of the judges.
I was actually talking about what I see as the real historical, cultural process by which the Court reached its decision. (Do you not think the CRA influenced personal opinions about equality?) And I’m saying even this process has some legal support.
But I must stress that the necessary interpretation by the courts happened in the 1970s—or at least that would have sufficed—and thus focusing on this 2015 ruling makes very little sense.
I’m no longer sure what is our point of disagreement.