bananabooks

This is an intellectually dishonest argument (at least, when made by anybody with a law degree) that focuses on the concrete benefit (marriage) rather than the right (equal treatment). While it is true that regulation of marriage is traditionally left to the states, discrimination is subject to judicial oversight through the 14th Amendment. The state technically has the initial right to regulate all sorts of things - marriage, education, state taxes, police forces, etc. But when the state engages in discrimination in the application of those state powers, the Constitution does allow for a judicial remedy.

There's nothing more abnormal about the Court stepping in to legalize gay marriage than there was for the Court to step in to legalize interracial marriage in Loving.

Two counter-arguments that I expect:

1) Loving was about racial discrimination, which is explicitly mentioned in was the original motivator for the 14th Amendment.

True enough, but the 14th Amendment also doesn't grant equal protection to women, yet Courts have decided that the concept of equal protection includes protection from discrimination on the basis of sex. If you think the text of the 14th amendment should be interpreted strictly, we would lose judicial protections for sex discrimination as well. Otherwise, we have to simply accept that Courts do have the power to extend the protections of the 14th amendment to certain classes of people.

2) The Obergefell decision wasn't really decided on the basis of Equal Protection.

True, Equal Protection was mentioned but given rather short shrift in the argument. But - the Equal Protection check still exists, and the Court would not be overstepping its Constitutional bounds if it had chosen to emphasize the Equal Protection argument more strongly.

TL;DR: Nobody who has any legal training and accepts the validity of the 14th Amendment previous 14th Amendment jurisprudence can say with a straight face that the Court didn't have the legal right to decide the way it did. I'm looking at you, Ted Cruz and minority justices.

Edit I should add that I am not an expert in this area of law, I'm sure there are folks who are much more knowledgeable, particularly about how this decision is actually playing out in the courts and in other areas. I just think the basic constitutional mechanism that allows for this decision is pretty straightforward and easily explainable.

Edited to clarify that it is not intellectually dishonest to believe the decision was improper if you believe that 14th Amendment jurisprudence has generally been wrong in many ways.

How did you decide to break from canon in the 2014 best-ofs and openly discuss comedians playing characters?

It made me deeply uncomfortable, personally... When I first started listening to CBB, I just thought the real Werner Herzog was hilarious for like two months, and I feel like others should have to suffer through feeling just as dumb.

Edit - Just in case you actually get around to answering this (since I see that you are super active!), thanks a ton for all the glee you bring me every week through the podcast. It's one of my favorite pieces of entertainment across any medium, and I can't imagine trading it for anything.

Yes. I think there is often a tendency in Supreme Court opinions for justices to be very alarmist about the "meaning" or "implications" of a certain decision in order to make their points seem stronger, and that led to a lot of (obviously incorrect) hand-wringing about the role of the courts in the Obergefell decision (particularly in the Roberts opinion). They had to do that because they otherwise had to clearly say that there is a rational basis for discriminating against gay people with regards to the ability to marry, and that just sounds dumb.

I thought the real Werner Herzog was hilarious and bored enough to regularly appear on a podcast for months.

I think everyone should have to go through what we did!

The ramifications are substantial when it comes to discrimination against gay people - there already are (and will continue to be) many cases in which gay citizens challenge legal frameworks they believe to be discriminatory while citing this case as a precedent.

The ramifications outside the realm of homosexuality are likely very, very minor. The Court is extremely cautious when expanding the scope of the 14th Amendment - that's why they still couldn't bring themselves to clearly state it even in this case, and that's why it has taken three cases (Lawrence v. Texas, the DOMA case, and Obergefell) to even get this far - because the Court is very (small-c) conservative and moves slowly when it comes to expanding constitutional rights.

Regarding species discrimination specifically... A) as above, the Court doesn't really do what it did in Obergefell lightly or frequently, and it's unlikely to ever come up, and B) the Constitution grants rights to citizens, i.e., humans.

I've also heard the argument that the SC is violating their founding intention by legislating, which is not supposed to be theirs to do. Could you elaborate on this argument and why it is right/wrong?

It has been well settled for over 200 years that the Supreme Court is the final arbiter of the meaning of the Constitution (Marbury v. Madison is the key). All the Supreme Court is doing is interpreting the Constitution. "Legislating from the bench" is political rhetoric, not a legal term.

The Fourteenth Amendment reads, in relevant part:

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.

The Supreme Court was asked to interpret whether a state violates that clause when it only grants marriage licenses to heterosexual couples, and they said "Yes" (of course, subject to the caveat that the Equal Protection argument in the actual decision was not very strong).