I like the idea of pulling out one of the Supreme Court logical/rhetoric pivot points in each post – to keep away from the very heartfelt and passionate emotions people have about the issue as a whole.
Today’s is a brilliant point made by Justice Sotomayor. As with yesterday’s post, it is insightful and a good learning experience regardless of which side of the issue you are on.
One of the attorneys said that the Court should preserve the power to define marriage with the states’ voters. They should have this "liberty." The voters should be “free” to define marriage in the way they see fit, without “constraint” from the Court.
She replied that what the same sex marriage bans do is “constrain” liberty. If anyone is allowed to marry if they want, to whom they want, and when they want, that is liberty. A heterosexual person can decide to get married or not. And if so, to whom. So can a LGBT person. A law that constrains any of these choices for any person, is giving some voters the ability to constrain the liberty of other voters. It doesn’t give anyone more liberty; it gives the voters the power to constrain liberty. So if the Court denies the ability of states to constrain liberty,that would be increasing the liberty of the individuals. The bans would be a "liberty to constrain liberty."
Whatever side of the issue you are on, that is a logical smackdown. Perhaps the definition of marriage is one thing or the other. That discussion is a different post. But just in terms of maximizing liberty, allowing something is more liberty than prohibiting it.