Such an argument necessarily assumes that a DM that is simply ignorant of the plain text of the rules. It would be analogous to them saying "murder isn't illegal" and then being shown 18 USC 1111, which defines murder as illegal.
If you wanted to make an actually appropriate analogy, it would instead be something like telling WoTC that an ability score should apply to circumstances that don't apply on paper. E.g. (for the sake of argument), arguing that despite the rulebook being silent on the matter, your fly skill should be usable as a swim modifier on the grounds that logically there's enough overlap in the mechanics of flight that your PC should be able to quickly suss out a crude swim-style or enhance their existing one. In this case, the rule isn't in the books (which is to say that the legal precedent affirming your case does not exist and it has not historically been understood to apply in this sense), but you're making the argument that it
should be the case, which is a different question entirely.
An example of this would be Loving v. Virginia, which argued - as other cases before it did - that anti-miscegenation laws were a violation of the Equal Protection Clause. Historically (such as in the case of Pace v. Alabama), anti-miscegenation laws had been ruled as constitutional on the grounds that the punishment was equally applied to both the black and white participants, thus "equally burdened" whites and non-whites, and therefore did not violate that same Equal Protection Clause. In Loving v. Virginia, the court called that same argument and ruling horseshit and that the anti-miscegenation laws and rulings supporting them had no discernible purpose other than invidious racial discrimination intended to maintain White Supremacy.
This was not some secret they discovered years later. It's in the plain text of the ALSC's opinion that the state had a compelling interest in forbidding such unions because they might result in -
and I quote - "the amalgamation of the two races, producing a mongrel population and a degraded civilization". It really did wear its racism on its sleeve. And it wasn't that Loving's attorneys simply made a better argument and Pace's attorneys were simply deficient. The different conclusions reflected a fundamental shift in attitude regarding race and interracial marriage over the decades between Pace and Loving. The judges who ruled on Pace saw no issue with anti-miscegenation laws and therefore looked at equal protection in terms of whether or not whites or non-whites suffered unequal punishment for marrying the other. As the participants suffered the same punishment, they concluded that it was not a discriminatory law and therefore constitutional.
The judges who ruled on Loving
did not agree with anti-miscegenation laws, and therefore looked at equal protection in terms of whether or not
the marriage itself was treated differently because of the couple's races than other marriages (and before you start, that's the same argument that Pace's attorneys made), and ruled that the underlying logic was not only inexorable from racism, but in fact had no purpose beyond enforcing that racism, and consequentially that it was unconstitutional. It was not that the judges in Loving were presented with significantly different arguments or circumstances than in Pace, it is was that they
explicitly rejected the logic that Pace's ruling was built upon. And I quote: "However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated
'Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.' "
You can argue that the Loving ruling
should have always been the case, but that's fundamentally a moral/ethical argument, not a historical one. The simple truth is that as a matter of law, interracial marriage was
not protected until Loving, and the courts before then affirmed as much.
That's precisely what makes Loving a landmark decision. It
changed the interpretation of existing law and established a new precedent, invalidating the anti-miscegenation laws of the previous precedent.
Tangentially, this is what makes your invocations of the RFMA as if it made Obergefell irrelevant so vexing. The entire point of overturning such cases is to be a vehicle through which to either affirm or repeal related legislation.
That's the point. To bring a case before the Supreme Court is to challenge the legality of the applicable (and related) laws. See, for instance, Lawrence v. Texas in which
the Defense asked for a higher fine so that they'd be allowed appeal the case to the USSC in order to raise a Constitutional Challenge to anti-sodomy laws.
This is not something that you can bullshit your way out of. You're simply wrong. The law is not some static truth handed down from on high that needs only be correctly interpreted and then is set in stone. It's an ever-changing system that attempts to reflect the ideals and perspectives of the people who codify it, and as such is constantly adjusted and refined by the societies that live with them. It is filled with contradictions, oversights, and loopholes, and its conclusions involve at least some degree of subjectivity. This in turn means that they're also subject to interpretation, reinterpretation, and even brazen spin-doctoring by different judges with different values (See for instance, the Dred Scott case).
We are not "discovering" things that the law covers. What we're doing is deciding what the law
should or should not cover (e.g., the judges in Pace decided that the law should not protect interracial marriage, whereas the judges in Loving decided that it should and justified their respective rulings accordingly). And it's the height of pretentious arrogance to act as if the only reason that landmark decisions didn't get established decades earlier is because nobody was smart enough to make a good argument for them. And make no mistake, that is
exactly what you're doing when you claim that these things had always been "in theory protected" and that the same judges would rule differently in the same case if simply presented with a better argument, as if they were computer programs answering mathematical formulas rather than humans
interpreting social contracts through the lens of their personal values and beliefs about what those social contracts
should do.
Your characterization spits in the face of every civil rights movement and landmark decision in history and that of everyone who fought to change their status quo and made change happen; condescending that the only reason that it ever got to that point in the first place is because they and their predecessors must not have made a competent argument for their position. It's victim blaming in its most archetypal sense: insisting that the only reason something bad happened to someone was because they weren't good enough enough to stop it, and if they'd just made a better case for themselves it never would have happened.
Wrong. It's closer to the opposite. The law defaults to
not protecting something unless it is explicitly declared otherwise. E.g., your cat's not protected from being declawed because there's no law saying that you can't declaw your cat. The maxim you're bastardizing is "everything that is not forbidden is allowed", which means that an action can be taken if there is not a law against it, which is very different from the action being protected under law. In the context of protection, the application is perhaps most easily understood in the form of protected classes. Those are characteristics that cannot legally be used as the basis of discrimination. E.g., it became illegal to discriminate on the basis of race because of the Civil Rights Act of 1964. It became illegal to use the fact that someone was over the age of 40 as a criteria for discrimination in 1967. It became illegal to discriminate based on disability status in 1973. And it became illegal to discriminate on the basis of sexual orientation in 2020. Before those respective years,
these were not protected classes. You could legally discriminate on the basis of orientation before 2020, and on the basis of race before 1964.
This is what "everything that is not forbidden is allowed" means. It means that the law
will not protect you from something committed against you
unless specific provisions were made to forbid that something. That is to say: it is powerless to prosecute something that has not officially been declared a crime.
When we say that the law protects something, we mean the opposite: that what it protects against is explicitly illegal. The law protects against slavery, meaning that enslaving and keeping someone as a slave is illegal. The law protects against murder, meaning that murdering someone is illegal. The law protects against theft, which means that stealing from somebody is illegal. Etc. It does not protect against things that it does not acknowledge. To put it another way: Infidelity not being a crime is very different from infidelity being protected under law, hence why it can be used as a disqualifier in prenuptial contracts.
for once.
