Hey, this stuff is real! Just got back from vacation to find the following email in my in-box:
It brought a smile to my face to see that the Administration isn’t wasting any time in applying the DOMA repeal to its employee benefit policies.
Isn’t the answer, essentially, marriage in general is not deeply rooted by virtue of the fact there is a long history in this country of the state precluding people from marriage on the basis of age, blood relation, sex of the partner, etcetera.
… and race. Do you think the Constitution prohibits anti-miscegenation laws?
nm
That doesn’t go so much to marriage as it does a classification in law based upon race. Race is the penultimate 14th amendment equal protection classification because it is exactly what the 14th amendment was written to protect. Any classification based upon race (no matter what the underlying law) must pass strict scrutiny, which cannot be found (generally in anything) in an anti-miscegenation law.
For example, imagine a municipal law that said on alternate days whites can use the city tennis courts from 8a.m. to noon, and blacks from noon to 4pm. Is there anything wrong with this? Tennis isn’t a fundamental right and both races are treated absolutely equally as they have the same number of hours at the same time as each other. However, because race is used at all, it will be struck down because the law isn’t narrowly tailored to serve a compelling government interest.
Does sexual orientation rise to that level? I wish Kennedy would answer that question instead of dancing around it.
No, and it’s hard for anyone else to argue that those are fundamental rights either. Even in Casey, Kennedy, Souter, and O’Connor justified Roe v. Wade on stare decisis grounds instead of agreeing that it was a good decision. Roe has been cited by many legal scholars as the most poorly written legal rationale for a decision in the Court’s history.
This is exactly the reason the Warren Court (and for a short time thereafter) faces much criticism: it found rights out of whole cloth where none really existed. The Court since then has backed off of finding rights in penumbras, and rightfully so. Such a jurisprudence can find a right where ever 5 justices find it. It’s no standard at all.
You are aware that that came straight from your cite, correct? The one you are using to justify your definition of what constitutes a fundamental right.
So, where would you like to send me next to see this “the Supreme Court has held and affirmed that whether a particular right is protected under the due process clause and subject to strict scrutiny, it must be one that is both ‘deeply rooted in the nation’s history and traditions’ and also ‘implicit in the concept of ordered liberty’” nonsense?
I guess the existence of laws against fraud proves free speech isn’t deeply rooted either.
Moreover, laws specifying that marriage involved one man and one woman only started appearing after Baehr v Lewin
Isn’t the whole point of the 9th Amendment to encourage an expansive view of what rights people have?
Free speech is not quite analogous since, well, the U.S. Constitution expressly protects the right of free speech. What we are discussing, however, are unenumerated rights and among those unenumerated rights what is the criterion for protecting some of those rights.
Marriage in general is not “deeply rooted” because, well, people could not marry anyone they desired. As I stated before, age limitations, familial limitations, race limitations, same sex prohibitions, restrictions on the number of spouses, demonstrate marriage in general is not deeply rooted. What was “deeply rooted” was two people of the opposite sex, of a certain age, and not closely related, could marry.
Yes, but we aren’t discussing the 9th Amendment. We are discussing substantive due process and the Court’s rationale.
Sure it does. Loving wasn’t decided solely on equal protection grounds.
All right. From what I can discern, there were at least 11 states permitting interracial marriage prior to 1887, and another 8 which didn’t pass any law prohibiting interracial marriage. A reasonable argument could be made interracial marriage is deeply rooted as much as it isn’t deeply rooted in the nation’s history.
I think the Court in Loving can appropriately be criticized for just conjuring up a right to marriage in the 14th Amendment Due Process Clause. The words due process refers to procedural protections and does not have a substantive component. The plain text of the 14th Amendment clearly states the government can deprive people of liberty so long as due process is given.
Which same-sex prohibitions are those? Courts in several states pretty consistently ruled that there weren’t any.
What? If it was banned in half the country, how could it be deeply rooted? You would probably find that a similar number of states did not explicitly prohibit the consumption of heroin. Does that make its use “deeply rooted”?
Well, if we’re using that metric, then same sex marriage is deeply rooted, as very few states passed a law prohibiting it prior to the last 15 years or so. While I’m not stupid enough to think that most states would have gladly handed out licenses to Bob and Joe, the fact is that the wording of almost all marriage laws prior to the big brouhaha over the last decade or so had nothing barring it from happening.
How about Michael and Pat? (Once, for 20 minutes, in 1971. . . .) Heartwarming quote: “The couple still live together in Minneapolis. They consider themselves legally married as their licence has never been revoked.” It would be interesting to see if the state and federal governments now considered them married.
But see Post #158.
By the way, the Minnesota Supreme Court in Baker v. Nelson quoted in full the second paragraph of Loving’s fundamental rights holding, interpreting it as based on equal protection. That decision, of course, was affirmed by the U.S. Supreme Court per curiam.
:: bump ::
Here’s the first Board of Immigration Appeals decisionI’ve seen that indicates how the Dept. of Justice and USCIS might handle SSM for immigration purposes. If they stay consistent, it looks like they aren’t following the first-cousin marriage model – if the marriage is valid where celebrated, it should be valid for U.S. immigration purposes according to this decision. Of course, consistency isn’t always one of the hallmarks of immigration adjudications.
I have to say I’m surprised how quickly the BIA acted on the change in law on this one.
Thank you, Eva Luna!
I note that this doesn’t discuss marriages performed abroad, but given the Windsor case I assume they would accept Canadian marriages.
One would certainly hope. I’m sure you in particular would, too 