Not familiar with this “Perez” case but the problem with citing federal case law is that it runs squarely up against Baker v. Nelson. Back in 1972, SCOTUS ruled that a same-sex marriage case out of Minnesota did not present a “substantial federal question,” which in legalese means that there’s no right under the US Constitution to same-sex marriage. Loving specifically addressed interracial marriage and the majority opinion in Loving stated explicitly that it “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
My personal opinion remains that the various cases regarding marriage rights should be interpreted to establish that same-sex marriage is a constitutionally protected right or liberty. I refuse to believe that the Constitution affords more protection to right of convicted rapists to marry than it does to law-abiding homosexuals to marry. Sadly, I’m not a judge sitting on any court in the land.
That was a point made by one of the pro-SSM lawyers, that the California Supreme Court had itself held that prisoners on death row had a fundamental right to marry, and that it was insane that they did and SS couples did not.
Am I correct in my assumption that if the Equal Rights Amendment had been passed then the Supreme Court WOULD have to find that there is a “substantial federal question,” and would therefore not only have to address SSM but would also have a stronger basis to find denial of SSM unconstitutional? Because if so then I’m pissed all over again that it’s been brought up to every session of Congress since 1923 and still hasn’t passed. Three more ratifications it needed. Three.
Shit, if we can’t get equal protection for women under the constitution then it shouldn’t surprise us that we can’t get protection for SSM either.
Sometimes I despair of my country that it seems so effing impossible to get our leaders to acknowledge any sort of common sense…
SCOTUS rarely if ever has to do anything, but had the ERA been in place at the time of Baker I have no doubt that it would have been argued. Whether courts in 1972 would have interpreted it, or whether courts today would interpret it, to mean that SSM is a fundamental right, who knows?
Maybe I’m just naive but it seems to me that if we had a constitutional amendment which specifically prohibits discrimination on the basis of sex then it would be explicitly unconstitutional to deny marriage rights to same sex couples. If two people walk up to get a marriage license and it’s denied, then you are discriminating against at least one of them on the basis of sex, end of story. You’re saying that one of these people is ineligible for THIS marriage based on his/her sex by also saying the same person would be eligible if the other person with them were of a different sex. Damned if they do, damned if they don’t–denial of SSM would be unconstitutional, right?
I’m not saying I disagree with your analysis, in fact I first thought along these lines back in 1989 or so when I was big into the queer activism. This sort of analysis was used by at least the Hawaii supreme court when it aloowed the marriage case in that state to go to trial. Which trial the state lost, but the voters of the state fixed by amending the constitution.