I’m not arguing otherwise. I’m arguing that the divorce court could set a delay of “until the youngest child is 18” for all divorcing couples.
I don’t think anyone would suggest that a court only refusing a divorce to Really Not All That Bright, out of all the people in the country, would be legal.
Are you relying on any particular legal authority for this claim?
yes. constitutional law basics for dummies.
are you really going to make me dig up a case that explains that a right to marry is a fundamental right, and another case that explains that where a government law infringes upon a fundamental right, it’s constitutionality is reviewed under the strict scrutiny test?
Pssst, Rumor_Watkins, the shift key is right beside the “Z” key.
what’s it to you whether i capitalize or not?
Take the type-off elsewhere, please.
Well, yeah, because it sure seems to me that when same-sex marriage has been considered, that is not the test that’s been used.
Your link does not work in the way that I think you wanted it to.
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (holding that statute limiting marriage to opposite-sex couples violates the Hawaii constitution’s equal-protection clause unless the state can show that the statute is (1) justified by compelling state interests and (2) narrowly tailored, prompting a state constitutional amendment and the federal Defense of Marriage Act)
1&2 sound like strict scrutiny to me.
but let’s let the Hawaii supreme court tell you:
[edit: removed the 2nd quote as the first one fully explains my point]
That case discusses rights guaranteed by the Hawaiian constitution, not the federal constitution (though I agree with your larger point).
the constitutional analysis is the same. i tried to find one that dealt with same-sex marriage as a kind of two-for-one (since the SCOTUS hasn’t ruled on the equal protection claims of SSM, iirc).
Whether or not the analysis is the same, you still can’t cite it. It’s not controlling law.
well seeing as marriage and divorce is primarily a creature of state law, it goes to reason that the state supreme courts would be the primary courts conducting the constitutional analysis of the disequal provision of their state’s family law code.
What “goes to reason” is that a question asking “Is there a constitutional right to divorce?” is not asking for a given state, but is asking if such a right is granted under the Federal Constitution, much as it has been found that document grants a right to marry.
I’m not convinced by the arguments that a right to divorce is inherent in the right to free association. For one, that doesn’t work the other way. Your right to free association doesn’t give you the right to marry whomever you want. Even in states that allow SSM, there are still people that you can’t lawfully marry (close family, other people who are married), but I don’t think anyone would argue that your right to associate with them is being infringed. For two, you voluntarily chose to marry someone. Forcing you to uphold a life-long agreement you made doesn’t obviously interfere with your freedom of association in my mind. It is perhaps unfortunate that you made such an agreement and then later wanted out of it, but not clear that your right to association allows you to break willingly agreed-upon obligations.
I’m not entirely sure that if a state didn’t want to conduct any marriages at all that that would be unconstitutional. But I am not sure on this. Anyone have an answer?
Except that in the Texas case, it’s utterly clear that the Texas Constitution does not recognize same-sex marriage, since it explicitly says so. The decision that sparked this discussion was grounded, albeit in a very conclusory fashion, in federal law.
So Texas law – the controlling law for this controversy - doesn’t seem to help.
As to the other states that have considered the question… the majority have not agreed; there are some that have found strict scrutiny appropriate, and of those, some have retained the results and some have had their decisions vitiated by subsequent state constitutional amendment. (Hawaii being one such).
So it seems a bit conclusory on your part to declare that strict scrutiny is the appropriate level of inquiry across the board when the majority of states have resolved the question the other way.
Perhaps it would be more useful to ask, “Under which state’s laws are we answering this question?” because at the very least, there’s no clear, one-size-fits-all answer.
it may be that these courts are saying that there is no fundamental right to same-sex marriage, and thus we won’t analyze this under SS, not that same sex marriage is a fundamental right but we won’t be analyzing this law under strict scrutiny.
but, as to this, i could be 100% wrong. i’m not a con law/SSM guy.