I suspect that Bricker’s position is that the fourteenth amendment was the legislative relief, and that the court’s decision in Loving was merely the court enforcing exsisting laws that had been assumed through the legislative process.
I absolutely respect Bricker’s opinion on the matter, but I can’t embrace it personally because it essentially requires me to live the rest of my life as a second class citizen in the off-hand chance that some future generation of Americans won’t be a bunch of pig-headed bigots and will finally condescend to treat their fellow citizens like equals, which if current demographics are any guide, won’t happen until long after I’m dead. Guess I’m just too selfish to accept that, so I’m going to have to go with the so-called “activist judge” method of achieving my equality.
Scalia is a textualist (regardless of whatever label he personally uses, his book on judicial interpretation spends a good deal of time arguing against what is commonly called originalism). Robert Bork is an originalist. Thomas is whatever Scalia is.
Bingo.
An equal protection claim based on race is at the core of the fourteenth amendment. A judicial pronouncement resting on that amendment in such a case is thus tough to decry as activist. A judge ruling in that case really isn’t shoving anything down the throats of the citizenry.
Which is why I concur in part and dissent in part from Loving: the equal protection aspect of the case is absolutely correct, the “substantive” due process aspect of the case absolutely wrong.
Unfortunately, the legislative approach is not likely to yield the desired result of SSM at this time. I expect that a strategy focused of gaining half a loaf instead of none (ie, civil unions or domestic partnerships) is the best that can be hoped in our generation.
Judicial rulings on the state level, as per the MA decision, might be possible in one or two other states, but the downside of a ruling at the federal level is grave. While there is not much support for a federal anti-SSM constitutional amendment now, a SCOTUS ruling in favor SSM would almost certainly push a federal constitutional amendment thru. Once enacted, such an amendment would be near impossible to rescind, due to the super majority needed.
Challenging the anti-miscengination laws in the 60s was an almost sure thing-- the country was ready to end institutionalized racism, and there was a clear constitutional basis for doing so. While it may seem that the constiution speaks to equal rights for gays, there is simply no concesus on that in the US at this time. Maybe these court cases serve the purpose of at least keeping the issue in the forefront. But a clear cut roadmap from where we are now to legalized SSM just isn’t available today.
Were the anti-miscegentation laws ever taken to the SCOTUS before Loving? Assuming they were, and were found to be consitutitional, what was the basis for that finding, in light of the 14th amendment?
I can understand how “seperate but equal” could be twisted into some form of equality, but forbidding marriage altogether just seems impossible to uphold.
