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March 16, 2004

As the Cases Align

I'm not entirely sure why so much of the legal argument surrounding same-sex marriage has focused on the Full Faith and Credit clause. It probably has to do with the fact that, before last year, it was the most plausible mechanism to push SSM through the courts. However, as Matthew Franck explains, it's no longer even the most probable route:

All the ammunition the Court needs is contained in just three cases: Loving, Romer, and last year's Lawrence v. Texas, a due process case in which Justice Kennedy wrote of the Court's heightened solicitude for "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." The Massachusetts high court, in its recent Goodridge decision, took the Court's hint (as Justice Scalia virtually predicted), and held that the state constitution's equality clause condemned heterosexual-only marriage as "irrational," and necessitated, after Lawrence, the full recognition of gay marriage.

Now do a quick head count. Surely Justices Stevens, Souter, Ginsburg, and Breyer would all see the analogy of a gay-marriage case to Loving. They cannot be trusted to notice that "sexuality" and race are hardly in comparable categories of human attributes, and that only one of them has any connection to the historic purposes of the Fourteenth Amendment. American society's legal abandonment of marriage as we have always known it depends on the vote of Justice Kennedy and/or Justice O'Connor. I wouldn't bet against either of them joining the four just mentioned. After all, they were in the majorities in Romer and Lawrence, and Kennedy wrote the incompetent, overreaching opinions in both cases. Don't listen to the "expert" law professors who babble on about full faith and credit as though that were the only constitutional issue in the gay-marriage debate. Watch out for Loving II.

The bottom line: the only way to spring out of this legal mousetrap is to pass a Constitutional amendment. Thereafter, SSM advocates can continue to bring their case to the American people, and if demographic destiny proves to be as it is widely stated to be, the amendment can be overturned by popular vote down the road. Hopefully, too, being thus rebuked, the judicial oligarchy may consider it beneficial to lay low for awhile; perhaps the action will even mark a turning point for judicial activism, as judges who would like to legislate realize that they will have to be more subtle lest they provoke further amendments.

If, on the other hand, no amendment is passed, the courts will nationalize gay marriage (against the loud protests of federalism-touting SSM supporters, I'm sure). That will either spark more-drastic action by the other branches of government or serve as a test case for the next level of sweeping judicial activism — judicial rule.

Posted by Justin Katz at March 16, 2004 7:26 PM
Marriage & Family