Equal Protection Update: As I noted, Amy Ridenour at the NCPPR has responded to my post on equal protection. She begins with a valid point; admittedly, I don't really know where Earl Warren would have stood on gay marriage. That was gratuitous hyperbole, and I apologize for it. (But I do think I have an argument, so read on.)

More to the point, she says:

I can't conclude that Warren disagrees with what I posted online. Warren argued that banning marriage between the races had no rational basis. He didn't argue that all restrictions on marriage are irrational or unconstitutional.

Fair enough. I also agree with her that Warren was addressing race exclusively in his Loving opinion. I may or may not agree that Warren would withhold his reasoning in Loving from the same-sex marriage dispute; that much certainty is lost to the silence of the crypt.

I do, however, think that Warren would have joined me in disputing Ms. Ridenour's original claim that

. . Every American of legal age, excluding some deemed mentally incompetent to fulfill a contract, is treated the same by our marriage laws.

I think this because he rejected that argument in Loving v. Virginia. As I demonstrated previously, every Virginian was treated equally by state anti-miscegenation laws. But Warren rejected the notion of equality put forth by Virginia, which he summed up this way:

Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race.

Thus do I draw some analogy between Ms. Ridenour's statement of the rules of equality

We can only marry if we are unmarried, and if the person we wish to marry is eligible to marry. We can only marry a person if that person wants to marry us back. And, yes, we must marry someone of the opposite sex.

with my own paraphrase of the pre-Loving rules using a formally similar presentation

We can only marry if we are unmarried, and if the person we wish to marry is eligible to marry. We can only marry a person if that person wants to marry us back. And, yes, we must marry someone [of our own race]

Because homosexuality is not covered explicitly by the 14th Amendment, I don't think Warren could have put forth the same argument for strict scrutiny that he used in Loving. But it is fairly clear that he rejected the notion of equality put forth by the state of Virginia -- a notion that has logical parallels in Ms. Ridenour's construction.

Note, further, what Warren said, and Ms. Ridenour quotes:

The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

But a close reading of the 14th Amendment shows that this protection in no way extends exclusively to race:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The upshot of all of this? I still don't know how Warren would have ruled in a hypothetical same-sex Loving. But the old bat was full of surprises, as Ike found out the hard way.

Finally, to Ms. Ridenour: I had never been to the NCPPR site (or the blog) previously, but you've won yourself a new reader.