FauxPolitik

Wednesday, February 25, 2004

Gay Marriage and Loving: But does Loving v. Virginia apply here? (Warren in fact wrote that "[m]arriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." But that is, on its face, not true.) The court held that a man and woman of different races could not be prohibited from marrying. The difference, obviously, is that the Loving couple consisted of a man and a woman -- it was, ironically, what we might call a traditional marriage. The decision simply removed race as a factor. In other words, Loving (like Lawrence) overturned a law found to have no rational basis (Warren: "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification").

Has gay marriage ever really been criminalized (not counting the Defense of Marriage Act, which seems rather toothless to me), or has it just not been allowed? I wonder what the difference is. Nevertheless, there was no Massachusetts law for the SJC to overturn; thus, they had no authority to proceed as far as they have. Had they overturned a statute criminalizing gay marriage, I think I'd feel a little better about the whole thing. In other words, I think some of my uneasiness about the issue boils down to judges giving orders to legislatures.

Razor, should courts have that power?

0 Comments:

Post a Comment

<< Home