ARIZONA RULES AGAINST GAY MARRIAGE: Dale A. Carpenter

Hooray for Maggie's citation!

I wonder if the supporters of the FMA are going to calm down just a bit now that the first court to consider a claim for SSM in light of Lawrence has rejected the claim?

I must admit that I think the Arizona court reaches its anti-SSM result in part by misreading Lawrence. It understands the Lawrence court to have applied rational-basis scrutiny to the Texas sodomy law, a judicial standard under which the government nearly always wins. The better reading of Lawrence, in my view, is that the Supreme Court applied (albeit silently) heightened scrutiny to the law, a judicial standard under which the government nearly always loses. There is simply too much effort in the Lawrence opinion to place the case within the Court's earlier fundamental rights decisions to think it is treating the matter like a run-of-the-mill rational-basis case. It would be relatively straightforward for a future court to characterize the Lawrence holding narrowly -- as involving the protection of the most private of behavior (sex) in the most private of places (the home) -- in rejecting a Lawrence-based SSM claim.

The more interesting parts of the Arizona opinion deal with the Court's earlier decisions upholding a fundamental right to marry (even prison inmates have such a right). There I think the arguments for SSM are harder to dismiss because SSM lines up so well with the purposes of marriage identified by the Supreme Court. I don't find the Arizona court especially persuasive on this point. Though again, for a number of reasons, I expect courts for the foreseeable future to reject SSM arguments based on the federal constitution.




posted by maggie at 3:56 PM VOTE

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