NOT LOVING IT: Matthew J. Franck replies to Lea Brilmayer

...In this age of the hyperpoliticized judiciary, I would not be as confident as [Brilmayer] is that neither federal nor state judges will invent a new full-faith-and-credit doctrine to force the interstate honoring of gay marriages. But even if such fears are unfounded, the same result of nationalized gay marriage is more likely to be reached by another path entirely. For it does not follow at all from Brilmayer's argument, as she asserted, that "the assumption that there must be a single national definition of marriage...is mistaken and pernicious." The ticking bomb--not a "chain reaction" but a single explosion that could easily come on a single day--lies not in the recesses of Article IV but in the equal-protection and due-process clauses of the Fourteenth Amendment.

The precedent to examine is the aptly named Loving v. Virginia, the 1967 Supreme Court ruling that outlawed anti-miscegenation statutes, or laws against interracial marriage. ...

Turning to the claim by Virginia that its law was not so "irrational" in purpose as to merit no deference from the Court, Warren said that "[t]here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification." All that the law furthered was an ideology of "White Supremacy." And so it did. But this too should sound familiar. In Romer v. Evans (1996), the Court held that there was no rational justification for a Colorado state constitutional amendment, adopted by referendum, that barred the passage of any statutes or local ordinances recognizing discrimination against gays as any kind of offense. Justice Kennedy, for the Court in Romer, held that there was no way to view that amendment except to say that "the disadvantage imposed is born of animosity toward the class of persons affected." No argument of "rational basis" was given any credence in Romer, any more than it had been in Loving. It's fair to say that Justice Kennedy condemned an ideology of "Heterosexual Supremacy" in terms strikingly similar to those used by Chief Justice Warren. ...

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.

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posted by Eve at 1:47 PM VOTE

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