PLEADING THE FOURTEENTH: Will Baude replies to Austin Bramwell

...Bramwell wrestles with the Boerne point but too briefly, because he breezes past the assumption that the Court will agree that marriage as recognized by the Fourteenth Amendment must always be between one man and one woman. While, like Bramwell, I doubt that the Court is going to hold that all marriage statutes must apply to same- and opposite- sex couples alike, I think he is too confident in assuming that the Court will believe that marriage can never be other than the man-woman pairings we currently recognize.

Instead, imagine a meandering Stevens (or Kennedy) opinion in which the Court tours through the laws of the world, and through history, to point out that not all marriages at all times have been between single man-woman pairs, and then tying that to the recent history of gay marriage in Massachusetts, civil unions in Vermont, and so on. [Alternatively, an attack on the statute could focus on first persuading Thomas, a la his Troxel concurrence, that there is no fundamental right to marriage per se in the 14th Amendment, and therefore that Congress can not enforce it.]

One last thing. At one point Bramwell says that the Civil Rights Acts draw their power from Section 5 of the 14th Amendment. It's possible I misunderstood this part of Con Law, but my understanding that that was only true of the C.R.A. as applied to the states (which is why it can abridge 11th Amendment sovereign immunity), and that to apply to private actors, which is the bulk of its power, it draws from the Commerce Clause (C.f. Heart of Atlanta Motel, Civil Rights Cases, U.S. v. Morrison). This isn't important for Bramwell's argument, necessarily, although it would suggest that Congress is still powerless to do anything about private organizations (churches, etc.) recognizing gay marriage.

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posted by Eve at 10:33 PM VOTE

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