EQUAL TIME: David Link

at the Independent Gay Forum:

Senate Republicans are ready to bring up same-sex marriage as an issue for Supreme Court nominees. Sen. Orrin Hatch says conservatives want to avoid another Roe v. Wade, which is unobjectionable in my mind. I’d like to avoid that, too.

But what does that mean when it comes to the judicial philosophy of a Supreme Court justice? Roe v. Wade is controversial as a matter of politics in large part because it was controversial as a matter of constitutional law. It rests on the right to privacy, something not mentioned in the text of the constitution. That is something that could give reasonable people pause about how judges do their job.

But gay rights would not need to rely on any unarticulated language in the constitution. The equal protection clause is right there in black and white. There is certainly a legitimate question about its precise meaning. State court judges across the country have come to differing conclusions about how to apply it to particular cases. But it is wrong to argue that a ruling in favor of gay rights under the equal protection clause is the same kind of constitutional overreach as a ruling in favor of a right to abortion under the right to privacy.

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Labels: courts, gay marriage

posted by Eve at 4:29 PM VOTE

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