[eDebate] same sex marriage (ans elliot)

Logan Martin logan.martin
Fri May 8 11:47:19 CDT 2009

"b) the Supreme Court is likely to make it a national right under the Full
Faith and Credit Clause using the same lagic it used to overturn
miscagenation laws. "

For what it's worth:

I don't think Loving v. Virginia (the landmark Supreme Court case striking
down anti-miscegenation laws) was decided on Full Faith and Credit grounds.
I think it was decided on 14th amendment substantive due process/equal
protection grounds:  marriage is a fundamental right, Virginia's
anti-miscegenation statute burdens it, doesn't withstand strict scrutiny,
ergo unconstitutional/race is a suspect classification, Virginia's
anti-miscegenation statutes are racially discriminatory, doesn't withstand
strict scrutiny, ergo unconstitutional.  At the very least, it wasn't ONLY
decided on full faith and credit grounds, bc that would have meant that
Virginia could continue to ban interracial marriages in Virginia so long as
it recognized interracial marriages conducted outside of Virginia.

Now maybe there's a pretty healthy debate to be had about whether Loving
compels the recognition of same-sex marriages, but I don't think it's a
foregone conclusion--especially with the current supreme court.

In two landmark Supreme Court gay rights cases in the last 15 years or so
the court has declined to apply heightened scrutiny to laws which
discriminated against gays/lesbians either on Equal Protection Grounds or on
Substantive Due Process grounds.  (See Romer v. Evans--using rational basis,
not strict/intermediate scrutiny, to strike down Colorado's Amendment 2; see
also Lawrence v. Texas--striking down anti-sodomy statutes under rational
basis review only.)

Also I think the court's moved to the right a little bit since those
decisions, but of course it's hard to speculate how any court will come out
on an issue.

Lastly, even if the court requried states to give full faith and credit to
same-sex marriages recognized in other states I think this would be
different than recognizing a "right" to same sex marriage.  It wouldn't
require states to allow same-sex couples to get married in any state they
wanted, at least.

So anyhow thought I would share all that.  I don't know how that should
impact everybody's topic discussion.

Logan Martin

p.s. Here's some of the cases I mentioned:

http://www.law.cornell.edu/supct/html/02-102.ZS.html (Lawrence)

p.s.s.:  After typing this I went back and re-read Loving.  It does not
mention the Full Faith and Credit Clause.
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