Monday, January 11, 2010

Will the federal courts rewrite the Constitution on same-sex marriage?

This just in from the Decline of Western Civilization desk:
SAN FRANCISCO -- The first federal trial to determine if the U.S. Constitution prohibits states from outlawing same-sex marriage gets under way Monday, and the two gay couples on whose behalf the case was brought will be among the first witnesses.
And we all know, of course, what the Constitution says about same-sex marriage. Why there's that passage in Article ... let's see ... I thought I saw it here. Well, regardless of that, it says in the section toward the end ... hmmm ... try to find it ... Shoot. I could have swore it was there.

Oh, nevermind.


Saint Onan said...

So? The Constitution doesn't mention interracial marraige either.

That didn't stop the Supreme Court overturning Virgiania's "Racial Integrity Act of 1924" nine judgements to zip, on the grounds that it violated the Fourteenth Amendment.

Loving v Virginia (1967)

Thomas M. Cothran said...

The reasoning in Loving has very little to do with equal protection, and is not particularly well reasoned (it really reasons to certain concept of natural law rather than Constitutional provisions). However, it has the advantage of a morally good outcome, however legally dubious the means it used to get there.

And the reasoning in Loving doesn't work in same-sex marriage cases, as several courts have pointed out when shooting such appeals down.