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January 20, 2006

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go Maryland!!!

How appropriate is it that the name of the case that struck down miscegenation statutes is Loving.

hilzoy - I don't think there's a body of case law out there interpreting Loving that would make that opinion hogwash, other than, at least for federal constitutional law purposes, there being no federal ERA, gender discrimination is subject to a lower level of judicial scrutiny than racial discrimination.

Ugh: good. -- Every so often, though, I do try to remember that I'm not a lawyer. My general theory is: be very clear on the difference between (a) what you can figure out given a reasonable ability to construe texts, and some experience reading cases etc., and (b) what requires actual study, and/or some confidence that you know at least the most important cases on a given topic. I try to stick to (a).

Okay, since this is about what happened here in Massachusetts.... what is Maryland's procedure for amending the constitution? There will clearly be a move to do so ASAP.

Good news. Good for Maryland.

Ugh and Hilzoy,

Yes, gender-based discrimination is evaluated under intermediate (some call it "medium-rare") scrutiny. Which isn't especially helpful since the intermediate "test" ("substantially related to an important interest" IIRC) is much mushier than either the deferential 'rational basis' or the usually fatal 'narrowly tailored to support a compelling state interest' test.

To my mind, bans on SSM seem fairly straightforward and clear equal protection violations. But that's largely after unbundling the legal and social definitions of "marriage".

Relatedly, the Alaska Supreme Court last fall found that denying spousal benefits to same-sex partners could not be jusitified even under a rational basis test.)

Pooh: It's the MD constitution, though, and somewhat to my surprise, it doesn't have an equal protection clause. The closest thing seems to be this:

"Art. 24. That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land (amended by Chapter 681, Acts of 1977, ratified Nov. 7, 1978)."

Which the plaintiffs tried to argue was violated by bans on same-sex marriage, but the judge did not really consider those arguments (which seem spurious to me: of course such a ban deprives people of liberties and privileges "by the Law of the land". That, I would have thought, is the whole problem; but not one that allows for an argument about its violating this section.)

The MD Constitution also incorporates the US Constitution, but that wasn't the focus in this case.

After U.S. v. VA, isn't it more "not quite well-done" scrutiny?

"Art. 46. Equality of rights under the law shall not be abridged or denied because of sex."

isn't this "an equal protection clause?"

Joe -- yes, sorry; I meant a 14th amendment analog, or something that used that language. Art. 46 is, of course, the ERA.

So it appears that the people who opposed the ERA in the 70's and early 80's because they were afraid that it would lead to gay marriage (arguments which were called "baseless" and "scare tactics") were right after all. I don't suppose anyone will be apologizing to Phyllis Schlafly anytime soon.

On the other hand, yay for Maryland. Although I would much rather this descision were made via the legislature, even if the case was correctly decided.

Hilzoy: The opinion argues, I thought rather persuasively, that the first interpretation of prohibitions on marrying someone of a different race had been considered and rejected in Loving v. Virginia.

This has been long been my layman's argument with respect to the federal equal protection clause. I understand that intermediate scrutiny is a bit mushy, but has anyone yet been able to articulate the important government interest served by sex-based marriage bans?

Mario: On the other hand, yay for Maryland. Although I would much rather this descision were made via the legislature, even if the case was correctly decided.

Of course it wold be better if the peoples' representatives saw fit to only pass constitutional laws. But, failing that, I'm perfectly happy for the courts to provide remedies to legislative abuses.

But, I think his other point is worthy of comment too. Many did dismiss that the ERA would benefit homosexuals in such a fashion, if at all. This is not unisex toilets, but if such a claim was made in the 1970s, many advocates would try to dismiss it.

Although I would much rather this descision were made via the legislature, even if the case was correctly decided.

IIRC a domestic partnership bill passed both houses of the Maryland legislature by a good margin last year, only to be vetoed.

To all those who take this position, moreover, I always pose the following questions: do think think Loving an illegitimate use of judicial power? Are you really content to wait as long as it would take for legislatures in the Old Confederacy to rid our country of that stain?

Of course, this may end up being a huge gift to the Lt. Gov., who can add 'God hates fags' to his senatorial campaign.

"[D]o think Loving an illegitimate use of judicial power? Are you really content to wait as long as it would take for legislatures in the Old Confederacy to rid our country of that stain?

It's not about illegitimacy; it's about the reaction it incites. I worry about an excessive use of the judiciary or any other non-legislative means to pass laws because it has a tendency to create a backlash that could threaten the cause itself. Gavin Newsom is case-in-point. How many states were writing “Defense of Marriage Acts” before he decided to start marrying gay people? Instead of making nationwide gay marriage more likely, his actions actually made it less likely, prompting talk of a constitutional amendment. The fact that its opponents made so little progress should not absolve him of his complicity in what could have been a disaster.

The only thing that concerns me is that some peoples’ zeal to see their issues resolved sometimes sabotages the issue itself. They have to recognize that it is not simply enough to have the courts decide in their favor, but that decision has to be accepted by the people. Don’t let the convenient become the enemy of the good.

Mario: Instead of making nationwide gay marriage more likely, his actions actually made it less likely, prompting talk of a constitutional amendment.

I think that the talk of a constitutional amendment was actually prompted by Bush seeing a target he figured that no one would mind him kicking, and his base would love him all the more for it.

They have to recognize that it is not simply enough to have the courts decide in their favor, but that decision has to be accepted by the people.

Evidence from round the world - and in the US itself - shows that, once legal marriage is available for same-sex couples, it takes not long at all for that to be accepted by most people. (The mad homophobes of course do not and will never accept legal same-sex marriage, but they are a decided minority: I mean the people who now think they cannot accept same-sex couples marrying, but who when they see it happen, and the sky not falling, and recognize that no harm is done and a great deal of good, stop objecting to it.)

I worry about an excessive use of the judiciary or any other non-legislative means to pass laws because it has a tendency to create a backlash that could threaten the cause itself.

What backlash have you noticed against mixed-race marriages?

"I think that the talk of a constitutional amendment was actually prompted by Bush seeing a target he figured that no one would mind him kicking, and his base would love him all the more for it."

I have to disagree. I think that gay marriage was a topic that both candidates would have preferred to ignore completely, until circumstances made that impossible. I think its also pretty clear that Bush never had any real interest in pushing for the amendment, regardless of what he said during the campaign.

once legal marriage is available for same-sex couples, it takes not long at all for that to be accepted by most people."

Fine, as long as it gets to that point. There is, however, a delay between a court ruling and the point at which the full effects of that ruling are seen by most people. That is where the danger lies.

"What backlash have you noticed against mixed-race marriages?"

None, although it should be pointed out that I am neither old enough, nor do I live in a place where such a backlash would have been seen. Nevertheless, the lack of a backlash in one case does not prove that such events do not happen, merely that the ruling in Loving happened late enough that people were willing to accept it. Would the results have been the same if it happened a few decades earlier? My point isn't that judicial rulings that change existing laws are always wrong, merely that they should be used cautiously and sparingly.

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