“Quite literally, the opposition to gay marriage is dying”

Please find the right to marriage in the Constitution for me…

kingsjester on December 9, 2012 at 4:20 PM

The Supreme Court has held since 1967 that marriage is a fundanmental right under the 14th Amendment to the U.S. Constitution. Here is their take on the issue, from the 1978 case of Zablocki v. Redhail:

[O]ur past decisions make clear that the right to marry is of fundamental importance… The leading decision of this Court on the right to marry is Loving v. Virginia, 388 U.S. 1 (1967).In that case, an interracial couple who had been convicted of violating Virginia’s miscegenation laws challenged the statutory scheme on both equal protection and due process grounds. The Court’s opinion could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause. Id., at 11-12. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. The Court’s language on the latter point bears repeating:
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Id., at 12, quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.
Zablocki v. Redhail, 434 U.S. 374, 383-384 (1978).

cam2 on December 9, 2012 at 4:45 PM

melle1228 on December 9, 2012 at 5:43 PM

Baker was decided in 1972. Much has changed since that time. In 1986, the Supreme Court decided in Bowers v. Hardwick 478 U.S. 186 (1986) that the due process clause of the Fourteenth Amendment does not confer any fundamental right on homosexuals to engage in acts of consensual sodomy. Less than 20 years later, in Lawrence v. Texas, 539 U.S. 558, 577-578 (2003)
the Court reversed itself, noting:

The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions: “Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 US, at 216, 92 L Ed 2d 140, 106 S Ct 2841 (footnotes and citations omitted).

Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick v. Hardwick should be and now is overruled.

Since that time, public opinion on gay rights, and particularly the right to marry has undergone a sea change, to the point that four of four gay marriage referenda in the past election were won by gay marriage proponents, and gay marriage is now legal in states containing a significant chunk of the U.S. population. The time is ripe for a re-examination of this issue by the Supreme Court, and I doubt they will feel constrained by their decision not to hear Baker in 1972.

cam2 on December 9, 2012 at 9:59 PM