Same-Sex Marriage Takes Another Hit

Just one week after the New York Supreme Court upheld a ban on same-sex marriage in that Blue State, a federal appeals court this morning upheld similar laws in the decidedly Red State of Nebraska. When you add into the mix the Georgia Supreme Court's support last week for a ban on same-sex marriage there is no doubt that same-sex marriage proponents are on the legal defensive.

In all three cases, a majority of judges were willing, even eager, to defer to the policy choices of legislators and voters because they did not consider a person's right to marry someone of the same sex a "fundamental" constitutional right worthy of a heightened level of judicial scrutiny. And until that part of the legal equation changes, similar efforts by same-sex marriage proponents are likely to fail. Without the "fundamental right" component, judges endorse statutes and laws that are "rationally" related to legimitate state interests. And that standard, as the three cases highlight, means just about any legislative effort that could conceivably be determined to achieve any possible governmental goal. It's a calculus that bodes well for same-sex marriage opponents who want to see fail state and national efforts to change the laws.

You may be asking yourself by now, what happened in 2004 in Massachusetts? How and why did that state's supreme court come to a completely opposite conclusion about same sex marriage? The court's majority simply looked a little more closely at the state's rationales for endorsing opposite sex marriage (but not same-sex marriage). Each of the stated rationales, the Massachusetts court concluded, failed to rationally achieve a legitimate state interest.

Do yourself a favor, read the rulings I've linked here. Forget about the politics and focus upon the arguments. And then come to your own conclusions about whether state laws that promote heterosexual marriage rationally promote interests that could not be promoted by also recognizing same-sex marriage.

By Andrew Cohen |  July 14, 2006; 2:30 PM ET
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only in America can you commit a hate crime and not ge t charged...with it as part of the election process...

homophobia as a tacktic, ^ nucleus of destruction process.


Posted by: television night earam | July 15, 2006 08:33 PM

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