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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Monday, May 08, 2006 ::
    You need to read this:

    Banned in Boston:
    The coming conflict between same-sex marriage and religious liberty.
    by Maggie Gallagher
    The Weekly Standard, 05/15/2006, Volume 011, Issue 33



    To get you started:
    Reading through these and the other scholars' papers, I noticed an odd feature. Generally speaking the scholars most opposed to gay marriage were somewhat less likely than others to foresee large conflicts ahead--perhaps because they tended to find it "inconceivable," as Doug Kmiec of Pepperdine law school put it, that "a successful analogy will be drawn in the public mind between irrational, and morally repugnant, racial discrimination and the rational, and at least morally debatable, differentiation of traditional and same-sex marriage." That's a key consideration. For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don't arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities. Doug Laycock, a religious liberty expert at the University of Texas law school, similarly told me we are a "long way" from equating orientation with race in the law.

    By contrast, the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage, perhaps because many of these scholars live in social and intellectual circles where the shift Kmiec regards as inconceivable has already happened. They have less trouble imagining that people and groups who oppose gay marriage will soon be treated by society and the law the way we treat racists because that's pretty close to the world in which they live now.
    Emphasis added. For my latest $0.02 on the orientation/race analagy, see David M. Wagner, Marriage and Banking: Examining Miscegenation Laws to Test the Proposition that Loving v. Virginia Leads to Goodridge v. Department of Public Health, 7 Fl.Coastal L.Rev. 389 (2005).

    :: David M. Wagner 1:46 PM [+] ::
    ...

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