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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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    :: Friday, July 07, 2006 ::
    OK, I've had a chance to look over the NewYork opinion.

    Maggie Gallagher has often argued that to support same-sex marriage, one must deny either that straight sex has a much higher likelihood of leading to babies than does gay sex, or that children need both a mother and a father. (Her debating opponents often validate this observation by proceeding to deny the second proposition.)

    This is relevant to the rational-basis portion of the New York opinion, which holds that a rational legislature could hold both those propositions, in which case extending marriage to opposite-sex but not same-sex couples, in the interest of children, easily clears the r.b. threshold.

    The court also (in both the plurality and the concurring opinions) addresses Loving v. Va. in a very thorough way. Loving was mainly about race, and the "right to marry" that it announced dissolves state-imposed restrictions on marital choice only insofar as those restrictions are based on race. This reading of Loving is bolstered by its own text, and also by the terms of the U.S. Supreme Court's denial of cert. in an early ssm case.

    The dissent relies on the U.S.S.Ct's revisionist reading of Loving in Zablocki v. Redhail, which (a) was about divorce, not ssm, and (b) is an outlier anyway; see Sosna v. Iowa. The dissent also quoted from the NAACP's amicus brief -- not from authorities cited in the brief, but the brief itself, as though the NAACP somehow "owns" Loving and can authoritatively float revisionist readings of it. (The NAACP may not be speaking for many of its constituents, if this lament by the Rev. Al Sharpton is factually accurate.)

    If I may do some ssp here, I've written about the Loving analogy in: 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 1:31 PM [+] ::

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