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Sun May 18, 2014, 10:49 AM

Even Conservative Judges Can’t Deny the Constitutional Logic of Same-Sex Marriage

Margo Schlanger

What’s up with even red state judges backing same-sex marriage? The Constitution and Anthony Kennedy, basically. But watch those appeals.

Who would have thought, just a few years ago, that the states on the vanguard of marriage equality would be the deepest red states? But here we are: From December’s decision in Utah to the past two weeks in Arkansas and now Idaho, we’ve seen a string of a dozen decisions, largely in red and purple states, each declaring bans of same-sex marriage to be unconstitutional.

How can this be happening? What was in recent memory one of the most hotly contested political and legal issues—an issue that continues to divide the parties at the state and national levels—has become a rare island of consensus in the courts. To be sure, cracks are likely to appear as the cases progress through the appellate process. But the degree to which liberal and conservative judges in red, blue, and purple states alike have agreed on this issue is stunning. What explains this turnabout?

Start with the legal reasons. Courts are implementing Justice Anthony Kennedy’s majority opinion in last year’s Windsor v. United States, striking down the Defense of Marriage Act. Many legal commentators were frustrated that Justice Kennedy avoided the doctrinal apparatus of “tiers of scrutiny” and “levels of review.” But these commentators were missing the point. Rather than hiding behind esoteric doctrinal tests, Kennedy focused directly on the core principle enforced by the constitutional guarantees of equality in the Fifth and Fourteenth Amendments—the principle of equal membership in the community.

In decades-old precedent (about a law designed to keep hippies from receiving food stamps, of all things), the Supreme Court held that “a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Justice Kennedy’s Windsor opinion broadened this language, equating a “bare desire to harm” with the less vindictive “purpose and effect of disapproval,” or the “purpose… to impose inequality.” These, he explained, are hallmarks of unconstitutional governmental action.


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Reply Even Conservative Judges Can’t Deny the Constitutional Logic of Same-Sex Marriage (Original post)
DonViejo May 2014 OP
Thinkingabout May 2014 #1

Response to DonViejo (Original post)

Sun May 18, 2014, 10:52 AM

1. They really do not have a choice if they follow the Constitution.

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