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Why Marriage Equality is a Constitutional Issue March 15, 2009

Posted by truthspew in Gay rights, marriage equality.
Tags: , ,

I’ve said again and again, the inability of gay people to marry or seek civil divorce violates our Constitutional rights. If truth be known, in RI it violates Article 1 Section 2, and it also violates the 14th Amendment of the U.S. Constitution.

My cousin Tom sent me this article that analyzes the Connecticut courts reasoning and defines the Quasi Suspect Class argument.

Here’s a very relevant part of the article. It’s two paragraphs but here goes:

The opponents of same gender marriage argued that the legislature has a compelling interest in retaining the term ‘‘marriage’’ to describe only the legal union of a man and woman because ‘‘that is the definition of marriage that has always existed in Connecticut, and continues to represent the common understanding of marriage in almost all states in the country.’’ In addition, they argued that the authority to define marriage rests with the people and their elected representatives and not with the courts.

The Court disagreed, stating that “to say that the discrimination is ‘traditional’ is to say only that the discrimination has existed for a long time. A classification, however, cannot be maintained merely ‘for its own sake’. Simply put, a history or tradition of discrimination—no matter how entrenched—does not make the discrimination constitutional. Moreover, because gay persons meet all of the criteria of a quasi-suspect class they are entitled to heightened judicial protection from laws that discriminate against them. Even though the right to marry is not enumerated in our constitution, it long has been deemed a basic civil right.”

I’ll address the first paragraph, specifically the usual phrase that the “people and their elected representatives reserve the right”

But what does one do when you cannot get redress to grievance from a representative body? That’s the reason we have the courts. Put it this way, were we to be granted the right to marry by our legislative body you can be damned sure those bigots against us would be filing a court case to overturn the law. You’d have groups like the National Organization for Marriage (There’s the oxymoron again!) filing amicus briefs, you’d have the RC Church of RI probably initiate the suit or vice versa.

The second paragraph needs no explanation or expansion.


1. Mark in DE - March 16, 2009

Agreed. It is everyone’s right to marry; not a privelege for straights.

2. wheelsofjustice - March 16, 2009

The first paragraph reminds me of [now former] Chief Judge of the N.Y. Court of Appeals, Judith S. Kaye’s beautifully-written dissenting opinion in HERNANDEZ v. ROBLES, 855 N.E.2d 1 (N.Y. 2006)(Interestingly,in New York, the lower-level, trial court is called the “Supreme Court”). In that opinion, she quoted from the [Massachusetts] case of GOODRIDGE v. DEPT. OF PUBLIC HEALTH, 798 N.E.2d at 962 (Mass. 2003): “…It is circular reasoning, not analysis, to maintain that marriage is a heterosexual institution, because it has historically been so…”

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