Monday, June 30, 2003

Gay Marriage on the way?

While the majority decision in Lawrence v. Texas rests on the Due Process clause, I'm more of a mind to agree with Justice O'Connor - that it's an Equal Protection issue. On that basis, I can't see that the prohibitions against same-sex marriage will stand much longer.

In O'Connor's concurring opinion re Lawrence, she writes
This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.
Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law.
Since the main opposition to same-sex marriage seems to be on grounds of moral disapproval, I read O'Connor as saying that statutes prohibiting them are on as shaky a footing as Bowers was. This, of course, presupposes that the makeup of the court doesn't change significantly between now and then, whenever 'then' is. And, given Bush's court choices so far, that's a BIG if.

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