Wednesday, August 17, 2011

ScotusBlog: more from the same sex marriage symposium

The excellent site Scotusblog is running an on-line symposium about legal issues surrounding Same Sex Marriage. I strongly encourage you to check it out, and read the complete essays there. I've only excerpted small parts here. I'll be excerpting others as they are published. Emphases mine. Robert Levy, chairman of the Cato Institute, writes:
I’d like to comment briefly on three jurisprudential issues that are central to the debate over same-sex marriage: religious freedom, federalism, and judicial activism… 
the right to same-sex marriage is not a constraint on religious beliefs or practices. The First Amendment ensures that churches, synagogues, and mosques are free to choose which marriages they want to recognize. Some religious institutions will sanction same-sex marriages; some will not; a third group might call them domestic partnerships. No church would be compelled to implement a policy contrary to the beliefs of its congregants; and congregants would be free to join the church whose views they found congenial. The gay marriage controversy is not about private religious practices; it’s about government’s role in issuing marriage licenses. … 
federalism does not excuse compliance with the Equal Protection Clause. ….States may not discriminate, without justification, by recognizing heterosexual but not homosexual marriages. No justification has been shown. 
How about procreation? No. Infertile persons are permitted to marry even though they cannot procreate. Child rearing? No. Studies show that children do just as well when raised by same-sex parents. Promoting traditional marriage? No. Allowing gay marriages does not deter heterosexual marriages. Conserving government resources? No. The Congressional Budget Office found that recognizing same-sex marriages would save money. We’ll have fewer children in state institutions, lower divorce rates, and less promiscuity. … 
Federalism first and foremost “protects the liberty of the individual from arbitrary power.” The object is personal freedom, including the freedom to engage in a marital relationship that visits no harm on innocent third parties. ….. 
Judicial engagement – as differentiated from judicial activism – is essential to safeguard rights that majoritarian rule has left unprotected. That’s the role that judges are supposed to fill. When Kris Perry’s rights are violated by Californians and the state’s political process hasn’t yielded an adequate remedy, the courts can and should intervene. 
Judges have a responsibility to invalidate all laws that do not conform to the Constitution. Our courts would be derelict if they endorsed unconstitutional acts merely because they were compatible with transitory expressions of public sentiment. Proposition 8, because it violates the Equal Protection Clause, cannot be allowed to stand regardless how large the majority that voted in favor.

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