Constitutional
Law Class Notes
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So
does the Federal Constitution require a state to extend the right to marry to homosexual
couples on the same terms that it grants such rights to heterosexual
couples? The majority isn’t explicitly
ready to take such a step. The opinion suggests
sort of the reverse of Grutter’s
sunset provision. Maybe in 25 years, gay
marriage will be allowed. How can this
be justified as a legal judgment? The
individuals who are on the Court now would vote to say that the Constitution
doesn’t require equality of marriage as a matter of Con Law.
Will
the justices not enforce the Constitution because they’re not ready to? The Court
doesn’t claim that the Constitution has evolved between Bowers and this case. They
say that they misunderstood the Constitution back then but they understand it correctly
now. What about the equal protection argument? Would a law against polygamy create a suspect
classification on the basis of “plural marriage”?
This
opinion is not understood to grant a right to gay sex inside of marriage. That’s
the correct analysis of
This
is a criminal law with criminal consequences attached.
Foley
says that the majority is saying that this case is about love and intimacy and
people being able to find themselves.
Why not marriage? The reason of
why not is not a reason of Constitutional Law, but rather a pragmatic reason. What should the justices have said in
What
do we get out of Griswold? Here’s one way to understand Griswold and the concept of “unenumerated
rights”. James Madison, when he wrote
the list of rights in the Bill of Rights and submitted it to the states, did
not include a right of marriage because he thought it was so obvious. The idea that Congress could take that right
away was so far fetched that there was no reason to say anything. He talked about the things that people were afraid
that the American government would do because tyrannical governments like the
British government did them. He also
said: “This isn’t a complete list of all the things that tyrannical governments
do. The Ninth Amendment says that there
are other rights that should be protected but aren’t listed.” If you asked James Madison whether the right
to marry was fundamental, he would say: “Absolutely.” Once the right to marry is worthy of constitutional
status, then a new aspect (contraception) comes along and you can argue that it
must be protected as part of that
essential right. That would be a way to
understand Griswold, at least
narrowly. That’s a way to add a constitutional
right even thought it’s not mentioned.
It’s
harder to make that kind of James Madison argument with respect to
homosexuality.
Equal
protection would have been a narrower ground for decision here. Foley predicted that the majority would go
with O’Connor. The majority went out of
their way to embrace the substantive due process issue. They wanted to go out of their way to show
that laws like the