Law Class Notes
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”?
opinion is not understood to grant a right to gay sex inside of marriage. That’s
the correct analysis of
is a criminal law with criminal consequences attached.
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.
harder to make that kind of James Madison argument with respect to
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