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Same Sex Marriage Case and Issue

I write only briefly on the subject for now; I'll expand later.

The recent same-sex marriage case in the Supreme Court was a necessary and overdue outcome, as I decreed and predicted on the air years ago. The intersection of the equal protection and due process-liberty clauses compels this result, whether bigoted, insecure, paranoid, and constitutionally ignorant people agree or not.

This decision does not, as some claim, command the states to allow same-sex marriages; instead, it prohibits them from invading the liberty and equal protection of same sex people by denying them a marriage license and by denying them a civil marriage. Nor does it portend a next step that will be to command churches to marry same sex couples.

Churches can establish their own standard for marriages, as we see when some prohibit divorcees from marrying in the church, prohibit people of different religions from marrying in them, etc. The First Amendment has not been eviscerated by this fine tuning of the 14th, nor could it be.  Of course, those who claim Biblical definitions of marriage should rein supreme need to recall that the wisest mortal man in the Bible was Solomon - who had 900 wives!  Biblical marriage indeed!

It is interesting, as a constitutional matter, that the Court cited Griswold as part of its authority for going here, because that is largely a Ninth Amendment case, and that's really what this opinion is, although they don't want to label it thusly. This opinion recognizes one of the many unstated rights that exist or will, which is the purpose for the Ninth Amendment.

Contrary to the position of some who proclaim "marriage is not defined in the Constitution so it can't be a constitutional right," there are many rights not specified in the body of the Constitution, a point that Madison and Hamilton asserted was necessary to the scheme they were setting up. They pointed out, when explaining why there was no Bill of Rights in the original body of the fundamental charter, if we had a Bill of Rights, with specific "rights" listed, then people who do not understand constitutional law and who are ignorant of constitutional history would later come to proclaim a negative pregnant of "if it's not there, it isn't a right."  Those Framers were prescient: that is what is ignorantly asserted by some of the rabid, reactionary Right [who should not be confused with true conservatives, who have liberty as they beacon].

There are certain fundamental elements of human dignity that are supposed to distinguish us from the orangutan [but sometimes the distinction is not as acute as it should be!], and this decision properly serves human dignitary interests. It is a shame it was not a 9-0 decision. But there is a lot of shame to go around in courts of all levels.

I heard a supposed scholar comment the other day that because marriage is not defined in the Constitution, the Supreme Court could not find that the equal protection or due process causes have anything to do with it.  Really?  Schools, and backs of buses, aren't mentioned there either.  People should study constitutional law carefully before they let their bigotry do their talking for them. And when the Alito gang insist that the states should decide these things, they sound like the "Jim Crow" judges of the old South.  Things of a fundamental nature are not susceptible to federalism varieties, and even a first year Con. Law student knows that.

We are not the civilized people we pretend to be, but maybe we can get there some day.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


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