FauxPolitik Disagrees With Me On Gay Marriage, But Did Earl Warren?

The FauxPolitik blog disagrees with my thoughts on the Constitution and gay marriage. More to the point, Enobarbus says Chief Justice Earl Warren, writing in Loving v. Virginia (the case that nixed bans on interracial marriage), disagrees with me.

I can’t conclude that Warren disagrees with what I posted online. Warren argued that banning marriage between the races had no rational basis. He didn’t argue that all restrictions on marriage are irrational or unconstitutional.

I suspect Warren would have been astonished at the notion that a person’s gender within a marriage is an arbitrary matter. Yet he would have to have thought it arbitrary to apply his reasoning in Loving to same-sex marriage. Look at his wording in the case: “…the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.”

Also note Warren’s conclusion: “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

It is clear that Warren is addressing race only. His opinion cannot be read as a ban on all state regulation of marriage (if it were, we’d have a perceived Constitutional right to marry our cousins). Furthermore, it is clear he is not even thinking of same-sex marriage, or he would not have used the phrase “fundamental to our very existence and survival” to refer to the institution.

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