Quote:
Originally posted by Not Me
But you are starting from a flawed premise. Your premis is that gays are being treated differently and then you invoke the Equal Protection clause. That is wrong. Gays are not being treated differently if marriage is defined as between one man and one woman. opposite sex.
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Your analysis presupposes a law that bans gay marriage. That is differnt from defining a marriage as between one man and one woman and allowing one man and one woman to marry. That doesn't discriminate against gays because gays can if they choose get married to a member of the opposite sex.
You are framing the issue wrong for an Equal Protection analysis.
The MA state supreme court did not invoke the US constitution to support its ruling for good reason. The MA state constitution was used, not the US constitution.
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Last things first:
"Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." (Mass. Const. Pt. 1, Art. 1). And, sure, it's not the fed'l EPC, because if it were, we all know the USSct would reverse, and the four votes for in Mass. weren't that stupid. But just because the S.ct. would reverse doesn't mean they'd be right, any more than we now believe it to have been in Plessy.
Next. I'm framing it the same way it was framed in Loving. No state has successfully made the argument that anti-miscegenation laws are constitutional (that is, not an equal protection violation) because marriage is open to blacks and to whites, so long as blacks marry blacks and whites marry whites. Under your reasoning, that argument would be a winner. Perhaps the Mississippi AG has a job for you.
