Quote:
Originally posted by Mmmm, Burger (C.J.)
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).
|
The operative word being "law." There has to be a law that you are applying the Equal protection clause to.
The words of the statute are the starting point for your analysis. The first thing you do in an EP analysis is look to see if the law is facially neutral in regards to the group in question. If it is not, you proceed from there. If it is facially neutral, then you go to disparate impact.
Quote:
Originally posted by Mmmm, Burger (C.J.)
Next. I'm framing it the same way it was framed in Loving.
|
No you aren't. In Loving, the law was
not facially neutral AND IT WAS A CRIMINAL LAW TO BOOT!!! They were charged with a crime and jailed.
Here is the law in Loving:
Quote:
Virginia Racial Integrity Act:
If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not lass than one nor more than five years.
|
That law not only was not facially neutral, it made it a
crime to marry a person of the opposite sex. See in Loving, the two didn't ask the state of VA to marry them. They went to DC to get married. And they were in fact married there. Then they came home to VA and got arrested for being married legally in DC.
What the law actually says makes a difference in what parts of the Constitution can be used to analyze it.
Furthermore, the USSC invoked due process fundamental rights in that case, too. That was the strongest argument to strike down that law. That is the way you have to argue gay marriage but if you do, you go down the slippery slope that leads to polygamy.
