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Originally posted by Not Me
Ty, first, what precisely is your EP argument under Loving that would allow gay marriage. Then second, how could that same argument not be used to require polygamy be allowed, too.
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Please read what Burger and I have posted instead of just responding to it.
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In Loving, the USSC characterized the VA law at issue as:
Do you not see a difference between proscribing marriage (meaning punishing by jail time in this context) and simply not providing for it? I see a difference.
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There is a distinction, but it is what we litigators call a distinction without a difference. If marriage is a civil institution -- and it is -- then the difference between forbidding it and failing to provide for it is meaningless.
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Loving is just too factually different to apply to the situation of forcing legislatures to allow gay marriage. Loving is a case about preventing legislatures from criminally punishing people for legally marrying in another state and then moving back to a state that criminalized interracial marriage.
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Much of the analysis involved in constitutional law involves extracting larger principles from the facts of specific cases. Your argument is a little like saying that abortion could be banned here in California because Roe v. Wade involved a Connecticut statute.
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I see you don't litigate because if you did, you would understand how important distinguishing and analogizing the facts are. You don't just extract abstract legal concepts out of opinions. You have to also look at the facts to determine if the legal principles would apply in a different factual context.
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Heh.
