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Originally posted by Tyrone_Slothrop
That's because you are simply ignoring Section I of Warren's decision for the majority.
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No I am not. I am noting how focused that section was on the criminal penalties of the statute in question.
I agree that the Due Process arguments aren't focused on the criminal aspects of the law.
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Originally posted by Tyrone_Slothrop
Nothing in the discussion of the EP Clause says, "We apply the Equal Protection Clause here only because it's a criminal statute; if this were a civil case, Virginia would be free to discriminate on the basis of race."
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True. And there is plenty of dicta in that opinion for one to take away from it the notion that according to the USSC, civil statutes would be equally unconstitutional. I am confident that should a civil statute not allowing interracial marriage ever come before the USSC, based on the dicta in Loving, they would have struck it down as unconstitutional.
However, that doesn't mean that you can extend that dicta to gay marriage.
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Originally posted by Tyrone_Slothrop
If the Equal Protection Clause invalidates criminal punishment of blacks and whites who marry, why would it permit a state law that permits civil marriage between those of the same races, but no one else?
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Ty, it is not like I don't see your point about how you can argue the dicta in Loving to extend to civil statutes. I do see it and agree. My disagreement with you is that while it is a natural and easily seen extention of the dicta of Loving that the USSC would strike down civil statutes that prohibited interracial marriages (they outright said that they would) you cannot do the same with that dicta to gay marriage. This is because race and sexual orientation are not equivalent in the marital context.
I am 100% convinced that no member of the Loving court felt that their holding should be extended to same sex marriage. Yet from what they wrote, it is 100% clear to both me and you that should a civil statute limiting marriage to people of the same race come before the USSC, it would be struck down.
That is the difference.
Quote:
Originally posted by Tyrone_Slothrop
If Virginia had such a law today, do you doubt for a second that it would survive a lawsuit? Of course not.
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Of course not. The court made that clear in the dicta in Loving. However, that doesn't mean that the court made it clear in Loving that same sex marriages were constitutionally mandated.
