WHAT DO THEY TALK ABOUT AT THOSE CONFERENCES ANYWAY? David Wagner reports from several law conferences on SSM--part two

[David Wagner is a professor at Regent University School of Law.]

This semester I've taken part in three conferences on SSM. The first two--one in August at Brigham Young University, one in October at New England Law School in Boston--were undoubtedly scheduled on the assumption that Goodridge would come down shortly before, or perhaps that very day. Ironically, the third conference, at the University of Richmond Law School, was nominally on a slightly different topic: privacy rights after Lawrence v. Texas (the Texas sodomy-law case). And when was it held? November 18, the day Goodridge came down. Go figure.

The points I've been making start with whether Lawrence requires SSM. Logically it does. There’s not much constitutional reasoning in Lawrence, but it says at least this: Morality, by itself, is never a rational basis for legislation (ask me some time about the ramifications of this: if taken seriously, it would go way beyond quaint old sex-offense statutes), and legislation that "demeans" anyone's intimate associations is suspect. By these rules, as Justice Scalia points out, marriage would be only the first of many legal institutions to need radical revision.

OTOH--the Court left itself numerous rhetorical escape hatches. When the question of SSM is squarely presented, if for any reason the Court doesn't feel like going that far, it can always point to these dicta and say, well of course, we never meant Lawrence to be taken that far.

So far the latter view is winning. Goodridge was based on Massachusetts law, not on Lawrence. Meanwhile, between Lawrence and Goodridge, the question of whether Lawrence requires SSM has been considered by state courts in New Jersey and Arizona, and both have decided that it does not.
posted by Eve at 9:04 AM | link

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