RIGHTS VS. EQUAL PROTECTION: Jim Henley

...But talk of rights as such is a red herring when it comes to gay marriage. The real issue is an equal protection argument, not an individual rights one.

There is no constitutional "right" to food stamps. Food stamps could be ended tomorrow legislatively, and no one could say Boo, from a legal perspective. However, the equal protection clause makes it clear that, if you do have a food stamp program, it's constitutionally forbidden to have food stamps for "everyone but Jews." State denial of state benefits to "suspect classes" has to pass a "strict scrutiny" test. The State clearly confers benefits on couples by recognizing their marriages. The State clearly denies those benefits to gay couples. That is a clear invitation to strict scrutiny. I believe strict scrutiny is passed by finding a "compelling state interest" in the exclusion. I disbelieve that gay marriage opponents have found anything even close to a compelling state interest in their hodgepodge of arguments so far, as I've said before.

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posted by Eve at 5:27 PM | link

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