THE BEGINNING OF THE END OF DOMA: Chuck Muth

...FIRST: Since the day the original decision legalizing gay marriage was handed down in Massachusetts, opponents have bemoaned the fact that a bunch of "unelected" judges "imposed" it on the people. Judge Ling-Cohan, however, was ELECTED to the bench by the people. She wasn't appointed. That eliminates a hugely effective PR argument from the anti-gay marriage side.

SECOND: The reasoning put forward by Judge Ling-Cohan plants the seeds for declaring DOMA unconstitutional. "It was only less than 40 years ago that the U.S. Supreme Court held that anti-miscegenation statutes, adopted to prevent marriages between persons solely on the basis of racial classification, violate the Constitution because they infringed on the freedom to marry a person of one's choice," she wrote.

Boy, does THAT ever open a can of constitutional worms. Consider...

First there's the conflict between state sovereignty vs. the federal government. Generally speaking, the Founders intended that the states be free to decide whatever they wanted in areas not specifically reserved to the federal government. But that changed significantly over the issue of whether or not some states could allow slavery while others were allowed to ban it.

Putting it simplistically, the Constitution was changed with the adoption of the 14th Amendment to allow the feds to overrule state laws which violated what were considered the natural rights of all citizens of the United States. All U.S. citizens were deemed to have a right to be free; therefore, state laws allowing slavery were null and void. Therefore, if marriage ends up being interpreted by the United States Supreme Court as a natural right due to all citizens of the United States, then state laws and constitutions banning gay marriage will be overturned and gay marriage will become the law of the land.

And that's why Judge Ling-Cohan's reference to miscegenation laws is so significant.

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posted by Eve at 4:02 PM | link

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