That choice of argument was made for a strategic reason, as well as a logical one. That can be achieved by changes in state law — as has now been done in nine states: Unless the Constitution comes to their rescue in assuring them equality, they have no dependable recourse to government, the argument goes. There is no case now pending at the Court that directly asks this question: Constitution, but that is a very difficult proposition not seriously contemplated now. Later articles will discuss the arguments against, and the options the Court has in considering the cases. That is an argument based upon federalism principles and the protection that states get for their sovereignty under the Tenth Amendment.
Putting the two together — marriage equality — is the ambitious goal of that movement. First, they say that the decision has been overtaken by more recent Supreme Court decisions recognizing and protecting gay rights, including a right to privacy in their sexuality. Constitution, but that is a very difficult proposition not seriously contemplated now. That is an argument based upon federalism principles and the protection that states get for their sovereignty under the Tenth Amendment. With nine states and Washington, D. Later articles will discuss the arguments against, and the options the Court has in considering the cases. Congress, the argument goes, had no more justification for singling out same-sex couples for disfavored treatment — under more than a thousand federal laws or programs — than a state would have for doing so under state law. It might be changed — at least to some degree — by Congress, but that is not a real prospect now. The Court, the argument goes, did not recognize a new constitutional right to interracial marriage, but a right for all persons to select a marital partner. There is no case now pending at the Court that directly asks this question: The arguments for Posted Wed, November 28th, But there is a further argument that advocates are now using against the federal law that is now up for review by the Supreme Court: Within that promise, advocates link the right to marry to a right of liberty, a right of privacy, a right of intimate choice, and a right of association. A case in California has often been understood, wrongly, as a test of that question. The first article in this series can be found here. There is an additional argument that advocates of equality for same-sex couples had previously relied upon fairly heavily but more recently have given less emphasis: Marriage as a legal matter is basically controlled by state law, since it is up to the states to decide who can marry. Opponents of gay rights have often argued against recognizing such rights on the premise that courts were being asked to create new rights; that claim had to be countered strategically to appeal to the innate caution of most courts that would hear gay rights claims. First, what constitutional test should be used to determine the validity of marriage laws that exclude same-sex couples? When the argument turns from the general question of gay equality, to marriage equality, advocates employ all of these equal protection theories: But marriage is also a constitutional matter. Further, advocates contend that gays and lesbians have not been able, on a level of equality, to persuade governments to provide them with laws or regulations that protect them from discrimination based on their sexual identities. This article discusses the legal arguments in favor of same-sex marriage. Unless the Constitution comes to their rescue in assuring them equality, they have no dependable recourse to government, the argument goes. Part III, the legal arguments against same-sex marriage.
Video about legal arguments for same sex marriage:
Q&A Same Sex Marriage Debate
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