Wednesday, August 04, 2010

Thought experiment on gay marriage

(Lifted from my comment at the Kerr post below.)

The analogies between interracial marriage and gay marriage founder on the fact that the 14th Amendment covers race but not sexuality.

But that raises an interesting question. Suppose there *were* no 14th Amendment.

Would there be a rational basis for a law prohibiting interracial marriage? IOW, on this particular issue at least, is the 14th Amendment superfluous?

THAT to me is the much more interesting analogy between race and sexuality on the marriage issue.

What do you think, folks? Could Virginia or Mississippi state a rational basis, in 2010, for prohibiting interracial marriage in the absence of the 14th Amendment? And if so, what would that be, exactly?


  1. I'm confused by this-- rational basis review comes out of the 14th Amendment. The guaranty of due process from states also comes out of the 14th Amendment. So I'm having trouble understanding what federal command directed at the states would be in play here if there weren't a 14th Amendment.

    Perhaps you could ask the question about whether 5th Amendment due process would prevent the federal government from banning interracial marriage in the District of Columbia?

    Maybe I'm being too literal minded.

    On a different note, the reason Loving matters is two-fold: First, it says marriage is fundamental, and second, it provides an example for the judge's analysis that traditional views of marriage don't provide a rational basis. Both uses seem logiclal to me.

  2. I think the confusion stems from my having forgotten whatever I learned in con law.

    I don't really mean "ignore the 14th Amendment"; I guess I mean "never mind race as a protected category," i.e., no strict scrutiny.

    Is there even a "rational basis" for restricting interracial marriage to "domestic relationships," while allowing "marriage" only to same-race couples?

  3. NMC, I'm not sayin', just askin'. Does Loving hold that marriage is a fundamental right, or just say that the parties agreed that marriage is a fundamantal right? Or does it matter?

  4. Anon, the right to marriage is at the end of the op:

    These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

    Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

  5. I've just posted about the issues in this thread on my blog, and think that the quote about due process at the end of Loving (quoted in Anderson's last comment, and in the blog post) may answer the question raised by this post.

  6. That quote from Loving is very handy. I'll yoink it for my own purposes.

  7. Feel free to have it tattooed on your person, PMS. The Court won't mind.

    (Just don't reproduce any West headnotes, or Thomson-West might have to have that portion of your skin removed.)