- Top Features:
- War Room
- Glenn Greenwald
- Broadsheet
- Joan Walsh
- Camille Paglia
- Since You Asked
- Follow Salon:
Read other letters about this article
Responding to:
"It goes back to the test used to decide the case. The judge is saying that, using the example above, the legislature could rationally deny homosexuals the right to marry, and therefore the Domestic Relations Law is constitutional. (Remember, the plaintiffs, in the judge's eyes, failed to prove that the argument was irrational.) That is the heart of the ruling, and a little less broad than Miles makes it out to be."
The United States Supreme Court has repeatedly ruled that marriage is a fundamental right. See Skinner v. State of Oklahoma, 316 U.S. 535 (1942). See also Loving v. Virginia, 388 U.S. 1 (1967). As such, a statute that denies a person a fundamental right must undergo Strict Scrutiny. Strict scrutiny means that a law must(1) be justified by a compelling governmental interest, and (2) be narrowly tailored to the achievement of the stated purpose. See Richmond v. J. A. Croson Co., 488 U.S. 469 (1989). I doubt you will find many judges that thinks that banning same-sex marriage satisfies strict scrutiny, which is why all State Supreme Courts that have upheld gay marriage bans have considered the statutes using the rational basis test, which is in error.
