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View Diary: Obama's brief urges marriage equality ... in California (and seven other states) (73 comments)

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  •  I'm digging it. (38+ / 0-)
    As this Court has observed, “laws once thought necessary and proper” may in fact “serve only to oppress,” and, “[a]s the Constitution endures, persons in every generation can invoke its principles in their ownsearch for greater freedom.” (Citing Lawrence v. Texas) The state therefore must explain what interests support continuing a “tradition,” especially when that tradition is defined by a classification burdening a minority group.
    Prejudice may not, however, be the basis for differential treatment under the law.
    Proposition 8, by depriving same-sex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law
    Kinda awesome to see the SG write these things in a brief.  I can see how not arguing for a right in 50 states might not make everyone happy but this seems like a good thing to me.

    And plus it's hard to see how marriage bans don't fail under heightened scrutiny.

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    by Scottie Thomaston on Thu Feb 28, 2013 at 04:50:03 PM PST

    •  I must say (2+ / 0-)
      Recommended by:
      skrekk, CoyoteMarti

      on a first read I don't agree with Adam here.  The brief  argues that "it is manifest that sexual orientation falls squarely in the category of classifications for which heightened scrutiny is designed" (page 13).

      The endgame on gay marriage is the extension of Loving v Virgina, the case that held that laws banning mixed race marriages were unconstitutional, to gay marriage.  In the law the real battle is over the standard to be applied.  If the court were to agree with the Administration's brief, the extension of Loving becomes only a matter of time.  

      It is true that the Administration makes other arguments, but it would legal malpractice not to.  

      I don't think the court would find a federal gay marriage right on a 5-4 (after all, Loving was unanimous).  But we may very well be only a vote or two away.

      Victory is in sight, and this brief is a clear step that brings that victory closer.

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Thu Feb 28, 2013 at 08:06:26 PM PST

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