English: Maggie Gallagher at the Cato Institute

In a blog post today, National Organization for Marriage reminds us that George W. Dent has an article in the November issue of Engage, the magazine of the Federalist Society. What NOM fails to mention is that Mark P. Strasser has an article in the same issue of Engage. Mr Strasser is a legal proponent of marriage equality. As we all know, Ted Olson is one of the founders of the Federalist Society.

Getting back to Mr. Dent, his article is titled Perry v. Schwarzenegger: Is Traditional Marriage Unconstitutional? He is asking a question that is intellectually dishonest. Loving v Virginia establishes that marriage    to the person of our choice     is a basic and fundamental civil right.

To obfuscate that ground, Mr. Dent asserts that Loving overturned the criminalization of interracial marriage while same-sex marriage in California is different:

Same-sex marriage is very different from the cases where the Court has recognized a right to marry. In Loving v. Virginia the Court overturned a law forbidding interracial marriage. However,
California does not forbid homosexual marriage; it simply does not
license it . . .

That argument hardly passes the laugh test. Whether the marriage is criminalized or unrecognized, the effect to the citizens deprived of marriage is the same. They and their children are deprived of a fundamental civil right. Olson and Boies see the constitutional right emerging from Lawrence v Texas, which, like Loving, overturned sodomy laws. Indeed, in his dissent in Lawrence, Justice Scalia observed that, without sodomy laws, there would be no basis on which to deny same-sex marriage.

That brings me to Mark Strasser. His argument, as a legal proponent of marriage equality, boils down to the elegantly simple proposition of what effect marriage equality has on anyone else. The question was asked before judge walker and NOM’s lawyers were unable to offer a coherent answer. As Mr. Strasser puts it:

. . . it is somewhat difficult to specify what legitimate interests are
promoted by refusing to recognize same-sex marriages. It is not as if
such bans make it more likely that different-sex couples will marry or
remain married. Instead, such bans merely impose a burden on same-sex
couples and their families without bringing about any offsetting
benefits for anyone else.

In the final analysis, social conservatives are offended by gay marriage for religious reasons. They are attempting to construct a rationale that supports their notion of religious doctrine without posing a religious argument.

In contrast, true conservatives are offended by the effort to effect laws that are without secular purpose; Something that is clearly defined in the establishment clause of the First Amendment.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.