by Zack Beauchamp
Arguments [against equality] grounded in government expression typically allege that a state’s decisions about whether to call same-sex unions “marriages” constitute a form of government speech and thus do not implicate individual rights because the government is free to “say” whatever it wishes about what the institution of “marriage” means to it. In the alternative, but in a similar vein, one might argue that such decisions constitute a matter of purely internal government procedures – akin to the government’s decisions about how to classify persons within the census or for various bureaucratic purposes – that cannot be deemed to implicate anyone’s “rights.” Even assuming arguendo that expression is the proper frame of reference for constitutional analysis of same-sex marriage claims, neither of these positions withstands careful scrutiny.
Erwin Chemerinsky makes a bold prediction:
I continue to believe that the Court will rule, five-to-four, in an opinion authored by Justice Anthony Kennedy, that laws prohibiting marriage equality violate the United States Constitution. Kennedy wrote the Court’s opinions in Romer v. Evans (1996) and Lawrence v. Texas (2003), and I think that he will see his longest-lasting legacy from over a quarter of a century on the Court being in the area of eliminating discrimination against gays and lesbians. I believe that his opinion will emphasize, as he did in Romer and Lawrence, the absence of any legitimate interest for prohibiting marriage by same-sex couples. As in Lawrence, and other opinions, he will point to the trend across the world.
(Photo: Connie Kopelov, 84 (R) and her wife Phyllis Siegel, 76, hold up a marriage certificate and celebrate as they exit the Manhattan City Clerks office after getting married July 24, 2011 in New York City. By Daniel Barry/Getty Images.)