Raising Arizona: Lessons from the Same-Sex Marriage Movement

A lot has been said about Arizona’s SB 1062, vetoed by Arizona Gov. Brewer. Some see it as a bellwether of “growing threats to religious liberty,” others as a debate “captured by utterly intolerant people on both sides” with many seeking “liberty for me, and [to have their] opponent ground into the dust.” Marriage equality advocates see SB 1062 as, at best, a “misguided attempt to preserve an outdated social order;” at worst, a license to discriminate.

Lost in the aftermath is the fact that SB 1062 was a very different animal from the primary context in which religious liberty exemptions have emerged—namely, same-sex marriage legislation. There, the big lesson is that bargaining and mutual benefit can expand liberty for both sides. Legislation succeeds when it delivers important gains to both sides, unlike one-sided measures, like SB 1062.

SB 1062 would have amended Arizona’s Religious Freedom of Restoration Act or “RFRA” to speak definitively to a question that has split the courts: namely, whether commercial businesses sued by another citizen even qualify for RFRA protection. Despite the rhetoric around SB 1062, RFRAs are plain-vanilla legislation originally designed to respond to government overreaching in contexts far removed from gay rights, like whether the state may demand that the Amish put orange, not grey, triangles on their buggies or that cemeteries remove religious symbols from grave markers.

Commentators, the media, and the public took this arcane legal question to mean that businesses could turn away lesbians and gays for any reason or none at all—and that those businesses would always win because of RFRA. That fundamental misunderstanding was fostered, ironically, by some religious liberty advocates, who said they needed the amendment to “stave off … gay rights.’”

Now, to be clear, there were no gay rights in Arizona state law to stave off or somehow contain. Arizona does not ban Sexual Orientation discrimination in housing, employment, or public accommodations, even though certain of its municipalities provide this protection.

The project of bolstering religious liberty went off the rails in Arizona precisely because religious liberty advocates did not seek a more balanced measure. Legislators could have granted the LGBT community the same protections enjoyed by the rest of us in the same piece of legislation that was supposed to clarify whether businesses may claim protection under RFRA.

While Arizona did not ban sexual orientation discrimination, every state that has recognized same-sex marriage by legislation to date, the Enacting Jurisdictions shown in Figure 1 in blue, did have such a preexisting ban. And every Enacting Jurisdiction included meaningful, although imperfect, religious liberty protection for religious objectors.

FIGURE 1. (Reprinted from Marriage of Necessity: Same-sex Marriage and Religious Liberty Protections)

Figure 1

Why? Because absent those protections, nondiscrimination laws that were designed to secure equal treatment in the market place for commercial services like buying burgers, hailing taxis, or renting apartments would spill over to a religiously freighted and deeply personal matter, facilitating another’s marriage. With burgers and taxis, a refusal can only reflect animus towards the individual denied the service because burgers have no moral or religious content. Marriage, by contrast, is, for many, a religious sacrament and has been for centuries.

Because legislators in the Enacting Jurisdictions did not intend to treat the refusal to facilitate a marriage like a refusal to serve a burger, they clarified this in the same piece of legislation that made marriage equality a reality, as Figure 2 shows in green.

The Enacting Jurisdictions protect refusals to facilitate another’s marriage when doing so would violate deeply held religious convictions, although the laws differ in who they seek to protect. Delaware, in light green, gives protections only to individuals, while the remaining jurisdictions, in dark green, accord protections to organizations, with some jurisdictions explicitly reaching employees. The protections given to religious objectors extend only to marriage and provide no other basis for refusing to serve lesbian and gays.

FIGURE 2. (Reprinted from Marriage of Necessity: Same-sex Marriage and Religious Liberty Protections)

Figure 2

In contrast with the Enacting Jurisdictions, in states that have recognized same-sex marriage by judicial decision alone, there are no additional religious liberty protections, shown in black. This should surprise no one because it is not the court’s role to protect third parties to the litigation that resulted in same-sex marriage recognition. Of course, some of the judicial decision states provided insulation to religious objectors in the state’s preexisting non-discrimination statute.

Figure 3 details the kind of protections given. All Enacting Jurisdictions protect the clergy, who simply do not need protection because of the First Amendment (column 1), and all but one go further and protect religious organizations, sometimes explicitly including their employees (column 2). Importantly, covered objectors are protected from private suit everywhere and, nearly everywhere, from government penalty like the denial of grants or the right to contact with the state (column 3).

FIGURE 3. (Reprinted with permission from Christianity Today)

Figure 3

There the core protections among the states end and an a la carte menu of protections emerges. Some jurisdictions protect religious marriage counseling (column 4); some, married student housing (column 5); and others religiously affiliated fraternal organizations (column 6). Some protect religious social services agencies, like Catholic Charities (column 7). One state, Delaware, protects individuals out in the world, not just inside religious organizations (not shown in Figure 3). Delaware allows a sitting Justice of the Peace or Judge to refuse to celebrate any marriage—without risking her job.

Those who contend that marriage equality and religious liberty are fundamentally at odds overlook these important protections. Clearly, same-sex marriage need not be a “nightmare for religious liberty.”

One way to envision these protections is moving out from the church sanctuary, as Figure 4 shows, to church-owned or affiliated property. Beyond this are church affiliated non-profits at the coal face of society, like social service providers. One step further out would be public employees and justices of the peace and judges, who receive protection in Delaware. Finally, we come to the nub of the debate in Arizona, actual commercial businesses. No Enacting Jurisdiction has reached this far. The proposed exemptions urged by a group of scholars that includes me and a number of others would reach wedding industry professionals, but only for refusals to celebrate the wedding, and then only if small businesses with 5 employees or less. Even then we believe that the right to refuse must be qualified by hardship to same-sex couples.


Figure 4

Some argue that religious liberty is in tension with gay rights, but in every Enacting Jurisdiction, religious liberty protections have served as a pathway to marriage equality—not as a road block. In half the states that voluntarily recognized same-sex marriage, vote counts were close. Protections for religious liberty not only advanced religious liberty, but also advanced same-sex marriage. Maryland provides one example of where bargaining mattered. There, successful same-sex marriage legislation passed after augmenting protections over two legislative cycles and still only then by close margins: 72-67 in the House ad 25-22 in the Senate. Maryland House Speaker Michael Busch says: “I know for a fact that for two or three delegates [including religious liberty protections] was an important component in their decision to vote for it.”

Maryland’s experience suggests the way forward. Legislators in Arizona and elsewhere should ask themselves: Why do we deny a promise of non-discrimination to gays and lesbians in society? Why do we deny gays and lesbians legal recognition of their relationships? Going forward, legislators should consider taking the chance to strike a grand bargain—one that expands the basic civil liberties of religious believers and gays and lesbians alike.

Robin Fretwell Wilson

Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law and Director of the Family Law and Policy Program at the University of Illinois College of Law.

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  1. Kevin R. Hardwick says

    Once two persons lawfully enter into a marriage contract in one state, how can any other state refuse to acknowledge the legality of that contract? Doesn’t Article Four of the US Constitution mandate such recognition?

    The state has a number legitimate interests in promoting marriages. One such interest is reproduction, and unions between persons of the same sex do not naturally produce children (they can and do adopt, however, and in the case of lesbian couples, they can and do produce children via donated sperm).

    But reproduction, as the numerous state granted privileges associated with a lawful marriage contract demonstrate, hardly exhausts the state interest in promoting unions. One of the big civil advantages to unions is health: married couples demand fewer services from the state, and thus cost less. That is because married people, and especially married men, are healthier and less accident prone than unmarried people. By this logic, people who disapprove of promiscuity among young men should encourage them to get married.

    Surely the most straightforward way to address the issue is to separate the civil and legal contract of union from the religiously sanctified union. In Jefferson’s memorable phrase, state action to realize the public benefits that accrue from gay unions neither breaks the leg nor picks the pocket of those who, on religious grounds, disapprove of sex between persons of the same gender. Indeed, by this logic, contracts of civil union between persons should not have anything to do with sex.

    • djf says

      The civil aspect of marriage has always been separate from marriage’s aspect as a “religiously sanctified union,” inasmuch as civil marriage, without any religious sanction, has always been available in the U.S. (at least during the lifetimes of everyone now alive). The only “mixing” of the two aspects exists in the option of initiating a civil marriage through a religious ceremony. While religious divorce and annulment exist in some traditions, they have no legal effect. So I have never understood the significance ascribed by some to differentiating “marriage” from “civil unions” that differ from marriage only in name.

      • David Upham says


        I think the confusion arises from some religious citizens’ rhetoric, which suggests that some purported revelation is the source of the precept that marriage is, or should be, only the union of male and female. In truth, this confusion has not existed in the common law, which has never required any religious ceremony or belief to enter into a valid marriage–which is simply the lifelong union of one male and one female for the sake of reproducing and educating offpsring.

        • djf says

          David Upham,

          I think the argument most often heard from intellectually sophisticated religious opponents of same-sex marriage (such as those who write at First Things) is that marriage is a natural, pre-political institution that has always been between one man and one woman (although, historically, some cultures have permitted a man to have more than one wife at one time, in traditional polygamy the man is married to each wife separately – the wives are not married to each other). No doubt unsophisticated religious SSM opponents make the revelation-based argument you describe, which SSM proponents like to focus on because it is much easier for them to dismiss, given the prevailing understanding of the constitution’s no-establishment-of-religion clause.

    • Robin Wilson says

      David’s observation about a “natural, pre-political institution that has always been between one man and one woman” is important and underpins many of the religious objections to facilitating same-sex marriage. In an upcoming post, I chart how the question of same-sex marriage has divided the “right.” Like David, some influential thought-leaders urge opponents to continue to make natural law arguments opposing same-sex marriage on the merits. Others on the “right” now believe that the best that can be done is to secure as much religious freedom for opponents as possible. I argue that even if the courts do not definitively decide the question of marriage recognition in the next few years, those who oppose same-sex marriage on the merits face a closing window of opportunity for securing religious freedom–and that it may be far wiser to focus on this still-achievable goal before that window closes.

  2. David Upham says

    The author’s lullaby argument is facially unpersuasive to those who do not share her obvious enthusiasm for “marriage equality.” By using the term, she is, of course, assuming that same-sex “marriage” is “marriage,” which is precisely the point in dispute. It’s like a theist telling an atheist, “well, let’s discuss how we who support God, and you who oppose Him, can get along.” Whether there is a “:god” is the point of dispute!

    As for the “compromise” statutes–passed by virtual unipartisan legislative majorities, those who disagree with her definition of “marriage” should take little comfort in them–given that they will be “interpreted” by the same kind of judges who “interpret” the Constitution to compel same-sex “marriage”–that is, judges who have little respect for either the actual text of the Constitution or the conservatives who disagree with their policy prescriptions.

  3. Kevin R. Hardwick says

    I have no desire to change the nature or definition of marriage, which largely derives from religious tradition. But clearly there are significant civic advantages to the state to encourage civil partnerships (of which I take marriage to be a species). Why should the public not fully reap those benefits? Why artificially limit them just to men and women for the purpose of procreation? Even if we do, why does that rule out marriage for gay people, since such people manifestly can raise children?

    Finally, why assume that all persons named Robin are female?

    No fault divorce eliminated the life-long element to

    It is disingenuous to suggest that marriage is not a mixture both of civil law and religious tradition. Thats not an historically accurate description.

    • David Upham says

      As for her sex, I made a point of looking up her website to know. :)

      The word “marriage” is of Indo-European origin, and long predates Judaeo-Christian influence. The OED from before the revolution (way back in 1989) indicated that the word is a cognate of male, masculine, such that the Latin noun marita (wife) is a past participle of a lost verb, indicating a woman that’s been manned. Christianity’s main insistence was in restricting divorce and prohibiting polygamy. But marriage as a male-female union–that’s been a “duh” for a very, very long time.

      As for civil unions, I’m all for facilitating contractual relationships between people who agree to share a home together indefinitely, regardless of their sexual orientation, their sexual relationship with one another, consanguinity, etc.

      But marriage concerns automatic presumptive rights to offspring, which result exclusively from a male and female relation. Marriage is designed to safeguard the child’s relation to her natural mother and father. Same-sex marriage not only doesn’t foster this end, it hinders it, via the presumption of paternity in a non-parent–whose custodial rights compete with those of the mother and father (where the latter has not utterly forfeited these).

      Why, by the way, must one have a sexual relation to get married? And why can’t the hopelessly heterosexual enjoy the contractual and other benefits of a same-sex partnership?

      • JQA says

        David, not to be contentious here — I appreciate the caliber of your opinions and am only curious about the best answer or account you can give:

        Considering the social, legal, and technological freedom and power in conceiving, bearing, and claiming custody over children in our brave new world , what is (or should be) the child’s relation to her natural mother and father? That is, what is (or should be) the duty and rights of the “natural” parents in the situation of children not only *not conceived by sexual intercourse or union, but conceived *deliberately* in a way to *distance* the biologically necessary man and woman from each other and the offspring?

        In particular, I am thinking of, an noted, women’s use of sperm-bank-insemination (distancing the man from the woman), and men’s use of surrogate mothers (distancing the woman from the man). These processes are available to homosexual couples, but also to single women and men, whether homosexual or heterosexual.

        If the naturalness of a parent is socially reduced to being a mere gamete-donor, what are the logic consequences for the law of marriage? Would it be reduced to the (openly artificial, yet also traditional) legal process of adoption?

        • David Upham says

          JQA–thanks very much for your point. I guess in response I’d say the following: (1) It’s important to remember that technology has enhanced, not created the separation of sex, marriage, and offspring. It has long been possible to use sperm donors–to have offspring without copulation, and to have sexual contact but not deposit the “seed,” for instance). Ideas have been equally important. (2) The particular issue is addressed, I think, by the old presumption favoring natural parents but which was rebuttable by evidence of inability or abandonment, so a mercenary sperm donor, whether anonymous or not, whether via copulation or otherwise, could be said to, from the beginning, acted so as to forfeit his offspring. The same was especially true of the adulterous father–hence the strength of the presumption of paternity.

          I should add that legislators in some other jurisdictions have been attentive to this problem. While granting “marriage equality,” they have, as in the UK, withheld one of the key burdens and privileges–the presumption of paternity–from same-sex marriages.

      • gabe says


        “And why can’t the hopelessly heterosexual enjoy the contractual and other benefits of a same-sex partnership?”

        Interesting question? – haven’t the courts decided in analogous situations that this will not be so. I am reminded (vaguely, of course) of a case in the past year where two sisters were contending that they should be afforded rights / protections similar to those of a married couple in matters of estate taxes / inheritance. Perhaps, you know the case?
        it would seem as if the courts were saying in this case that there must be something more than a simple partnership for economic benefit or convenience.
        What is to stop my neighbor and I from forming such a “partnership” and thereby protecting assets from estate taxes. Heck, if two sisters can not do so, my should two neighbors, irrespective of sexual involvement.

        Isn’t this what LLC’s etc are for? There are certain limits to what can be protected.

        BTW: I assume you are the same David Upham writing at Cato Unbound – liked the stuff I saw.

        take care

        • David Upham says


          Thanks very much. No–I’m not aware of that case, but it’s obvious that given the advantages of marriage, that lots of people will have an interest in challenging other aspects of the traditional definition, not just it’s male-female aspect. As you indicate: why natural persons? Why two and only two? Why sex?

      • Kevin R. Hardwick says


        Lol. You rock :)

        In an anthropological sense, every society has made provisions for reproduction. But while indo-european languages all share certain features, it is pretty dangerous to assume too much from them. I think it fair to assert that most indo-european cultures presume two genders (unlike some Algonquian and Iroquian cultures), but many of the other features of marriage in the US take their form from judeo-christian religion.

        Your example of paternity is not fully convincing. My lesbian colleague who chooses to be inseminated artificially and whose married partner chooses legally to adopt the resulting child confronts no conflict over custody. This is also true of any couple who chooses to adopt, especially those who laudably adopt orphaned children.

        While your argument about protecting the relationship between natural children and natural parents has historical merit, I do not think it matches up well at all with the social function of marriage in the last many decades (since the 1970s, and arguably much earlier–see eg. the writings of Margaret Sanger–fairly repugnant in many places, but dating from the 1920s). The social function of marriage today has been unmoored from reproduction, and thus emphasizes functions that have always been there, but now receive fresh salience. Should not the law keep up with reality.

        A final thought. Why should my rights as a heterosexual man be limited in order to preserve a pre-20th century definition of marriage. In the common law, “time immemorial” prior to the 19th century functionally meant “more than thirty years.” (I will cite chapter and verse, as it were, in the English constitutional history literature, if anyone cares–let me know.) It has been well more than that now, with regard to the modern functional definition of marriage. So in a Burkean sense, its been long enough.

        • David Upham says


          Thanks very much for your reply.

          “My lesbian colleague who chooses to be inseminated artificially and whose married partner chooses legally to adopt the resulting child confronts no conflict over custody.”

          That’s not how the presumption of paternity works. The child is automatically presumed to be the child of the partner, even without a showing that the natural father had forfeited any rights, and without any further consent by the mother. Where a lesbian partner–or any other adult regardless of sexual orientation, sexual relation to mother, adopts the child, the following is necessary (1) the specific deliberate consent of the mother AFTER birth, (2) the consent of the father or evidence that he had died or abandoned the child (e.g., by anonymous sperm donation).

          The cases that are arising all over the country involve (1) involved fathers, and (2) mothers, who divorce and then say, reasonably, I did not consent by the marriage to relinquish custody of any future child to a non-parent.

          • Kevin R. Hardwick says


            As I understand it, formal adoption was necessary because Virginia does not recognize the marriage. I wouldhave thought Article Four would have forced recognition, but apparently that is contested in Va law.

      • Sandra Dee says


        Some lesbians are undergoing a procedure where one woman implants her eggs into her partner’s uterus. In that scenario, one woman has a genetic connection to the child, whereas the other woman has a birth connection to the child. In that case, shouldn’t the law protect the child’s relationship to the natural genetic donor, and not just the woman who carried the child?

  4. Marco Luxe says

    Is Prof. Wilson suggesting throwing the shamanistic a bone to chew on in order to achieve something approaching legislative equality? Log rolling is nothing new, but isn’t is a shame there’s a need to placate the faithful, whose ever-shifting and varied beliefs are, by definition, irrational? Our founding fathers, children of the Enlightenment, would be disappointed.

    • David Upham says


      I frankly don’t know how to apply traditional principles to that scenario. It seems the situation is most closely analogous to a woman who gives her child to a full-time, indeed, all-the-time, wet-nurse and nanny. Of course, the scenario does not depend on the sexual orientation of the women, or the existence of some mutual sexual relationship. At some point it becomes abandonment, but the fact that the egg donor maintains some level of contact with the “gestational” mother–to that extent–abandonment probably could not be imputed.

      My more candid answer would be that all artificial reproduction designed to separate children from their parents should be banned.. Children have a right to their mother and father. Adults do not have any superseding right to make children.

  5. BobN says

    The author asserts that the AZ law would have done little and then goes on to show on various legislatures have offered very limited protections to religious organizations and, in only one case, a handful of individuals.

    The plain text of the failed AZ law grants a legal defense to ALL individuals, businesses, and organizations. Her failure to even address that issue is reason enough to distrust the entire position.

    • David Upham says

      Right, she suggests that it did not give anything to LGBT people. Well, it gave all citizens a broader religious freedom, without any mention of those person’s sexual orientation whatsoever.

  6. EJW says

    Why marriage at all?

    It seems as though a few things are entirely overlooked in the argument among proponents, opponents, and middle-of-the-roaders in the same-sex (I refer to as) “surreal marriage” war. For one, make no mistake it is one sphere, as in WWII terms, of a war – such as that, alleged falsely, by Democrats and President Obama as being conducted by Republicans “against women.” A war launched not, as is also often alleged, by the religious “right” – in reality deeply faithful, practicing, religious persons, but by the radical “gay” movement in concert with an ever secularly radicalized government, academia, and media confederation. That is, those who would entirely level our American, Judeo-Christian foundation, as Federal Justice John E. Jones III (can’t make these names up), M.D. PA, from his now oft quoted case law opinion overturning marriage between a man and woman would say, and “toss it on the ash heap of history.”

    This is evident dating back to the beginnings of the modern sexual revolution, through the adoption of children by homosexuals, to same-sex civil unions, to the recognition of, now multitudinous, gender “identities.” This war has already, and will lead to, ever more winners vs. losers.

    Why ask marriage at all? Because the end result of the battle, taken to its logical conclusion, can only be that marriage is discriminatory, period. It offends, and is biased against, even those who would chose to make a “life long commitment” purely as cohabiting couples, and as has been argued, the innumerable other combinations of couples whom want to commit to generic “marriage.” The concept of marriage as all inclusive, per se non-descript, too is suggested in Judge Jones III’s opinion. This sphere of the war will end for the proponents of same-sex, surreal marriage, and legal advocates like the ACLU, once that end comes to fruition.

    However, it is as I say one sphere of the war. Other spheres, to carry the analogy further, in which the “Axis” forces are involved are those meant, at the least, to delegitimize, ultimately eradicate, belief in a religion, in God altogether. Inconceivable in America? Why? Is religious freedom and practice somehow encoded in our collective DNA? Hardly.

    As a Catholic, quite frankly, I perceive the penultimate enemy of the Axis is the Catholic Church. After all, the Church’s opposition, many also actors in the same-sex marriage push, has already allied with “main stream” Protestant denominations (or vice versa) in regard to same-sex marriage, homosexuals and women as bishops and priests, contraception, abortion, and so on. The only one really left standing in all these issues, setting aside Islam and factions within the various non-Catholic denominations, is Catholicism.

    As with the historic Tea Party, for the Church the confrontation began to reach fever pitch in Boston, and the clergy abuse scandal. The result being in excess of a billion dollars so far to attorneys, victims and victims groups, not inclusive of all the residual costs.

    So where does this leave traditional marriage? At the moment, a loser in an uphill battle. What it says for the destiny of the nation as a whole is yet to be seen.

  7. Sandra Dee says

    A better compromise would be to recognize that gay marriages are themselves a religious liberty, because some religious groups choose to perform them. The intimate and religious aspects of marriage should be entirely private, without any state involvement. The state should instead recognize a) familial relationships between consenting adults who wish to share a household, finances, health decisions, etc – including between people who are already family, such as an elderly mother and a daughter who cares for her, and b) agreements by consenting adults to share in raising a child.

    • Kevin R. Hardwick says

      Just so–nicely stated. There exists a broad public interest, and one that extends well beyond reproduction–in encouraging as many people as possible to live in committed relationships. The state should not create barriers by excluding specific classes of people from the legal benefits of such relationships. Marriage as a civil institution is not (and at no point in recorded Anglo-American history ever has been) solely about producing and rearing children. Since marriages are the first line of social insurance–and since married people consume fewer public resources than single–there is real public benefit for all of us to maximizing access to it.

      • gabe says


        With both your comments and Sandra’s, I have come to realize that I am far more open to providing support for folks who are not “married” in the traditional sense but who rather join together for the raising of a child, the care of an aging parent / orphaned relative, etc etc.
        However, I am old fashioned enough that I would prefer that we call it something other than marriage. In the past when confronted by people complaining that as gay couples they could not have hospital visiting rights, I would counter that since they were lawyers they should know that they had legal remedies (not lawsuits) at their disposal. simply define who is your “family” and insist the hospital honor it. so too with estates, etc etc.
        All that remains then are certain tax benefits. Perhaps, a clever lawyer could draft a proposal providing similar benefits to the aged sister caring for each other, or the committed “couples” etc.
        Who should care if this is done? No one really.

        In a nutshell, I am reminded of the comments of Alice Roosevelt Longworth, who when asked what she thought of the sexual revolution of the 1920’s remarked, “I don’t care what you do, just don’t frighten the horses!”

        Sometimes I think the gay rights movement is (intentionally?) frightening the horses.

        take care

  8. Kevin R. Hardwick says


    It can be done. And I agree completely that it is not marriage–it has nothing to do with sex, or indeed with the kind of human completion imbedded within the sacrament of marriage. So call it something else–civil union seems unobjectionable to me. I looked in to doing it at one point, when I was in graduate school. The problem was mostly the cost, which in Maryland in the late 1980s amounted to several thousands of dollars. That is a non trivial cost, though–at the time, it represented a meaningful barrier. This was what I meant when I wrote that our current laws represent an infringement on my liberty that strikes me as unjustified by sound public ends.

  9. says

    David, (Upham), it is interesting that you are the only one here that touched on Robin’s limited words: “…states that have recognized same-sex marriage — by judicial decision ALONE…”(my emphases) This may be the reason for your remark: “… those who disagree with her definition of “marriage” should take little comfort in them–given that they will be “interpreted” by the same kind of judges who “interpret” the Constitution to compel same-sex “marriage”–that is, judges who have little respect for either the actual text of the Constitution…” Your remark here, which I agree with, also made me realize that you had a deeper concern for the subject matter.
    It prompted me to inquire further and I came upon your SSRN article, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause, University of Dallas, October 1, 2013.
    It starts w/ “… the Supreme Court in Planned Parenthood v. Casey…” and the court’s remark, “Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of — liberty protected against state interference — by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U. S. 1, 12 (1967).”
    “This study challenges this conclusion by considering substantial historical evidence, much of which has not been addressed by contemporary legal scholars. This study proves, by a strong preponderance of the evidence, that the Fourteenth Amendment, as understood by the officials that proposed, ratified, and initially interpreted it, precluded the making or enforcing of racial-endogamy laws, insofar as such laws prohibited or invalidated interracial marriages between citizens of the United States.”
    As I continued, it moved to Draft January 3, 2014: Please cite accordingly. Pg1. “4 Compassion in Dying v. Washington, 79 F.3d 790, 805 & n.20 (9th Cir. 1996) (en banc) (opinion of Reinhardt, J.) (citing the Loving precedent as the first argument against such a “rigid” originalism), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997).
    5 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847–48 (1992); see also Lawrence v. Texas, 539 U.S. 558, 577 (2003) (stating that “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack… (T)he courts today should likewise set aside the original understanding to invalidate laws inhibiting (putative) marriage between persons of the same sex.11″
    David, your remark is followed by this, “This analogy will surely be invoked in future marriage cases, given the Court’s recent citation of Loving in United States v. Windsor.12” Good foresight. Your Paper in SSRN is very comprehensive. Congratulations on your efforts.
    I am going to take a moment here, myself, to address Robin’s subject matter – not her comprehensive analogy of it. We are here w/the same federal court progressive decisions – construing “to deny or disparage others (rights) retained by the people”, and usurpation of the 10th Amendment”. The Justices know exactly what they are doing to the Constitution’s originalism – its Supremacy — over their personal philosophies. The people of the States were the last to enumerate the 14th Amendment – not the federal courts. I am a staunch adherent to the 9th & 10th Amendments. If the state I reside in votes one way or the other – I will accept the democratic rule of the majority (whether I like it or not); not as a federal decision, but that of the State.
    Respectfully, John
    (Facebook, author of The Tribute)

    • David Upham says


      Thanks very much!

      I agree entirely with your federalism approach, except that I have constitutional concerns about extending the automatic presumption of paternity to someone who is manifestly not a parent–for such a presumption would contradict the Constitutional presumption in favor of the natural parents. See Troxel v. Granville.

      • says

        Thanks, David, for the reference case of Troxel v. Granville. I’ll read it and get back to you.
        I do want to address something in your main article here. It has reference to “the Supreme Court in Planned Parenthood v. Casey … “and the court’s remark(s): “… the Court was no doubt correct in finding it to be an aspect of — liberty protected against state interference (dah ?) — by the substantive component of the Due Process Clause(dah?) in Loving v. Virginia, 388 U. S. 1, 12 (1967)… a strong preponderance of the evidence (dah?), that the Fourteenth Amendment, as understood by the officials(dah?) that proposed, ratified, and initially interpreted it, precluded the making or enforcing of racial-endogamy laws, insofar as such laws prohibited or invalidated interracial marriages between citizens of the United States.”(dah?)
        My interpretation of the 14th, at the time it was ratified by the States, would NOT preclude the making or enforcing of racial-endogamy laws between citizens of the STATE(S). The court used the ending term “of the United States”, which I take to be the general/federal government; which the federal courts would have no jurisdiction — over the states — in this Amendment – unless Congress enforced unconstitutionally through their power under Section 5, of the 14th. Here, again, is where the federal court has abridged/usurped the Constitution.
        And, readers, don’t go accusing me of racial discrimination on my part, I am disagreeing w/a federal court that has taken on the role of (legislators) legislation – beyond both the federal and state constitutional enumerations – NOT interracial marriage.
        Respectfully, John
        (Facebook, author of The Tribute)

      • says

        David, your reference case of Troxel v. Granville was abridged, in my considered opinion, by the federal Supreme Court. (I do not disagree w/their decision.) I believe it was not in the federal court’s Constitutional power to revise Washington Rev. Code §26.10.160(3); “Reasoning (the court says) that the Federal Constitution permits a State to interfere with this right ONLY… The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” Washington v. Glucksberg, 521 U. S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children…” I see nothing in the Constitution that relates to the federal court’s right or power to conclude this interpretation – as federal law. We are back to square one where the federal courts, in the early 1900s, started their revisionism of the Constitution, abridging/usurping the Constitution. It is the people of Washington to keep or revise State law, by their lawful petitions and voting.
        Respectfully, John

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