Bench Memos

Law & the Courts

It Ain’t in There

From this news story on the oral arguments today about same-sex marriage before the Supreme Court: 

“If Sue loves Joe and Tom loves Joe, Sue can marry Joe but Tom cannot,” [Chief Justice] Roberts said. “Why isn’t that a straightforward case of sexual discrimination?”

This argument is commonly made but I can’t believe the chief justice really finds it persuasive.  If blacks cannot marry whites and vice versa, that’s clearly a racist law, aimed at blacks. If men can’t marry men and women can’t marry women, is it seriously suggested that this law is sexist? Of course it isn’t; it’s a statement against same-sex marriage all right, but it’s not a statement against men or women. Anti-miscegenation laws were about racial discrimination; laws against same-sex marriage deny nothing because of sex, but because of sexual orientation.

When I was little my grandfather told me a story about an old surveyor who was training a young one. The young one did the mathematical calculations, set up the tripod with the scope carefully set, and then said it was good to go. The old surveyor walked over, quickly squinted through the scope, and said, “Nope, that ain’t right.” The young surveyor protested that he had checked and double-checked the calculations, but the old man replied, “Son, once you make the calculations, look through the scope. If it don’t look right, it ain’t right.”  Sure enough, it turned out the young surveyor had misplaced a decimal point.

And my point is that, if you have a constitutional theory that says the Constitution contains a requirement that the government must allow men to marry each other and women to marry each other, then there’s something wrong with your constitutional theory.  It ain’t in there.

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