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The Senate debate on gay marriage was almost substance-free, but behind the slogans, the real issue is there waiting.Crain questions if the proposed amendment is truly aimed at activist judges, or itself imposes a [religious] standard that may be anathema to the people or their state legislatures in some jurisdictions (say Massachusetts or California).
The United States Senate considers itself the world’s most important deliberative body, but you wouldn’t know it from the debate this week on a constitutional amendment banning gays from marrying.
Crain defends judicial decisions, which he characterizes not as "activism," but as judges doing their jobs—providing constitutionally-mandated equal protection under the law.
In every state where the highest court has ruled on gay marriage in the last couple of decades — from sea (Hawaii and Alaska) to shining sea (Vermont and Massachusetts) — justices have ruled that laws that allow only opposite-sex couples to marry violate the constitutional guarantee of equal protection.From a libertarian perspective, one of the essential questions is "what is the proper role of government?" Outright Libertarian's position is that it should not be to take away individual rights, as the Senate was debating doing with the FMA, but rather to protect our inalienable rights equally, as the various state supreme court decisions have done to date.
President Bush has never uttered a word about the substance of those rulings, and pitifully enough, our defenders have been cowered away from doing so as well.
The justices in these states considered every argument offered up to justify marriage laws that segregate the rights, benefits and protections of marriage to opposite-sex couples only. And in every case, a majority has concluded that those justifications lack any rational basis — the easiest legal test for a law to pass.