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FrumForum: Legal Battle Over Gay Marriage Just Getting Started
Over at FrumForum, University of Chicago Law Prof. Richard Epstein tells Jeb Golinkin that although he favors same-sex marriage, he hopes Olson/Boies “lose the case for legal reasons,” namely that “in this instance the gay rights groups have to redo the Constitution from scratch, which does raise serious questions of political legitimacy.”:
But not all conservatives agree. Even some who don’t seem to oppose gay marriage disagree with Olson’s decision to challenge Prop. 8 in the courts. The University of Chicago Law School’s Richard Epstein told FrumForum that he disagrees with the legal substance of some of Olson and Boies’ arguments.
Epstein contends that: “the history of equal protection is an endless set of unanticipated twists and turns. There is no doubt that the original sense of the clause was to protect individuals against a differential enforcement of the criminal law. For those purposes, virtually any classification is suspect. It had nothing to do with gay rights. Indeed it was passed at a time when a broad ‘morals’ conception of the police power allowed for extensive state regulation of sexual relations in and out of marriage.”
“All of this goes against my libertarian grain” explained Epstein. “But,” he continued, “My hope is that Olson and Boies lose the case for legal reasons, but win it at the polls, where the legitimacy issue will not be contested. Normally I don’t care much for the democratic argument in the face of explicit constitutional guarantees. But in this instance the gay rights groups have to redo the Constitution from scratch, which does raise serious questions of political legitimacy.”
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