Live Blog Archive
Morality, marriage and fundamental rights
Cooper: Now I want to move to an area where plaintiffs have emphasized. They have gone to great lengths to underscore the religious beliefs of the people who campaigned for Prop 8. It is hardly remarkable that religious beliefs and religious people are involved in the political process. It is part of our Constitutional tradition, from the American Revolution to the abolitionist and civil rights movements.
There are issues that are bound up and inexitricably involve moral values and moral judgments from the death penalty, gambling, obscenity, prostitution. An issue before the Supreme Court not that long ago in the Glucksberg case, the issue of assisted suicide—the Court noted that throughout the nation Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide, and that the Constitution permits this debate to continue as it should in a democratic society. The Court was careful to make clear that when the Court is asked for a new fundamental right, it must carefully analyze that claim, that it be rooted deeply in our country’s history and tradition, in order to protect against taking important issues off the table of the Democratic process.
This is true also of marriage.
Walker: You concede there are times when it is appropriate for the courts to do that? Loving? Brown? What are the criteria that the court should use in making that determination?
Cooper: The criteria is what the Supreme Court has articulated: The rights claim must be deeply rooted in the history, traditions of this country.
Walker: And in this case marriage is a deeply rooted fundamental right. And a right that extends to all persons, whether they are capable of producing children, whether they are incarcerated, whether they are behind in their child support. There really is no limitation except a gender limitation.
Comments
John K. Noe
June 16, 2010
5:14 pm