I submit the following . . .
Again, I absolutely love it when this class and con law overlap. We finished the semester talking about this issue and David Speer and Glenae Norah chose a hypothetical case that involved gay marriage to do their end of the semester briefs on, so they are much better authorities than I am on this subject, but hey they aren’t the ones who need blog credit :). I agree with your assessment of rational basis scrutiny. The arguments that you present, no doubt, seem rational to me and very few cases that we discussed throughout the semester were overturned because they failed to meet rational basis. It almost seems that they are trying to apply a different standard and call it rational basis. Another argument that I heard in favor of gay marriage is that the right to marry whomever you choose is “so deeply rooted in our nation’s history as to be seen as fundamental” -Snyder v. Massachusetts. As you know, fundamental rights warrant strict scrutiny which means that the government must show a compelling interest for restricting the freedom and that the law must be narrowly tailored. Under this standard, I do not believe that gay marriage can be prevented, but there are also tons of arguments that can be made as to why marriage is not fundamental.
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