Tuesday, July 07, 2015

[rhrmzpsj] Gay marriage expanding federal power a little bit

The dissenting Supreme Court justices in Obergefell v. Hodges claim the decision is judicial activism running amok, decreasing states' rights in its balance against federal power.  However, I feel that marriage is such a singular institution, sui generis, among all human activity, that federal seizure of it from being a state's right to regulate represents at most a very small, limited, seizure.  In particular, the case seems unlikely to have wide-ranging judicial implications to issues beyond marriage.

As an analogy, Loving v. Virginia, striking down bans on interracial marriage, seems not to be be cited in cases beyond marriage.

If you care about states' rights, this is not the case to get worked up about.  There are other cases that gave the federal government wide-ranging ability to override the states in all kinds of different activities, often through the commerce clause.

In contrast, if Roe v. Wade were hypothetically overturned, it could also overturn or weaken Griswold v. Connecticut and the right to privacy, and then also overturn or weaken the entire framework of penumbras of rights enumerated in the Constitution.  These would have very wide-ranging judicial implications.

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