Does the right of self-determination extend to voters’ decisions to protect children’s entitlement to be reared by a married mother and father? We learned this week that two judges on the 10th Circuit Court think the answer is no. One of their colleagues, however, wrote a strong dissenting opinion highlighting just how radical that answer is.
The majority opinion is something of a departure from previous cases. The judges admit that Utah voters cannot be accused of hatred or animus just because they wanted to retain the child-centered understanding of marriage.
The crux of their opinion is the novel claim that the Constitution has, since 1868, contained an unwritten “fundamental right” to same-sex marriage. They try to disguise the radicalness of that claim by saying that they are only applying the right to marry that has been previously recognized by the Supreme Court. That’s an implausible claim given that no state had redefined marriage to include same-sex couples until 2004, long after the court’s latest right-to-marry case.
Click here to read the rest of this analysis by William C. Duncan at the Sutherland Daily blog.
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