Tuesday, November 18, 2003

On constitutional protection for personal lifestyles

This week, one of the books I was reading was an old volume from college called Patterns of American Legal Thought, a collection of essays by U.Va. law professor G. Edward White, published in 1978. Included among them is a law review article written by Professor White and then-Professor J. Harvie Wilkinson, III, reprinted from the Cornell Law Review, titled "Constitutional Protection for Personal Lifestyles."

It turned out to be timely, in light of this week's decision by the Supreme Judicial Court of Massachusetts in the gay marriage case.

The circumstances are much the same as in the Lawrence v. Texas case - if the standard of review is rational basis, can the judges say that continuing the law as it has been for centuries is not merely wrong but so wrong as to be irrational? I doubt it - outside of race discrimination, where the Constitution was specifically amended after a civil war to change the law of hundreds of years.

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