Maryland Court Uses ERA To Protect Homosexual Marriage

And Also: "Careful study and reflection have convinced us, however, that that assumption was erroneous." Or, rather, "me," since clearly the only "us" here is Justice O'Connor, since the other four were no fan of the sovereign immunity cases anyway. Though why it was handed down is unclear, since Alito very well might agree with the dissenters, the Court sanely noted that the constitutional uniqueness of bankruptcy warranted a special exception. The fact only a state university's bookstore was involved also suggests the petty nature of the burden on "state dignity," but small victories ...

[Meanwhile, Southern representative Carolina was mauled by the Seahawks ... who unfortunately for the Panthers had their best game in weeks, while everything finally fell apart -- including loss of another key running back -- for the other wildcard team. As I predicted, one will go to Detroit. I would say they will win too, but who knows? No longer an underdog or the only road team on the field, maybe it will be too much!]

The Maryland Constitution has a charming provision that holds:

Art. 6. That all persons invested with the Legislative or Executive powers of Government are the Trustees of the Public, and, as such, accountable for their conduct: Wherefore, whenever the ends of Government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the People may, and of right ought, to reform the old, or establish a new Government; the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish and destructive of the good and happiness of mankind.

Relevant. But, the provision that recently was at issue there was this one:

Art. 46. Equality of rights under the law shall not be abridged or denied because of sex.

A lower court judge used this to declare unconstitutional (per state law) a ban on same sex marriage. In other words, choice of marriage partner was unconstitutionally limited by sex. The miscegenation case, Loving v. Virginia, was referenced. The argument that "marriage" by definition means different sexes and/or that case must be looked at in context of its racist history was rejected. The analysis was pretty dismissive (by now, the ease of rejecting other "compelling" interests such as protecting the kids also is becoming pretty standard), but feminists can cite sexist history and norms too. The danger of invading traditional sexual norms can be used to attack such laws.

A comment to the post that discussed the case made a telling point:

So it appears that the people who opposed the ERA in the 70's and early 80's because they were afraid that it would lead to gay marriage (arguments which were called "baseless" and "scare tactics") were right after all. I don't suppose anyone will be apologizing to Phyllis Schlafly anytime soon.

On the other hand, yay for Maryland. Although I would much rather this decision were made via the legislature, even if the case was correctly decided.

There are two ways to answer critics like Schlafly. Suggest they are wrong, or suggest that either way, the opposed law is justified anyway. Some courts, interpreting federal and/or state constitutions that under current law bar sexual discrimination in most cases (some states have constitutions explicitly more strict than the federal constitution on the point, stating clearly "sex" is a 'protected class'), have rejected the path taken by the court here. Vermont -- deciding things on a separate provision -- being one. Others agreed.

Still the guy has a point. It also suggests how constitutional terms develop over time, the meaning of "equality" and "sexual discrimination" changing with the times, events making even outlier (and ERA supporters generally were honest in saying that it was not intended to apply to homosexuals though some lesbians and such disagreed) points of view standard fare in time.