The Smartest Constitutional Argument for Marriage Equality That No One Is Making

This makes total sense, but what doesn’t make sense is why no one is arguing this…

The justices of the U.S. Supreme Court meet on Monday to consider whether they should tackle the issue of same-sex marriage this term or give the lower courts more time to grapple with the question and flesh out the legal theories involved. What is perhaps most interesting about the evolution of this issue is that to date all the courts addressing the question have missed one remarkably simple proposition: Bans against same-sex marriage are unconstitutional as a matter of law because they punish children in an effort to control the conduct of adults.

Punishing children for matters beyond their control is patently impermissible as a matter of Supreme Court precedent regarding the constitutional rights of children. In the first of these cases, the court considered a Louisiana law that forbade children born out of wedlock from receiving benefits upon the wrongful death of their mother. Louisiana argued that the law was a perfectly legitimate means of expressing moral disapproval of extramarital liaisons. The Supreme Court, however, determined that the law violated equal protection because it is fundamentally unfair and irrational for a state to deny important benefits to children merely to express moral disapproval of the conduct of adults—or to incentivize adults to behave in a particular way.

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