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And second, because marriage is a fundamental right, the state may be obligated to make it available to all competent adults. The equal protection argument meets with an immediate objection: If the state abolishes marriage for everyone, how does it deny equality to same-sex couples, who would be treated no differently from opposite-sex couples?As a general rule, states comply with equality when they extend a previously exclusive benefit to everyone on an equal basis or when they take it away from everyone.Professor Karlan identified two potential constitutional violations.
So too, the right of adults to consensual sexual relations regardless of the sex of their partners protects against government regulation of such relations.By failing to recognize marriage, he said, states were not restricting anyone’s ability “to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children.” Justice Thomas protested that “receiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.” Justice Thomas was wrong about the bottom line in , because he failed to take seriously the equal protection argument for same-sex marriage in states that recognize opposite-sex marriage. And if so, does that mean that a state really could abolish marriage for everyone?The , which involved the right to marry by a person under court order to pay child support—the state generally recognized marriage but limited the right to certain people under certain circumstances.Roy Moore has returned to private life, but the sentiment that drove his Court-defying order remains very much alive in the Heart of Dixie.As reported recently on NPR, Alabama and some other states are seriously considering proposals that would avoid the obligation to issue marriage licenses to same-sex couples by eliminating any requirement that couples obtain marriage licenses from the state.Although it is clear that these cases conceptualized marriage as an exercise of liberty, the Court has never had occasion to consider whether a state could get out of the marriage business completely. Conservatives sometimes insist that the Court should only recognize constitutional rights that are deeply rooted in our nation’s history and traditions. From colonial times through the present, American jurisdictions have had laws giving recognition to marriage.Yes, a right to government recognition differs from a right to be left alone by the government.in June 2015, county clerks and other state and local officials around the country began to issue marriage licenses to same-sex couples, but some probate judges in Alabama were uncertain of their legal obligations, given a prior state supreme court order barring the issuance of marriage licenses to same-sex couples.Into the breach strode the then-Chief Justice of the Alabama Supreme Court, Roy Moore, who issued an order barring probate judges from issuing such licenses.Although the Alabama bill’s sponsor characterizes his proposal as aimed at “getting Alabama out of the marriage business,” that is not quite accurate.The bill would eliminate the requirement of obtaining a marriage of marriage intact.