Monday, June 8, 2015

Matthew J. Franck explains why Loving v VA doesn't count - but Roe does - when it comes to marriage equality

Matthew J. Franck
Matthew J. Franck has taken to the National Review again with “What’s Loving Got to Do with It? Gay-Marriage Supporters Misuse a Precedent.” The reasons for making the argument may be more interesting than the argument itself. I'll get to that shortly.

Franck, the rather prissy Defender of the Faith and director of the ultra-orthodox Catholic Witherspoon Institute, indulges in a long-winded polemic explaining why correlating same-sex marriage to Loving v. Virginia is nothing more than activist hyperbole. At least that is his claim.

However, it was not an activist at the Human Rights Campaign who rhetorically tied marriage equality to Loving v. Virginia. Nor is it something that Evan Wolfson cooked up. Its importance isn't even something that is attributable to the legal team of Olson and Boies. Not at all. In point of fact, it was Justice Anthony Kennedy who made the connection a matter of importance. Kennedy, writing for the majority, cited Loving in the United States v. Windsor opinion:
In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404 (1975).
In other words, Loving is the kind of behavior on the part of the state that is impermissible — overriding the premise that states regulate marriage. Therefore in the current cases, combined as Obergefell v. Hodges, the Court will decide if same-sex marriage bans are comparable to the interracial marriage bans overturned in Loving.

“You haven't really won.

Getting past Franck's nonsensical argument, is this bit of sophistry. It partially explains why he is making the argument in the first place. After all, he is not going to influence the Supreme Court:
And the advocates of same-sex marriage are deluding themselves if they think that a judicial victory for their side would be widely greeted as a triumph for justice, as the Loving decision was.
I can assure Mr. Franck that there will be nothing delusional about the thousands of happy gay couples who will be legally wed. His disapproval, based on the teachings of the Catholic Church, will be utterly irrelevant.

Delegitimize the Supreme Court.

Later on Franck tries to apply his disapproval of the Court (and thus questioning its authority) should they reach an opinion that Franck does not like. Nothing original here :
Suffice it to say that if the justices invent a constitutional right of same-sex marriage, they will have to work a good deal harder to justify it than this.
[ … ]
The model for what awaits us if the Court gets this easy question wrong is not Loving v. Virginia, but Roe v. Wade … since Roe resolved nothing and only made the controversy fiercer.
[ … ]
A Supreme Court diktat removing the central pillar of sexual complementarity from the law of marriage would not be a logical extension of Loving
Oh no it's Roe. Franck is wrong. Roe settled the issue of reproductive choice. What remains subjective is the concept of viability which has a range of 24 to 28 weeks. Franck opposes abortion at any stage of pregnancy. While the national debate on abortion continues Roe remains (and will remain) the law of the land. The issue is settled.

More importantly, Franck could make a somewhat intellectually honest argument that abortion is the taking of a human life even though that is more religious belief than science. How would he make a comparably compelling argument with respect to same-sex marriage?

It's not Roe —It's Griswold in potential impact.

The word “diktat,” which Franck employs, is often used to describe the terms imposed by the victors in response to an unconditional surrender in war. Marriage equality is not a war. Mr. Franck's problem is the lack of perspective. The reality is that United States law will be inconsistent with the teachings of the Catholic Church. Same-sex marriage legality has no greater effect than the fact that people can obtain various forms of contraception — something that is also at odds with Catholic teachings.

So it's not Roe. It's really Griswold v. Connecticut. In 1965 Griswold was decided in favor of family planning advocate Estelle Griswold and against what was then the deeply Catholic state of Connecticut. It struck down Connecticut's “bedroom patrol laws,” known to be among the strictest in the country.

Oddly enough, I have failed to notice all the protests and protesters at my neighborhood CVS. Exactly where and how Mr. Franck, and his friend Brian Brown, plan to protest gay marriage has never been explained.

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