Quote:
Originally posted by Mmmm, Burger (C.J.)
Marriage:
Any man who wishes to marry any woman and any woman who wished to marry a man shall make application at a designated place [and pay a fee, take blood tests, etc.]. No man shall be permitted to marry a woman. And no woman shall be permitted to marry a man.
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Find yourself a state that has a law like that and find yourself a gay couple and challenge it using Loving.
Loving's best argument for striking down that VA law was the fundamental rights/due process argument.
You cannot put aside that it was a criminal statute, either. There is a factual distinction between your gay marriage rights scenario and throwing someone in jail. You cannot put aside that not allowing two people to legally marry is different than throwing in jail two people who are legally married in another state. That is a whopper of a distinction between the facts in Loving and your scenario where two gay people challenge a law because they want to be married to each other and not because they are in jail for being married already.
The law in Loving didn't say only people of the same race can marry each other. It said that if two people of different races marry each other, they are going to jail.
