Tuesday, July 14, 2015
Tracy Thomas, associate dean of The University of Akron School of Law said she believes that Kennedy’s opinion answered Roberts’s objections. In particular, she praised Kennedy for going beyond Loving to examine other right-to-marry cases, particularly Zablocki.
“Zablocki is key,” she said. “It’s an underrated case” in that the law at issue does not absolutely prohibit marriage, places conditions on the timing of the plaintiff’s marriage.
Thomas said Zablocki also considers due process and equal protection claims in tandem as Kennedy does in the decision.
Thomas, who teaches family law and directs the Constitutional Law Center at the School of Law, faulted Roberts for his characterization of Loving. Contrary to Roberts’s characterization, she said she finds that the states maintaining anti-miscegenation laws at the time of Loving regarded marriage restricted to one’s race as fundamental to the definition of the institution as marriage being between a man and a woman.
Thomas also noted that Roberts argues that marriage has for millennia been defined as one man and one woman, ignoring the persistent reality of polygamy.
Justice Kennedy’s opinion treats equal protection as “connected in a profound way” to substantive due process, she said, adding that he does not engage in traditional equal protection analysis, determining whether the plaintiffs fall into a suspect class and identifying a standard of review.
On the other hand, she said, at two places in the opinion, Kennedy refers to same-sex attraction as an immutable trait, which generally serves as a starting point for determining whether a group is a suspect class.
According to Thomas, the lack of detail regarding equal protection is consistent with how Kennedy has been approaching marriage equality cases.
“This is a marriage issue for him not a same sex issue,” she said, adding, “at least since Windsor, it’s where Kennedy is coming from.”