Austin Bramwell's entire article is now accessible online. When I wrote my first post on it, I only had a small passage from Will Baude's discussion to go by.
Reading the entire article, it really seems to have some major holes in it. The major weakness of the argument for their side, if you don't remember, is the endorsement of the notion that "[i]t is well-settled that the Fourteenth Amendment protects the fundamental right to marry." Antigay Federalist conservatives would be wise to argue that there is no such federal right, that marriage is wholly a matter of states' rights. Embracing a federal right to marry would more easily lead to a federal right to same-sex marriage than what they desire. So how does Bramwell attempt to limit this federal right as enuciated in Loving to heterosexual couples only?
[I]n Loving v. Virginia, the case that struck down anti-miscegenation laws, the Supreme Court recognized that one of these rights is the right to marry. Interestingly, the court in Loving cited an earlier case, Skinner v. Oklahoma, that connected the right to marry to the right to procreate. Insofar as biology prevents homosexual couples from procreating, one can assume that the Loving court had heterosexual marriage exclusively in mind.
We see here how such logic would also hold an infertile heterosexual couple, for instance one involving a post-menopausal woman, to have no "right" to marry either: "Insofar as biology prevents infertile couples from procreating, one can assume that the Loving court had procreating heterosexual marriage exclusively in mind." Fits pretty perfectly, doesn't it?
Moreover the language in Loving to which Bramwell refers states, "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men" and moreover that "Marriage is one of the 'basic civil rights of man'...."
It's hard to see how such broad language points in any other direction except a federal right to same-sex marriage. Gays currently have no freedom to marry the person whom they love. Who can effectively purse happiness in an orderly manner without the freedom to marry the person he or she loves?
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