Thursday, September 30, 2010

Elder Oaks on judicial vs legislative / federal vs states lawmaking regarding same-sex marriage

Excerpted from Mormon Leader: 'I'm Sorry' For Hurtful Legacy of Prop. 8 by Joanna Brooks, Religious Dispatches


... Elder Dallin Oaks, a former University of Chicago law professor and Warren Court clerk and jurist who often covers legal issues in his public addresses. On September 17, Oaks spoke in honor of Constitution Day at the historic Mormon Tabernacle, arguing that a ruling on same-sex marriage by the Supreme Court would constitute "a significant constitutional reallocation of lawmaking power from the lawmaking branch to the judicial branch and from the states to the federal government."

(Legal scholars responded to Oaks's comments by pointing out the precedent of the Supreme Court's 1967 Loving v. Virginia overturning state bans on interracial marriage.) Still, Oaks's effective "states' rights" approach to same-sex marriage seems to signal a subtle shift from his earlier public arguments framing anti-same-sex-marriage activism as a total defense of religious freedom comparable to Civil Rights-era activism.

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