The Legal Argument for Gay Marriage Just Hit Its First Major Bump

July 22, 2014 Nemes Legal

For better or for worse, the constitutional theory providing equal rights to gay people is entirely authored by Justice Anthony Kennedy. As everybody now knows, Kennedy penned the trilogy of gay rights opinions that lie behind an unbroken streak of judicial wins for gay marriage in the states. At first glance, todays 10th Circuit opinion affirming the invalidation of Oklahomas marriage ban continues this streak seamlessly. But just below the surface of the ruling lies a bear trap that could mangle the legal theories that have brought gay marriage so close to the finish line.

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