Skip to comments.Overturning Proposition 8 And Declaring Gay Marriage To Be A Constitutional Right, Is Very Wrong
Posted on 04/05/2011 8:02:38 PM PDT by stevelackner
It is first worth pointing out that the three levels of "scrutiny" used to decide whether a law is Constitutional under the 14th Amendment are complete judicial inventions that have nothing to do with the Constitution's text and history. But even following the levels of scrutiny as the Supreme Court does, "rational basis" is the lowest (it is not "intermediate" or "strict" scrutiny) and as a rule results in laws being upheld. Not in the 2010 federal district court case of Perry v. Schwarzenegger of course where a judge finds the traditional definition of marriage must be thrown out in favor of a new definition being pushed only in the last couple decades because it is not "rational" at all. These "levels of scrutiny" are and have actually shown themselves to be absolutely useless, that the phrases are completely arbitrary and so diaphanous as to be ridiculous. In cases in which the challenging group has not already been placed in a level of scrutiny by some precedent all that is required by a court is forcing the group into the desired level which on its own usually determines the outcome. The real and only question ought to be the Constitution, what it says in its text, what it originally means when adopted, and perhaps what can be gleamed from American legal tradition and history since that time (e.g., if marriage meant the union of male and female everywhere since 1868 it becomes an absurdity to claim the Due Process Clause or Equal Protection Clause of the 14th Amendment demands gay marriage in every State). The levels of scrutiny have themselves become a joke. The "rational basis" level of scrutiny is the lowest and most lenient, yet a federal judge uses it to find a Constitutional basis for redefining marriage nationwide. On the other hand, the highest level of scrutiny has been applied to race based government actions, yet the Supreme Court using that highest standard has said that race based affirmative action meets that standard's "compelling state interest" which is "narrowly tailored." This despite affirmative action being a race based action usually deserving of being overturned under that highest strict level of scrutiny. When the Supreme Court truly can galvanize five votes to support an outcome, the level of scrutiny used is somewhat irrelevant, just as when a single federal judge from San Francisco decides to impose his own views on the people of this country and overturn California voters, the lowest level of scrutiny that is "rational basis," which usually merely requires just any hypothetical rationale for a law, can be used to overturn the will of the people. The "rational basis" standard could so very easily result in the opposite outcome. There is a great contrast case is Hernandez v. Robles, where the NY Court of Appeals (the State's highest court) ruled on gay marriage in 2006 using the same "rational basis" standard in connection with New York's Equal Protection and Due Process Clauses. Unlike federal Judge Vaughn Walker in connection with the same Clauses in the federal Constitution, that State Court came to the opposite result by correctly applying what is usually required by the deferential "rational basis" standard. (See http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05239.htm).
Looking to the Perry case itself, the judge compared the traditional definition of marriage to bans on interracial marriage by repeatedly citing the 1967 case of Loving v. Virginia that famously declared State bans on interracial marriage unconstitutional. Hernandez v. Robles eloquently responds to those that would compare defining marriage traditionally to bans on interracial marriage as seen in Loving v. Virginia. The Court in that New York case wrote that "the historical background of Loving is different from the history underlying this case [of gay marriage]. Racism has been recognized for centuriesat first by a few people, and later by many moreas a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began... [T]he traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude." African-Americans must certainly recognize this because as a racial group they voted in favor of Proposition 8 in higher numbers than any other. They are rightly offended by those comparing the struggle for racial equality to today's agenda by some to redefine the definition of the institution of marriage.
Aside from this historical background and the fact that these comparisons amount to a complete trivialization of racism, slavery, and Jim Crow, there are indeed a number of ways to distinguish race from sexual orientation. First, race is not associated with any particular behavior. Sexual orientation is associated with the actual behavior of gay sex of which many traditionalists obviously disapprove. Second, race is undoubtedly an immutable characteristic. Whether one's sexual preference is immutable in the same way as one's skin color is definitely debatable. Third, Judge Vaughn Walker ruled that like race, "gender is not relevant to the state in determining spouses' obligations to each other and to their dependents." That there are differences between the genders and no differences between the races should be clear. It is why there is nothing wrong with having a boy scouts and girl scouts or a man's bathroom and a woman's bathroom, but there would be something very wrong with a black scouts or white scouts or a white bathroom and a "colored" bathroom. Fourth, the Supreme Court in Loving stated the the reason that bans on interracial marriage were unconstitutional was because they were designed to "maintain white supremacy." No equivalent motive or design exists in the case of defining marriage as it has always been defined. Fifth, racially discriminatory laws are subject according to Supreme Court precedent to "strict scrutiny," or the most stringent level of judicial review leading to laws being struck down. Laws concerning sexual orientation are still a matter of the lowest level that is "rational basis" generally leading to laws being upheld. Sixth, the 14th Amendment was at its core about eliminating laws that treated blacks and whites unequally. From 1868 onward, until very recently, it had nothing to do with sexual preference.
To suggest that the idea that that a ban on interracial marriage is the equivalent of the traditional definition of marriage which excludes gays should be enshrined in the U.S. Constitution would indeed have far reaching consequences. It would as a matter of our most fundamental law mean that those who adhere to traditional values or believe in maintaining the traditional definition of marriage are to be treated by society and law as no different than the worst sort of racist white supremacist bigots. To think this becoming part of the Constitution would not have any effect beyond just marriage's definition is naive in the extreme. One can already see signs of what happens when this absurd equivalence becomes a matter of law. Adoption agencies that wish to find children a home with a married heterosexual couple will be driven out of the adoption business. Those with traditional values will be forbidden from becoming foster parents. What is taught in schools and the messages being transmitted to children will be drastically altered. These are only the most obvious ramifications, though there will no doubt be many more. Those who think this is fear-mongering have the burden of explaining why if traditional marriage is indistinguishable as a Constitutional matter from racism that this would not be the case.
The first case suggesting that marriage was a fundamental right under the Constitution did so specifically because of marriage's intimate tie with procreation. The Supreme Court in Skinner v. Oklahoma (1942) reasoned that "marriage and procreation are fundamental to the very existence and survival of the race." Yet the federal court in San Francisco ruled that "[g]ender no longer forms an essential part of marriage." This statement in fact provides much of the core reasoning for his result, because once one assumes the fundamental right to marry (as seen in Supreme Court precedent) and also believes gender "no longer" plays any role, the judge then must certainly have felt compelled to include gays in the institution as he did. But is that statement really a matter of the original meaning of the Fourteenth Amendment or even just Constitutional law as seen in any Supreme Court precedent, or simply a reflection of this judge's opinion which he decided to foist upon the entire nation under the guise of legal reasoning? I think the answer is obvious. It is the ultimate in judicial hubris to declare that gender no longer forms an essential part of marriage and pretend that the Constitution or any case precedent demands such a conclusion.
Further, the connection between procreation and traditional marriage is both a public policy point as well as a constitutional argument. The two should not be conflated as the same, as one is a matter of law and the other of policy as voted on by representatives, though judges like Vaughn Walker seem to view themselves as playing the role of an-all powerful legislator. The policy argument for defining marriage as between man and woman is that procreation is a principle linked with marriage and that marriage has existed in human societies to socially regulate the obligations and responsibilities attendant upon procreation. This, however, closely connects to a rather obvious Constitutional point. According to John Eastman, the former dean of Chapman University Law School, "The equal protection clause [of the 14th Amendment] requires that we treat similarly situated people similarly, but there is no question that homosexual and heterosexual couples are differently situated with respect to procreation, one of the purposes of marriage." The proponents of gay marriage as a public policy matter seem to think that it is indisputable that alternative family forms are equal to traditional families. They also seem to think that marriage is simply an arrangement for the benefit of adults. If one agrees or disagrees with these questions, then they should try to get the people of the State to vote in agreement with them either way, or the representatives in the State legislature to vote that way for them. They should not have one black robed lawyer from San Francisco under the guise of applying Constitutional principles override the legitimate votes of seven million people of the State of California and the people of every State in America.
As a constitutional matter, the bottom line is that every person can marry in this country as marriage has always been defined, not a single person is denied the right to marry if one simply understands that the definition of that word predates American law itself and has only been challenged by those seeking to redefine it in the last couple decades. There is therefore no issue of "equal protection" or due process of law at all. The issue is whether the basic assumptions, that in fact predated the law, about what constitutes marriage should be upheld. It is about whether the law is right or wrong and what the law ought to be. If violating equal protection meant not accommodating those who wanted to alter the understood meaning of the institution then anyone could make these ridiculous claims. Caretakers could claim to be married if they so wished. Business partners could claim to be married if it helped the business. A person should legally be able to have multiple spouses. Anyone could claim to be married to anyone, since apparently violating an individual's idea of what marriage ought to be is considered legal discrimination and a violation of some fundamental right. The truth is that marriage has a specific definition. The law, based on the underlying assumptions of the definition of marriage, treats all citizens to whom it applies fairly. Blacks get married. Whites get married. Jews get married. Asians and Latinos get married. Immigrants get married. Believe it or not, gays can get married too, so long as they marry the opposite sex. But saying that because marriage doesn't include same-sex couples it is therefore a violation of equal protection is absurd. If one wants to argue that marriage should have a completely new meaning, then a new law is necessary to bring that about. It would require statute to redefine what marriage itself means.
Two centuries of American law and jurisprudence, and centuries more of Western civilization generally, is challenged by a single judge sitting in San Francisco overturning the democratic will of the people of the State citing Constitutional provisions ratified in 1868 meant to protect freed blacks as the basis for a subversion of the democratic process and an abuse of the judicial role in order to do nothing more than impose his own social views. Whether gays should be able to wed should be left to State legislatures to decide either way, not left with one black robbed lawyer that simply disagrees with seven million voting citizens of his State and seeks to impose his rules on every other State as well. The centuries of American law are the State marriage laws that were always applied only to unions of men and women, and the Supreme Court precedent that made marriage a fundamental right but clearly did so only insofar as marriage was actually defined. Nowhere is there a suggestion in any precedent that the Constitution demands the redefinition of marriage as always understood in American law. The fact is that within Supreme Court jurisprudence no previous court has gone so far, and this ruling against Proposition 8 is by its very nature unprecedented. Even in Lawrence v. Texas, which was most helpful to the judge in issuing his ruling, the Supreme Court specifically made sure to clearly state in its ruling that they were not at all addressing the issue of marriage. In OConnors concurrence she specifically stated that preserving the traditional definition of marriage meets the rational basis test. Not only is there not a single Supreme Court single precedent that indicates gay marriage is a Constitutional right, there is precedent directly against it. In Baker v. Nelson, a U.S. Supreme Court case from Minnesota where a gay couple claimed a constitutional right to same-sex marriage. The United States Supreme Court dismissed the couples appeal for want of a substantial federal question. Not a single Justice found the couples constitutional claims substantial enough even to warrant plenary review. In short, this judge's ruling from the federal district court in San Francisco would effectively redefine marriage nationwide to include gay couples, and that does indeed go against centuries of laws and jurisprudence and has little basis in the Constitution. This ruling is the essence of activist judging.
Goes to show how wicked these lefties will get.
Plain and simple; homosexuality is a form of behavior and thus to use the 14th Amendment ‘equal protection’ clause in order to make one behavior equal another under the law (homosexuality must be treated ‘equally’ to heterosexuality) opens an absurd door whereas laws written through the representative process can be overturned simply based on discriminating against any specific behavior.
Polygamy, incest, beastiality, nudists, and behavioral group will then test this new legal door and the rights of the people to representation on behavioral issues will be taken away.
If a group of people can be treated as if a inate type of person then I do not see how progressive taxation could stand up which punishes ‘hard working people’ with one law just for them but then rewards ‘lazy people’ by giving them the money of others.
If all behavior must be treated equally then tax everyone equally.
The real crime here is that in supposedly upholding 14th Amendment rights for one group, it has denied them to all. Namely, “one man, one vote”. Judges in CA have overturned the majority of voters who voted FOR Prop 8 - IN THREE ELECTIONS.
If judges can overturn the voters, what will keep them from overturning elections where they are not satisfied with who gets elected? Imagine Gore v. Bush run amok.