Prop 8 challenge will set precedent for future civil rights cases
The U.S. District Court for the Northern District of California is about to become the battleground for a momentous challenge to California’s Proposition 8, the state’s constitutional amendment banning gay marriage. Led by former U.S. Solicitor General Theodore Olsen and high-profile litigator David Boies, former opponents in the 2000 Bush v. Gore electoral contest, the Perry v. Schwarzenegger challenge to California’s infamous amendment is set to go to trial in January.
The Perry case is in response to an amendment to the California Constitution. It inserts the text “Only marriage between a man and a woman is valid or recognized in California.” This is, to be blunt, unconstitutional. Contrary to the rather conservative view that marriage is a states-rights issue, the U.S. Constitution provides in the Fifth Amendment that “…no person shall be…deprived of life, liberty, or property.” Similar sentiments are echoed in the Declaration of Independence.
Marriage is, according to the unanimous 1967 Supreme Court opinion in Loving v. Virginia, “…one of the basic civil rights of man…” Being so fundamental a right, it is the purview of the federal government, according to Thomas Jefferson in the Declaration, “to secure [this and other unalienable/fundamental] rights” for the people.
The lawsuit has stirred up considerable criticism on both sides of the issue. Even traditionally pro-LGBT organizations have opposed the lawsuit and attempted to halt the legal challenge, afraid of the potential ramifications of a loss on the Supreme Court level in the likely case of an appeal. Indeed, on a superficial level, it would appear as though the Supreme Court is tilted toward a more conservative ideology, a view sustained by the supposed proclivity of justices Roberts, Alito, Scalia and Thomas toward ruling together on constitutional issues by way of so-called “conservative” legal interpretations.
However, this is not entirely the case. In his dissent in Lawrence v. Texas, Justice Scalia pointed out that the court had unfortunately strayed from its ideal position as a neutral body and that laws ought not be based on society’s dynamic views of morality. If Justice Scalia favors court neutrality and is indeed a scholar of constitutional law, then the assumption that he will decide in favor of Proposition 8 is incorrect.
Where the terrain becomes rocky, however, is with Justice Thomas. Supposedly a steadfast originalist in his interpretation of the Constitution, Thomas has a strange propensity toward ignoring the Ninth Amendment. In the aforementioned Lawrence v. Texas, Thomas dissented, arguing against people having a “general right to privacy,” saying he could not find any such right mentioned in the Constitution. It is thus suspect to believe that he is truly an originalist or a conservative when the words of the Ninth Amendment quite clearly say, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Something is amiss if he truly believes that a right must be explicitly stated in the Constitution for it to belong to the citizenry.
If there is one thing that is apparent, it’s that this case will set a strong precedent for future civil rights cases. While the Honorable Vaughn Walker’s decision in the first tier of the federal court system will certainly carry weight as legal precedent, the appeals that will undoubtedly ensue are where this case could get murky. The Ninth Circuit Court of Appeals, the logical next step after the Northern District of California’s federal court, is unpredictable at best, since judges selected to hear the appeal come from an extraordinarily large pool of 29. This adds an element of randomness to the possible outcomes. This case is certainly going to the Supreme Court.
Perry v. Schwarzenegger considers what is certainly one of the most important civil rights issues of recent time. The question of whether equal protection applies equally, as one might assume, or only to a select portion of Americans has implications not just for the gay community, but also for any and all citizens who wish to enjoy the freedoms written into the Constitution.
What is the incentive for the state to extend additional benefits to gay couples? Married taxpayers get tax breaks, etc, because, on average, they tend to use the money to make and raise little taxpayers whose tax dollars the state can expect to consume. In no circumstance can 2 individuals of the same gender make this same contribution. If they adopt, there was still a man taxpayer and a woman taxpayer to create the child, if they do In Vitro, somewhere there is a man taxpayer or woman taxpayer providing the missing genetic material. I am of course using taxpayer in general here, with the obvious understanding that a minority of purpoted taxpayers manage to never actually pay taxes. Entitlement programs will do far more harm to our country than this issue, but I digress.
That said, I would like us as a nation to consider backing government away from marriage completely. The government would issue a civil union license to 2 consenting adults, to which is attached all of the current rights and privleges assigned to traditional marriage. On top of that, individuals who chose to have their union further solemnized in a religious or secular marriage ceremony would be free to do so. Such a ceremony (or the lack thereof) would have absolutely no legal bearing. That way, everyone is completely equal in the eyes of the law.
I think the gay community would be quite surprised by how little opposition there would be, and more so, how much support such a movement would have, even amoung their Prop8 opponents, if they would only be willing to take the word “marriage” out of the equation. If it really is an issue of legal equality, the word used shouldn’t matter at all.
Here’s the issue I see with the comments by 1equalityUSA:
This case is really not about separation of church and state, in fact it has nothing to do with the first amendment whatsoever. People who want to block gay marriage are not, contrary to how some may label them, stupid. In fact the most Conservative wing of the court wouldn’t dare touch the religion argument. This case cannot be argued on the merits that it violates some religious freedom. It does not. Marriage has nothing to do with religion, save for the ceremony some may or may not choose to have in a religious setting. Marriage is a giant contract. It’s a bunch of rights and privileges and tax loopholes through which couples can get a break from the government treating them as separate tax entities. No sir, this case is not about religion at all and anyone who makes that argument is rather misinformed. It’s about what rights the government has to interfere with peoples’ rights and to what extent equal protection applies in marriage. Don’t try to push the religion argument because the Christian Right isn’t outwardly stupid. They’ll manipulate this into a state’s rights issue, strike down Prop-8, and have it come back without the Full Faith and Credit violation written into the law (the part where it refuses to recognize other states’ marriages).
I would like to thank the straight community for refusing to marry until all Americans are afforded the 1300 rights being barred from Gay Americans. The National Boycott of Marriage makes me realize that this country will not stand by and lat NOM-skulls and all of their lemmings get away with bigotry and stripping rights from, what they consider to be, “undesirables”. Who has the right to say that children of same sex families deserve fewer legal protections?
If religion should be the standard to which every American is subject, then which religion? In the future, if the world’s second largest religion, the Islamic religion, is favored and the population in the Islamic community grows substantially higher, should Americans then be subject to the concepts and laws of that particular religion? If religion comes down to a vote, to which religion should the laws of the land ascribe? If a sudden population explosion take place in people who believe in Buddhism, should the laws of the land fall under the rules of that religion? Jefferson was so wise. Separation of church and state is good for believers and non-believers alike.
Separation of church and state
Separation of church and state prohibits religious favoritism and cannot promote one religion over another.
In regard to passing judgement in cases where separation of church and state is concerned, tests are set up.
1) the Lemon test, named after Alton J. Lemon from a Supreme Court case (1971)
2) O’Connor’s Endorsement test
3) Kennedy’s Coercion test
If any of these three tests are violated, the law is deemed unconstitutional. The same sex marriage ban would be endorsing one religious view over many others, thus creating exclusionary v. Inclusive types of religious doctrine. Such a ban would coerce individuals to support or conform to a specific religion. This government entanglement is unconstitutional.
Dr Martin Luther King:
“We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was ‘well timed’ in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word ‘Wait!’ It rings in the ear of every Negro with piercing familiarity. This ‘Wait’ has almost always meant ‘Never.’ We must come to see, with one of our distinguished jurists, that ‘justice too long delayed is justice denied.’”
I rescind my last comment and thank Student Life for correcting the error placed into my piece.
~Richard Jesse Markel
Dear Student Life:
Sixth Paragraph “Cinth Amendment…” What is that? It should say “Ninth” like it does above in the paragraph. That’s not in my original, submitted piece. Please do not add typos to my articles prior to publication. Thanks very much
~Richard Jesse Markel
Not being a lawyer I have noticed that at a certain level magistrates are no dummies and seem to have a healthy and rational look at things i.e. the similarities of the verdicts of Iowa and California. When they upheld Prop8 the debate was entirely different and the plaintiffs failed to see this. One also has to realize that if marriage has always been considered one man one woman is because homosexuality was such a taboo that even homosexuals wouldn’t bring the subject up.
I’m confident that the Olson and Boies team will have a very favorable outcome at the trial and with the U.S. supreme court as I have more trust in them than in Mr. Obama on that subject.
Marriage is a human right, NOT a heterosexual privilege only to be DISGRACED by 50% divorce rate.
This is AMERICA. Black, White, Male or Female, we all pay taxes in this country. You cannot deny the same rights and privileges that should be granted to ALL law-abiding, tax-paying Americans who live in this country.
To grant a majority group of people [straight] and deny a minority group [LGBT] the right to marry is a civil right issue. To do so is UNFAIR and UNAmerican.
The Bible says do not eat shellfish, treat women like animals, allow slavery, ban divorce, hate gay people and snakes talk.
But what do you Christians do? You CHERRY-PICK the teachings of the Bible for your own personal convictions. You hide behind your Bibles because you are CHERRY-PICKING HYPOCRITES! OWN the WHOLE package if you are going to be a self-righteous professing Christian.