Prop 8 challenge will set precedent for future civil rights cases

| Staff Columnist

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.

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