Tuesday, November 25, 2008

Arguing the Case for Marriage Rights

by AF

On Nov. 4th, Proposition 8 was approved by California voters seeking to override the State Supreme Court determination that the law cannot deny full marriage rights to couples on the basis of sex. The full text of the ballot initiative appears below.


This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8, of the California Constitution. This initiative measure expressly amends the California Constitution by adding a section thereto; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.

SECTION 1. Title: This measure shall be known and may be cited as the "California Marriage Protection Act."

SECTION 2. Section 7.5 is added to Article I of the California Constitution, to read: Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

In the public debate surrounding Proposition 8 - and over same-sex marriage rights in general - it has become fashionable among main stream (straight) liberals to support "civil unions" while demurring, at best, on whether those unions are entitled to recognition under the law on equal footing with heterosexual marriages. Big name libs continue to dance around the logical conclusion that not to go all the way and recognize gay marriages as legal violates the fundamental principle of separation between Church and State.

It is the liberal's Achilles heel: wanting to have it both ways. In trying to appease opposing ends of the political spectrum most of our prominent allies in the straight world come off as only half-hearted in their support. While they carefully avoid the explicit language freely used by avowed homophobes who regularly pontificate on the "sanctity" of marriage, they still show reticence on the issue for reasons that derive from nothing more than an undue deference to religious values held by the majority.

Often unacknowledged for its influence on the nonreligious, it is only religious doctrine - particularly interpreted - that gives extra points for the specific genders of marriage partners in any moral assessment of committed human relationships.

In our secular American legal system, reason holds that capitulation to the religious tenets of any ruling authority amounts to a betrayal of the values held by the framers of our Constitution. Former colonists and ex patriots, they fought against an oppressive government's imposition of religious doctrine to which they had been subject. We are taught this in grade school: the early settlers came to this land to escape religious persecution. The ruling authority they established derives from "We the People," generally determined by plurality votes and delegated representation.

Recently, Newsweek editor Jon Meacham - a professed supporter of same-sex marriage - responded to the assertion that the separation of church and state demands full equality for such marriages with all the finesse of a liberal politician in the middle of a run for national office. Appearing on Bill Maher's TV show last week Meacham asserted that "this is a very complicated issue." Backpedaling further, he went on to defend a liberal forbearance for the current American majority's religious motivations in their political actions, as if the freedom of religion guaranteed in the Constitution trumps everything else enumerated by the Bill of Rights. It doesn't.

Yes, the First Amendment states up front that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." But though this clause precedes even the mention of free speech it does not objectively supersede any other right to which we are entitled. In fact, putting this point first on the list of declared freedoms could just as well speak to the potential dangers the founders may have seen in the tendency of the masses to allow their majority beliefs to infringe on the right to religious and other freedoms equally guaranteed to those in the minority.

It is important to remember that the Constitution, including the Bill of Rights and all further amendments, is written in such a way that does not presume to grant rights to the people. Rather, on the presumption that we are a fundamentally free people, the founders mindfully crafted it in order to define the extent to which We the People allow our government to impose on our freedom.

Amendment 9 spells this out quite clearly: " The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

But it is Amendment 10 that those who seek to deny equal marriage rights to same-sex couples mistakenly interpret as the basis of their authority to do so: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

I contend that these two clauses, while allowing states to expand their marriage laws to explicitly include same-sex couples, actually prohibit them from restricting the right to marry in any way. Though they get away with it until challenged, states are prohibited from contravening the Constitution's fundamental concepts regarding basic human liberty and equality.

The 9th Amendment generally bars states from enacting laws that are more restrictive of individual rights than what is contained in the Constitution, as determined by the U.S. Supreme Court. California's untested referendum system notwithstanding, it is the function of the courts - not the populace - to interpret how the law may be applied in all states.

Decisions such as that in the 2003 case of Lawrence vs Texas instantly invalidated the laws against sodomy in Texas as well as those still on the books in any other state. In 1963 the case of Loving vs Virginia struck down all state laws that banned interracial marriage. No Supreme Court challenge has yet been brought against any state's discriminatory laws that deny marriage to citizens based on a question of gender or sexual identities. But it is only a matter of time before it happens.

After the election on Proposition 8 three lawsuits were filed seeking to invalidate it. On November 19th, 2008 the California State Supreme Court announced that it will hear the arguments in those cases. If the outcome of this case upholds the result of the election this will very likely be the breakthrough that finally brings the issue before the U.S. Supreme Court where it may be settled once and for all.

I am looking forward to a very interesting read when, in the not-too-distant future Supreme Court issues its final decision. Cases of this nature, of which there have been few, tend to serve as a platform for justices to exercise their most high-falutin' oratorical muscles in either affirming the decision or dissenting from the majority (All except for Clarence Thomas who is known to keep pretty tight-lipped on most subjects). You know that right-wing ideologue Antonin Scalia - the most grandiloquent justice of the last century - will have a field day with his emotional dissent. He will likely decry the inevitable decision by his colleagues to legalize gay marriage everywhere in the US as the end of civilization as we know it.

The assenting Justices of the Court should see fit to have their majority decision rendered by Justice David Souter, as it would provide him with a grand occasion to make his debut as the highest ranking, finally out-of-the-closet gay man in American history. It will be his duty to recount for the ages the multitude of long-standing injustices that will be rectified thereafter when committed partnerships of the heart are equally recognized under the law of the land.

Going straight to the heart of the matter, the recorded decision must assert the right - too long denied - of all citizens to lives of liberty and happiness which can only be possible when there are no more gender-based legal barriers to our fulfillment as partners in pursuit of the American dream.

The right and ability of responsible adults to marry as they choose is the one prerequisite for civil propagation of society itself. Finally, the doors will be thrown open to those untold legions of couples across this land who were previously routinely denied the very opportunity to participate in society whose basic unit is held to be the family. Isn't that what people marry for?

Before it get all that deep though, I would very much like to hear the arguments before the Court to include a consideration what actually defines the legitimacy of a marriage. Even by religious standards this is generally dependent in large part on both marrying partners' capacity for physical consummation of their vows.

It has to be argued that exclusively heterosexual individuals, by definition, have little to no known capacity - much less will - for physical consummation of any relationship with a person of the same sex when people of the opposite sex are available. So heterosexuals have nothing to loose, nothing to give up in reversing the Court's original decision that extended marriage rights to homosexual couples. The original complainants who brought the matter to referendum in California - and anyone who would challenge an eventual positive ruling by the Court - should therefore be found to have no standing in the case. It clearly does not affect their access to marriage as it is.

To be clear, "standing" is defined as "the legal right to initiate a legal action or lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action." As the 9th and 10th Amendments only compel the People to surrender rights and protections that are theirs to begin with it follows that the only people with standing and Constitutional liberty to invalidate the legal rights of same-sex couples to marry are same-sex couples themselves.

With that, your honor, I rest my case.


Anonymous said...

I think that any plaintiffs would have to prove that marriage is a
"fundamental right" protected by the 14th Amendment. The Court has
already decide that sex in one's home is a fundamental right (though it took
them 17 years to come to that conclusion). I think that marriage, especially in
light of "civil union", will be a very tough fight.

Further, it will be really difficult to determine a level at which to prove
this that will be helpful to the plaintiffs (specifically, strict scrutiny).
Such a level requires a class that is traditionally getting not in political
power (check) but also one that is immutable - color, sex, etc. It will be
heavy lifting to argue up to strict scrutiny. Two arguments will be made as
follows: homosexuality is not immutable - if I meet a person on the street, I
don't know if they are gay or not, and, homosexuality is a choice (this
argument will be made).

I don't know if the courts are the right place to take this fight. I think
that if this fight is to be made, it should be done in the pocketbook - everyone
of conscience should stop going to California. I'm totally serious. No
more Napa Valley Cabs or whatever. Boycott the entire state.

Adam Herbst

Ted Faigle said...

The author responds.


Oh, puh-leez! There is so much wrong with what you say that I don't know where to begin.

If the US Supreme Court - the most esteemed deliberative body in the land - hears a case brought challenging the California law, I only hope the Justices will be able to sort out such diversionary arguments as imagined here. Anyone presenting such arguments in the 21st Century - and the opposition surly will - should be tossed right out of the building.

It is true that bad opinions have been rendered in latter times by Supremes who have had their collective heads up their asses - such as the Bowers v Hardwick decision to which you allude. That is the one that found no right to sodomy existing in the Constitution and was overturned by Lawrence v Texas. Of course, Dred Scott was the earlier and infamously horrible decision, allowing slavery to endure. This and the Plessy v Ferguson decision show the extent to which the Court can abdicate its duty to rule on the facts of each case in thoughtful consideration of their context in our social reality because of their own stubborn ignorance and deep seated prejudices.

Plessy let stand the "separate but equal" provisions that remained in force from 1896 until the 1954 Brown v Board of Education finally put an end to them but only after the patently mendacious and purely racist concept of "separate but equal" was expanded to almost every public accommodation.

Before the case is summed up in adversarial arguments that are handed over for the justices to weigh, very much depends on how the case is argued. Of course there is no right to sodomy conferred by the Constitution. That is not at all what needed to be found and it should have never entered into the arguments. It was about privacy and the freedom of consenting adults who chose to engage in harmless behavior which may be distasteful to certain groups - even to the majority - but is nobody's business but those who chose to engage in such behavior.

But that has no bearing on this case because marriage is not behavior. Marriage, it should be argued, is a matter of status. Restricting the opportunity of otherwise equal persons to attain a level of status that grants privileges of any kind, strictly on the basis of some inherent personal characteristic, such as the gender composition of any pair of persons, must be shown to fulfill some societal need or serve some compelling social interest.

What compelling interest is fulfilled in restricting two men or two women from entering into a mutually agreeable contract that legally bestows social privileges and responsibilities on those same contracts when made between one man and one woman? The only honest answers to this question would derive from some irrational bias derived from ideological doctrine, which is a prmea faciae contradiction of our Constitutionally guarantee of religious freedom.

It should be even easier to show that "civil unions" are nothing more than another application of the unconstitutional "separate but equal" standard.

Loving v Virginia set the precedent for access to civil marriage being a right equally applicable to all couples regardless of the respective races of the marrying partners. If it were not a right, what was the intent of the decision in Loving?

As for the statement that "it will be really difficult to determine a level at which to prove this that will be helpful to the plaintiffs (specifically, strict scrutiny). Such a level requires a class that is traditionally getting not in political
power (check) but also one that is immutable - color, sex, etc. It will be heavy lifting to argue up to strict scrutiny. Two arguments will be made as follows: homosexuality is not immutable - if I meet a person on the street, I don't know if they are gay or not, and, homosexuality is a choice..."

I refer to the case of WTF vs OMG!

You may be taking too seriously the facetious comment with which I concluded my original argument - that only same-sex couples have standing to bring action on this matter. In fact, there is no relevant cause to bring questions of sex or sexuality into the argument at all, save for the role of consummation in determining the legitimacy of a marriage.

As I said it is commonly held, even in religious definitions of the contract, that sexual intercourse is a presumed requirement of a legitimate marriage. Lack of consummation has likewise traditionally been held to be an accepted basis for annulment of marriages.

The California law, as amended by Proposition 8, does not prescribe any proof positive of heterosexuality as a marriage requirement. Nor does it explicitly deny the right to marry to anyone based on their identification with any group or class defined by their common sexual proclivities or any common trait other than gender. This is the insidious nature of the thing since the law's intent is clearly to do just that. In effect, the law does unduly punish an innocent class of citizens - homosexuals - by denying them meaningful access to the status of marriage - not by reason of fault, crime or other insufficiency, but rather on the basis of irrational bias.

Lastly, boycotting the state's economy is silly and counterproductive. Seeking to cripple its economy does not help the gay people who continue to live there or any of the others who voted as the 42% minority on the issue. And who knows how many of the people who supported the proposition did not realize the effect their support of this insidiously worded proposition would have on gay people? The question was not "Should we let gay people get married." Some who pulled the lever or pushed the button for "yes" may not have even thought about it. To a hapless straight person the wording of Prop 8 probably just sounded like a big "duh." You are not going to win them over by boycotting California.

Boycott Utah instead. The Mormons there are the ones who put money, thought and effort into promoting Proposition 8.