The Shell Game of Corrupted Government Exposed
Perry v. Schwarzenegger: California becomes the latest battleground for Gay Marriage Rights
With respect to plaintiffs’ legal challenges, Walker concluded in their favor on all counts. According to his analysis and his conclusions, Plaintiffs indeed had been deprived of their due process and equal protection rights in not being allowed to marry their same-sex partners. They indeed had been denied their fundamental freedom to receive a marriage license with the partner of their choice. And they indeed had been discriminated against by Proposition 8 which classified them as having an “impermissible sexual orientation” to be married.
Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. [Washington v Glucksberg, at pp. 719-720]. Fundamental freedoms are considered “liberty” under this clause and if any such freedom is unfairly or illegitimately denied, there is a potential Due Process violation. When legislation burdens the exercise of a right that is deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. (ie, the toughest degree of scrutiny). Walker asserted that the right to marry is a fundamental right under the US Constitution and the California Constitution and apparently none of the defendants or proponents disputed that. [As I will discuss a bit later, the state of New Jersey in the case Lewis v. Harris, concluded that the right to marriage is NOT a fundamental right as afforded by the NJ state constitution (which mirrors the rights in the US Constitution)]
To determine whether a right is fundamental under the due process clause (and hence applicable to the states through the Fourteenth Amendment), the legal analysis begins by asking whether that right is rooted “in our Nation’s history, legal traditions, and practices.” [ Washington v. Glucksberg, at pg 710]. Here, even though the parties all agree that the right to marry is fundamental, the court still needs to look to the evidence presented at trial to determine: (1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise their right to marry or seek to exercise some other right. [Note: Not all fundamental rights are necessarily applicable to the states through the Fourteenth Amendment…. only those deeply-rooted in our Nation’s history and traditions. Cases have interpreted the “privileges or immunities of citizens of the United States” clause of Section 1 of the Fourteenth Amendment (aka “the Incorporation Clause”) to mean that only those certain rights so firmly-rooted in our history and traditions are the kinds of “privileges or immunities” that the states can’t deny its citizens. All the First Amendment rights and criminal rights, and just recently the Second Amendment, have been deemed to be “incorporated” to the States. That is how government was able to get religion out of state schools so quickly and uniformly].
Marriage has retained certain characteristics throughout the history of the United States. Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. The spouses must consent to support each other and any dependents. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life. But the state has never inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. Walker wrote: “The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.” He therefore concluded that the right to marriage is a fundamental right rooted in history and traditions and hence embraced by the Due Process Clause.
Having determined that plaintiffs have the right to marry under the Due Process clause, Judge Walker then addressed the question of whether California’s obligation to allow gays and lesbians to marry is met by registered Domestic Partnerships. To that question, Judge Walker answered NO. He concluded that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples. They exist solely to differentiate same-sex unions from marriages. And it is this differentiation thing that Judge Walker had such a problem with. So, since Walker concluded that domestic partnerships weren’t an equivalent alternative, Proposition 8 in fact presented plaintiffs with a denial of a fundamental right.
A piece of legislation or any other enactment, like Proposition 8 here, can burden fundamental rights but still not be deemed unconstitutional as long as it is able to withstand strict constitutional scrutiny. And that is what Walker had to decide. First off, Walker made clear that just because the majority of California voters supported Proposition 8, it has no bearing on the analysis. It is irrelevant. “Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’ “ [West Virginia State Board of Education v Barnette, at pg. 638]. Under the Supreme Court’s strict scrutiny analysis, California bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. The judge concluded that the people’s amendment could not stand strict scrutiny, BUT hinted that had defendants argued that domestic partnerships satisfies plaintiffs’ fundamental right to marry (hence meeting the “narrowly tailored” requirement), the analysis might have gone a little differently.
Equal Protection was the easier analysis for the court to make. And again, under an Equal Protection analysis, Judge Walker also found Proposition 8 to be in violation, and hence unconstitutional. The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” A law may create certain classifications of people, but to withstand constitutional muster, there must be assurances that the classifications are not drawn “for the purpose of disadvantaging the group burdened by the law.” [Romer v. Evans, at 633]. The classification itself must be related to the purported interest. (think immigration !!)
Plaintiffs alleged that Proposition 8 discriminates both on the basis of sex and on the basis of sexual orientation. In this case, sexual orientation actually equates to sex discrimination as well. I can explain this by using an example: Kristin Perry is prohibited from marrying her partner Sandra Stier, a woman, because Perry is a woman. If Stier were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex. But Proposition 8 also operates to restrict Perry’s choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian.
Typically, the court would look at the classification of groups that Proposition 8 creates in order to determine how strict the Equal Protection analysis must be performed. The more the classification is identified with cruel and harmful stereotypes, the more “heightened” the analysis will be. But Judge Walker said that such analysis wasn’t even necessary because Proposition 8 was so offensive that it the Equal Protection Clause renders it unconstitutional under any standard of review. He wrote: “Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.” When the court asked the defendants for a good and fair reason why the state of California needed to identify a difference between heterosexuals and homosexuals in crafting Proposition 8, proponents (ProtectMarriage.com) pointed only to the fact that opposite-sex couples are capable through sexual intercourse of producing offspring while same-sex couples are incapable of doing so. The court was unconvinced since proponents failed to advance any reason why the government could use sexual orientation as a proxy for fertility or why the government may even need to take into account fertility when legislating.
Proponents put forth several rationales for Proposition 8, including: (1). preserving marriage as a union between a man and a woman (as it has always been defined) and excluding any other relationship from such a relationship; (2) preserving the traditional social and legal purposes, functions, and structure of marriage; (3) serving as a caution not to implement social change too quickly or recklessly; (4) promoting opposite-sex parenting over same-sex parenting; and (5) protecting the freedom of those who oppose marriage for same-sex couples. The court had to determine if any of them advanced a legitimate state interest, and as I explained earlier, Walker shot down all proponents’ arguments. He found them all without sufficient merit. Of course, that’s not how heterosexuals see things. The lack of respect and attention that was given to any rights or interests that heterosexuals (family people who know how hard it is to raise children these days and especially with all the negative external stimuli out there) presented was astounding to me. I am hoping that it is this lack of deference to these important arguments which will cause the federal appeals court to take notice.
For example, Judge Walker dismissed proponents’ ‘history’ or ‘tradition’ argument by writing: “Tradition alone cannot form a rational basis for a law. [Williams v Illinois, at 239]. The “ancient lineage” of a classification does not make it rational. Rather, the state must have an interest apart from the fact of the tradition itself. The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally-mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.” He then concluded that the tradition of restricting marriage to opposite-sex couples does not further any state interest. He also concluded that the evidence shows that same-sex marriage has no adverse effects on society or the institution of marriage.
Another example which shows Walker’s personal bias is when he wrote: “Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.” He mentioned nothing about the need to uphold traditional values and traditional notions of marriage for the sake of procreation and child-rearing. I think this also shows his activist approach to the case, rather than true legal analysis for his statement shows a complete disregard for biological, psychological, and religious foundations for ‘notions’ of gender. Walker went so far to state that ”California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples.”
ProtectMarriage.com (Proponent) defended Proposition 8 and its popular mandate by arguing that Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex. As attorney Pugo argued: “Proposition 8: (1) preserves the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children”; and (2) accommodates “the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds.” Judge Walker, however, disagreed. In fact, he shut this argument down flat, writing that that such interests fail “as a matter of law.” His position is that Proposition 8 doesn’t affect any First Amendment right or responsibility of parents to educate their children. [He cited In re Marriage Cases, at pp. 451-452]. Walker wrote: “In the absence of a rational basis, what remains of proponents' case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.” [See Romer, at 633; Moreno, at 534; Palmore v Sidoti, at 433 (“The Constitution cannot control private biases but neither can it tolerate them.”)].
The arguments surrounding Proposition 8 raised a question similar to that addressed in Lawrence, when the Court addressed a sodomy case and asked whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. (The Court held it could not). The question here is whether California voters can enforce those same principles through regulation of marriage licenses. The court made it clear they cannot. As Judge Walker wrote: “California’s obligation is to treat its citizens equally, not to mandate its own moral code…. Moral disapproval, without any other asserted state interest, has never been a rational basis for legislation. And moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.” [Romer, at 634]. Because the court was convinced by plaintiffs’ arguments, that Proposition 8 disadvantages gays and lesbians without any rational justification, it concluded that Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment and hence in unconstitutional.
Furthermore, as Judge Walker wrote: “Proponents have failed to identify any rational basis Proposition 8 could conceivably advance. Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.”
In dismissing proponents’ arguments in support of Proposition 8, Walker continued to emphasize: “Tradition alone cannot support legislation.” [He cited Romer, at 635 and Lawrence, at 579]. He then continued: “Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something ‘wrong’ with same-sex couples. The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. At trial, proponents’ counsel attempted through cross-examination to show that the campaign wanted to protect children from learning about same-sex marriage in school. The evidence shows that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual.” (He cited the video,” It’s Already Happened,” which addresses a mother’s expression of horror upon realizing her daughter now knows she can marry a princess). Of course, these are legitimate concerns for heterosexual parents who know how hard it is to raise children, but the court chose to portray these concerns as something sinister.
When the decision was announced, Pugo commented: “A year ago, state courts upheld the outcome of the statewide vote. This afternoon, a federal court reached the opposite conclusion. Walker's invalidation of the votes of over 7 million Californians violates binding legal precedent and short-circuits the democratic process. It is disturbing that the trial court, in order to strike down Prop. 8, has literally accused the majority of California voters of having ill and discriminatory intent when casting their votes for Prop. 8."
Jim Campbell, a lawyer on the defense team, criticized the decision: "In America, we should uphold and respect the right of people to make policy changes through the democratic process, especially changes that do nothing more than uphold the definition of marriage that has existed since the founding of this country and beyond." Attorney Pugo said: “Proposition 8 had nothing to do with discrimination, but rather with the will of California voters who simply wished to preserve the historic definition of marriage… The other side’s attack upon their good will and motives is lamentable and preposterous.”
On Aug. 11, Cal Thomas wrote: “A nation that does not see in law a right to life for its unborn children and a court that allows more than 50 million of them to be killed claiming a nonexistent “penumbra” in the Constitution is not about to acquire a moral — much less a constitutional — backbone when it comes to same-sex “marriage. A nation that loses its moral sense is a nation without any sense at all. The decision by a single, openly gay federal judge to strike down the will of 7 million Californians, tradition dating back millennia (not to mention biblical commands, which the judge decided, in his capacity as a false god, to also invalidate) is judicial vigilantism equal to Roe vs. Wade.”
Mr. Thomas addressed the fact that Judge Vaughn Walker is an openly-gay judge who is in charge of sitting in judgment on cases respecting morality and decent values for our society. When Walker was appointed by President Reagan in 1987, there was no indication of his alternative lifestyle. If news of his sexuality had been known, he probably would not have been appointed, but as Thomas explains: “If it had not been Walker, it would have been another judge, because America’s problem is not entirely at the top; rather it is mostly at the bottom. What we tolerate, we get more of, and we have been tolerating a lot since the Age of Aquarius generation began the systematic destruction of what past generations believed they had sacrificed, fought and died to protect. None of this should surprise anyone who takes the time to read and understand what happens to people and nations that disregard God.”
How does the federal government fit in with all this? What is the government’s position, you may be wondering… On September 21, 1996, Congress passed, and President Clinton signed, the Defense of Marriage Act (DOMA), which defines marriage for purposes of federal law as the legal union between one man and one woman as husband and wife. The main provisions of DOMA, codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C, are as follows:
Section 2. Powers reserved to the states: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
Section 3. Definition of 'marriage' and 'spouse': “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
The Defense of Marriage Act passed the House of Representatives by a vote of 342 to 67, and the Senate by a vote of 85 to 14. While DOMA reflected federal law, states were left to decide for themselves how to define marriage and how to recognize homosexual rights with respect to relationships. And same-sex groups began to protest for their equal rights. On May 17, 2004, the Massachusetts Supreme Court, in Goodridge v. Department of Public Health, held that it was unconstitutional under the Massachusetts state constitution to allow only heterosexual couples to marry. [“The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference. The State does not have a rational basis to deny same-sex couples that right. (The state constitution) affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.”] Thus, Massachusetts recognized the right of homosexual couples to marry. Also in 2004, Mayor Newsom began issuing marriage licenses in San Francisco to gays and lesbians, in clear violation to California state law.
On February 24, 2004, President Bush delivered a speech in which he publicly advocate for and express his support for a constitutional amendment affirming a marriage as between one man and one woman. As he stated: "The union of a man and a woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith. Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.” He said he decided to endorse an amendment because of the decision in Massachusetts and the mayhem in San Francisco. "After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity. Decisive and democratic action is needed, because attempts to redefine marriage in a single state or city could have serious consequences throughout the country.” [See the transcript of Bush’s speech following the reference section].
As Bush explained: “The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state. Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America. Congress attempted to address this problem in the Defense of Marriage Act, by declaring that no state must accept another state's definition of marriage. My administration will vigorously defend this act of Congress. Yet there is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts….. For all of these reasons, the Defense of Marriage requires a Constitutional amendment." [Amending the Constitution is difficult, requiring a two-thirds majority each in the House and Senate and ratification by three-fourths, or 38, of the 50 states].
Unfortunately, President Bush didn’t receive the support in Congress that he hoped, with many members preferring to allow states to handle the matter as they deem appropriate. In September 2009, three Democratic members of Congress introduced legislation, referred to as the Respect for Marriage Act, to repeal DOMA. The bill had 91 original co-sponsors in the House of Representatives, but gay Congressman Barney Frank and John Berry, head of the Office of Personnel Management, refused to support it. Their reason was that there was not enough support in Congress ("the backbone is not there") but they noted that litigation might be the best way to overturn DOMA. But as it stands now, DOMA defines marriage for purposes of federal law and is still the law of the land. And 38 states have provisions protecting the traditional institution of marriage.
Only the states of Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia allow marriages between persons of the same sex. Now California wishes to join that group. Is the federal decision out of California an example of the current trend to redefine marriage to include gays and lesbians? For the most part, the answer is Yes. Gay and lesbian couples are suing for Equal Protection and Due Process rights. They are suing for state, and hopefully soon, national recognition that they have a fundamental right to be “married.” They are making similar arguments about discrimination and impact. State law on the topic varies across the country, as would be expected in a nation based on federalism and strong states’ rights. The state of Massachusetts believes that the right to marry is a fundamental right for everyone. [Goodridge]. The state of New Jersey believes that it is not a fundamental right. [Lewis v. Harris]. If the Supreme Court in fact decides to hear Perry…. and if it succeeds, it could mean that gay marriage would be permitted not only in California but in every state. How could this be possible on a case stemming from state law? If the Supreme Court makes a fundamental declaration, such as how it will classify groups of people, this becomes legal precedent. So, if the Supreme Court were to recognize homosexuals as indistinguishable from heterosexuals for the purpose of marriage law, it would be hard, if not impossible, for any state to uphold its individual laws on marriage which classify people on the basis of sexual orientation. Such a determination would become binding on the states.
As momentum for their cause grows, gays and lesbians hope the Supreme Court will hear their case and find in their favor. And Perry just might be that case. Attorney Ted Olson is hopeful that the high court will take it up. (Personally, he enjoys a high success rate in arguing cases in front of the Court, plus he enjoys a tight relationship with several of the Justices, who are very close friends. In fact, several attended his wedding a few years ago). He hopes the case will be a “teaching experience.” He hopes the Supreme Court will end the discrimination that gays and lesbians face on account of their sexual orientation. Unfortunately, good intentions alone isn’t a sufficient motive to undue sound scientific rationale and valued traditional institutions. At least it shouldn’t be.
Lewis v. Harris (N.J. 2006) is a New Jersey Supreme Court case which I remember clearly, being that Jersey is my home state and the state where I got my legal education. I bring this case up because I think it was properly decided. I think it was a thoughtful decision which respected the interests of all interested parties - homosexuals and persons wishing to protect the traditional institution of marriage. Plaintiffs were seven same-sex couples who have been in committed relationships for many years and who wanted to get married in order to enjoy the legal, financial, and social benefits that marriage affords. They challenged the constitutionality of state laws that denied marriage licenses to same-sex couples as violating their fundamental right to marriage and alternatively, as violating their rights to equal “protections” of the law. Plaintiffs claimed that the liberty interest denied to them was “the right of every adult to choose whom to marry without intervention of government.” The court reasoned and concluded that the right to marriage is NOT a fundamental right as afforded by the NJ state constitution (very similar to US Constitution), but that under its equal protection clause, same-sex couples are indeed entitled to the same “protections.” The court refused to acknowledge a right to “marriage” while the equivalent avenue of civil unions is available to confer the same rights and legal responsibilities.
The court explained: “Within the concept of liberty protected by Article I, Paragraph 1 of the New Jersey Constitution (which mirrors the rights in the US Constitution) are core rights of such overriding value that we consider them to be fundamental. Determining whether a particular claimed right is fundamental is a task that requires both caution and foresight. When engaging in a substantive due process analysis under the Fourteenth Amendment, the United States Supreme Court has instructed that it must ‘exercise the utmost care’ before finding new rights, which place important social issues beyond public debate, ‘lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of the Court.’ (Washington v.Glucksberg). In searching for the meaning of “liberty” under Article I, Paragraph 1, we must resist the temptation of seeing our own strongly-felt opinions and beliefs. Under the guise of newly found rights, we must be careful not to impose our personal value system on eight-and-one-half million people, thus bypassing the democratic process as the primary means of effecting social change in this State. That being said, this Court will never abandon its responsibility to protect the fundamental rights of all of our citizens, even the most alienated and disfavored, no matter how strong the winds of popular opinion may blow.
Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right. When looking for the source of our rights under the New Jersey Constitution, we need not look beyond our borders. Nevertheless, we do take note that no jurisdiction, not even Massachusetts, has declared that there is a fundamental right to same-sex marriage under the federal or its own constitution.”
Nevertheless, the Court had to examine whether those laws that deny to committed same-sex couples both the right to and the rights of marriage afforded to heterosexual couples offend the equal protection principles of the state constitution. The NJ state constitution states that every person possesses the “unalienable rights” to enjoy life, liberty, and property, and to pursue happiness. Although the document nowhere expressly states that every person shall be entitled to the equal protection of the laws, the courts have construed Article I to embrace that fundamental principle. The first paragraph of Article I “protects against injustice and against the unequal treatment of those who should be treated alike.” So when a statute is challenged on the ground that it does not apply evenhandedly to similarly situated people, New Jersey’s equal protection jurisprudence requires that the legislation, in distinguishing between two classes of people, bear a substantial relationship to a legitimate governmental purpose. The court concluded that it could find no legitimate public need for an unequal legal scheme of benefits and privileges that disadvantages committed same-sex couples. Hence it held that there was a clear equal protection violation in that committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples.
Having unanimously come to the agreement that current state law regarding marriage as between a man and a woman is unconstitutional with respect to the equal protection of same sex couples, the court was divided as to what remedy was required. It noted that the equal protection requirement leaves the Legislature with two options: the Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union, as Connecticut and Vermont have done.
Plaintiffs did not want a separate statutory scheme. They wanted full rights to marriage. They argued that they could not be “made whole” by a statutory scheme even if it granted them equal social and financial benefits. They argued that the only thing that would “make them whole” would be if they are allowed to call their committed relationships by the same name as heterosexual couples call their relationships – by the name of “marriage.” They maintained that a parallel legal structure, called by a name other than marriage, which provides the social and financial benefits they have sought, would be a separate-but-equal classification that offends the state constitution (equal protection).
From plaintiffs’ standpoint, the title of marriage is an intangible right, without which they are consigned to second-class citizenship. Plaintiffs weren’t just seeking simple legally equal standing but were also seeking social acceptance, which in their view is the last step toward true equality.
Three justices (the minority) argued that the only constitutional remedy is the amendment of state marriage law to include same-sex couples. [Note that several of the NJ Supreme Court judges were appointed by the openly-gay Governor Jim McGreevey… aka, Governor Mc Shcheevy or Governor McSleezy). In the end, the New Jersey legislature opted not to legalize gay marriage, but instead passed a bill legalizing civil unions. They decided to create an appropriate statutory scheme. A year later, a commission was setup by the Legislature to examine the new Civil Union law to see how it was working, and to look at the possibility of same-sex marriage. The report came back unanimously recommending that the Legislature legalize gay marriage. New Jersey's Governor Jon Corzine has said he would sign a same-sex marriage bill, but wanted to wait until 2009 after the presidential election. “The Freedom of Religion and Equality in Civil Marriage” Act was passed by the NJ Senate Judiciary committee in a close 7-6 vote. But the bill was rejected by the full Senate the following day. Governor Chris Christie has said that he will not sign a marriage equality bill while he is governor. So at this time, New Jersey recognizes civil unions as the appropriate scheme to recognize gay unions and to provide the legal rights and duties that that they want.
So, is the right to marry one of the same sex a fundamental right here in this country, under our US Constitution? I think that answer will only come out if and when the Supreme Court agrees to hear this case. I think the case, for those who wish to preserve marriage as a traditional union between a man and a woman, to honor the sacred role and fundamental purpose it serves our society, will hang on whether the need to define marriage as between a man and a woman serves a compelling and legitimate state (government) issue. If this can be shown, then courts will be able to legally explain why even a fundamental right might need to be denied. Of course, I would have thought that the state might want to recognize that special union between a man and a woman because it honors their intention to start a family and will overwhelmingly result in children. And propagation of society is certainly a compelling state interest. But homosexual judges obviously don’t see this as a compelling enough state interest. My bad. My charge to people who are passionate on this subject is to get involved and make your voices known as to the reasons you believe traditional marriage needs to be protected. I believe ProtectMarriage.com brought up some excellent arguments in their case against Perry to defend Proposition 8, but they clearly did not go far enough. I would have brought up some additional arguments, such as some scientific rationale to defend marriage and to explain why children and adolescents will be harmed by the social change which will result when traditional gender and family roles become blurred, and some common sense parenting concerns.
But first I might challenge homosexuals to define precisely what compelling state interest is served by allowing them to “marry.” For there certainly can be no greater compelling interest than encouraging propagation among married couples. Homosexual couples will, and already have (see Perry) challenged the traditional notion that only heterosexual couples can procreate. With artificial insemination and guys like David Crosby out there, there is nothing that prevents lesbians from becoming artificially inseminated. (Getting pregnant the “new fashion” way). Furthermore, many homosexual couples can adopt. But this doesn’t take away from the fact that homosexual couples cannot procreate together. It’s nature’s way of saying “it ain’t right.” And it doesn’t take away from the fact that homes with both a father and a mother offer children what they need for proper development. There is plenty of evidence to show that children need both parents, both sexes, in the home. Children need to be nurtured by parents of both sexes if they are to learn to function in a society made up of both sexes. Is it wise to have a social policy that encourages family arrangements that deny children such essentials? Gays are not necessarily bad parents, nor will they necessarily make their children gay, but they cannot provide a set of parents that includes both a male and a female.
Homosexuals will argue (as they did in Perry) that denying them the rights to enter into the covenant of marriage, like heterosexuals can, is a violation of their civil rights. In Perry they argued that just as it was wrong to prohibit blacks and whites from inter-marrying, it is also wrong to prohibit homosexuals access to the rights and benefits of “marriage.” There is no doubt that for many years, state laws prevented interracial marriage and the Supreme Court was correct in determining that these laws were unconstitutional and in violation of Equal Protection laws. Homosexuals claim that they are being discriminated against in their civil rights for “being what nature made them.” They say they can’t help being “what they are” (homosexual) any more than a black person can help being black. What they are claiming is that sodomy is a natural act that should be protected by the same laws and in the same manner that protect persons distinguished by race.
But this argument is inherently flawed. However, skin color and sexual behavior are entirely different. The first is an inborn characteristic while the second is behaviorally based (not genetic) and has everything to do with individual character, moral choices, and society’s basic rules of conduct. If civil rights laws can be used to justify and sanction the behaviors of homosexuals, where does it stop? Next child molesters will demand rights to work in daycare centers and work in the public school system. But we really don’t even have to go here. The Equal Protection clause of the Constitution historically has been viewed to respect those regardless of race, color, religion, or national origin. Those who designed the 14th Amendment certainly didn’t have in mind the protection of those who with different sexual preferences or orientation. After all, national opinion has always shown repugnance to preferences such polygamy and incest, which, like homosexuality, are based on a deviant sexual scheme.
[Note: Historically, the Supreme Court has attached “suspect class” status (status which triggers the greatest judicial scrutiny – strict scrutiny) to racial minorities and religious groups. It has not been willing to extend suspect-class status to sexual orientation, nor even recognize it for intermediate scrutiny. The lowest scrutiny is all that is required. Strict Scrutiny analysis = the enactment at issue which classifies groups of persons, say by race, must be able to stand the highest scrutiny for constitutionality; it must be “narrowly-tailored to further a compelling state interest.” The lowest analysis, Rational Basis scrutiny, requires only that the enactment be “rationally related to a legitimate state interest”].
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Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. [Washington v Glucksberg, at pp. 719-720]. Fundamental freedoms are considered “liberty” under this clause and if any such freedom is unfairly or illegitimately denied, there is a potential Due Process violation. When legislation burdens the exercise of a right that is deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. (ie, the toughest degree of scrutiny). Walker asserted that the right to marry is a fundamental right under the US Constitution and the California Constitution and apparently none of the defendants or proponents disputed that. [As I will discuss a bit later, the state of New Jersey in the case Lewis v. Harris, concluded that the right to marriage is NOT a fundamental right as afforded by the NJ state constitution (which mirrors the rights in the US Constitution)]
To determine whether a right is fundamental under the due process clause (and hence applicable to the states through the Fourteenth Amendment), the legal analysis begins by asking whether that right is rooted “in our Nation’s history, legal traditions, and practices.” [ Washington v. Glucksberg, at pg 710]. Here, even though the parties all agree that the right to marry is fundamental, the court still needs to look to the evidence presented at trial to determine: (1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise their right to marry or seek to exercise some other right. [Note: Not all fundamental rights are necessarily applicable to the states through the Fourteenth Amendment…. only those deeply-rooted in our Nation’s history and traditions. Cases have interpreted the “privileges or immunities of citizens of the United States” clause of Section 1 of the Fourteenth Amendment (aka “the Incorporation Clause”) to mean that only those certain rights so firmly-rooted in our history and traditions are the kinds of “privileges or immunities” that the states can’t deny its citizens. All the First Amendment rights and criminal rights, and just recently the Second Amendment, have been deemed to be “incorporated” to the States. That is how government was able to get religion out of state schools so quickly and uniformly].
Marriage has retained certain characteristics throughout the history of the United States. Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. The spouses must consent to support each other and any dependents. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life. But the state has never inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. Walker wrote: “The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.” He therefore concluded that the right to marriage is a fundamental right rooted in history and traditions and hence embraced by the Due Process Clause.
Having determined that plaintiffs have the right to marry under the Due Process clause, Judge Walker then addressed the question of whether California’s obligation to allow gays and lesbians to marry is met by registered Domestic Partnerships. To that question, Judge Walker answered NO. He concluded that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples. They exist solely to differentiate same-sex unions from marriages. And it is this differentiation thing that Judge Walker had such a problem with. So, since Walker concluded that domestic partnerships weren’t an equivalent alternative, Proposition 8 in fact presented plaintiffs with a denial of a fundamental right.
A piece of legislation or any other enactment, like Proposition 8 here, can burden fundamental rights but still not be deemed unconstitutional as long as it is able to withstand strict constitutional scrutiny. And that is what Walker had to decide. First off, Walker made clear that just because the majority of California voters supported Proposition 8, it has no bearing on the analysis. It is irrelevant. “Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’ “ [West Virginia State Board of Education v Barnette, at pg. 638]. Under the Supreme Court’s strict scrutiny analysis, California bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. The judge concluded that the people’s amendment could not stand strict scrutiny, BUT hinted that had defendants argued that domestic partnerships satisfies plaintiffs’ fundamental right to marry (hence meeting the “narrowly tailored” requirement), the analysis might have gone a little differently.
Equal Protection was the easier analysis for the court to make. And again, under an Equal Protection analysis, Judge Walker also found Proposition 8 to be in violation, and hence unconstitutional. The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” A law may create certain classifications of people, but to withstand constitutional muster, there must be assurances that the classifications are not drawn “for the purpose of disadvantaging the group burdened by the law.” [Romer v. Evans, at 633]. The classification itself must be related to the purported interest. (think immigration !!)
Plaintiffs alleged that Proposition 8 discriminates both on the basis of sex and on the basis of sexual orientation. In this case, sexual orientation actually equates to sex discrimination as well. I can explain this by using an example: Kristin Perry is prohibited from marrying her partner Sandra Stier, a woman, because Perry is a woman. If Stier were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex. But Proposition 8 also operates to restrict Perry’s choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian.
Typically, the court would look at the classification of groups that Proposition 8 creates in order to determine how strict the Equal Protection analysis must be performed. The more the classification is identified with cruel and harmful stereotypes, the more “heightened” the analysis will be. But Judge Walker said that such analysis wasn’t even necessary because Proposition 8 was so offensive that it the Equal Protection Clause renders it unconstitutional under any standard of review. He wrote: “Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.” When the court asked the defendants for a good and fair reason why the state of California needed to identify a difference between heterosexuals and homosexuals in crafting Proposition 8, proponents (ProtectMarriage.com) pointed only to the fact that opposite-sex couples are capable through sexual intercourse of producing offspring while same-sex couples are incapable of doing so. The court was unconvinced since proponents failed to advance any reason why the government could use sexual orientation as a proxy for fertility or why the government may even need to take into account fertility when legislating.
Proponents put forth several rationales for Proposition 8, including: (1). preserving marriage as a union between a man and a woman (as it has always been defined) and excluding any other relationship from such a relationship; (2) preserving the traditional social and legal purposes, functions, and structure of marriage; (3) serving as a caution not to implement social change too quickly or recklessly; (4) promoting opposite-sex parenting over same-sex parenting; and (5) protecting the freedom of those who oppose marriage for same-sex couples. The court had to determine if any of them advanced a legitimate state interest, and as I explained earlier, Walker shot down all proponents’ arguments. He found them all without sufficient merit. Of course, that’s not how heterosexuals see things. The lack of respect and attention that was given to any rights or interests that heterosexuals (family people who know how hard it is to raise children these days and especially with all the negative external stimuli out there) presented was astounding to me. I am hoping that it is this lack of deference to these important arguments which will cause the federal appeals court to take notice.
For example, Judge Walker dismissed proponents’ ‘history’ or ‘tradition’ argument by writing: “Tradition alone cannot form a rational basis for a law. [Williams v Illinois, at 239]. The “ancient lineage” of a classification does not make it rational. Rather, the state must have an interest apart from the fact of the tradition itself. The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally-mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.” He then concluded that the tradition of restricting marriage to opposite-sex couples does not further any state interest. He also concluded that the evidence shows that same-sex marriage has no adverse effects on society or the institution of marriage.
Another example which shows Walker’s personal bias is when he wrote: “Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.” He mentioned nothing about the need to uphold traditional values and traditional notions of marriage for the sake of procreation and child-rearing. I think this also shows his activist approach to the case, rather than true legal analysis for his statement shows a complete disregard for biological, psychological, and religious foundations for ‘notions’ of gender. Walker went so far to state that ”California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples.”
ProtectMarriage.com (Proponent) defended Proposition 8 and its popular mandate by arguing that Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex. As attorney Pugo argued: “Proposition 8: (1) preserves the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children”; and (2) accommodates “the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds.” Judge Walker, however, disagreed. In fact, he shut this argument down flat, writing that that such interests fail “as a matter of law.” His position is that Proposition 8 doesn’t affect any First Amendment right or responsibility of parents to educate their children. [He cited In re Marriage Cases, at pp. 451-452]. Walker wrote: “In the absence of a rational basis, what remains of proponents' case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.” [See Romer, at 633; Moreno, at 534; Palmore v Sidoti, at 433 (“The Constitution cannot control private biases but neither can it tolerate them.”)].
The arguments surrounding Proposition 8 raised a question similar to that addressed in Lawrence, when the Court addressed a sodomy case and asked whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. (The Court held it could not). The question here is whether California voters can enforce those same principles through regulation of marriage licenses. The court made it clear they cannot. As Judge Walker wrote: “California’s obligation is to treat its citizens equally, not to mandate its own moral code…. Moral disapproval, without any other asserted state interest, has never been a rational basis for legislation. And moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.” [Romer, at 634]. Because the court was convinced by plaintiffs’ arguments, that Proposition 8 disadvantages gays and lesbians without any rational justification, it concluded that Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment and hence in unconstitutional.
Furthermore, as Judge Walker wrote: “Proponents have failed to identify any rational basis Proposition 8 could conceivably advance. Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.”
In dismissing proponents’ arguments in support of Proposition 8, Walker continued to emphasize: “Tradition alone cannot support legislation.” [He cited Romer, at 635 and Lawrence, at 579]. He then continued: “Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something ‘wrong’ with same-sex couples. The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. At trial, proponents’ counsel attempted through cross-examination to show that the campaign wanted to protect children from learning about same-sex marriage in school. The evidence shows that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual.” (He cited the video,” It’s Already Happened,” which addresses a mother’s expression of horror upon realizing her daughter now knows she can marry a princess). Of course, these are legitimate concerns for heterosexual parents who know how hard it is to raise children, but the court chose to portray these concerns as something sinister.
When the decision was announced, Pugo commented: “A year ago, state courts upheld the outcome of the statewide vote. This afternoon, a federal court reached the opposite conclusion. Walker's invalidation of the votes of over 7 million Californians violates binding legal precedent and short-circuits the democratic process. It is disturbing that the trial court, in order to strike down Prop. 8, has literally accused the majority of California voters of having ill and discriminatory intent when casting their votes for Prop. 8."
Jim Campbell, a lawyer on the defense team, criticized the decision: "In America, we should uphold and respect the right of people to make policy changes through the democratic process, especially changes that do nothing more than uphold the definition of marriage that has existed since the founding of this country and beyond." Attorney Pugo said: “Proposition 8 had nothing to do with discrimination, but rather with the will of California voters who simply wished to preserve the historic definition of marriage… The other side’s attack upon their good will and motives is lamentable and preposterous.”
On Aug. 11, Cal Thomas wrote: “A nation that does not see in law a right to life for its unborn children and a court that allows more than 50 million of them to be killed claiming a nonexistent “penumbra” in the Constitution is not about to acquire a moral — much less a constitutional — backbone when it comes to same-sex “marriage. A nation that loses its moral sense is a nation without any sense at all. The decision by a single, openly gay federal judge to strike down the will of 7 million Californians, tradition dating back millennia (not to mention biblical commands, which the judge decided, in his capacity as a false god, to also invalidate) is judicial vigilantism equal to Roe vs. Wade.”
Mr. Thomas addressed the fact that Judge Vaughn Walker is an openly-gay judge who is in charge of sitting in judgment on cases respecting morality and decent values for our society. When Walker was appointed by President Reagan in 1987, there was no indication of his alternative lifestyle. If news of his sexuality had been known, he probably would not have been appointed, but as Thomas explains: “If it had not been Walker, it would have been another judge, because America’s problem is not entirely at the top; rather it is mostly at the bottom. What we tolerate, we get more of, and we have been tolerating a lot since the Age of Aquarius generation began the systematic destruction of what past generations believed they had sacrificed, fought and died to protect. None of this should surprise anyone who takes the time to read and understand what happens to people and nations that disregard God.”
How does the federal government fit in with all this? What is the government’s position, you may be wondering… On September 21, 1996, Congress passed, and President Clinton signed, the Defense of Marriage Act (DOMA), which defines marriage for purposes of federal law as the legal union between one man and one woman as husband and wife. The main provisions of DOMA, codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C, are as follows:
Section 2. Powers reserved to the states: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
Section 3. Definition of 'marriage' and 'spouse': “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
The Defense of Marriage Act passed the House of Representatives by a vote of 342 to 67, and the Senate by a vote of 85 to 14. While DOMA reflected federal law, states were left to decide for themselves how to define marriage and how to recognize homosexual rights with respect to relationships. And same-sex groups began to protest for their equal rights. On May 17, 2004, the Massachusetts Supreme Court, in Goodridge v. Department of Public Health, held that it was unconstitutional under the Massachusetts state constitution to allow only heterosexual couples to marry. [“The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference. The State does not have a rational basis to deny same-sex couples that right. (The state constitution) affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.”] Thus, Massachusetts recognized the right of homosexual couples to marry. Also in 2004, Mayor Newsom began issuing marriage licenses in San Francisco to gays and lesbians, in clear violation to California state law.
On February 24, 2004, President Bush delivered a speech in which he publicly advocate for and express his support for a constitutional amendment affirming a marriage as between one man and one woman. As he stated: "The union of a man and a woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith. Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.” He said he decided to endorse an amendment because of the decision in Massachusetts and the mayhem in San Francisco. "After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity. Decisive and democratic action is needed, because attempts to redefine marriage in a single state or city could have serious consequences throughout the country.” [See the transcript of Bush’s speech following the reference section].
As Bush explained: “The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state. Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America. Congress attempted to address this problem in the Defense of Marriage Act, by declaring that no state must accept another state's definition of marriage. My administration will vigorously defend this act of Congress. Yet there is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts….. For all of these reasons, the Defense of Marriage requires a Constitutional amendment." [Amending the Constitution is difficult, requiring a two-thirds majority each in the House and Senate and ratification by three-fourths, or 38, of the 50 states].
Unfortunately, President Bush didn’t receive the support in Congress that he hoped, with many members preferring to allow states to handle the matter as they deem appropriate. In September 2009, three Democratic members of Congress introduced legislation, referred to as the Respect for Marriage Act, to repeal DOMA. The bill had 91 original co-sponsors in the House of Representatives, but gay Congressman Barney Frank and John Berry, head of the Office of Personnel Management, refused to support it. Their reason was that there was not enough support in Congress ("the backbone is not there") but they noted that litigation might be the best way to overturn DOMA. But as it stands now, DOMA defines marriage for purposes of federal law and is still the law of the land. And 38 states have provisions protecting the traditional institution of marriage.
Only the states of Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia allow marriages between persons of the same sex. Now California wishes to join that group. Is the federal decision out of California an example of the current trend to redefine marriage to include gays and lesbians? For the most part, the answer is Yes. Gay and lesbian couples are suing for Equal Protection and Due Process rights. They are suing for state, and hopefully soon, national recognition that they have a fundamental right to be “married.” They are making similar arguments about discrimination and impact. State law on the topic varies across the country, as would be expected in a nation based on federalism and strong states’ rights. The state of Massachusetts believes that the right to marry is a fundamental right for everyone. [Goodridge]. The state of New Jersey believes that it is not a fundamental right. [Lewis v. Harris]. If the Supreme Court in fact decides to hear Perry…. and if it succeeds, it could mean that gay marriage would be permitted not only in California but in every state. How could this be possible on a case stemming from state law? If the Supreme Court makes a fundamental declaration, such as how it will classify groups of people, this becomes legal precedent. So, if the Supreme Court were to recognize homosexuals as indistinguishable from heterosexuals for the purpose of marriage law, it would be hard, if not impossible, for any state to uphold its individual laws on marriage which classify people on the basis of sexual orientation. Such a determination would become binding on the states.
As momentum for their cause grows, gays and lesbians hope the Supreme Court will hear their case and find in their favor. And Perry just might be that case. Attorney Ted Olson is hopeful that the high court will take it up. (Personally, he enjoys a high success rate in arguing cases in front of the Court, plus he enjoys a tight relationship with several of the Justices, who are very close friends. In fact, several attended his wedding a few years ago). He hopes the case will be a “teaching experience.” He hopes the Supreme Court will end the discrimination that gays and lesbians face on account of their sexual orientation. Unfortunately, good intentions alone isn’t a sufficient motive to undue sound scientific rationale and valued traditional institutions. At least it shouldn’t be.
Lewis v. Harris (N.J. 2006) is a New Jersey Supreme Court case which I remember clearly, being that Jersey is my home state and the state where I got my legal education. I bring this case up because I think it was properly decided. I think it was a thoughtful decision which respected the interests of all interested parties - homosexuals and persons wishing to protect the traditional institution of marriage. Plaintiffs were seven same-sex couples who have been in committed relationships for many years and who wanted to get married in order to enjoy the legal, financial, and social benefits that marriage affords. They challenged the constitutionality of state laws that denied marriage licenses to same-sex couples as violating their fundamental right to marriage and alternatively, as violating their rights to equal “protections” of the law. Plaintiffs claimed that the liberty interest denied to them was “the right of every adult to choose whom to marry without intervention of government.” The court reasoned and concluded that the right to marriage is NOT a fundamental right as afforded by the NJ state constitution (very similar to US Constitution), but that under its equal protection clause, same-sex couples are indeed entitled to the same “protections.” The court refused to acknowledge a right to “marriage” while the equivalent avenue of civil unions is available to confer the same rights and legal responsibilities.
The court explained: “Within the concept of liberty protected by Article I, Paragraph 1 of the New Jersey Constitution (which mirrors the rights in the US Constitution) are core rights of such overriding value that we consider them to be fundamental. Determining whether a particular claimed right is fundamental is a task that requires both caution and foresight. When engaging in a substantive due process analysis under the Fourteenth Amendment, the United States Supreme Court has instructed that it must ‘exercise the utmost care’ before finding new rights, which place important social issues beyond public debate, ‘lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of the Court.’ (Washington v.Glucksberg). In searching for the meaning of “liberty” under Article I, Paragraph 1, we must resist the temptation of seeing our own strongly-felt opinions and beliefs. Under the guise of newly found rights, we must be careful not to impose our personal value system on eight-and-one-half million people, thus bypassing the democratic process as the primary means of effecting social change in this State. That being said, this Court will never abandon its responsibility to protect the fundamental rights of all of our citizens, even the most alienated and disfavored, no matter how strong the winds of popular opinion may blow.
Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right. When looking for the source of our rights under the New Jersey Constitution, we need not look beyond our borders. Nevertheless, we do take note that no jurisdiction, not even Massachusetts, has declared that there is a fundamental right to same-sex marriage under the federal or its own constitution.”
Nevertheless, the Court had to examine whether those laws that deny to committed same-sex couples both the right to and the rights of marriage afforded to heterosexual couples offend the equal protection principles of the state constitution. The NJ state constitution states that every person possesses the “unalienable rights” to enjoy life, liberty, and property, and to pursue happiness. Although the document nowhere expressly states that every person shall be entitled to the equal protection of the laws, the courts have construed Article I to embrace that fundamental principle. The first paragraph of Article I “protects against injustice and against the unequal treatment of those who should be treated alike.” So when a statute is challenged on the ground that it does not apply evenhandedly to similarly situated people, New Jersey’s equal protection jurisprudence requires that the legislation, in distinguishing between two classes of people, bear a substantial relationship to a legitimate governmental purpose. The court concluded that it could find no legitimate public need for an unequal legal scheme of benefits and privileges that disadvantages committed same-sex couples. Hence it held that there was a clear equal protection violation in that committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples.
Having unanimously come to the agreement that current state law regarding marriage as between a man and a woman is unconstitutional with respect to the equal protection of same sex couples, the court was divided as to what remedy was required. It noted that the equal protection requirement leaves the Legislature with two options: the Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union, as Connecticut and Vermont have done.
Plaintiffs did not want a separate statutory scheme. They wanted full rights to marriage. They argued that they could not be “made whole” by a statutory scheme even if it granted them equal social and financial benefits. They argued that the only thing that would “make them whole” would be if they are allowed to call their committed relationships by the same name as heterosexual couples call their relationships – by the name of “marriage.” They maintained that a parallel legal structure, called by a name other than marriage, which provides the social and financial benefits they have sought, would be a separate-but-equal classification that offends the state constitution (equal protection).
From plaintiffs’ standpoint, the title of marriage is an intangible right, without which they are consigned to second-class citizenship. Plaintiffs weren’t just seeking simple legally equal standing but were also seeking social acceptance, which in their view is the last step toward true equality.
Three justices (the minority) argued that the only constitutional remedy is the amendment of state marriage law to include same-sex couples. [Note that several of the NJ Supreme Court judges were appointed by the openly-gay Governor Jim McGreevey… aka, Governor Mc Shcheevy or Governor McSleezy). In the end, the New Jersey legislature opted not to legalize gay marriage, but instead passed a bill legalizing civil unions. They decided to create an appropriate statutory scheme. A year later, a commission was setup by the Legislature to examine the new Civil Union law to see how it was working, and to look at the possibility of same-sex marriage. The report came back unanimously recommending that the Legislature legalize gay marriage. New Jersey's Governor Jon Corzine has said he would sign a same-sex marriage bill, but wanted to wait until 2009 after the presidential election. “The Freedom of Religion and Equality in Civil Marriage” Act was passed by the NJ Senate Judiciary committee in a close 7-6 vote. But the bill was rejected by the full Senate the following day. Governor Chris Christie has said that he will not sign a marriage equality bill while he is governor. So at this time, New Jersey recognizes civil unions as the appropriate scheme to recognize gay unions and to provide the legal rights and duties that that they want.
So, is the right to marry one of the same sex a fundamental right here in this country, under our US Constitution? I think that answer will only come out if and when the Supreme Court agrees to hear this case. I think the case, for those who wish to preserve marriage as a traditional union between a man and a woman, to honor the sacred role and fundamental purpose it serves our society, will hang on whether the need to define marriage as between a man and a woman serves a compelling and legitimate state (government) issue. If this can be shown, then courts will be able to legally explain why even a fundamental right might need to be denied. Of course, I would have thought that the state might want to recognize that special union between a man and a woman because it honors their intention to start a family and will overwhelmingly result in children. And propagation of society is certainly a compelling state interest. But homosexual judges obviously don’t see this as a compelling enough state interest. My bad. My charge to people who are passionate on this subject is to get involved and make your voices known as to the reasons you believe traditional marriage needs to be protected. I believe ProtectMarriage.com brought up some excellent arguments in their case against Perry to defend Proposition 8, but they clearly did not go far enough. I would have brought up some additional arguments, such as some scientific rationale to defend marriage and to explain why children and adolescents will be harmed by the social change which will result when traditional gender and family roles become blurred, and some common sense parenting concerns.
But first I might challenge homosexuals to define precisely what compelling state interest is served by allowing them to “marry.” For there certainly can be no greater compelling interest than encouraging propagation among married couples. Homosexual couples will, and already have (see Perry) challenged the traditional notion that only heterosexual couples can procreate. With artificial insemination and guys like David Crosby out there, there is nothing that prevents lesbians from becoming artificially inseminated. (Getting pregnant the “new fashion” way). Furthermore, many homosexual couples can adopt. But this doesn’t take away from the fact that homosexual couples cannot procreate together. It’s nature’s way of saying “it ain’t right.” And it doesn’t take away from the fact that homes with both a father and a mother offer children what they need for proper development. There is plenty of evidence to show that children need both parents, both sexes, in the home. Children need to be nurtured by parents of both sexes if they are to learn to function in a society made up of both sexes. Is it wise to have a social policy that encourages family arrangements that deny children such essentials? Gays are not necessarily bad parents, nor will they necessarily make their children gay, but they cannot provide a set of parents that includes both a male and a female.
Homosexuals will argue (as they did in Perry) that denying them the rights to enter into the covenant of marriage, like heterosexuals can, is a violation of their civil rights. In Perry they argued that just as it was wrong to prohibit blacks and whites from inter-marrying, it is also wrong to prohibit homosexuals access to the rights and benefits of “marriage.” There is no doubt that for many years, state laws prevented interracial marriage and the Supreme Court was correct in determining that these laws were unconstitutional and in violation of Equal Protection laws. Homosexuals claim that they are being discriminated against in their civil rights for “being what nature made them.” They say they can’t help being “what they are” (homosexual) any more than a black person can help being black. What they are claiming is that sodomy is a natural act that should be protected by the same laws and in the same manner that protect persons distinguished by race.
But this argument is inherently flawed. However, skin color and sexual behavior are entirely different. The first is an inborn characteristic while the second is behaviorally based (not genetic) and has everything to do with individual character, moral choices, and society’s basic rules of conduct. If civil rights laws can be used to justify and sanction the behaviors of homosexuals, where does it stop? Next child molesters will demand rights to work in daycare centers and work in the public school system. But we really don’t even have to go here. The Equal Protection clause of the Constitution historically has been viewed to respect those regardless of race, color, religion, or national origin. Those who designed the 14th Amendment certainly didn’t have in mind the protection of those who with different sexual preferences or orientation. After all, national opinion has always shown repugnance to preferences such polygamy and incest, which, like homosexuality, are based on a deviant sexual scheme.
[Note: Historically, the Supreme Court has attached “suspect class” status (status which triggers the greatest judicial scrutiny – strict scrutiny) to racial minorities and religious groups. It has not been willing to extend suspect-class status to sexual orientation, nor even recognize it for intermediate scrutiny. The lowest scrutiny is all that is required. Strict Scrutiny analysis = the enactment at issue which classifies groups of persons, say by race, must be able to stand the highest scrutiny for constitutionality; it must be “narrowly-tailored to further a compelling state interest.” The lowest analysis, Rational Basis scrutiny, requires only that the enactment be “rationally related to a legitimate state interest”].
| Imagine this: Judge a teacher by how much improvement the students make | For Love of God and Country, Op-Ed & Politics | County Commissioner and Hosptial Commissioners provides an update on the Hospital |
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