California’s Same Sex Marriage Ruling Flawed

by P.A. Madison on August 5th, 2010

Yesterday in the case of Perry v. Schwarzenegger, U.S. District Judge Vaughn Walker enjoined California’s Proposition 8 from being enforced on the grounds California has a “constitutional obligation to provide marriages on an equal basis.” Judge Walker finds California’s anti-SSM law violates both the Due Process and the Equal Protection clauses under the Fourteenth Amendment. Here are some of my quick preliminary thoughts on the ruling.

One difficulty with the Due Process route is that it requires treating marriage as a fundamental right is that proceedings before some court of law has never been a requirement for entering into marriage. Walker writes, “[t]o determine whether a right is fundamental under the Due Process Clause, the court inquiries into whether the right is rooted ‘in our Nation’s history, legal traditions, and practices.'”

And here lies a problem: Being able to freely choose one’s marriage partner has never been viewed as rooted in the Nation’s history or “legal traditions, and practices.” Marriage laws have long restricted who can marry who, when and under what conditions. Elena Kagan in a letter to Senator Specter in March of 2009 said she could find no constitutional right to same-sex-marriage in the Constitution:

Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

Judge Walker’s Equal Protection argument didn’t make any sense in light of the historical evidence behind the meaning of the words that says it never had anything to do with gender equality in public law. If it had meant equality in such things as sex or gender in all laws then there would never have been any purpose for, say, the Nineteenth Amendment (woman suffrage).

Neither the chairman of the Reconstruction Committee, Rep. Thaddeus Stevens or Senator Jacob M. Howard introduced the Equal Protection Clause to their respective chambers as having anything to do with social equality, but everything to do with equality in laws and proceedings for security of person before tribunals of justice. Hence, why the Equal Protection of the Laws were presented to both the House and Senate as limited to “offenders” of law.

This explains why the Fourteenth Amendments chief sponsor, Rep. John Bingham, generally used the word “tribunal” and laws of Due Process when discussing the concept of Equal Protection under the Fourteenth Amendment and not general civil laws. In 1870 he made this very clear when he said no State may deny the Equal Protection “not of its laws, but of the laws,” i.e., law of the land (Due Process).

Additionally, he also explained that the Equal Protection of the laws had always been part of the Constitution under the Fifth’s “no person” and not the Magna Charta’s “freemen” shall be deprived of life, liberty or property without Due Process.

Constitutions and statutes of former rebel States were required to conform to the requirements of the Fourteenth Amendment before being readmitted into the union under reconstruction. To accomplish this, former rebel States were required to repeal their “black codes” (black codes were criminal codes that singled out blacks for special punishments), however, laws of miscegenation and segregation remained and were never objected to by framers of the Fourteenth Amendment. The reason is easy to understand in light of the fact restricting marriage to opposite gender or race has absolutely nothing to do with creating “class legislation” that unequally applies or denies laws of proceedings for security of person.

Judge Walker’s attempt to invalidate Prop 8 under Due Process and Equal Protection clauses is weak, and no amount of testimonial evidence offered will gloss over this fact. The fact is Due Process or Equal Protection has never been required for the qualifications of marriage or the issuance of a license or ever viewed as anything to with security of person before the law.

I’ll leave the final word to Justice Powell from his concurrence in Zablocki v. Redhail, 434 U.S. 374 (1978):

The State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people … State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A “compelling state purpose” inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.

Related: Historical Meaning Behind ‘Equal Protection of the Laws’


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  1. Kerby says:

    And here lies a problem: Being able to freely choose one’s marriage partner has never been viewed as rooted in the Nation’s history or “legal traditions, and practices.” Marriage laws have long restricted who can marry who, when and under what conditions.

    That should be a great basis for reversal.

  2. jose says:

    I’ll be brief:

    As a matter of practicality, the US Supreme court decisions deal with the matter at hand. While Lawrence vs Texas was a significant victory for gay rights, it really did not address gay marriage, or even marriage as a constitutionally guaranteed right. The salient point of Lawrence is that the court ruled that gay individuals are protected under the constitution from invasive and intrusive govt. action for participating in adult, consentual, sexual intimacy. In a sense, this is a ruling that is just as applicable to all adult, consenting individuals who expect to be free from govt. intervention and scrutiny when it comes to sexual intimacy in the privacy of their own homes.

    However, marriage is not a private act, but rather, a contractual agreement that is binding on two parties, who seek “formal recognition” from the community at large. This legally binding contract involves specific obligations that apply to the parties involved, and grants them access to state and federal resources. Resources that the state or the federal govt. provides as mandated by their respective legislatures.

    An individuals right to engage in sexual activity involves no contract at all. In fact, the only time the govt. involves itself in consentual acts of intimacy is when, you guessed it, that intimacy begets children. Now we can get to the grain of the court’s decision. The court stated that:

    1. moral abhorrance, of any particular sexual activity among consenting adults
    2. in the privacy of their homes
    3. by a greater majority
    4. was insufficient grounds for prohibiting said sexual intimacy.

    Such as it is, the state could present no rational basis for it’s anti-sodomy laws other than the majority’s disapproval of gay sex. Whereas, as stated before, the procreative act of begetting children is still considered a legitimate rational basis for preserving traditional marriage. (See Justice O ‘Conner’s concurring opinion in Lawrence).

    While the court ruled that the right to engage in adult, consentual sex in the privacy of the home was protected by the the 14th amendment of the constitution, nowhere does it state that the same applies to same sex marriage. In fact, Justice Kennedy states in his opinion in Lawrence that the decision did not involve whether the federal govt. must give formal recognition to any relationships homosexuals seek to enter.

    As has been shown above, Justice Kennedy does not feel that the federal govt must recognize “any ” relationship that homosexuals seek to enter, and if Justice O’Conner believes that there is a rational basis for preserving the traditional concept of marriage, then we must infer that there is compelling justification to recognize traditional. heterosexual, marriage as a basic constitutional right. From the context of the decision, there is no way to construe a constitutional right to “same sex” marriage aside from pure speculation and theoretical conjecture. Justice Kennedy’s reluctance to admit that the federal govt. was obliged to give formal recognition to any relationships that homosexuals seek to enter is a sobering indication that same sex marriage is not being looked at by the high court as a constitutionally guaranteed right. As as many have commented on this blog, when it comes to gay marriage, the court is far from unanimous as to whether or not “same sex” marriage is a basic constitution right.

    Finally, rights that are considered fundamental to our society generally enjoy what jurists call “strict scrutiny” jurisdiction when determining their constitutionality. It is particularly telling that all of the major US Supreme Court decisions as touching gay rights have been decided using the rational basis review, which is a far less stringent application of law when deciding if a law is constitutional or not. It is generally recognized that when the High court applies strict scrutiny, it is because it is deciding a case that involves a protected class of individuals. While sexual orientation is considered a quasi-protected class, The US Supreme court has yet to apply strict scrutiny to any decisions involving gay rights.

    From the above, if you were to ask me if gay marriage is a basic civil right, I would have to agree with Justice Kagan… not yet!

  3. Harry says:

    Can someone give me a legitimate reason why 2 men or 2 women cannot get married? When I say legitimate reason, I mean on not regarding procreation or religion. I have never heard any real reason why 2 consenting, of-age people of the same sex cannot get married.

    • Toxic says:

      Harry:
      Can someone give me a legitimate reason why 2 men or 2 women cannot get married?

      Same reasons for why a man cannot lawfully have multiple wives or why a man cannot marry his daughter even if she consents and is an adult, or why there is laws against indecent public exposure. Such laws are not required to be rational to those who oppose them.

  4. MWBrown says:

    If you ever hear a conservative tell you they’re about the expansion of freedom…know that they’re lying to you. The phrase you need to know is “Authoritarian Conservative”.

  5. Randy King says:

    In their 1982 ruling regarding same sex marriage and immigration the 9th circuit court of appeals noted that procreation was a rational basis to deny marriage benefits to same sex partners; that it was obvious to the justices that Congress did not intend to extend preferential treatment to same sex enthusiasts.

    It is quite obvious to me that same sex activists believe that the only portions of settled law that matter are those bits that appear to give special rights to perverts when taken out of context.

    If you have to pervert intent to justify your position maybe it is time you reevaluate your decision making practices.

  6. Equal Protection is Important says:

    Interesting argument, but the very fact that a “straight” person can be born in the US, live and work abroad and marry a non-US citien, migrating back to the US with their spouse while I cannot do the same is exactly the point of equal protection.

    The simple fact is – due to sexual preference I am prohibited from doing the same as a straight person. This is in essence the very definition of what equal protection should try to defend in terms of my rights.

    Imagine yourself in my situation…highly educated US citizen – born and raised in the US – is sent abroad to work with a US company. As with most individuals I meet and fall in love with another person where I live and work. That is normally what happens. The only difference is very simple…due to sexual preference I cannot move back to the US with my partner…it is not recognized under US law. Therefore I do not receive equal protection as do other US citizens who fall and marry non-US citizens.

    Where does that fit into the entire situation?

  7. J Sebastian says:

    Actually the flaw in your argument is the equivocation of couples with persons. 14A provides protection for a person, not for a couple. A couple is a fiction – an illusory thing. It is the relationship of two individuals. Whereas a person is an actual thing, ie, a real person.

    So when viewed correctly, there is nothing wrong with Prop8, as it does not treat individuals any different. The gays have managed to use some pretzel logic and cite previous instances of judicial bungling that incorporated the same error, but that doesn’t change the intent or spirit of the law.

  8. Dave Osco says:

    Charles, you don’t understand how legal analysis is done in the context of constitutionality challenges. Do a little bit of digging into how these things are done and I think it will clear up your consternation with regard to all the discussion about ‘rational’. Once you understand things more, many relevant and valid objections to the court’s decision will be illuminated. Uneducated commentary has become the greatest weakness of this side of the debate. Sorry for singling you out.

  9. JimAZtec says:

    Regarding the CRA of “Ëœ64, it’s pretty easy to see why Congress used the Commerce Clause as justification for its enactment; the Reconstruction Amendments (13th and 14th) weren’t ratified yet.

    Man, you are far crazier then I ever imagined.

  10. Brian says:

    It is important to note that Kennedy specifically said gay marriage did no apply under Lawrence, making it irrelevant case law for gay marriage. The fact Kennedy specifically singled out gay marriage shows the majority did not view marriage so broadly to include same sex couples.

    You’re overreading what Kennedy wrote in the opinion regarding marriage. Kennedy actually said nothing about SSM, nor would he because to do so would be prejudging an issue that wasn’t in front of him — something the Court cannot do. He simply said, “[This case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Scalia also warns you not to read too much into this statement in his dissent: “Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to ‘personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,’ … Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of prescribing the conduct; and if, as the Court coos …, ‘[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’ what justification could there possibly be for denying the benefits of marriage to homosexual couples…? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principal and logic have nothing to do with the decisions of this Court.”

    Let me lay out why Lawrence is highly relevant, and why I believe Kennedy will also use it (in part) to uphold Vaughn’s Prop 8 ruling. In the Lawrence decision, Kennedy finds particular relevance in the Casey decision (another opinion he authored), and he says it “confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” He then says “the Constitution demands [] autonomy of the person in making these choices” and quotes a particularly broad statement about the scope of “liberty” in the 14th amendment from Casey: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” He continues: “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” My takeaway: the right to choose whom to marry is fundamental and may not be infringed by the state (without a legitimate reason) because it is a private decision that is part of defining oneself.

    Moreover, he eradicates two of the most common arguments against SSM, finding that they are not legitimate state reasons for a law. He quotes Stevens’ dissent from Bowers approvingly: “Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Kennedy says Stevens dissent from Bowers “should have been controlling in Bowers and should control here.” Similarly, O’Connor in her concurrence goes even further: “Moral disapproval of [gays and lesbians], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. My takeaway: tradition and claims about immorality are wholly insufficient to justify state laws that infringe individual fundamental rights and equal protection. This means Prop 8 advocates better have some good arguments about saving the kids that aren’t based on stereotype and homophobic bias. Indeed, Scalia’s dissent expresses that worry: “This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”

  11. Brian says:

    Jim, most of what you said in response isn’t really worth replying to since it’s mostly rhetoric with minimal warranted argument. However a couple points I will make:

    I do believe in federalism and separation of powers. Where we differ is in our understanding of what those terms mean and how they are established by the Constitution. You seem to espouse a radical view of federalism that holds that states may do whatever they want, irrespective of individual rights protected by the Constitution or the Supremacy Clause. Regardless of what you would like, states don’t have unlimited power to do whatever they want; their powers are broad, but they are limited, just like the federal government is also limited (albeit in some different ways).

    Regarding the CRA of ’64, it’s pretty easy to see why Congress used the Commerce Clause as justification for its enactment; the Reconstruction Amendments (13th and 14th) weren’t ratified yet. Since then, there have been multiple civil rights laws that rely on Congress’ enforcement powers under the 13th and 14th amendments (e.g., Voting Rights Act, 42 U.S.C. 1982, Americans with Disabilities Act). However, SDP has nothing to do with Congress’ power to enforce civil rights protections established by the Constitution.

    Stay tuned for an inundation of SDP-recognition cases from the early- to mid- 19th century, leading up to the 14th Amendment… Unlike you, I’m perfectly willing to lay my cards down on the table for all to see, as opposed to relying on ad homs and unsupported conclusory statements.

  12. TomCat says:

    Glucksberg is the logical choice for Kennedy since gay marriage doesn’t deal with privacy like Lawrence had. Freedom to choose your martial partner outside of marriage tradition is a weak equal protection argument even for Kennedy.

    Very interesting how Bingham described the equal protection clause and how it was addressed by Howard and Stevens.

  13. MatthewKohai says:

    Justin Raimondo, who is gay, summed up the gay’s movement entire sick position:

    “The entire gay rights movement is based on the most unattractive, indeed pathetic motive imaginable””the need for acceptance.”

    What a strange quote. Like there is actually a problem with another group of individuals trying to gain acceptance. What is even more funny the almost same exact quote was used by Andrew Strongson, an African American man who was a major supporter of states rights to descriminate during Civil Rights, His Quote was ““The entire black rights movement is about pride, the most unacceptable, indeed immoral reason imaginable””the need for recognition.”

    • Kent Perry, Az says:

      Acceptance is a lot different than recognition. If Gays think they could legitimize their sexual relationship by attaching it to/ and riding on the coat tails of legitimate State sanctioned Government approved and Church ordained marriage, they are drop dead wrong. Perhaps they should quit seeking the approval of all these institutions and people and just live their lives.

      This idea of using municipal law to force us into reinterpreting natural law to suit definitions having meanings that not only backed up by science as a biological fact of nature and natural law the laws of nature and natures god, but are fundamental reason marriage has the legal definition of “One man and One Woman”.

      The french author Vatel was explicit in his explanation of Natural law and why the Government agreed with the church in this regard is because it happens to be a FACT the ONLY sexual type relationship having the potential to “merge” (or the French word Marry) the male seed (DNA) with the female, as one flesh.

      Nature makes no distinctions for such silly ideas as “Marriage Equality” in fact, of the two types of sexual coupling or ANY OTHER sexual type relationships., they are anything BUT equal. The hetero sexual couple is UNIQUE for this reason.

      Homosexuals, would have us believe, that the rectum, is as respectable, a receptacle, as the womb which has the potential to bring forth, a human life, moreover, a LOVE, far more worthy of our making. Marriage Laws came about as a result of that marriage of their DNA. Only hetero sexual couples could be the cause of Orphaned Children, inbred children.etc,.

      So laws surrounding and ill add tailored to this type of sexually committed couple, were created to mitigate the problems society had for keeping those entering into this union, responsible for any offspring that typically came as a result of this kind ofo sexual relationship. It was this new civil union contract named after its Natural ability to marry (merge) the results of their sexual activity two as one flesh. Blood tests were added to mitigate inter marrying or inbreeding. Then polygamy was outlawed because of conflict of interest issues for yet one of the most important areas of this new contract and that of course was Divorce, especially where children are involved. Tax breaks were added because of the huge sacrifices parents had to make in raising these children.

      Now Marriage never has kept gays from having sex and the entire construct of Marriage is ABOUT a phenomena, HOMOSEXUAL NEED NOT CONCERN THEMSELVES WITH, ISN’T ABOUT THEM AND DOESN’T APPLY TO THEM, PERIOD.

      Understand, Marriage Laws are not a mandate a couple have children, but were created IN-CASE THEY DO have children.

      Gay people have no BUSINESS trying to shoehorn their sexual bent, into this institution. To do so, is tantamount to having the Courts rule that PIGS can FLY.

      Now the BIRDS, will tell the pigs, NO you can not fly, and the Pigs can call the birds haters and bigots if the want, but the pigs will never fly, The Pigs can initiate law suits against the birds forcing a redefinition of the word “FOWL” having pigs INCLUDED in that definition, but they will never be birds and they will never fly. The Pigs can cite the Ostrich claiming THAT’S Bird and it can’t fly so we should be birds too, but they will never be birds and pigs will never fly because NATURAL LAW and the Laws of Nature, HAVE BANNED IT! if you are a sperm cell swimming along in your gay lovers thinking you can marry (merge) your seed with what ever debris you run into in there, I don’t care WHAT the supreme court says,, GOD says,, YOU SWIM THE OTHER WAY,,

      else you will be in a world

      of SHlT.

  14. Jeffery says:

    Kennedy will rely on Glucksberg and not Lawrence to uphold Prop. 8.

    I agree with Mr. Madison’s equal protection analysis. Like Madison, I have a deep appreciation for the history behind written law then for later fractured court opinion that is often absurd in its conclusions.

  15. JimAZtec says:

    This quote is better:

    “Whenever Congress attempts to restrict this right of the majority to rule in the State it will attempt usurpation, and whenever the majority of loyal citizens surrenders that right into the hands of the minority it surrenders the cardinal principle of representative government.” –John A. Bingham, July 20, 1866

  16. Wayne says:

    ….and courtesy of James Madison in Federalist Papers No. 10; “…..measures are too often decided,not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” Of course, he lacked the “social and scientific studies” claimed by the proponents everywhere except at trial.

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