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 (whoever heard of a fundamental right requiring a license to exercise?). 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 qualifications have long restricted who can marry who and under what terms. 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 social equality in civil laws. If it had meant equality 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 the protection of the laws of Due Process before the tribunals of justice. The laws demanding Equal Protection are those laws States are required to guarantee to all persons, and those laws are laws of Due Process in the protection of life, liberty and property in the proceedings of justice.
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.
Clearly then, the Fourteenth Amendment was not viewed by its framers or the public as elevating “marriage” to the level of a fundamental right.
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 no one is being denied any right they are entitled to who meet the qualifications of marriage.
My preliminary guess is if the ruling is overturned it will likely be because of the objection of holding the freedom to unconditionally choose who to marry to the level of a fundamental right, something courts have generally avoided. Additionally, how do you maintain marriage as a fundamental right when state law is required to dissolve marriage? In other words, marriage being dependent on state law to enter and state law to dissolve proves it was never a fundamental right to begin with, but only a civil contract.
The people have spoken, and I suggest the court listen instead of looking for clever ways to invalidate their voice.
Update: A few commenters are drawing attention to Lawrence v. Texas to support a judicial finding that Prop. 8 is unconstitutional. 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.
Another commenter brings up the case of Washington v. Glucksberg and suggests this will likely be the primary case law controlling whether same sex couples can claim a fundamental right to marry. Glucksberg would be powerful in upholding Prop. 8 on the grounds same sex marriage is a practice that has been, and continues to be, “offensive to our national traditions and practices.”
Need any evidence of that all one needs to do is point to Prop 8 itself, and point to all the states that banned gay marriage following Massachusetts’s legalization of it. Additionally, can point to such federal policies as “don’t ask, don’t tell.”
Related: Historical Meaning Behind ‘Equal Protection of the Laws’
Not only do I believe it but so does recorded history! And there isn’t 150 years of equal protection precedent, fool. It has drawn attention only in the last 30 years but still overshadowed by SDP. Again, if there is precedent like you say then why was a 15th or 19th amendment needed? A denial of woman suffrage surely would been seen as inherently unequal!! hahahaha
You seem to take delight in speaking of the progress of liberty that is nothing but court activistim that probably started with KKK Hugo Black.
CJS, apropos Baker v. Nelson (which shot down a same-sex marriage case in 1972 in one sentence on the grounds that it raised no “substantial federal question”), since you evidently know how to use Wikipedia, perhaps you might look up Perry v. Schwarzenegger itself, and read the handy summary of the case’s history. To wit:
“In September, Proposition 8 proponents filed a motion for summary judgment. Running more than 100 pages, the motion asked the court to rule that Proposition 8 did not offend the U.S. Constitution without the need to find facts at a trial. The motion asserted that Baker v. Nelson foreclosed any further review by the court. Failing that, the motion argued that all of the couples’ claims failed as a matter of law. After a two-hour hearing on October 13, Walker denied the motion. He noted that the Supreme Court doctrine on sexual orientation and gender discrimination had changed since 1972. Resolving the amendment’s validity, Walker noted, required hearing testimony at trial.”
I think we can all agree (whether we like it or not) that USSC doctrine on sexual orientation and gender discrimination has indeed changed dramatically, especially in light of Lawrence v. Texas. Under the circumstances, constitutional analysis somewhat more meticulous than a single sentence certainly seems appropriate.
Jim AZtec, you’re being awfully rude to Brian, who really only engaged in the debate about ubstantive due process for the sake of being polite. You’re wrong about SDP, but you seem to have missed the larger point that Walker’s decision does not rely on SDP anyway. It relies on Equal Protection analysis.
You’re squirming hard to try to sidestep the central point of that analysis “†that Prop 8 is quite simply not rationally related to any legitimate government interest.
You may believe deeply that the Equal Protection Clause shouldn’t be used that way because it wasn’t “intended,” but unless and until you can get the USSC to share your belief and overturn 150 years of precedent — and all the progress on behalf of individual liberty and against arbitrary government overreach that came with it — you don’t really have an argument here.
A central problem with the notion of “originalism” you espouse (and with “textualism,” different but closely related) is that it takes what was written as a short document embodying broad and enduring principles, and pretends it’s a detailed body of statutes whose drafters could anticipate every eventuality. Ironically, that’s manifestly in opposition to the express intent of the document’s framers, who you profess to respect.
Tommy Aquino, your attempt to put words in Walker’s mouth about black/white vs. gay/straight preferences doesn’t really merit the dignity of a rebuttal, but it’s worth underscoring its greatest flaw: none of this is even about personal preferences. Whether or not Smith or Jones is a bigot is completely irrelevant to determining their legal rights, which in each case should be to marry who they please.
I’m sympathetic to this blog’s reading of the 14th amendment, and am curious where the logic leads. To take some rather ugly examples, and so push to principles to the extreme, could a state treat race or gender as a qualification for holding property? And, provided the penalties did not depend on the perpetrator’s race, could a state treat the killing of a person of one race as an offense different from the killing of a person of another race?
Oddly, Judge Waker argued that gender differences were irrelevant and that same-sex marriage opposition is similar to racism. So, let me get this straight (pardon the pun), if Mr. Jones says he won’t marry any woman unless she’s white, he’s a racist. But if Mr. Smith, a gay man, says that he won’t marry any person unless he’s a man, that’s okay? Why isn’t Mr. Smith open to diversity, like we expect Mr. Jones to be. No one, in mixed company, would brag about his love for white women and why he doesn’t like black or Asian women. But if a gay man says he just likes men and doesn’t like women, everyone thinks that’s cool. According to Judge Walker, the gay man is a bigot!
So, Judge Walker, by making distinctions between gays and lesbians (between male homosexuals and female homosexuals) and then between them and straights, he undermines his claim that gender distinctions are irrelevant.
This is universe, liberals. All this, just to make sure that everyone blesses the sort of sex you like. Your narcissism is annoying.
Civil rights legislation relies on the commerce clause because it regulates private behavior, which is different from state action.
“Additionally, how do you maintain marriage as a fundamental right when state law is required to dissolve marriage?”
Checkmate.
Because the Supreme Court could find no fundamental right for same sex couple to marry under the federal constitution. Walker would prefer to keep that tucked away in a dark closet.
Lochner era is back
And you are not a believer in federalism, limited or division of powers it seems.
However, there is no such thing as substantive due process. You have to have us believing in the Easter Bunny for it to work. And if is is so well-established why did the civil rights act of ’64 require the commerce clause for its authority and not say substantive due process? That tells me there is nothing well-established about it.
I don’t think so. Liberty of the person was always viewed as freedom from arbitrary imprisonment. You can provide some examples of states treating dues process as substantive due process if you can, but I doubt seriosly you will be able to.
Now you are blowing smoke and sounding like a biased activists. Your sentence is easily refuted by history. I think the whole thing that started this substantive due process bullshit was
Gitlow, but even that ruling could find no evidence for substantive due process and instead was forced to “assume” that it did exist but only for the present case at hand and didn’t want it become precedent like morons today does.
Could someone please explain to me how Judge Walker addressed Baker v. Nelson http://en.wikipedia.org/wiki/Baker_v._Nelson , which I believe should have been controlling precedent (and it was post-Loving)?
P.A. Madison, your argument here is kind of quixotic. First of all, the USSC has long made it clear that marriage is held to be “one of the basic civil rights of man” (Loving); IOW, fundamental. Brian, upthread, has done a nice job of identifying the precedents. (Brian’s obviously very well-informed and hardly needs me to backstop him, but I felt like weighing in anyway.)
Second, moreover, Judge Walker’s ruling doesn’t actually rely on that (nor on gays’ status as a marginalized group, as poster Matt complains), since he doen’t subject Prop 8 to strict (“compelling basis”) scrutiny. He subjects it to plain old “rational basis” scrutiny, which for most laws is basically a rubber stamp. That’s one of the most amazing things about the case: that given every opportunity, Prop 8′s defenders couldn’t put forward any rational public purpose that would be served by denying marriage to same-sex couples.
In general, as John K. points out, you seem to be overlooking about 150 years of history and precedent in 14th Amendment jurisprudence. Focusing exclusively on what one of the Amendment’s authors and a couple of committee chairs may have thought the language meant is quaint, but really not relevant. If that sort of thing were decisive, we’d have no need for the judiciary as a coequal branch of government.
Matt, your post flounders on this: “if marriage is a protection granted those who procreate.” It’s not, and that’s pretty self-evident. Marriage is neither necessary nor sufficient for procreation (and vice-versa), and it has ever been thus.
Charles Cook, you apparently don’t understand how juduicial evaluation of challenged laws works. The burden falls on a law’s defenders to justify its existence. However, with the “rational basis” analysis, Walker was actually giving Prop 8 every possible benefit of the doubt. It still came up short.
Scott, if this discussion is really the first time you’ve seen someone object to “separate but equal” treatment of marriage (vs. “civil unions”), then you’ve been living a very sheltered existence.
Jim AZtec, pass a law restricting marriage to people of “certain eyesight or height” and see how quickly it gets shot down. You seem unaware of the very concept of judicial review. The judiciary has had final say over the legitimacy of laws in this country since the very beginning; lawmakers have never been “free to outlaw whatever they feel is objectionable” without explaining why.
To me, what’s amazing here is how many people are ready and willing to decry this ruling without having the slightest clue about the argument it’s based on, or the underlying law and jurisprudence. They quite literally don’t know what they’re talking about, and when they get called on it they claim access to some higher truth that will somehow “trump,” oh, all of American constitutional history.
I think Judge Walker identified what’s really bothering these people, when he wrote: “The evidence shows that the
movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. … Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”
That may make some folks uncomfortable, but it’s a fact. A real one, not a “made up” one.
I never intended to get into a discussion about the original meanings of “due process of law” as they were when the 5th Amendment and 14th Amendment were drafted and adopted. As my original post made clear, these criticisms of substantive due process are nothing more than wistful what-ifs because, like it or not, substantive due process is well-established in constitutional jurisprudence since the Due Process Clause in the 5th Amendment was first interpreted directly by the Supreme Court in the 1850s. Moreover, I’m not even a believer in originalism, so all these arguments about what Due Process meant to the framers and public in the late 18th and mid-19th centuries, are not determinative of what it means today. So, my argument has always been predicated on the well-established constitutional framework as it exists today — one that recognizes substantive due process and more specifically recognizes that marriage is a fundamental right under the Due Process Clause.
Having said that, however, I don’t mind engaging in a bit of originalist mumbo jumbo. There is quite a bit of support for the notion that the framers and ratifiers of the 5th Amendment would not have thought the Due Process Clause had a substantive element. Regardless, I don’t think that’s determinative for the 14th Amendment, since it wasn’t ratified until 80 years later. State courts, representatives, and the people all began to recognize substantive elements in the early 19th century. By the time the 14th amendment was ratified, 20 of the then-37 states recognized some form of substantive due process in their state constitutions or the federal constitution. Only 2 of the other states had rejected such interpretations. At least two Supreme Court decisions recognized substantive components, and the recognition of these substantive components of due process was never really that controversial or surprising at the time. Accordingly, even if the Due Process Clause of the 5th Amendment would be deemed by originalists to refer only to procedural process, by the time the 14th Amendment was ratified, it had taken on a substantive meaning to most states and the public. Thus, there is a good originalist argument that the 14th Amendment included a recognition of substantive due process.
I suppose 600 years of juriprudence that says the liberty of person is simply the liberty from arbitrary imprisonment just doesn’t cut it for you?
Did anyone ever argue chapter 39 of the magna carta protected substantive rights? The answer is no.
Why did the same congress who passed the 14A define the violation “liberty” under due process as an act of unjust “imprisonment” only?
Hasn’t personal liberty under due process always been protected by the great writ of habeas corpus? Are you going to play a idiot and argue gays can file a writ of habeas corpus against proposition 8? (laughing)
There is a mountain of evidence against the theory of substantive due process under the 14A. It is pure fiction.
In 1868, the same Congress who adopted the Fourteenth Amendment passed an act entitled “Rights of American Citizens in Foreign States” in the event any citizen was “unjustly deprived of his [personal] liberty by or under the authority of any foreign government.”Â
Ironically, you offer conclusions completely unsupported by fact or even evidence — opinion + ideology unrooted from any rational explanation to support the conclusions that you prefer. I’m still waiting for the examples of “modern court holdings” that have been “found making up their own facts.”
I draw the conclusion based on the debates of the framers, the public understanding and court holdings that proceeded the adoption. I’ll take that over any modern court holding found making up their own facts to advance their own agenda of what the constitution ought to have said.
Truth will always trump fiction and lies sooner or later.
God, do you really take yourself seriosly? I sure can’t!
You draw this conclusion based upon what? You can make the normative argument that you wish the Constitution said and meant something other than it does, but you haven’t made any compelling reason to support such a reinterpretation. The Equal Protection Clause of the 14th Amendment requires that no state “deny to any person within its jurisdiction the equal protection of the laws.” You are correct that the Constitution does not say all similarly situated persons must be treated equally, but that’s what that text means.
This is completely nonresponsive. You, and this post that you refer to, are talking about the Privileges and Immunities Clause of the 14th Amendment. That’s only one of the five sections, and it has effectively been read out of existence. The 15th amendment only offers the right to vote, a political right surely, but not the only political right. That says nothing about the Due Process Clause and Equal Protection Clause of the 14th Amendment, which is what I’m talking about. The Due Process Clause incorporates the Bill of Rights, which includes everything from freedom of religion and speech to the right to be free from cruel and unusual punishments. Surely you would say speech, if nothing else, is a political right; indeed, that is the core of its purpose: to ensure that people could speak freely about political issues without fear of government reprisal.
The constitution requires no such thing. The court might, but not the constitution because that was never amended to force such an requirement. I believe the commerce clause was used to do it and not the 14A, yes? Just proves how corrupt and mixedup juriprudence is in this country
But these cases didn’t deal with freedom to choose whoever you want to marry outside of the sanction of law.
Wrong. Everyone involved in the 14A’s debates made it clear political rights were not civil rights. Why in the hell do you think there is a 15th Amendment?????
Here, go read what Bingham and the House Judiciary Committee said about the 14A and political rights.
At least this is partially correct. Your initial description is correct, but the logical conclusion is wrong. Of course some discrimination is inevitable and even good in some instances. But the Constitution requires that persons that are similarly situated be treated the same by government. Of course, that begs the question of what “similarly situated” means. The examples you provide eyesight and height would only be legitimate classifications to discriminate upon in the event that the discrimination furthered some rational state objective. So, requiring that people be able to see for them to be in the military, for example, may be a legitimate form of discrimination because the government has a legitimate interest in ensuring that people who are part of the marines have the physical abilities to engage effectively in combat. In that case, blind people are not similarly situated to those who can see. However, a law banning blind people from marrying would fail under the Equal Protection Clause because for purposes of marriage, they are similarly situated to people who can see.
Now, the question is whether same sex couples are similarly situated to opposite sex couples for the purposes of marriage as the government recognizes it today. The most common argument for why they are not is that the same sex couples cannot reproduce like opposite sex couples. But that argument assumes that the purpose of marriage is to have children. This argument fails because government has never required procreation or the ability to procreate as a precondition for access to the institution of marriage. The government routinely recognizes relationships that cannot or will not reproduce; marriage licenses are granted all the time to those whom do not want children, those whom are infertile, and those who are elderly and can no longer reproduce. Moreover, if it were simply about procreation, why does marriage confer so many privileges and benefits that are unrelated to procreation?
The better and more logical answer is that marriage has become an institution to recognize a bond of love between two people that confers societal benefits — through stability, healthy relationships, and familial bonds. In that regard, same sex couples and opposite sex couples are similarly situated. They may both form loving and committed relationships that engender stable families and healthy relationships. Accordingly, the government would have no legitimate reason to discriminate between same sex couples and opposite sex couples for purposes of marriage.
I don’t know where you got this notion, but it’s certainly not right. Learn some history before you make bold, sweeping statements that have no basis in fact. Bingham and other framers of the 14th amendment were concerned about far more than criminal laws. Slavery and the incidents of slavery, including political disempowerment, were the primary motivations for the 13th and 14th amendments. If they were solely concerned about criminal laws, they could have easily been explicit about that in the text. Moreover, both the original Due Process Clause in the 5th Amendment of the Bill of Rights and the parallel (with the same meaning) Due Process Clause in the 14th amendment apply to civil laws as well.
Those cases dealt with criminalizing conduct that opened the door for due process challenges. Prop. 8 doesn’t criminalize anything!
Absolutely incorrect. Some of these cases relate to criminal laws but not all. For example, let’s take Zablocki v. Redhail (1978). A WI statute required noncustodial parents who resided in Wisconsin to get a court order prior to receiving a marriage license that confirmed that the parent wasn’t behind in child support payments. The purpose of this law was to ensure that the children would not become dependents of the state. The Court found the law to be unconstitutional under the Due Process Clause of the 14th Amendment because it infringed on the fundamental right of marriage. The Court acknowledged that the state’s goals were rational, unlike Prop 8, but even though the interests were important, the statute was not closely tailored to achieve those interests. The Court explained marriage as a fundamental right under the Due Process Clause in the following terms:
As you can see in the last sentence, the type of law (civil or criminal) is irrelevant. The Court refers to any “statutory classification,” including civil (as this case was — just like Prop 8 and other state restrictions on SSM).
There never has been such a thing of treating everyone equal in every imaginable situation. Very few privileges have ever been freely given without requiring any conditions to be met beforehand. There is nothing legally or morally objectionable about laws that only recognize a man and woman for purposes of marriage no more then a law that only recognizes people with certain eyesight or height.
Society is really decaying when the courts get to decide what public laws serve a rational purpose. I think social changes are great but not because of judicial intervention that forces it. People should be free to outlaw whatever they feel is objectionable and don’t have to explain why to any federal court.
As far as I am concerned, Judge Walker violated Article IV, Section 4, “The United States shall guarantee to every State in this Union a Republican Form of Government.”Â
why is it there seems to be so many people that do not understand the idea that all people are equal.
its that simple. if heteros can marry, than gays should have the same right. this whole argument was used when most of the country did not want black and white people to marry.
same thing, different decade.
if ONE is not EQUAL, than NON are EQUAL.
ps didnt the Federalist lose the battle?…im just sayin
The difference is that Proposition 8 imposed no criminal penalties, unlike the Texas sodomy statute. It did not even deny same-sex couples access to “a committed, officially recognized, and protected family relationship that enjoys all the constitutionally based incidents of marriage”Â.
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”â€the need for acceptance.”
Updated to make some of your thoughts “more clearer”? That sure helps this first time visitor decide whether to read on
The black codes dealt with criminalizing and punishing behavior directed solely at blacks, and that is what the equal protection clause protected against: Criminal laws that singled out and punished blacks because they are black. As Madison already pointed out elsewhere, social inequality like segregation was not something that was widely objected to by republican abolitionists, including Bingham, only criminal laws that singled out a single class of persons.
Proposition 8 doesn’t criminalize and punish behavior by a single class of persons.
Polital disempowerment never came under the 14th amendment because political rights it was never viewed by very many to be a privilege or immunity.
You got it dude! Those cases dealt with criminalizing conduct that opened the door for due process challenges. Prop. 8 doesn’t criminalize anything! This Madison guy is on the money with his arguments even if some object to him using original meaning to explain the written word.
Kennedy will vote to uphold Prop. 8, you just watch.
Why if is factually wrong and creates errous results? Hasn’t bad court rulings been constantly attacked before until the error was corrected? If the constitution is merely what the court says it means why have a written constitution?
And he also made clear that it didn’t mean the “government must give formal recognition to any relationship that homosexual persons seek to enter.”Â
Those court cases you cite, did they all deal with criminal law by chance?
The meaning of the text of the Constitution cannot be divorced from Supreme Court opinions interpreting that text. The idea that courts make up facts is pretty cynical. I would like to see an example. I’m not sure what divided court opinions you’re referring to, but the Court made clear, by a unanimous 9-0 decision, in Loving that marriage is a fundamental right.
Professor Carpenter has a valid point that the Due Process Clause claim is aggressive, but I don’t really agree that that means the Perry Due Process Clause holding would be struck down on appeal. As I already cited, a string of Supreme Court decisions have struck down state marriage restrictions based on the Due Process Clause. Additionally, Justice Kennedy, writing for the majority in Lawrence v. Texas used the Due Process Clause to strike down laws criminalizing sodomy in 2003. Because he is the likely 5th vote for either side in this case when it gets to the Supreme Court on appeal, the Lawrence case is particularly important and may portend that Kennedy isn’t disinclined to rule that the fundamental right of marriage under the Due Process Clause renders Prop 8 unconstitutional. Regardless, the DPC claim is only one facet; there’s always the independent Equal Protection Clause claim as well.
Nah, the post I think is more about what the written law means rather then what divided court opinions wished the constitution to had meant. Never trust a court that makes up its own facts.
Anyway, see Prof. Carpenters take on fundamental rights discussion here:
This post reads more like a wistful normative argument about what you would like constitutional law to be, rather than what it empirically is.
“…traditional opposite sex marriage have [sic] never been traditionally viewed as a fundamental right anyway…”
I’m not sure what you mean by this statement, but it’s certainly is not an accurate description of constitutional law. A short tour through constitutional law of the past 150 years is sufficient to prove otherwise. The Court has routinely recognized marriage as a fundamental constitutional right under the 14th Amendment Due Process Clause. See Turner v. Safley (1987); Zablocki v. Redhail (1978); Loving v. Virginia (1967); Skinner v. Oklahoma (1942); Maynard v. Hill (1888).
Additionally, your broader points about the meaning of the Due Process Clause are simply a reframing of the old and tired debate about whether there is a “substantive” component to the Due Process Clause. These arguments are moot at this point (except in legal academia) because substantive due process is well-established now in constitutional jurisprudence. You may not agree or like the constitutional jurisprudence, but to suggest the law is otherwise is simply wrong. Nevertheless, your discussion of the issue ignores the broader context of the drafting and ratification of the 14th amendment. John Bingham was one of the primary authors as you say, but if you read anything about what influenced him, you’ll see that he intended the 14th amendment to be read quite broadly. He drafted it in the context of the Black Codes of 1865-66 and was appalled by violence and political disempowerment of blacks in the South after the Civil War and abolition of slavery. Him and others were particularly concerned about protecting the life, liberty, safety, political rights, and the property of former slaves. They thought they needed access to all the basic protections of the Bill of Rights but knew that it would be impossible to detail all the needs and to explicitly protect them. So, the language is broad and meant to be interpreted as such to protect liberty and justice for ALL.
There may be more reasonable arguments as to why Walker’s opinion in Perry is wrong, but you certainly haven’t identified any here, so much as the law is concerned.
“”gay marriage” advocates have argued there should be no restrictions”
Who? When? Where? I have never heard that argument. Slippery slope arguments are fallacious. If same sex marriage is a slippery slope to bestiality, then isn’t opposite sex marriage a slippery slope to same sex marriage?
People who use the “slippery slope” argument when talking about “gay marriage” do so to point out the hypocracy pro-”gay marriage” advocates have with regards to marriage. If polygamy and man/animal marriage remains illegal, then there still are restrictions on marriage. Traditional marriage advocates believe there should be restrictions whereas “gay marriage” advocates have argued there should be no restrictions. Yet we never hear from this crowd on how it is pro-polygamy!
So Emmy, are you saying you would be OK to call your partnership with the person you love a “Civil Union”, just as long as those that want to call their partnership a “Marriage” does as well? But if us hetero’s want to continue to use the word marriage, you have to as well? I think this is the first time I have ever seen someone “say” this “out loud” in regards to the same sex marriage debate.
Loving v. Virginia: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
No?
I don’t see a slippery slope argument. Only argument I see is if same sex marriage comes under any provision of the 14A, and not whether laws are rational. If laws can be struck down because a judge doesn’t think they are rational then we might have very few laws left on the books!
I consider this whole issue part of the ridiculous game the court has created called “incorporation.”
I believe you are wrong there. Here is what Prof. Carpernter said on the subject:
I think Madison more then adequetly supported the meaning of equal protection by the historical record. If it meant what you think it means the civil rights act of 1964 would have used it as the basis for the act, or woman would had claimed it in order to be allowed to vote.
The problem with slippery slope arguments is that if you take them to their logical conclusion, you lose the entire thing you are arguing about. What I mean is, if same-sex marriage is a slippery slope to polygamy, then interracial marriage must be a slippery slope to gay marriage and polygamy. Come to think of it, MARRIAGE itself is a slippery slope to polygamy.
Slippery slope arguments are ridiculous. We are quite able to draw the line where a line needs to be drawn. Polygamy presents a whole host of different problems which are simply not present in interracial marriage or gay marriage. I’m not even going to discuss beasiality because of how ridiculous that would be. Bottom line, each issue can be discussed on it’s own merits, and accepted or discarded accordingly. There is no such thing as a slippery slope.
We don’t have to advance a rational basis; that test is about the govrrnment’s ability to restrict rights. The presumption is that rights can’t be restricted unless there is a reason, which must be more or less compelling in different situations. In other words, I don’t need a reason for exercising my rights, but the government needs a reason to take them away. I would think conservatives supposedly afraid of big government would like that.
In any event, if we did need a rational basis for marriage equality, it’s that we love the same way as straights and so we deserved the same rights and benefits as straights. I think that’s a pretty rational notion.
I couldn’t get past the third paragraph or so because your argument here is so flawed. Opposite sex marriage IS and HAS BEEN considered a fundamental right in American jurisprudence for quite some time, under the due process clause. You might disagree with that happening, but that doesn’t mean it isn’t the case.
Same thing goes for your equal protection argument. It has been used before to apply to equality in social laws, like interracial marriage, for instance.
You are trying to start from scratch and make arguments that have LING been settled about the 14th amendment.
“Holding marriage to be a fundamental right would put other traditional restrictions on marriage such as age, number of wives, etc., in jeopardy because a fundamental right can’t as easily be regulated.”
You left off marrying animals, this argument is used often, but there is one major flaw. Both hetros and homo sexual can’t marry under age, multiple partners etc.
Its EQUABILITY under the law that America is all about.
Why should the government determine what persons an adult can marry?
TRUE CONSERVATIVES would not want government regulations in our life, it is only the Bible that brings this view, which is different than our Constitution, otherwise pass laws to make adultery illegal and arrest most of the congress.
Judge Walker wrote: “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples,”
So I guess those who favor same-sex marriage did advance a rational basis for that lifestyle? It’s interesting that this decision is not based on an interpretation of the law, but on the judge’s notion of what is rational. Unhinge judicial decisions from the law and we really are adrift.
I’m sorry, Matt, but is sex the only thing that constitutes a relationship? This isn’t about sex — its about having the legal protections with our partners in an EQUAL way. Sex aside, the inequalities gay couples have to deal with are plentiful. I agree with Lawrence, if you REALLY want to protect “traditional” marriage, outlaw divorce and/or mandate procreation by married couples. Better yet, scrap marriage altogether as the legally recognized union and create civil unions for ALL couples, gay or straight. Marriage is a religious institution, yes? Then keep it there. My parents were not married in a church or by a preist, but by the justice of the peace at the courthouse — does that make their marriage less significant? It is no different than what we as gay couples seek — legal protections and recognition as a couple. Plain and simple.
Interesting dilema with current civil rights law being based on the commerce clause and not the 14th amendment. Shouldn’t Walker be arguing for marriage equality under the commerce clause instead?
The people have spoken and slippery slope. With these kinds of thoughts we would still have slavery and women not voting. If our laws are focused upon procreation, then with your comment make all married people have children. As long as we are at it protect marriage by not allowing divorce. I do not want my sex at the water cooler, nor my exploits public. Does my wanting to be married to a loving, life partner ask this? This is a good place to include information from Websters. The same information needed when thoughts came to giving freedom to slaves, women the vote, interacial marriage and the end of segregation.
Main Entry: 1prej·u·dice
Pronunciation: \ˈpre-jə-dəs\
Function: noun
Etymology: Middle English, from Anglo-French, from Latin praejudicium previous judgment, damage, from prae- + judicium judgment Ҡmore at judicial
Date: 13th century
1 : injury or damage resulting from some judgment or action of another in disregard of one’s rights; especially : detriment to one’s legal rights or claims
2 a (1) : preconceived judgment or opinion (2) : an adverse opinion or leaning formed without just grounds or before sufficient knowledge b : an instance of such judgment or opinion c : an irrational attitude of hostility directed against an individual, a group, a race, or their supposed characteristics
Great post. One thing I am wanting to know more and more is why exactly is sexual orientation considered a “group” anyway? At what point in the country’s history have we begun to identify people by the type of sex they prefer? I don’t think we should treat gays any differently but if marriage is a protection granted those who procreate, let anyone else do whatever they want sexually to anyone they want; I really don’t care. But when we try to modify laws, especially ones created by popular vote, because people want to try and validate their own sexual preferences, I draw the line. I agree that this is a slippery slope to polygamy and who knows what else, so it’s best to leave this alone, keep our laws focused on monogamous procreation and leave it alone. It is not a treatise on whether their homosexual relationships are “right” or “wrong” but there is absolutely no reason why this has to be given the recognition of the state and the federal government to approve of how they have sex by issuing a marriage license. Keep your sex in the bedroom where I keep mine and, just like that annoying guy at the water cooler who talks about his sexual exploits to the chagrin of those around him, let’s keep our sex to ourselves and not ingrained in our public policy.