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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Kerby
Kerby
10 years ago

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.

jose
jose
12 years ago

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!

Harry
Harry
12 years ago

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
Toxic
12 years ago
Reply to  Harry

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.

Matt
Matt
13 years ago

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.

Lawrence Larson
Lawrence Larson
13 years ago

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 “” more 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

Oh Me
Oh Me
13 years ago

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?

Emmy
Emmy
13 years ago

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.

Charles Cook
Charles Cook
13 years ago

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.

David S
David S
13 years ago

“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.

John K.
John K.
13 years ago

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.

Anonymous
Anonymous
13 years ago

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.

Anonymous
Anonymous
13 years ago

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.

J. Aldridge
J. Aldridge
13 years ago

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.

I believe you are wrong there. Here is what Prof. Carpernter said on the subject:

Few courts upholding a right to SSM have used a fundamental-rights rationale (not even the original SSM decision, Goodridge, did so). It’s an aggressive claim, especially given the composition of the federal courts and the Supreme Court. I see little enthusiasm in this Court for expanding fundamental rights.

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.

J. Aldridge
J. Aldridge
13 years ago

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.”

Anon
Anon
13 years ago

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?

Scott
Scott
13 years ago

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.

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