No Real Arguments Challenge Gay Marriage Equality


As a great civil rights case of our day (Perry et al v. Schwarzenegger) winds its way up the federal court system, a 1970s Wisconsin state statute struck down as unconstitutional stands as a major precedent for marriage equity for gay and lesbian Americans.

There are no serious arguments against marriage equity for gays and lesbians. ‘I believe what I believe’ does not qualify as a serious argument (as most of us learned in elementary school composition) anymore than my-god-mommy-religion-tells-me-so counts as argument.

As with the major civil rights battles of the past 60 years, a coalition of religious and political forces allied with unvarnished hate is armed with a striking lack of intellectual artillery in their views opposing the Constitutional rights denied a class of Americans, in this case the right of gay and lesbian Americans to marry.

Zablocki v. Redhail (No. 76-879)

Wisconsin’s statute enacted in the late 1970s — preventing those falling behind in child-support payments from getting married — was overturned as unconstitutional (Zablocki v. Redhail ((No. 76-879)) in an eight-to-one decision opposed only by the late, statist-reactionary Justice William Rehnquist.

The Court ruled the right to marry is so basic that the economically impoverished or those otherwise refusing child-support obligations do not lose their fundamental right to marry, even if the state of Wisconsin, for example, enacts a law mandating this penalty. A state legislature, or a majority of a voters in a state similarly cannot determine that certain classes of Americans cannot marry just because a temporary majority does not like certain Americans: Gays, blacks, the poor, lesbians, Chinese and so on.

The relevance of the Wisconsin case to Perry is the Court’s establishing, along with other precedents, the Constitutional importance of the right to marry. Having established marriage as a fundamental right, it becomes constitutionally difficult to deny this right to a particular class of Americans, though this difficulty will not likely prevent at least four (Republican) U.S. Supreme Court Justices from voting specifically to deny this right to gay and lesbian Americans.

But a majority of Americans in a given state in favor of bigotry towards gays and lesbians does not place the majority on firm constitutional ground.

As attorney David Boies said recently (Bill Moyers Journal, Feb. 26, 2010):

If you didn’t tell the majority of the voters they were wrong sometimes under the Constitution, you wouldn’t need a constitution. The whole point of the Bill of Rights and the 14th Amendment is to say, ‘This is democracy. But it’s also democracy in which we protect minority rights.’ The whole point of a Constitution is to say there are certain things that a majority cannot do, whether it’s 52 percent or 62 percent or 72 percent or 82 percent of the people.

They can’t say, for example, that blacks and whites can’t go to school together — even though 82 percent of the people may think that. They can’t say that women aren’t allowed to vote, or are not allowed to work in the workplace, or not allowed equal rights or equal wages — even though a majority of people might vote that way in some places.

There are certain rights that are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for. And remember, what Ted said is very important. Nobody’s asking to create a new constitutional right here. This is a constitutional right that has already been well recognized by the Supreme Court. And what the Supreme Court has said is that even a democratic-elected legislature in Wisconsin cannot decide by majority rule that marriage scofflaws, (p)eople who don’t pay their child support, who abuse their children, abuse their wives, cannot get remarried again.

They said marriage is so fundamental that you can’t take it away, even for people who have abused an initial marriage.

Boies’ colleague in Perry, Ted Olson, amplifies the point:

David mentioned that we have a Constitution and we have an independent judiciary for the very protection of minorities. Majorities don’t need protection from the courts. The original Constitution didn’t have the Bill of Rights attached to it. And the framers of our Constitution had a big debate and people said, ‘Well, we’re not going to ratify that Constitution unless you attach a Bill of Rights, which protects individual liberty, individual freedom, the right to speak, the right to assemble,’ and those sorts of things.

Over our history, the voters have decided, because they get passionate about certain things, and they may not like certain minorities. Minorities are disfavored. Blacks have been denied the right to vote. California prohibited Chinese, a Chinese person from having any kind of business in California, or getting married. Those kind of votes are not acceptable if they violate fundamental constitutional rights. …

The Congress and the President of the United States 50 years ago made it illegal for someone who is a gay or lesbian to have a job working for the federal government. Many states made it a crime for a homosexual to be in a bar and have a drink. We all remember the ’50s. When civil rights were taken away from people because they were suspected of being a member of an organization that — those sorts of things happened.

And we frequently go to the courts and, Bill, it often happens that the measures that are passed almost unanimously in Congress, because Congress gets carried away, are overturned by the Supreme Court. And you go back to Members of Congress and you say, ‘What happened there?’ And they’ll say, ‘Well, we knew it was unconstitutional. We expected the courts to take care of that. We wanted to get reelected. The courts are the ones that come back and help us.’

The Internet offers us a window in the slow-motion civil rights battle of what will likely be a landmark legal case when it reaches the U.S. Supreme Court sometime in the next one to four years. See Proposition Eight Trial Tracker for legal and political updates.

Perry et al v. Schwarzenegger

From David Boies:

Gay Marriage and the Constitution
Why Ted Olson and I Are Working to Overturn California’s Proposition 8

by David Boies

Monday, July 20, 2009

When I got married in California in 1959 there were almost 20 states where marriage was limited to two people of different sexes and the same race. Eight years later the Supreme Court unanimously declared state bans on interracial marriage unconstitutional.

Recently, Ted Olson and I brought a lawsuit asking the courts to now declare unconstitutional California’s Proposition 8 limitation of marriage to people of the opposite sex. We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution’s guarantee of equal protection and due process to all citizens.

The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it. In 1978 the Court (8 to 1, Zablocki v. Redhail ((No. 76-879)) overturned as unconstitutional a Wisconsin law preventing child-support scofflaws from getting married. The Court emphasized, ‘decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.’ In 1987 the Supreme Court unanimously struck down as unconstitutional a Missouri law preventing imprisoned felons from marrying.

There were legitimate state policies that supported the Wisconsin and Missouri restrictions held unconstitutional. By contrast, there is no legitimate state policy underlying Proposition 8. The occasional suggestion that marriages between people of different sexes may somehow be threatened by marriages of people of the same sex does not withstand discussion. It is difficult to the point of impossibility to envision two love-struck heterosexuals contemplating marriage to decide against it because gays and lesbians also have the right to marry; it is equally hard to envision a couple whose marriage is troubled basing the decision of whether to divorce on whether their gay neighbors are married or living in a domestic partnership. And even if depriving lesbians of the right to marry each other could force them into marrying someone they do not love but who happens to be of the opposite sex, it is impossible to see how that could be thought to be as likely to lead to a stable, loving relationship as a marriage to the person they do love.

Moreover, there is no longer any credible contention that depriving gays and lesbians of basic rights will cause them to change their sexual orientation. Even if there was, the attempt would be constitutionally defective. But, in fact, the sexual orientation of gays and lesbians is as much a God-given characteristic as the color of their skin or the sexual orientation of their straight brothers and sisters. It is also a condition that, like race, has historically been subject to abusive and often violent discrimination. It is precisely where a minority’s basic human rights are abridged that our Constitution’s promise of due process and equal protection is most vital.

Countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada have embraced gay and lesbian marriage without any noticeable effect — except the increase in human happiness and social stability that comes from permitting people to marry for love. Several states — including Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont — have individually repealed their bans on same-sex marriage as inconsistent with a decent respect for human rights and a rational view of the communal value of marriage for all individuals. But basic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution.

The ban on same-sex marriages written into the California Constitution by a 52% vote in favor of Proposition 8 is the residue of centuries of figurative and literal gay-bashing. California allows same-sex domestic partnerships that, as interpreted by the California Supreme Court, provide virtually all of the economic rights of marriage. So the ban on permitting gay and lesbian couples to actually marry is simply an attempt by the state to stigmatize a segment of its population that commits no offense other than falling in love with a disapproved partner, and asks no more of the state than to be treated equally with all other citizens. In 2003 the United States Supreme Court in Lawrence v. Texas held that states could not constitutionally outlaw consensual homosexual activity. As Justice Anthony Kennedy elegantly wrote rejecting the notion that a history of discrimination might trump constitutional rights, “Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

There are those who sincerely believe that homosexuality is inconsistent with their religion – and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.

Gays and lesbians are our brothers and sisters, our teachers and doctors, our friends and neighbors, our parents and children. It is time, indeed past time, that we accord them the basic human right to marry the person they love. It is time, indeed past time, that our Constitution fulfill its promise of equal protection and due process for all citizens by now eliminating the last remnant of centuries of misguided state discrimination against gays and lesbians.

The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.

Mr. Boies is the chairman of Boies, Schiller & Flexner LLP.

– via mal contends


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