Friday, August 6, 2010

Are same sex marriages Constitutional?

What once was dismissed as unthinkable is now becoming a reality in the United States of America.  Proponents of same sex marriages won a major battle this week when U.S. District Court Judge Vaughn Walker handed down a ruling that overturned California's "Proposition 8," a ban on same sex marriages voted on by citizens of the state.  In short, his decision was based on the notion that Proposition 8 violated the 14th Amendment to the Constitution -- notably the Equal Protection Clause and the Due Process Clause. 

Before addressing the Constitutional issues of the case, one very important question should be examined.  Is Judge Walker gay?  According to news sources around the San Francisco area, he is.  Though Walker has never publicly made his sexual preferences known, this appears to be what The Huffington Post referred to as an 'open secret.' Interesting.  If we can presume Walker is gay, now the plot becomes more complicated.  Should Walker have recused himself in a case that affects the entire citizenry of California and could also ultimately affect the entire nation? 

Opinions vary from different legal experts (and from the average citizen).  As expected, those who tend to be conservative cry foul while the liberals seem to see no conflict of interest.  In a way, I can see the perspective of the liberal point of view.  If the judge were a devout, fundamentalist Christian, would we expect him to recuse himself from the case?  Perhaps each side would magically change their perspective. 

Despite the validity of the liberal perspective, the issue of gay marriage is so unique and important to almost all sectors of society, that the mere perception of impropriety should have been enough for this judge to recuse himself.  When this case inevitably reaches the U.S. Supreme Court, will gay rights advocates demand Justice Antonin Scalia recuse himself?  Interesting to think about.

As far as homosexuality itself, the population of the United States remains divided about the morality of the behavior.  Although considered by many to be an immoral behavior, I do not believe the sexual acts between consenting adults should be illegal.  Many behaviors in our society are considered immoral yet not subject to civil or criminal penalties.  However, the marriage between same sex couples goes beyond what is acceptable.  Allowing these types of marriages is tantamount to a government endorsement of what many believe to be an immoral behavior -- also putting it on par with marriage between between heterosexual couples. 

Critics of this perspective would point out the high divorce rates in our nation and the passe nature a marriage is treated with in today's society.  If marriage has lost its significance and sanctity, why not allow a "discriminated" segment of society to have the ability to marry?  Definitely not the way to restore the special nature and seriousness of the commitment of marriage.  Perhaps what the nation should be doing is making divorce a more difficult process.  Hopefully this would make couples think twice about who they marry or abandoning such an important commitment.

Others would still point out many other industrialized nations have legalized same sex marriages.  Another case of poor rationale.  Are we as a society supposed to make choices based on what other nations of the world do?  Not to mention, only a handful -- seven, to be precise -- permit same sex marriages.

Even the federal government has voted to protect marriage as between a man and woman only -- as stated by legislation passed by a Democrat government -- in the Defense of Marriage Act (DOMA).  As far as the national government is concerned, gay marriage does not exist.  Though some states have opted for permitting same sex marriages, the overwhelming majority of states have not.  Current Gallup polls indicate a strong majority of Americans do not approve of legalizing gay marriage. 

However, as my friend Wendi would remind me, "Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities, and the smallest minority on earth is the individual."  So is Proposition 8 voting away the rights of homosexuals?

Sexual preferences of the judge and morality aside, gay marriage is not a right according to our Constitution.  Marriage between those of the same gender should not be interpreted to be under the "umbrella" of the 14th Amendment.  For your own purposes, I encourage you to read Judge Walker's lengthy 136 page decision.

Let us examine the first contention of the plaintiff's case:  Proposition 8 violates the Due Process Clause, which reads:  "... nor shall any State deprive any person of life, liberty, or property, without due process of law ..."  If you know anything about the Constitution, then you should be aware of its vague nature. 

Those supporting gay rights claim that "liberty" in this phrase includes the right to marry any person they choose and Proposition 8 prevents this and the state of California has no justification for such a statute.  They also take it a step further by stating California's laws on "domestic partnership" between same sex couples is not an adequate substitute. 

Including same sex marriage in the definition of "liberty" is indeed foolish.  If we are to believe this is construed as liberty, where do we draw the line?  Can we include polygamy in that category?  Don't I have the freedom to marry as many people as I choose?  What about adult, incestuous relationships?  Or the "liberty" to commit suicide or assist in a loved one's suicide?  By this logic, limitless possibilities exist about what a person may "choose" to do as being part of their so-called liberty. 

Precedent in limiting the vague definition of "liberty" exists in Washington v. Glucksberg (1997) -- where the Supreme Court upheld Washington D.C.'s ban on suicide or assisting in someone's suicide.  In deciding this case, the Court maintained:
This asserted right has no place in our Nation's traditions, given the country's consistent, almost universal, and continuing rejection of the right, even for terminally ill, mentally competent adults. To hold for respondents, the Court would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State.
Since no clear definition of "liberty" exists, should we not look to the intent of the 14th Amendment as it was written in 1867-68?  To the historical practices of this nation?  If we asked the members of Congress who amended the Constitution if they intended on liberty meaning the freedom to marry those of the same gender, they would scoff at the idea. Americans have never wanted this, nor do most of the overwhelming majority of the states.

Those for gay marriage would point out that we can't base today's standards on what would have been the prevailing opinion/thought from almost 150 years ago.  Well, why not?  We do it all the time.  Think about all the segments of society or parts of the Constitution that are governed and applied in the same way they were decades ago -- some of them much to the chagrin of the citizenry.

For California's Proposition 8 to be legitimate, the statute must have a secular purpose.  The state does have a compelling interest in this type of legislation -- procreative.  National and state governments regulate marriage and create laws concerning it because heterosexual marriage typically leads to a couple reproducing (and for several other reasons, i.e. stability of society, promoting property ownership). The government has a vested interest in procreation because it perpetuates the population, and thus the state.  Marriage between homosexual couples cannot lead to procreation.  This creates a substantial difference between hetersexual and homosexual couples.

Judge Walker's ruling was in part based on testimony from a pyschological expert who described homosexuality as "a normal part of human sexuality" and that the vast majority of gays and lesbians "have little to no choice in their sexual orientation."  I will not pretend to be an expert on if homosexuality is a choice or an innate trait some people have.  But, to use these statements as part of a judicial finding equating homosexual marriage as the same as heterosexual marriage is not appropriate.

The plaintiffs in this case did have an impressive lineup of historians and social scientists who discussed similarities of heterosexual/homosexual relationships, social stigmas, etc.  However, the testimony and conclusions of these experts isn't enough to convince that homosexual relationships should be treated in the same way as heterosexual marriages.

The second major contention of the case hinges on the Equal Protection Clause.  It reads, "... nor shall any State ... deny to any person within its jurisdiction the equal protection under the laws."  Their belief is that homosexuals are not given equal protection of marriage because they are prevented from marrying whom they choose, while heterosexuals are free to choose whoever they like, meaning gays and lesbians are singled out and discriminated against as a class.

Since my contention is that "liberty" does not include the right to marry someone of the same sex, this second point should be largely irrelevant -- but deserves dicussion, nonetheless.  Equal protection under the laws already exists.  No one, regardless of their sexuality, is allowed to marry someone of the same gender.  Also, marriage is permissible to those of the opposite gender. 

But perhaps that argument is too simple.  Judge Walker's decision indicates equal protection does not exist for a variety of reasons, including:  gays have been discriminated against historically, their relationships have been stigmatized to be not as meaningful as heterosexual relationships, and that homosexuals are specifically targeted by Proposition 8. 

Because homosexuals have been discriminated against in the past or by personal individuals is no reason to overturn Proposition 8.  This has the feel of a "make-up call" to any of you sports fans.  Moreover, homosexual relationships are not the same as heterosexual relationships.  I cannot understand why there is such difficulty in recognizing this.  Finally, homosexuals as individuals are not targeted by Proposition 8.  The law makes no mention of homosexuals as individuals -- it only recognizes that marriage between people of the same gender is not permitted (regardless of their sexuality). 

Judge Walker attempts in his decision to make an end run around my last point, noting that sexual orientation and the actual "sex" involved between two people of the same gender are inseparable, therefore Proposition 8 is actually an attack on the individual behavior (because of what many citizens would consider unpleasant conduct).  In doing so, Walker is attempting to channel his abilities to know the thoughts of those who crafted Proposition 8 and everyone who voted for it. 

In conclusion, I fail to see same sex marriage as a part of "liberty" in the Due Process Clause and with respect to the Equal Protection Clause, the government does have a compelling interest in perpetuating marriage as only a right between heterosexuals.  Walker's decision, while providing a great deal of evidence and testimony about the nature of homosexuals and the harrassment they face from individuals, is flawed and will hopefully be overturned at some level. 

This case will undoubtedly be appealed to the 9th Circuit Court of Appeals and probably will be upheld.  Once before the Supreme Court, the case could be seen very differently.  Four conservatives, four liberals, and one swing vote. 

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