Wednesday, August 4, 2010

California's Prop 8 Gay Marriage Ban Overturned

The New York Times confirms that Proposition 8 has been ruled unconstitutional. Check out actual ruling of Perry v. Scharzenegger here.

The United States District Court for the Northern District of California (aka the Federal Trial Court in northern Cali) that sits in San Francisco held that the referendum passed by voters on the same night as the 2008 presidential election is unconstitutional on 14th Amendment Equal Protection  and Due Process grounds. The federal judge ruled that there was no "rational basis" for the state law that allowed heterosexual couples to obtain marriage licenses while simultaneously banning same-sex couples from obtaining the same thing.  Our take after the jump:


The Fed's Take:
I'll leave the legal break down to my colleague The Janitor. I have a more general perspective, especially in light of some of the quotes that Judge Vaughn Walker provided in his decision.
"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of marriage licenses."

We've said this MANY times during our previous conversations here at the UP. I must admit, I'm still confused at the opposition's LEGAL "rational" argument. I think we've pretty much called "Bull Shit" on the whole "It will destroy American Families" argument. Or the "What do I tell my children" position. Really? People shouldn't marry because you have a hard time talking with your kids...GTFOH! The only "legitimate" issue was Biblical. We've often felt that "For the Bible tells me so" wasn't a very persuasive argument, but Judge Walker summerized it best:
"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples."
I couldn't agree with this more. To me, that is the PRIMARY issue with the neo-conservatives. Too often I feel they push what THEY think on to the public and expect to be supported by the government. Well I'm sorry Mr and Mrs Tea Party that you disapprove of people of the same sex marrying, but according to Judge Walker, that isn't justification to ban it. In other words..."Get over it!"

There are two additional side issues that have peeked my interest:

1) This decision falls SQUARELY on the 14th Amendment.
In the last couple of days, the 14th has come under attack by the Republicans. As representatives of the conservative right, will an issue like this "rally the troops?" I think that arguing the citizenship issue presented somthing of a quagmire, and may have been difficult to support across the board (although the Republicans are EXCELLENT at falling in line). But adding on an additional social issue such as Same Sex marriage may be all that is needed to get that ball actually rolling. Are conservatives THAT PISSED OFF at the rest of the country that they would actually do away with the 14th amendment? Are they so against equal rights for all (if they disagree with the right) and allowing ALL people born on US soil to have citizenship that they would actually remove arguably one of the cornerstone Amendments?

2) Can the "majority" be wrong?
The Judge overruled the "will" of the voters of California. I think normally we would say "No." (looking at The Janitor). However, history has shown us that the Civil Rights of those in the minority is not an issue that the more conservative majority cares to make progress on for the entire country. In issues like Segregation, Emancipation and Suffrage, there was a majority opinion against the advancement of a minority class. Thankfully, the strong men and women, along with the bold individuals within the government and judicial system, went against the "will" of the majority and allowed "equal" rights to women and people of all backgrounds and race.


The Janitor's Take:
My blog partner in crime, The Fed, has already dropped some nuggets of wisdom as well as some thought provoking questions on the matter, so I will simply follow up with my traditional role here on the Urban Politico by breaking down the Constitutionality of today's ruling in California. 

We have already analyzed the Constitutionality of Prop 8 when it first came out back in 2008 HERE.  But getting down to the nuts and bolts of today's decision, you'll note that the judge said that there is no "rational basis" for Prop 8.  "Rational Basis" is a term of art in the Federal Judiciary that has a specific meaning which I'll get to in a minute.  First we have to understand a few ground rules about the 14th Amendment.

The Equal Protection Clause of the 14th Amendment to the United States Constitution mandates that:
“[n]o state shall…deny to any person within its jurisdiction the equal protection of the laws.” 
In other words, each state is free to make up its own laws that effect our daily lives so long as those laws are administered equally among the citizens of the state. Whenever a state law gives one group of people an advantage, and gives the remaining people a disadvantage, that law triggers the Equal Protection Clause.  Once the Equal Protection Clause is triggered, the state law in question may or may not be struck down by the Court as unconstitutional depending upon which "classification" of people we're talking about treating unequally.

For example, laws that seek to give unequal treatment to people on the basis of race, national origin, religion, color or creed (aka, the federally recognized "suspect classifications") must pass what is known as the "Strict Scrutiny" test.  This test is almost impossible for a state to beat, thus any state law that triggers the Equal Protection Clause on these grounds will almost always be struck down as unconstitutional unless the state shows that its law is absolutely necessary to an important state interest and there is absolutely NO other less discriminatory way to go about achieving that interest.

Laws that seek to give unequal treatment to people on the basis of gender will have to pass what is known as the "Intermediate Scrutiny" test.  This test is a little easier to pass because the Courts recognize that some state laws may legitimately treat men slightly differently than women in certain circumstances that are based solely on anatomical differences, such as men's and women's restrooms and things of that nature.  This test, however, is still heavily weighted against the state and will usually strike down state laws that involve gender classifications unless, again, the state can show that the law is at least related to an important state interest and that there are not too many better ways available to go about achieving that interest.

Lastly, laws that seek to give unequal treatment to ANY OTHER GROUP OF PEOPLE YOU CAN THINK OF fall into the third and final test known as the "Rational Basis" test.  This test is weighted in favor of the states because all they have to do is articulate any "rational basis" for the state law and it will be upheld as constitutional.  "Rational basis" here basically just means a "good reason" for having the law.  States normally (but not always) win whenever there is an Equal Protection challenge on Rational Basis grounds.

Having said all of that, the federal judge in this case made a solid legal ruling primarily for 2 reasons:

1. For starters, the judge did not create new law.  
The Federal Courts, following the lead of the Supreme Court, have been reluctant to elevate the classification of sexual orientation from Rational Basis up to either Intermediate or Strict Scrutiny.  We can debate all day long about whether the Supreme Court SHOULD raise the level of scrutiny on sexual orientation issues from Rational Basis to something higher, and maybe one day they will, but the fact of the matter is that as of 2010 they have not chosen to do so.  And since they haven't, it would have been inconsistent for this judge to have ruled that Prop 8 did not pass Intermediate or Strict Scrutiny.  But he didn't do that.  He exercised judicial restraint and stayed consistent with the Equal Protection analysis concerning sexual orientation issues that has been articulated by the Supreme Court.  Because this judge followed protocol here, this ruling will be difficult to overturn on appeal.

2. Other State laws that have discriminated on the basis of Sexual Orientation have failed the Rational Basis Test.
The key decision that is controlling here is the landmark case Romer v. Evans, 517 U.S. 620 (1996).  In Romer, Justice Kennedy wrote for the 6-3 majority which held that a Colorado amendment to its state constitution that sought to deny rights to Gays and Lesbians failed the Rational Basis test.  With respect to Colorado's law, Kennedy stated that:
Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
And that, my friends, is what we call a "precedent."


In sum, the federal district court here, legally speaking, made a solid ruling.  You can't just put up a law that says "Gays can't get married" and then when you are asked "well why not?" you can't give any rational basis for the law other than hate, fear, or personal dislike.  Those may very well be your true feelings on the matter, and you have every right to feel that way, but do understand that those are not "rational" reasons for upholding a law that disadvantages a certain group of people from getting married.  Moreover, it is difficult to see what legitimate state interest such a law could hope to achieve. 






QUESTIONS: 
What is your opinion? 
Is there EVER a time when the government or the judicial system should "overrule" the "will" of the people?
Did the Court here get it right? 
What exactly do we gain as a society by banning Same-Sex couples from getting married?
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