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Daily News, Pop Law, Rants and Ravings of an Un-Brilliant Mind

But What Am I Going To Tell My Children?

This is how people should let the law work, but it is never that easy, is it?

Surely by now everyone has heard that Proposition 8, the proposed amendment to the California state constitution that defined marriage as the union between a man and a woman only, has been overturned by the 9th Circuit Court of Appeals.
The wording of the decision, somewhat unsurprisingly has pleased no one.
The judge who delivered the opinion of the court, Stephen Reihardt, wrote the decision in such a way that it could be seen as applying only to California, despite having the opportunity to make a broader rule for marriage applicable to at least all of the 9th Circuit. This limited ruling still creates the possibility that the Supreme Court could take the case on certiorari, but given the grounds upon which the case was decided and the fact that they are seen as paralleling Romer v. Evans, the Supreme Court’s preeminent gay rights case, that possibility is slim.
Activists on the GLBT side of things sought a bright line declaration that there was a fundamental right to gay marriage, or in the alternative, that everyone had the fundamental right to marry whoever they chose.
On the anti-gay marriage side of things, there was hope that the amendment would be upheld and general criticism of the ruling  as more or less backwards:
“The 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn’t come as a surprise, given the history of the 9th Circuit, which is often overturned.”  [Via Huffington Post]
That was Andy Pungo, lead counsel for the coalition of conservative groups known as ProtectMarriage and key sponsors of Proposition 8. He goes on to say that the Supreme Court is the true battleground for this issue anyway, and that it was always their goal to get the issue to that level.
The opinion being limited only to California is not a terrible thing, and it seems that this really was not the right case to set the stage for the trip to the Supreme Court that everyone believes is coming on this issue. The most important element to that is the lack of support that the state itself had for Proposition 8, and even governor Jerry Brown of California said, “The court has rendered a powerful affirmation of the right of same-sex couples to marry. I applaud the wisdom and courage of this decision.” He, and former governor Arnold Schwarzenegger, both declined to pursue the matter, leaving it to groups like ProtectMarriage.
Moreover, while the wording of Proposition 8 was perfect for deciding the debate, the amendment employed by California was unique in that it is the only such law on the books without any kind legislative intent attached to it, not even carrying a defensible rationale, like the ludicrous, “we need to limit marriage to a man and a woman only because otherwise people hurt their children” (responsible child rearing) defense.
Simply limiting a minority group’s rights without an expressed and relevant governmental interest runs afoul of the 14th Amendment’s equal protection clause and made overturning Proposition 8 more or less a slam dunk.
That also means that there is actually little for the Supremes to review, and thus they may leave the 9th Circuit’s ruling as-is.
As Mr. C.K. attempts to point out, this all should really be a non-issue. The elements for allowing homosexuals to marry already exist in our jurisprudence. First, homosexuals have the same fundamental civil rights as citizens and are a recognized minority, however, are subject to a different level of scrutiny. That comes from Romer v. Evans.
Second, as we have seen with Judge reinhardt’s decision, limiting their right to marriage, at least for no expressed reason at all, violates 14th Amendment equal protection. Third, as with Loving v. Virginia, you cannot take “one of the basic civil rights of man” away from him (or her) just because you don’t agree with it or find it disgusting.
Thus, legally, there is little cognizable reason to deny gays the right to marry one another.
As an aside, despite it coming up in the opinion, people would probably think that going the Loving route is a low blow. Many people do not readily equate the plight of African-Americans with that of homosexuals. Clearly, there is not racial discrimination involved in Proposition 8, and the law does not always treat sexual discrimination as analogous to racial discrimination, which is why there is a different level of scrutiny applied to racially driven cases as there is to sexually driven cases.
That being said, the common justifications utilized by the anti-gay marriage crowd, “to ensure responsible procreation,” “to preserve the family unit to ensure proper child rearing” (which even appeared in the dissent to Reinhardt’s opinion), and “to preserve the institution of marriage itself” are almost as repugnant as those used to defend a law that made it a crime for blacks and whites to marry, and do not seem to meet the test applied to sexuality-based discrimination cases of, “a rational relation to some legitimate [governmental] end,” and while the government can pretty much come up with any reason for a law which can be of “arguable” merit, it “must find some footing in the realities of the subject addressed by the legislation.”
An example of the justifications used by counsel for the State of Virginia in Loving put forward theories like, “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” as proper justification for criminalizing black and white marriage. The concept that allowing approximately 3.5% of the population to marry is going to cause the human race to die out, or that somehow allowing 3.5% of the population to be “specially” designated as married makes heterosexuals less inclined to create a supportive child rearing environment by getting married are both ludicrous and insulting to that segment of the population and certainly is on a par with preserving the “racial integrity of its citizens,” which itself was an insulting reason for limiting the right of marriage. Given the ridiculous nature of these reasons for preventing gay marriage, it is clear that there is no legitimate governmental interest at play, and even if there was, that it is not based in reality.
Now, according to The Pew Forum, about 88% of Americans are religious in one way or another. Religion is often cited as the reason why our society does not accept gay marriage, and looking at Jerry Brown’s Twitter page you can see that is certainly the case. And that is okay. It is okay that people object to homosexuals marrying for religious reasons. It is their right, and some would say their duty to do so.
However, the fact of the matter is that despite that objection, there is no compelling legal rationale for keeping gays from being able to marry.
In the U.S. in the last 50 years or so, we as a nation and a culture unto our own have become very concerned with the notion of civil rights. We have activist groups that watch for it, labor unions are setup to ensure rights in the work place, we decry violations of individuals’ rights when we see them happening in another country. 
A prohibition on gay marriage is, to borrow a phrase, “completely out of step” with the American ethos as it exists today. So, as Louis C.K. points out, this is essentially a non-issue that has no real impact on anyone at all, so why don’t we just let it happen?
It only takes a second to tell your kids, and you can tell them whatever you want about it, even that they should hate it.

About E.C.

Corporate and regulatory attorney. Also experienced in advocacy for the mentally disabled and minor litigation matters. Not currently practicing, but maintaining the blog to keep my research and writing skills sharp. Splitting time between Connecticut and Massachusetts.


3 thoughts on “But What Am I Going To Tell My Children?

  1. Don’t call me Shirley.

    Posted by Chris V. | February 9, 2012, 6:41 pm
  2. I enjoy the efforts you have put in this, thank you for all the great blog posts.

    Posted by biżuteria srebrna | February 16, 2012, 10:44 am

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