Proposition 8 at the Supreme Court-Marriage Equality -Part I
By R Tamara de Silva
March 27, 2013
The Supreme Court has not delved into marriage lightly, tending to defer to state governments. While marriage is one of the most democratic and universal states shared across almost all cultures,
socio-economic strata, ethnicities and religions, it remains withheld to one group in America. In the United States, marriage is a legal contract that confers specific treatment in tax,
probate and property law. This week, the United States Supreme Court begins to consider the constitutionality of marriage between people of the same gender. The first topic on marriage equality to be covered this week is Proposition 8 followed by the Defense of Marriage Act (“DOMA”) on Wednesday. The Court may potentially decide whether one specific group of people can be treated differently when it comes to one right. Perhaps it may even consider whether marriage is an unenumerated right.
Alternatively, the Court may defer the issue and rule on narrow grounds of the standing -that the Petitioners cannot bring their defense of Proposition 8 to the Court. Yesterday, the highest Court heard oral arguments on California’s ban on same sex marriages called Proposition 8 in the case of Hollingsworth v.
Gay marriage is more polarizing than any other of the other social issues that divide the political right and left except abortion. In Hollingsworth v. Perry, the Court considers whether California’s Proposition 8, which prohibits marriage between people of the same sex or gender, violates the United States Constitution and whether the advocates of Proposition 8 have legal standing to speak on the matter.
Prior to November 8, 2008 when Proposition became law by amending the Constitution of the State of California to eliminate the right to same-sex couples to marry,
same sex marriage was, albeit briefly, legal in California. The District Court struck down Proposition 8 finding that it violated the Fourteenth Amendment’s Equal Protection Clause because there was no rational basis for the state to deny the status of marriage to same-sex couples and also because Proposition 8 violated the Due Process Clause in that California had no compelling interest in denying the right of marriage to same-sex couples.
States can legally enact laws, which treat different people differently, under the Fourteenth Amendment so long as there is a legitimate governmental interest or a rational interest for their doing so. This is not a particularly high standard to meet. However, when the government enacts measures to treat people differently based upon differences between them like,
their race, the courts have applied a higher standard of scrutiny upon the laws, one which is called “heightened scrutiny,” this is more than having to merely show a rational interest.
It is unclear under which standard the Court will scrutinize Proposition 8, which is clearly discriminatory to same-sex couples, based upon their being same-sex couples.
Proposition 8 allows same-sex couples to do pretty much everything the status of being married in California confers such as; raising children together, constructive parentage, being able to adopt each other’s children, becoming foster parents,
filing joint state taxes, enjoying group health plans, having rights to hospital visitation, making medical decisions, being able to sue for wrongful death, and being conservator on their same-sex partner’s estate. Same sex couples in California can do everything married couples can do under Proposition 8, except be given the title of “married.”
Proponents of Proposition 8 argued that its purposes were to advance California’s interest in responsible procreation and childrearing. They argued that this interest justified giving same-sex couples all the activities and interests of married couples, save for the title and stature of marriage.
The Court of Appeals did not rule over whether the goals and rationale for Proposition 8 were legitimate state interests that though discriminatory,
survived an analysis of the Fourteenth Amendment because it pointed out that Proposition 8 did not remove all the childrearing rights of same-sex couples that existed prior to its enactment.
The Court of Appeals upheld the District Court’s ruling but in an extremely narrow manner-without addressing the rationale for discrimination under Proposition 8. They did use some interesting language in the background referring back to previous laws against marriage which were struck down,
If tradition alone is insufficient to justify maintaining a prohibition with a discriminatory effect,
then it is necessarily insufficient to justify changing the law to revert to a previous state. A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.
The Court of Appeals was referring to the last time the Supreme Court looked at a comparably important and discriminatory law against marriage- almost 46 years ago in Loving v. Virginia. In the Loving v.
Virginia, 388 U.S.1 (1967)., the Supreme Court struck down Virginia’s anti-miscegenation law which prohibited inter-racial marriage for the sake of protecting racial purity and preserving segregation. The trial judge in the Loving case had a simple rationale that invoked God,
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.
And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
Whether discrimination based on sexual orientation is on a par with discrimination based on race is deeply contested among the American people. In an extraordinary move, the United States Justice Department has taken a stand in this question and this case, by filing an amicus
brief with the Court on February 28, 2013.
I have heard both proponents and opponents of same-sex marriage cite the decidedly higher authority, as in Loving. For example, Cardinal Dolan and many others, who oppose legalizing same-sex marriage cite the unquestionable authority,
“Our country’s founding principles speak of rights given by God, not invented by government, and certain noble values – life, home, family, marriage, children, faith – that are protected, not re-defined, by a state presuming omnipotence.
Please, not here! We cherish true freedom, not as the license to do whatever we want, but the liberty to do what we ought; we acknowledge that not every desire, urge, want, or chic cause is automatically a “right.” And, what about other rights, like that of a child to be raised in a family with a mom and a dad?
Our beliefs should not be viewed as discrimination against homosexual people. The Church affirms the basic human rights of gay men and women, and the state has rightly changed many laws to offer these men and women hospital visitation rights, bereavement leave, death benefits, insurance benefits, and the like. This is not about denying rights. It is about upholding a truth about the human condition. Marriage is not simply a mechanism for delivering benefits:
It is the union of a man and a woman in a loving, permanent, life-giving union to pro-create children.
Please don’t vote to change that.
If you do, you are claiming the power to change what is not into what is, simply because you say so.
This is false, it is wrong, and it defies logic and common sense.
Yes, I admit, I come at this as a believer, who, along with other citizens of a diversity of creeds believe that God, not Albany, has settled the definition of marriage a long time ago.”
There are legal weaknesses with Cardinal Dolan’s position, or any religious one for that matter- the principal one being that the Church’s position on marriage lacks relevance on the laws of the United States or its Constitution. The Courts and the Legislature are sovereign from the theological realm because America is not like Iran, or other countries, a theocracy.
When political groups speak of religion and the Christian roots of America as evidenced by reference to God in the Declaration of Independence for example,
they tend almost never to also refer to the suspicion of any established religion by the state that was so deeply held by the Founding Fathers. For example, the historical and cultural anti-Catholicism of many of the Founding Fathers, whether carried over from the Church of England or not, was profound and pervasive. Yet what was agreed ab initio about America was that it must never be allowed to be a theocracy where anyone’s religious freedom would be curtailed by the joining of the state and a church.
Speaking of looking back, an interesting exchange took place between the Court’s originalist jurist, Justice Antonin Scalia and the former Republican Solicitor General Ted Olsen,
Scalia: “When did it become unconstitutional to exclude homosexual couples from marriage?” “1791? 1868, when the 14th Amendment was adopted?”
Olsen: “When did it become unconstitutional to prohibit interracial marriage?” Olson asked. “When did it become unconstitutional to assign children to separate schools?” [Referring to Loving v. Virginia and Brown v. Board of Education].
Scalia: “At the time that the equal protection clause was adopted,” he said, before adding, “but don’t give me a question to my question.”
Olsen: “You’ve never required that before.”
Advantage Ted Olsen.
From an historical perspective, marriage has been a secular institution; longer than it has been a religious one-with state recognition of marriage going back to Roman times and in other parts of the world preceding the Roman Empire. The early church in Roman times did not have a marriage rite. In fact in much of the ancient world, marriage was to secure social and political alliances and for economic purposes as much as for procreation. In England, until 1753 and the Marriage Act of Lord Hardwicke became law, the Church of England permitted what we would consider very irregular marriages (where one of the parties was a child, one of the parties was already married, or the parents did not know) so long as they were performed by an ordained clergyman of the Church of England. Your idea of “traditional marriage” may depend quite a bit on the length of your historical memory.
The Supreme Court hears oral arguments on DOMA latter this morning. Stay tuned for what may be the most interesting and important ruling of the high court in a very long time.@
R. Tamara de Silva
 Perry v.
Brown, 671 F.3d 1052, 1101 (9th Cir. 2012)