Cynthia Grant Bowman, a professor at Cornell Law School, was recently quoted by Newswise as stating that the decision in Perry v. Schwarzenegger (the Prop 8 case) gives the strongest legal and factual support of any case claiming that a state ban of same-sex marriage violates the federal constitution. She said that it “…reaches its conclusion that Proposition 8 is unconstitutional under the U.S. Constitution based upon an extremely strong record of evidence laid down at a thoroughly litigated trial.”
I am currently in the process of wading through the decision myself (it is a 138 page pdf online). So far, I have seen arguments which basically state that Prop 8’s definition of marriage is out of date and that the initiative was pushed for with gay stereotypes. The decision also discusses the history of California state law. Additionally, it cited the precedents of Turner v. Safely, 482 US 78, 95 (1987), which states that “the decision to marry is a fundamental right,” and Cleveland Board of Education v. LaFleur, 414 US 632, 639-40 (1974), which states that “…freedom of personal choice in matters of marriage and family life is one of the liberties protected by the due Process Clause of the Fourteenth Amendment.” Of course, none of this involves the actual definition of marriage.
My main concern with the decision is the application of the 14th Amendment to the legal definition of marriage. The well known part of the amendment reads:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Any privileges and immunities of the citizens of the United States are privileges and immunities brought about by federal law. This basically means that any federal law that is within the federal government’s legitimate powers must be applied equally to citizens in all states, regardless of what the states want (this is the point of the equal protection clause). However, the federal government has no legitimate authority through the Constitution to have any say in the definition of marriage; therefore, the issue is delegated to the states via the 10th amendment. Note that this also implies states can opt out of the Defense of Marriage Act, which they have done in some cases (Massachusetts, New Hampshire, Vermont, Iowa, and Connecticut all allow same-sex marriage, according to Wikipedia). So even if the right to marry is protected under the 14th Amendment (this is dubious, regardless of the precedents), the 14th amendment does not allow the federal government to define marriage.
Additionally, I do not see how Prop 8 violates the due process clause, as was stated in Cleveland Board of Education v. LaFleur. Prop 8 certainly does not deprive gays of their life or property. One could argue it deprives them of liberty, but it really does not. Prop 8 does not permit the State of California to prevent gays from having affection for one another. It merely distinguishes legal recognition between same-sex couples and dual-sex couples.
This is really the crux of the issue with Judge Walker’s ruling. The federal courts have no business hearing anything on this matter. Of course, the case may create a precedent, but that does not mean that the federal government’s involvement is constitutionally sound. I can hear my high school government teacher screaming ‘Marbury v. Madison’ at me. However, even the decision to allow for judicial review does not allow the federal courts to create constitutional rules.
If this case goes to SCOTUS, I hope Chief Justice Roberts will have the decency to turn it back to the lower courts. However, he may feel his hands are tied if the lower courts uphold this ruling.
I welcome folks with greater legal background to comment on this. Read the already posted comments for more background on exactly what I was saying throughout this.
Thank you for this informative analysis.
Sam,
What I meant was that it does not deprive gays of liberty in the sense that Prop 8 does not prohibit gays from fully integrating into society the way Jim Crow laws did, for example. To expand on this, it does not prevent gays from having relationships that are similar to those of heterosexuals the way Jim Crow laws prevented blacks from having regular societal interactions with whites. The only distinction between same-sex and opposite-sex couples under Prop 8 is their official legal classification–that’s about it (homosexual couples in California receive equivalent tax benefits, etc. as married couples).
No one (or at least no one who posts here) is suggesting that the government actively prevent homosexual relationships. But that does not mean that the definition of marriage desired by gays should be imposed on an ancient meaning and history. The reasoning behind this is that part of the function of marriage (as opposed a legally recognized domestic partnership) has always been procreation. Clearly, same-sex couples cannot procreate. Without procreation (or the attempt at it, for those who physically cannot), marriage is not fully defined, which is why a homosexual couple does not fulfill the definition of marriage. Obviously, not all opposite-sex couples marry and have children even if they can. However, marriage usually involves the implicit assumption that the couple will.
After going on for two paragraphs, I wanted to mention that the main issue of my post was in fact federal jurisdiction and the extent to which the US Constitution is malleable. I never really intended to state my personal position on the issue of gay marriage. The post was more a critique of Judge Walker’s abuse of the 14th Amendment in this case. Gay marriage cannot be guaranteed by the federal government until the Constitution is amended, because the document literally says nothing on anything even close to resembling marriage. Despite my above paragraphs, I would not necessarily be hostile such an amendment. But until it occurs, marriage is still a state issue, and should be treated as such.
Ferenc I know we’ve been over this a million times, and I don’t want to put you on the spot here to produce the third treatise on government, but I’m always curious how you are defining the term “right.” Could you specify, or maybe give an example of something that would be societally desirable but doesn’t fall under the category of “rights”?