I also can't say I'm too happy with the victory speech I heard quoted on the radio (possibly made by the plaintiffs?) Particularly the quote "Gays and Lesbians are the last group in the United States with laws discriminating against them" (paraphrased). I can think of several more groups, and not all of them are low-profile: Arizona's happening right now.
Yeah, some gay activists just don't know when to shut up. Yes, gay rights are properly considered civil rights, but that does not make the struggle for gay marriage somehow equivalent to the Civil Rights Era, unless there are a lot of lynchings I haven't picked up on (we'll leave aside AIDS, because tragic and culpable government inaction, no matter the consequences, is not the same thing as a bunch of dudes getting together to kill someone who's not like them).
Anyway, I realize I haven't written much about the Prop. 8 case, so let me summarize and critique the case:
Perry v. Schwarzenegger holds that Prop. 8 is unconstitutional as a violation of the 14th Amendment's Due Process and Equal Protection clauses, and for the Equal Protection clause it's held unconstitutional on two separate bases, so 3 reasons in total.
1: Due Process:
It's a violation of the Due Process Clause for a state to arbitrarily deny a person a fundamental right of life, liberty, or property. Marriage is one such fundamental right. If the right that gay couples in CA are trying to exercise is the same "marriage" as the marriage right in those other cases, then it's fundamental and Prop. 8 is unconstitutional. Basically, is gay marriage marriage in the sense that the term has been used “in our Nation’s history, legal traditions, and practices?”
For this, the judge looks mostly at Loving v. Virginia, the case that struck down bans on interracial marriage. The judge says that that case did not change the definition of the fundamental right to marry, but rather "recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry." The judge then looks at the updates of laws of marriage from institutions that focus rights in the husband to ones that give each partner equal rights, and finds that this update also does not change the definition of the right to marry. The judge finds that "Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage." Accordingly, the judge holds that "[t]o characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."
It's a good argument, but I don't think it will carry the day, because the entire thing focuses on the legal definition of marriage but ignores the public conception of what a marriage is. Fundamental rights are defined as rights deeply rooted in "our Nation’s history, legal traditions, and practices," so what people have traditionally thought of as a marriage really does matter, and gay marriage simply was not on the map twenty years ago (when Loving v. Virginia was decided, in contrast, over 40 states already allowed interracial marriage.)
2: Equal Protection Homosexuals are a Suspect Class
It's unconstitutional to deny people "equal protection of the laws." This plays out in 2 ways. First, laws that selectively target a "suspect class" are subject to "Strict Scrutiny" by the courts, which means they are presumptively unconstitutional unless the government can show that it has a "compelling state interest" in enacting the law, which is a standard laws pretty much never meet. So if homosexuals are a suspect class, Prop. 8 is unconstitutional. Second, if a law targeting any group, be they hippies, felons, or pedophiles, lacks a "rational basis," it is unconstitutional.
A. Homosexuals are a Suspect Class.
Homosexuals have never been held to be a suspect class, but this case holds that they are, because they have historically been subject to discrimination and because there is no difference between them and heterosexuals that could justify unequal treatment by the law. Sounds good, but don't think for a second the Supreme Court is gonna buy it, because "suspect class" is reserved for race and (in limited circumstances) immigrant status, and that's it. Sex doesn't make the list, nor disability. Furthermore, there are reasons why homosexuals should be treated differently by the law, even if they're silly ones. (For example, say a judge is dealing with a sexual harassment case where the perpetrator is gay. That judge should be able to take sexual orientation into account when deciding what kind of training program to send the perpetrator to.)
B. Prop. 8 lacks a Rational Basis.
A law that targets any distinct group of people needs to be "rationally related to a legitimate state interest", which is to say it needs one reason OTHER than moral disapproval of the target group, AND that reason must theoretically be able to be advanced by the law. This is a really easy test, and you can count the number of times on one hand the Supreme Court has found laws that fail it, but the judge finds that Prop. 8 is one such law.
Here are the interests Prop. 8 proponents raised:
(1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage
(2) proceeding with caution when implementing social changes
(3) promoting opposite-sex parenting over same-sex parenting
(4) protecting the freedom of those who oppose marriage for same-sex couples
(5) treating same-sex couples differently from opposite-sex couples for administrative convenience/to keep CA's definition of marriage in line with the federal one.
To which the judge replies:
(1) tradition alone cannot be a rational basis
(2) there is no credible evidence that allowing same-sex marriage will harm society or have a negative impact on opposite-sex marriage
(3) there's no reason to believe allowing gays to marry will cause fewer straight parents to have and raise kids. Also, hello? Gay couples in civil unions can ALREADY adopt kids in CA, and those couples are treated equally at law.
(4) Hi, there's this case from 2003 called Lawrence v. Texas. It holds that mere morality disapproval is not a rational basis for a law. Heard of it?
(5) Creating a parallel institution is not administratively convenient at all.
What about saving state money? The Supreme Court has held that once the court has detected that moral disapproval is the reason for a law, saving money is no longer considered a good reason, and it's not hard to see that moral disapproval is the basis for Prop. 8, so there you have it.
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I think that the argument that Prop. 8 lacks a rational basis is a good one, and I also think the Supreme Court will UPHOLD this decision on that basis. I think this for two reasons. First of all, Kennedy was the justice who wrote Lawrence v. Texas, which held that mere morality was not a rational basis. That case was about homosexuals, so the "morality" in question in that case is exactly the same thing in question in this one: moral disapproval of homosexuality. I don't think Kennedy's gonna allow his holding to be diminished by saying Prop. 8 is somehow more rational than a different law that targeted homosexual relations (the law in question in Lawrence was a ban on homosexual sodomy, btw). My second reason is that, as far as I can tell, by finding Prop. 8 unconstitutional based on rational basis, the Supreme Court can invalidate Prop. 8 WITHOUT mandating same-sex marriage in states in which it has never been legal. A "rational basis" test looks at what the people enacting the law hypothetically would have thought when they enacted it. If you passed a law in 1900 that demanded that schools be constructed using asbestos so that kids would be safer, it would pass rational basis in 2000. Rational basis is all about the intent of the people who passed the law, not the reality of the situation. So I don't think states which have never legalized same-sex marriage would need to do so even if Prop. 8 went down, assuming it went down solely for lacking a rational basis.
bored yet?
no?
Ok, let me tell you all you need to know about the "9/11 Mosque."
1. It's a block from where I used to work, and a block from the subway station I took over the summer.
2. That Burlington Coat Factory has been out of business since 2006 at the latest.
3. There's an Amish grocery store next door which would presumably be taken down if the center went up.
4. They have fucking great quesadillas, which I eat on a semi-regular basis, which is why I can authoritatively say:
5. New Yorkers do not give a damn about the place. Yes, they oppose the centers in polls, but only because polls do not include the option, "I could not be bothered." You never, ever see protesters there.
6. But you do see a guy on the corner handing out flyers for New York Dolls, the strip club that operates across the street, just 2 blocks from hallowed Ground Zero (also without protest).
7. You couldn't even see the new world trade center (whenever it gets built) from the site because there is - surprise! - a tall building in the way.
8. They'd better not build the center there, because I fucking love those quesadillas.
