Ending the Prop. 8 Era

by Daniel Goldstein

CALIFORNIA has the chance to restore the rights of millions of its citizens with the help of the Supreme Court.

As a people, we have progressed through the ages towards a more perfect society, one in which there is increasing equality and opportunity for all. This progress has at times come in slow, lurching steps, but sometimes it has happened in rapid sprints. Ultimately, as we progress, certain decisions and actions come to rest on the right side of history. The Supreme Court should stand on that right side of history and acknowledge a right to same-sex marriage, but they likely will fall short of that.

The Supreme Court played a large role in that progress by overturning state laws that prohibited interracial marriage in Loving v. Virginia (1967) and asserting that “separate but equal” is inherently unequal in Brown v. Board of Education (1954). The Supreme Court has made great leaps forward for our society by striking down the laws of hate and oppression and upholding what is right and just. Soon they will make a decision about same-sex marriage.

The constitutionality of Proposition 8, the ban on same-sex marriage passed by California voters in 2008, will be decided with the case Hollingsworth v. Perry (2013). Proposition 8 has twice been ruled unconstitutional in federal appeals courts.  This case could have wide-ranging ramifications, potentially leading to marriage equality for the entire nation.  Oral arguments for the case were on March 26, with an expected ruling sometime in June, at the end of the Supreme Court’s calendar.

The plaintiffs are Kristin Perry and Sandra Stier, as well as Paul Katami and Jeffrey Zarrillo, two couples denied marriage licenses after Proposition 8 went into effect.

Perry and Stier married each other in 2004 when San Francisco started issuing same-sex marriage licenses in the city. They have four children and have been together for over 13 years. Their marriage was annulled by the California Supreme Court because it violated state law.

The defendant is Dennis Hollingsworth, a former California assemblyman and state senator, and a member of the group supportmarriage.com, which supports Proposition 8. Hollingsworth is defending Proposition 8 because the California government refused to defend it in court.

The Supreme Court has many options before it: find Proposition 8 unconstitutional and legalize same-sex marriage in California or take a broader approach and find a right to same-sex marriage in the Constitution, making it legal across the entire country. The Supreme Court could find that the people that brought the case to the Supreme Court have no standing, meaning they are unable to litigate in this case, allowing California to legalize same-sex marriage. Another route is to decide that once a right is granted, as the California Supreme Court did when it granted the right to same-sex marriage in the state in 2008, it cannot be taken away.

Ultimately, the Supreme Court must and should rule Proposition 8 unconstitutional and establish a right to same-sex marriage, placing itself on the right side of history.

The constitutional argument against Proposition 8 relies on the due process clause and equal protection clause of the 14th Amendment, which states that “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.”

Proposition 8 deprives people of their due process and equal protection rights and violates the rights of same-sex couples. The Supreme Court has set a precedent of using the equal protection clause in finding anti-gay laws discriminatory and unconstitutional, like in Lawrence v. Texas (2003).

The Supreme Court should offer sexual orientation the strictest constitutional protections possible and view laws discriminating on the basis of sexual orientation with the utmost skepticism. This would act to reduce discrimination by law in America and ensure that there are constitutional defenses for sexual orientation.

The need for strong constitutional protections is because most, if not all, laws discriminating on sexual orientation are based on animus, or hostility or hatred. The equal protection clause has helped immensely in combating racism and sexism in law and the same security should be extended to sexual orientation.

In today’s society, there is no logical reason to discriminate based on sexual orientation. The arguments against allowing people of the same sex to marry are either antiquated or trying to prevent marriage equality out of contempt.

In Loving, Chief Justice Earl Warren wrote for the majority and said “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Though that case focused on race, the freedom to marry should be extended to same-sex couples because the institution of marriage is one manifestation of the pursuit of happiness.

Many people want to define marriage as a union between a man and a woman and that any redefinition dilutes the institution. But marriage is much more than just a union; it is the recognition of love and all that it signifies, including commitment, partnership, and so much more.

Loving v. Virginia represents the idea that two people should be allowed to love, regardless of what the state deems moral or appropriate. Love is one of the rawest and most fundamental human emotions and to limit it as state governments and the federal government have done by limiting same-sex marriage is cruel and unjust.

There is nothing sickening about same-sex marriage; it is those that stand in its way that are sickening. Loving v. Virginia was essentially about equalizing an institution that permits people to achieve happiness.

The pursuit of happiness is not reserved for heterosexual couples or white couples or any other select group. It is a quest that is enshrined in the founding document of our country and something that we all should collectively strive for. Marriage equality allows for the fulfillment of happiness for the hundreds of thousands of couples who are currently locked out and those in the future who want to achieve it.

The Supreme Court should stand up for what is right and ensure the right to same-sex marriage, both as a constitutional issue and as a moral issue, and there is good reason to believe they will.

Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, the liberal wing, will likely find a right to same-sex marriage in the Constitution. Chief Justice John G. Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, the conservative wing, will likely find no such right to same-sex marriage in the Constitution.

The swing vote will most likely be the generally conservative Justice Anthony Kennedy. He has been the deciding vote in the important pro-gay rights cases of Romer v. Evans (1996) and Lawrence v. Texas and is expected to side with the liberal wing of the Supreme Court in finding Proposition 8 unconstitutional. However, he is likely to have a narrower view of the case than the other justices of the liberal wing.

Thus the Supreme Court, by a 5-4 vote, will find Proposition 8 unconstitutional and allow for California to have same-sex marriage because a right was taken away that had previously been conferred. I predict that in the case of Hollingsworth v. Perry, the Supreme Court will unfortunately not go as far as it should in finding a right to same-sex marriage and extending it to all of the United States.

Public attitude and approval towards same-sex marriage have changed rapidly in recent years. A March ABC News/Washington Post poll found that 58% of Americans support same-sex marriage, including 81% of people age 18-29. A March poll by Lifeway Research found that 64% of American adults believe that marriage equality becoming legal is inevitable, whether they support it or not.

Marriage equality will happen; it is only a matter of when. With its inevitability comes the question of who will support it as it becomes a reality, and who will cling to the vestiges of antiquity and oppose marriage equality, joining the bigots of days past, present, and future.

Hollingsworth v. Perry, and the Supreme Court case involving the Defense of Marriage Act, are more than just a couple cases relating to same-sex marriage. They represent the culmination of over 40 years of struggle and the perseverance that the LGBT community has faced and continues to face.

It is a fight that has sadly taken far longer than it should have, just like the struggles for civil rights with race and sex. President Barack Obama said in his second Inaugural Address, “We, the people, declare today that the most evident of truths –- that all of us are created equal –- is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung…to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.”

It is time that we extend rights that are conferred to all of humankind and progress towards a more perfect society. It is time that the Supreme Court makes the right decision so that we might once again find ourselves on the right side of history.

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