In San Francisco on August 4, 2010, Chief Judge Vaughn Walker struck down California’s Proposition 8 (more appropriately called Proposition H8). Prop H8 was a 2008 ballot initiative that amended the California Constitution to restrict marriage to opposite-sex couples and prohibited California from recognizing same-sex marriages performed on or after November 5, 2008. Walker ruled that Prop H8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. On February 7, 2012, a three judge panel of the Ninth Circuit upheld the decision of the district court and ruled that Proposition 8 violated the U.S. Constitution. Judge Walkers decision was “affirmed.”Proposition H8 supporters now have 14 days to request en banc review by the Ninth Circuit's 11 active judges, which they can grant by majority vote. Their other option is, within 90 days, to ask the U.S. Supreme Court to revreadiew the decision. The National Organization for Marriage sent out a fundraising appeal to raise $100,000 in a week to help take the case to the U.S. Supreme Court. That money will no doubt originate from the other side of Jefferson’s proverbial wall-which is really what this entire issue is all about.
Many on the anti-H8 camp are disappointed that the Ninth Circuit’s decision was so narrowly drawn. They hoped that the court would lay down a broad ruling holding that same-sex marriage is a ‘fundamental’ right thus mandating the ‘strict scrutiny’ test that is regarded as the ‘kiss of death’ and ‘fatal in fact’ to almost any law. They were also hoping that the court would hold that being gay is, itself, a ‘suspect classification’ that warrants strict scrutiny. The result being the same.The essential point to notice in all this is that, ever since Goodridge v. Department of Public Health (2003), most courts have not had to resort to heightened level of scrutiny to strike down gay Jim Crow laws that don’t pass muster under the most toothless insanity tests. (Yes, I know, Goodridge and other state courts did not apply federal law but all states’ due process and equal protection provisions share (and are modeled on) the same federal rationale. The legal analysis is essentially the same.)
That the Ninth Circuit’s ruling is so narrow is not surprising for courts will always exercise restraint and try to decide each case on it’s individual facts and rule as narrowly as possible. Arguably the first two issues need not have been addressed for the Supreme Court has repeatedly stated that marriage is a ‘fundamental’ right. That question has been asked and answered dozens of times and Loving v. Virginia was certainly not the first but only added a layer of gloss. Indeed, the Court in Loving was just reiterating a well-settled principal that “marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.” In doing so the court relied in part on Skinner v. Oklahoma, (1942) and Maynard v. Hill, (1888) which both struck down laws that abrogated the right to marry. Subsequently, in Turner v Safley (1987), the Court refused to apply ‘strict scrutiny’ to a Missouri prison regulation prohibiting inmates from marrying, absent a compelling reason. Instead, the Court found the regulation failed to meet even a lowered standard of "reasonableness" under the ‘toothless’ standard of ‘rational basis’ test sometimes referred to as the ‘sanity test.’ Suffice to say, the litany of cases upholding the proposition that marriage is a fundamental right are legion and any law abrogating that right is automatically subject to ‘strict scrutiny’. There is good reason why the Ninth Circuit did not bother to go so far. Keep reading.
[Given notice by a colleague that some scavengers, who call themselves writers, have little respect for copyright this article has been moved to my Scribd page where the print format is much better. To read more click here. ]
Copyright 2012 © Francois Arouet