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
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Comments
It is clear that the Court had only heterosexual marriage in mind. If homosexual marriage were "fundamental to our very existence and survival," then how is it that we have done so well without it? Aside from the last few years, homosexual marriage was virtually unheard of, and thus could not be considered a basic civil right. It's a right so "basic" that it never before existed.
Homosexual relationships are biologically sterile. If all homosexuals got married or none did, it would make absolutely no difference to the survival of the species. None at all. Any time you see a child in a same-sex household, somewhere there is a missing biological parent.
While not all heterosexuals procreate, intimate heterosexual relationships have a highly procreative orientation. The institution of opposite-sex marriage has existed for thousand of years because intercourse between opposite-sex couples is responsible for the continuation of the species. The institution of marriage contains the ideals, roles, values, and norms that tell heterosexual couples how they should live for the benefit of any children that may result from the relationship. Since same-sex relationships are biologically sterile, it comes as no surprise that marriage never included same-sex couples, nor was the exclusion inspired by bigotry against homosexuals.
"And what about the haters?"
You can't have an OS post about gay marriage without a nod to the "haters." This is perhaps the most ludicrous part of the debate. The idea is that for many centuries marriage was only between members of the opposite sex -- not because only those relationships could produce children, but because people didn't like homosexuals. And now, the people of the state of California "hate" homosexuals so much that they supported domestic partnerships with almost all the benefits and rights of marriage.
But I’m always miffed by the bitter ignoramuses with no real life who delight to spend time trolling the Internet just looking for opportunities to anonymously flaunt their ignorance and foist their hateful bigotry on others. Hey, the only happiness some people have is a celebration of petty shadenfreud and the happiness of those they hate spoils all their fun. Tsk Tsk. Tsk. What a sad life
There is something unsettling about people who delight in denying others their equal dignity before the law. For some reason America seems to breed such bitterness which too often festers more in the poor and ill-educated who are often desperate for a reason to blame others for their own misery. America is getting better in this regard but in some sub-cultures (and I use the term ‘culture’ very loosely) all that has changed is who gets to be the new _igger. Decent society will no longer tolerate rank racism, women are no longer fair game for subjugation, and anti-Semitism is reserved to Bible thumping Tobacco Road morons. So, who’s left?
Invariably, in my four decades of civil rights activism, those most opposed to others’ equal rights are not just elders ossified by religious orthodoxy but bitter little isolated nobodies whose own unhappy lives have failed and so they figure, ‘Why should anybody else be happy.’ What a squalid existence.
One can rightly mourn for a gay child so unfortunate to be bred into a tribe that will eat its own. This is partly why the suicide rate for gay teens is so high. If you are gay can you imagine the nightmare of having such a parent? If I did I’d surely consider the option so I do my best to encourage them to hang on and get the fuck out of that snake pit as soon as possible. Hope springs eternal. The haters’ squandered time sucks them under. Time closes in. The new generation will shove them aside and not even bother to say good riddance. When such parents are kicked to the curb by their children and left to stew in their own venom they surely cannot cry victim.
"We can easily reduce our detractors to absurdity and show them their hostility is groundless. But what does this prove? That their hatred is real. When every slander has been rebutted, every misconception cleared up, every false opinion about us overcome, intolerance itself will remain finally irrefutable."
We have heard the arguments for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred, and intolerance we have known in racism and in every kind of bigotry. What sad, pathetic, bitter and unhappy lives. It is because they knew that ignorance and bigotry bred so freely amongst the masses that our founding fathers gave us an independent judiciary and a Bill of Rights.
If you write a post and don't want people to post opposing comments on it, then the onus is on YOU to let people know that in advance.
Whenever I post long comments on the blogs of people I don't know, I always keep a copy of the web page "just in case." So it is very easy for me to prove that comments are being deleted.
By the way, I don't "troll" the internet. I've been on OS for well over three years, and have been here almost from the start. I know a lot of people, and if I hear that you are continuing to delete comments, I will be very happy to let people know that they should stay away from your posts.
The solution is simple -- again, if you don't want opposing comments, just say that at the end of the post. You can even frame it in self-righteous language, e.g., "comments that I deem to be bigoted or homophobic will be deleted." Problem solved. Opponents will stay away, and you will only get the high-fives and pats on the back that you desire. Of course you won't get any real discussion either, but since you don't want that in the first place it's no great loss.
Good luck. You can go ahead and delete this comment. I'm done with you. "Voltaire" my ass.