jay_g |
01-13-2010 12:08 PM |
I thought I would try to bring some actual legal understanding to what Prop 8 is all about. I say "no" to Prop 8, because quite simply...it is the human thing to do. The USSC has tried to keep this issue at arm's length, but there is precedent to support a finding that such an amendment would be unconstitutional. And the glory of it is that federal judges are not responsible to constituents, as state judges are. That said, they can follow the precedent out there w/o concern for being kicked of the bench. Anyway...here is the lesson: <BR> <BR>First, the Supremacy Clause, Article VI, clause 2 of the US Constitution announces that "the laws of the United States shall be the supreme laws of the land, and the judges in every State shall be bound thereby." The Equal Protection Clause of the 14th amendment, section 2 announces "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....nor deny to any person within its jurisdiction the equal protection of the laws." Now, you may all say, "that's nice" but its important to understand how these two clauses play an important role in precedent analogous to this issue. <BR> <BR>In Loving v. Virginia, a 1968 USSC case, at issue was a state law which forbid interracial marriages. A white man married a black woman in the District of Columbia to by-pass the ban in their home state on interracial marriage. WHen the couple returned to Virginia and set up their home, they were arrested and charged with violating the ban on interracial marriage. The USSC held that "there can be no doubt, that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." Further, the court stated, "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. Marriage is one of the "basic civil rights of man" and the 14th amendment requries that the freedom of choice to marry not be restricted by invidious racial discriminations." That was over 40 years ago my friends. Looking back....how can this even be a question now?? I am thankful for this decision in particular...if it wasn't for the USSC taking an affirmative stance against racial discrimination and interracial marriage, I would never have been able to marry my wife. <BR> <BR>If the Loving case isn't enough support in your view, then the court made another chip at the discrimination in this country in Lawrence v. Texas. In the Lawrence case, two men were charged with criminal sexual conduct pursuant to a Texas statute making it a crime for persons of the same sex to engage in intimate acts. The USSC struck down the Texas statute and more clearly defined gay rights. First, the court reviewed the individual substantive due process rights that were identified in relevant precedent. After reviewing these case, the court concluded that the right of adults to enter into personal and private sexual relationships is a "liberty interest" that is Constitutionally protected. The court next held that government may not intrude into an individual's personal sexual relationship without properly justifying its intrusion. <BR> <BR>Justice Kennedy's reasoning was almost poetic in this case. He stated, "liberty protects the person from unwarranted gov't intrusions into a dwelling or other private places. In our tradition, the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside of the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes the freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions." <BR> <BR>He took history into account as well, stating, "At the outset, it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct." He looked at colonial law, and law up until the 1970s, and also noted that of the states that singled out same-sex relationships, only nine had prosecuted homosexual behavior. <BR> <BR>Addressing the religious argument, he stated, "For centuries there have powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the questions before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society thorugh the operation of criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code. Persons in homosexual relationships may seek autonomy for these purposes, just as heterosexual persons do. " <BR> <BR>Finally, he stated, "our prior cases make two propositions abundantly clear: First, the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, neither history nor tradition can save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the 14th amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." <BR> <BR> The point is, we should not legalize discriminatory beliefs. And we certainly should not disallow a right because one person, or a group, or even as Justice Kennedy said, "a majority" believes that a particular action or right is against religious code. At risk here is EVERYONE'S constitutional right. To let a State infringe on what people do with their personal lives is simply unconstitutional. <BR> <BR>The lesson is, the Loving case established a fundamental right to marry. The Lawrence case identified personal and private sexual relationships as a "liberty interest" protected by the Constitution. Therefore, any law that constricts these two rights should be judged on either an Intermediate standard of review or Strict Scrutiny standard of review. <BR> <BR>Intermediate scrutiny is met if a regulation involves important governmental interests that are furthered by substantially related means. In the context of sex-based classifications, the intermediate scrutiny test applies not only to the federal government, but also to state and local governments (via the Fourteenth Amendment). It also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. <BR> <BR>Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue. It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights and those the court has deemed a fundamental right protected by the liberty provision of the 14th Amendment; or when the government action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause. To pass strict scrutiny, the law or policy must be justified by a compelling gov't interest, be narrowly tailored to achieve that goal or interest, and be the least restrictive means for achieving that interest. <BR> <BR>And there you have it. There would have to be some heavily argued "compelling gov't interest" for this to pass constitutional muster.
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