Wednesday, August 4, 2010

Prop 8: FAIL!

You have probably seen by now that a federal district court judge has ruled Proposition 8, the referendum put to a simple majority vote in the state, is unconstitutional.  I love the outcome.  I think it is the right outcome.  I am completely on board with this judge's decision on the due process claim.  And having just read his equal protection analysis, I am pretty thrilled.  It is well done and gets at the crux of what I have always seen to be the real legal issue.  I can't wait to see how Justices Thomas and Scalia sputter against this judge's ruling.  (Although reading the dissent in Lawrence v. Texas might give me a head start.)  But if Kennedy proves to be the key to a SCOTUS win, I now have high hopes that this written opinion will be a great first step to convincing him which way to swing.

First, let me note that I am still stuck on the California Supreme Court's ruling on Prop 8.  Opponents had argued that a simple majority vote referendum could not be used in this particular case to amend the state's Constitution.  The California Supreme Court ruled otherwise.  Wrongly, in my view.   I suppose I need to get over that, but the court was just wrong to allow a simple majority vote to alter the state constitution in a way that stripped rights that the court found to be protected.  I know, that court gets to be the final word on interpretation of its own state's laws and constitution, but they just flat got this one wrong.  Ok, moving on.

The main thing that has always bugged me about the legal fight over same-sex marriage is that in most cases, I don't think people are framing the legal issue correctly.  Of course opposition to same-sex marriage is motivated by anti-gay bigotry.  Those who oppose same-sex marriage don't want gay men and women to marry each other.  But the laws themselves don't reference sexual orientation.  They only reference sex.

Prop 8 added this specific language to the state constitution: "Only marriage between a man and a woman is valid or recognized in California."  There is no reference to sexual orientation in that language at all.  It is only about sex.  A gay man is perfectly free to marry a woman, heck even a lesbian woman.  Two men, though, are not allowed to marry each other, regardless of sexual orientation.  Sex is the only defining characteristic of which two people can marry and which two can't. 

This matters.  Legally, it matters.  Laws that classify groups of people and treat them differently are subjected to differing levels of scrutiny.  The biggies are race and religion.  Those classifications get the highest level of scrutiny: strict scrutiny.  If the government wants to distinguish between people based on race, they  have to have a darn good reason.  Sex is a step down from strict scrutiny.  There are (theoretically: I'm less sold on that than others) legitimate reasons for treating men and women differently.  So the Supreme Court is a little more willing to tolerate laws that treat people differently based on sex, but they're still pretty leery of them.  The lowest level of scrutiny, the rational basis test, is left for all other laws that classify.  To this point, SCOTUS has never specifically said that sexual orientation gets any higher level of scrutiny, so most courts look at anti-gay laws under the rational basis test.  Now, I think bans on same-sex marriage fail even the rational basis test, but I really believe the proper legal test is whether they survive intermediate scrutiny because they generally distinguish between people based on sex.

To me, this has always been an appealing argument because once you stop thinking about it in the framework of sexual orientation, it becomes so clear that the only real difference between a straight couple and a gay couple is the anatomy of the people involved.  I've always thought that everyone should be free to marry the (legally capable of consenting) person of his or her choice, regardless of sexual orientation.  Which, legally, translates to: regardless of the sex of his or her intended.

This judge basically agreed with me, saying it is functionally sex discrimination, while it is clearly aimed at sexual orientation.  I am gratified because for years, people have been looking at me like I'm nuts for making this argument, but it seems so clear and logical to me.  He ultimately said it really doesn't matter because Prop 8 can't survive even the lowest level of scrutiny.  There is simply no rational basis for limiting marriage to one man and one woman and half of the purported governmental interests advanced by the proponents of Prop 8 are inconsistent with other purported governmental interests.

So far, I've only read the conclusions of law part of this opinion.  The findings of fact are 100 pages.  So I want to read those.  And I want to do a closer reading of the conclusions of law.  But on first glance, I have to say I am a big fan not just of the outcome of this case, but the merits of the ruling.  Well done, Judge!  (And I hope Justice Kennedy is paying attention...)

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