Well, I always thought that proposition 8 was terrible, and that it was unnecessarily prejudiced against homosexuals, but I have also always thought that it was legally unimpeachable without judicial activism. I have changed my mind on the latter.
Previous Position
Previously, I have stated that gay marriage has no legal support. I believed that gay marriage was sufficiently different from heterosexual marriage to overcome equal protection, and that the right to marry only extended to heterosexual marriage due to the history and traditions test for fundamental rights.
If you want to see how I based that understanding, read the post at the link above.
The Current Legal Decision
I had assumed that the judge in the recent ruling must have been biased against preventing gay marriage, and that his decision must have been more a case of judicial activism, rather than actually having supported his statements with sound legal judgment.
I’m not sure whether or not the judge is biased, and the arguments that since he’s openly gay do tend to lend themselves to that idea. One can be personally biased though and make a sound legal decision.
Considering the arguments made in support of the law, and the reasons the judge gave for finding them unsatisfactory, I must conclude that the judge was not going against the law or legal precedent in order to make his findings. That alone takes him out of the activist realm, and removes the specter of bias.
I’ll explain both the reason equal protection fails and why due process fails according to the judge, and you make a decision.
Equal Protection
The defenders of Proposition 8 claimed that there were the following legitimate purposes.
- Preserving the traditional union, purposes, and meaning of marriage.
- The ancient lineage of a classification does not make it rational. Just because something has been seen a certain way forever doesn’t mean that there is a rational reason for it.
- My Example: Slavery had just as long of a history as marriage, but there was no rational reason to think that someone from another land was less deserving of their freedom.
- Following tradition is nothing more than a tautology. (We’ve always done it, so we should always continue to do it.)
- This seems to go against the history and traditions test, but I have come to realize that this is more of a test of whether or not something is a fundamental right, and not who should enjoy that fundamental right. It is therefore not a test for equal protection, but for due process.
- The ancient lineage of a classification does not make it rational. Just because something has been seen a certain way forever doesn’t mean that there is a rational reason for it.
- Proceeding with caution when implementing social change.
- Allowing same sex couples to marry would be easy for California to implement because it has already done so.
- It makes no sense to say that it is necessary to proceed with caution in implementing a change when the act in question has already happened roughly 18 thousand times already with no damaging result.
- Allowing same sex couples to marry would be easy for California to implement because it has already done so.
- Promoting opposite sex parenting over same sex parenting.
- Proposition 8 has nothing to do with children, [it] simply prevents same sex couples from marrying.
- Proposition 8 doesn’t make it any more likely that opposite sex couples will marry, have children and raise those children. They were doing it while it was legal to marry in California, and they are doing it in states where gay marriage is legal.
- California law already treats opposite sex and same sex parents exactly the same, and proposition 8 didn’t change it.
- Proposition 8 has nothing to do with children, [it] simply prevents same sex couples from marrying.
- Protecting the freedom [of speech] of those who oppose marriage for same sex couples.
- Proposition 8 does not affect any first amendment right.
- The right to believe it is immoral, to speak out against gay marriage, to teach your children it is wrong or any other right does not extend to preventing it from happening. Your right to speak has nothing to do with their right to marry whatsoever.
- Proposition 8 does not affect any first amendment right.
- Treating same sex couples differently than opposite sex couples.
- The evidence shows conclusively that moral and religious beliefs are the only basis for a belief that same sex couples are different from opposite sex couples.
- Moral and religious views are not an appropriate basis for legislation in the United states.
- The evidence shows conclusively that moral and religious beliefs are the only basis for a belief that same sex couples are different from opposite sex couples.
- Any other conceivable legitimate interest.
- There is no other rational basis to find a difference between same sex and opposite sex couples.
These are the reasons that heterosexual couples and homosexual couples are found to be similarly situated. The opposition didn’t meet its burden to show even a rational basis to find a difference. That alone is enough to find the law unconstitutional.
Due Process
Now that we can show that there is no legal difference between homosexual couples and heterosexual couples, the fundamental right to marry can only be infringed upon if there is a compelling state interest. The government can’t act to remove a fundamental right unless it has an interest that forces it to remove that liberty in other words. It also can’t just claim that an interest is compelling, it must show that by infringing on a liberty right that its goal is achieved.
This is so unable to be shown that it’s sad that I even need to address why it can’t be shown.
The claim is that the state has an interest in encouraging procreative relationships, and homosexual marriage does not do that.
The right to marry is fundamental, so it is not enough to show that marriage is essentially procreative. The state must show how preventing gay marriage achieves its stated interest.
Allowing gay marriage doesn’t prevent, nor hinder in any way, heterosexual marriage. It doesn’t promote non-procreative relationships either. Nobody is going to say, “Oh, I have the choice of gay marriage or straight marriage, and gay marriage is more beneficial to me so I’m going to choose gay marriage.” This idea is insane. I must admit that nobody has claimed that is what will happen though, but that’s the only way I can see that anyone would be able to claim that it would demote heterosexual, procreative relationships.
Further, no state has ever tried to prevent a heterosexual couple’s ability to procreate. A 90 year old straight couple can get married without a showing that they can have children for example. It would seem that the promotion of procreative relationships has never actually been the goal of marriage in the first place.
The state didn’t even try to show evidence that allowing gay marriage would disincentiveize procreative relationships. This is absolutely necessary to show in order to infringe on a fundamental right. There was no science to back up the promotion of procreative relationships position in other words. This is a huge flaw in the proponent’s side of the argument.
Conclusion
I have to admit that Judge Walker made a sound legal decision. It will likely stand unchallenged, considering that the defendants on the case, namely the state, are unlikely to appeal the decision. This is unfortunate though, since it will not become a case that will affect all the other states until it is appealed.
At least this is a victory for those people in California. I am happy for them.
Who says I’m closed minded. I was sure I was right about my reasoning previously, but I have to admit when I’m wrong, and I was.
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