How a judge fashioned a right to gay marriage

politics | Aug 07, 2010 | By Dwight G. Duncan

On August 4, 2010, a U.S. District Court judge in California declared Proposition 8, the 2008 referendum that amended California’s constitution to specify that marriage is only between a man and a woman, to be unconstitutional. He ostensibly based his ruling on the United States Constitution’s guarantees of equal protection of the laws and due process of law.

Judge Vaughn Walker said that the traditional definition of marriage had no rational basis, and that “Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite-sex couples are superior to same-sex couples.” All relationships are created equal, apparently. He stayed implementing the decision until the inevitable appeals can be decided.

The defendants, starting with California’s governor (the case is captioned Perry v. Schwarezenegger), all refused to defend the constitutionality of the law. The Attorney General, Jerry Brown, went further and conceded that the law was unconstitutional under the federal constitution. Defense of the law was left to intervenors who had supported Proposition 8. Otherwise, the suit has every appearance of collusion.

Several weeks ago a U.S. District Court in Boston declared the federal Defense of Marriage Act, which defines marriage for purposes of federal law as the union of a man and a woman, to be unconstitutional under the US Constitution on similar grounds: that there is no reason, only prejudice, that would distinguish between same-sex and opposite-sex couples when it comes to marriage. The fact that only male-female couples can procreate and provide children with both a mother and a father is not considered a reason to treat them differently—only a pretext for prejudice. Ironically, an additional reason for the Boston ruling was that the federal definition of marriage intrudes on the power reserved to the states under the Tenth Amendment to define marriage, since marriage and family law are supposedly a traditional preserve of state, not federal, regulation.

The California decision, by contrast, says that the US Constitution requires that same-sex couples and opposite-sex couples be given identical rights to marriage and thus establishes a new definition of marriage as a matter of uniform federal law. Which is it, anyway? A matter of state law or a matter of federal law? For advocates of same-sex marriage, any stick to beat back the traditional understanding of marriage will do.

These claims that the federal constitution’s equal protection clause requires states to recognize same-sex marriage are not new. They have been repeatedly raised in the courts and universally rejected until these two recent decisions. Judge Walker wrote a 136-page decision that wraps itself up in findings of fact, purportedly based on the evidence adduced at trial. In addition to finding that the law has no rational basis, he also said that it involved discrimination on the basis of sex (since Adam can marry Eve but not Steve, and the only difference is their sex or gender), which would trigger heightened scrutiny by courts, as well as discrimination on the basis of sexual orientation, which he deemed a suspect classification like race. The plaintiffs win on all counts and by any measure. He is covering all bases.

Judge Walker wrote a firewall of an opinion, in which no matter what judicial standard applied, gays would always win. This was in keeping with the show-trial nature of the proceedings, in which so-called experts were called to testify -- who just happened to be partisans on the issues involved. The two experts called by the defenders of the law were deemed of little or no credibility by the court. The fact that Judge Walker was himself reported to be homosexual was of no legal consequence or relevance.

Obviously, the question of whether gay marriage is required by the US Constitution will ultimately be settled by the US Supreme Court. It is quite likely that the federal appeals courts in California and in Massachusetts, known for their liberal bent, will affirm these trial court decisions. But the matter will be resolved by the Supremes.

Perhaps the Court as presently constituted will rule 5-4 against a federal constitutional right to gay marriage, rather than issue what would amount to a Roe v Wade for gay marriage. After all, the vast majority of states, forty-five by last count, only recognize marriage between a man and a woman. Only five states and the District of Columbia currently recognize gay marriage. California itself, a liberal state, had enacted Proposition 8 by democratic referendum in 2008.

As usual, Justice Kennedy is the Supreme Court’s swing vote. In the 2003 Lawrence v Texas decision declaring bans on homosexual sodomy to be unconstitutional, he wrote, “The present case ... does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” He clearly reserved the question of same-sex marriage to another day. That day of reckoning is coming soon.

Dwight G. Duncan is professor at the University of Massachusetts School of Law Dartmouth, where he teaches courses in Constitutional Law, Religion and the Law, and Bioethics and the Law. He appears here with permission from MercatorNet.com.

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