WhyThe Decision to Overturn Proposition 8 was the Only Decision that Could Be Made

As I watch the Yahoo! Message boards on the various stories about Proposition 8, there is obviously some trolling that occurs, but there are also others that make one of two claims, and in a few cases make the claim at the same time. The first being that the will of the people is being overridden by “activist” judges, and the second reason given is that marriage is a privilege and not a right. I know for a segment of the population out there this will only serve to upset and the insults will come fast and furious, but I hope it will provide some clarification on what the 9th Circuit was thinking when it issued its ruling.

Concerning the fact that the will of the people was overridden, there is precedent for this for ballot initiatives that were approved by the majority. The case that is relied upon is known as Romer v. Evans, 517 U.S. 620 (1996) which was decided on a 6 to 3 vote. The case centered around a ballot initiative that was passed in Colorado that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian citizens as a protected class. In the majority opinion written by Justice Anthony Kennedy (a normally conservative leaning independent on the bench), he makes the following assertions:

Anti-discrimination laws are not a “special right” because they protect fundamental rights enjoyed by all other citizens. In more basic terms, anti-discrimination laws are declaratory statements by the state to put others on notice that certain segments of society enjoy the same protections of fundamental rights as the rest of society.

Laws such as Colorado’s Amendment 2 were born of a bare desire to harm a politically unpopular group.

So what this case came down to was that Amendment 2 was held to be unconstitutional and it was struck down, keeping with the 14th Amendment’s Equal Protection Clause.

The second complaint that I see, from people that are not normally attempting to troll the message boards is that marriage is not a right, it is a privilege. In the last 45 years, the Supreme Court has ruled on 3 separate occasions that marriage is a fundamental right, not a privilege that is only visited upon a select few.

The first of these cases is Loving v. Virginia, 388 U.S. 1 (1967). This is the most famous of the three cases, it overturned Virginia’s “Racial Integrity Act of 1924″ on a vote of 9-0, basically there is no room. But some important text from the opinion that needs to addressed.

“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

The next case is Zablocki v. Redhail, 434 U.S. 374 (1978). This involved Roger Redhail, a teenager at the time that admitted to fathering a child while he was in high school. The state of Wisconsin ordered him to pay $109 per month in child support until the child turned 18 years old. Since he was in high school he fell into arrears for approximately 3700 dollars. He wanted to get married after high school and applied for a marriage license and was informed by the state of Wisconsin that under 245.10 of Wisconsin state law he could not obtain a license. Section 245.10 required noncustodial parents who were Wisconsin residents attempting to marry inside or outside of Wisconsin to seek a court order prior to receiving a marriage license. In order to receive such a court order, the noncustodial parent could not be in arrears on his or her child support, and the court had to believe that the child(ren) would not become dependent on the State.

The law was overturned on a 5-3-1 vote, now this looks a bit strange at front, but it means that 8 justices voted to overturn the law, 5 justices were in agreement and the majority, 3 justices concurred with the overturning of the law, but had different reasons to overturn; and one justice was dissenting. So in essence this was an 8-1 vote. The majority opinion written by Justice Thurgood Marshall, once again states that marriage is a fundamental right.

The final case that is being relied on is Turner v. Safley. 482 U.S. 78 (1987). There were two issues that were raised, the first being limiting the ability of prisoners in different prison facilities from corresponding in certain cases that was upheld. The second is that prisoners had to receive permission from the warden to marry, which was struck down in a 9-0 vote stating that the regulation improperly burdened the right to marry of the incarcerated.

Using the basis of these three cases, the Supreme Court stated that marriage is a fundamental right encapsulated by the liberty and equal protection clause of the 14th Amendment.

So when you take these four cases listed here, the 9th Circuit Court had precedent set by the Supreme Court to say the voters of the state of California (and by extension Hawaii because the same issue occurred there with the right of gay people to marry but then was rescinded by the voters in an election) cannot remove a right from a group once that group receives that right. With any luck the Supreme Court will rely on its own precedent and will uphold the district court ruling that was upheld by the 9th District Court (and presumably would be upheld by an en banc panel instead of the three judge panel that heard this first appeal).

I know this will upset some people out there, but the court did its job, it used precedent to interpret the US Constitution. So if you want to get this decision reversed the only way that is going to be done is to call for a Constitutional Convention or Amendment to get this overturned.


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