Monday, January 11, 2010

Another occasion that lets me get on my soapbox

Warning, if legal stuff puts you to sleep, come back later.

A trial began today in a U.S. District Court in California. The Judge is hearing evidence with the purpose of deciding whether the U.S Constitution bars enforcement of California's Proposition 8 law barring same sex marriage.

43 years ago the U.S. Supreme Court looked at marriage and race:

"This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court [p3] of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 199, the Lovings pleaded guilty to the charge, and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

'Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.'"

Loving v. Virginia, 388 U.S. 1 (1967).

Since then, a number of courts have refused to use Loving as precedent for same sex marriage cases. It all comes down to whether sexual orientation and race have the same constitutional protections and why marriage is a fundamental right. There's room for both sides in the Loving Court's opinion:

"There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. 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.


"These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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,' fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). 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 discriminations. 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." (Footnotes omitted.)

So which citation does the Judge in California pick?. Are race and sex on equal footing under the Constitution? Not so far; and, given the make up of the Supreme Court, I don't see them extending the Loving Court's equal protection analysis. I don't see a District Court doing that on his own. But, he could cherry pick their due process cases to find that marriage, be it heterosexual or gay, is a "vital personal right…essential to the orderly pursuit of happiness by free men," not tied to its connection to procreation, "fundamental to our very existence and survival" so as to conclude that "the freedom to marry, or not marry, a person of [either sex] resides with the individual, and cannot be infringed by the State."

I've seen a lot worse reasoning by courts.

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