Equal protection will rule

By: Hank Kalet
California voters cannot enshrine discrimination in their state’s constitution.
That, in a nutshell, is what federal Judge Vaughn Walker ruled last week by tossing out an amendment to the California state constitution that made it impossible for gays and lesbians to marry there.
Chief Judge Walker, of the Northern District of California, pulled no punches in his ruling in Perry v. Schwarzenegger last week, saying that defining marriage as the union of one man and one woman violated the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution.
"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," he wrote. "Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."
The ruling applies only to California, but it echoes the rationale behind a separate federal court ruling in Massachusetts that found that the federal Defense of Marriage Act discriminated against legally married same-sex couples in the Bay State because of their sexual orientation – a violation of the same constitutional principles cited by Judge Walker. The series of court decisions – the two in California, including last week’s, the 2006 New Jersey ruling, the Massachusetts, Iowa and Connecticut rulings – all turn on one basic notion: that government has no legitimate or pressing reason to discriminate against committed same-sex couples.
Opponents of same-sex marriage responded with a classic misdirection, blaming judicial activism and a judge they say is gay, while failing to address the central tenet of Judge Walker’s ruling and the evidence he marshaled for support. The National Organization for Marriage, for instance, argued that there is no right to same-sex marriage because, well, there is no right to same-sex marriage, and the trial was biased, by the way.
"The ‘trial’ in San Francisco in the Perry v. Schwarzenegger case is a unique, and disturbing, episode in American jurisprudence," NOM Chairman of the Board Maggie Gallagher said on the organization’s website. "Here we have an openly gay (according to the San Francisco Chronicle) federal judge substituting his views for those of the American people and of our Founding Fathers who I promise you would be shocked by courts that imagine they have the right to put gay marriage in our Constitution."
The organization believes judges should keep their nose out of the discussion, that decisions like this should be left to popular votes or electorally accountable state legislatures. It is the same language used in the mid-1960s to defend anti-miscegenation laws – which prohibited interracial marriage – before the Supreme Court ruled in Loving v. Virginia that laws banning interracial marriage violated the 14th Amendment’s equal protection clause.
When the court ruled in Loving v. Virginia, 40 states had laws banning interracial marriage and poll results a year after the ruling showed that three-quarters of Americans supported the interracial-marriage ban.
Had we put the issue of interracial marriage on the ballot in 1967, it seems pretty clear that the ban would have stood, just as marriage-equality has failed to win at the ballot box during the last decade. What is not clear is how long the ban would have remained in force.
As Marriage Equality USA, which advocates on behalf of same-sex marriage, points out on its website:
"Civil rights victories have not traditionally been extended by ‘votes of the people,’" but rather through the courts because fundamental constitutional rights should not be subject to the "prejudice of the day."
I’m hopeful that the California and Massachusetts rulings will lead eventually to full equality for gays and lesbians in the United States.
Hank Kalet is managing editor of the South Brunswick Post. E-mail, [email protected]www.kaletblog.comfacebook.com/hank.kalet.