Too Gay to say “I Do”

About right now, the Supreme Court starts two days of hearings addressing what will be the biggest civil rights case of our generation.  Today the Court will hear arguments both for and against California’s Proposition 8 (tomorrow it hears arguments on the separate, but related Defense of Marriage Act).  The questions and outcomes of the Proposition 8 case are more complicated, and the Court’s answers will have drastically big differences on gay marriage and civil rights.  Here are the basic questions, and how the Court’s answers would affect civil rights.

1.  Does Proposition 8 (and thus the California Constitution) violate the 4th & 15th Amendments of the US Constitution?  In 2008, the California Supreme Court ruled that gay marriage is a protected, civil right in the United States, and therefore California had to allow gays and lesbians to marry.  In response, activists put Proposition 8 on the ballot that rewrote California’s Constitution to read “only marriage between a man and a woman” is valid and legal, hoping that by having the state define marriage as something only heterosexual couples can do, then California is technically not denying civil rights to gays and lesbians.  US District Chief Judge Walker then declared that this language denied gays and lesbians ‘due process’ to pursuing their civil rights.  In short, it said that states cannot define marriage in such a way as to deny any group of people the right to pursue their civil rights, or what is known as the ‘due process’ clauses of the US Constitution.  If the Supreme Court decides that Prop 8 did violate due process, then it will prevent any state from writing laws denying gays and lesbian the right to marriage, since doing so violates a basic tenet of the US Constitution.

2. Did the passage of Proposition 8 violate the 14th Amendment of the US Constitution?  After Chief Judge Walker’s ruling that Prop 8 violated ‘due process,’ proponents of Prop 8 appealed.  The case was heard by a panel of 3 judges at the US Court of Appeals.  The Court of Appeals declared that Prop 8 violated civil rights, but for a different reason: Once the California Supreme Court declared gay marriage legal, the passage of Prop 8 denied gays and lesbian ‘equal protection’ of the law, which violates the 14th Amendment’s equal protection clause.  Since the California Supreme Court had already interpreted the laws as protecting gay marriage, then it could not undue that protection by changing its constitution. In other words, the Appeals court believed that Prop 8 was an attempt to target gays and lesbians, restricting their rights as US citizens by altering the state Constitution, and denying them equal protection of the law of marriage.  If the Supreme Court decides that the passage of Prop 8 violated equal protection, then it will essentially declares that once a state’s legal body protects gay marriage, you cannot undue that protection. This essentially would require California to continue marrying gays and lesbians, as it did in 2008.

3. Do the proponents of Proposition 8 have “the right of standing” to appeal to the Supreme Court?  Technically, Walker decided that the newly amended California Constitution was violating due process, and since the State is responsible for the Constitution, it was the State that broke the law.  This means the State could either accept the ruling, or appeal.  California chose not to appeal, meaning the State Attorney General Brown & Governor Schwarzenegger decided not to pursue the issue.  First the backers of Prop 8 tried to sue Brown & Schwazenegger to appeal the decision, but the case was dismissed.  Then a backer of Prop 8, Dennis Hollingsworth, requested the right for individuals to appeal, since Prop 8 was a ballot initiative created by California residents.  A Federal Judge agreed with Hollingsworth, and required the US Court of Appeals to hear the case, which subsequently ruled that Prop 8 violated equal protection.  The Supreme Court may decide to dismiss the case for several reasons. One is, that the case has no standing since the Appeals Court upheld the original decision. The Supreme Court might claim that individual states are working on the issue (as evidence by the latest spat of states legalizing gay marriage), and that it is not required for the Supreme Court to interfere since it is not a ‘federal’ issue.  The Supreme court may also dismiss stating that the state of California should be the one appealing to the Supreme Court, and not Hollingsworth.  All of these reasons are tantamount to saying that the Supreme Court has no jurisdiction in the case, and not provide an opinion.

Pundits and newspapers believe that Chief Justice Roberts might be inclined to dismiss the case, based upon the lack of standing.  Although I do believe that Justice Roberts is inclined to believe that individual states are (and should be responsible) for working out the issue of gay marriage, I do not think he will dismiss.  Gay marriage has captured the national attention, and will eventually become a federal issue, so the Supreme Court will eventually need to address it.  Might as well do it now, instead of later.

Others legal experts believe that the Court will not address the due process question, and give the outcome of Roe V Wade from 1973 as an explanation.  In Roe v Wade, the Court powerfully decided abortion was legal, even though many states and the general population were heavily divided on the issue.  Many law scholars believe this heavy-handed approach prevented states from making their own decisions, and thus fuels the continuing controversy of abortion rights today.  If the Supreme Court Justices want to avoid doing the same thing with gay marriage, they will defer the question of due process, and instead focus on the question of equal protection and the 14th Amendment.

I believe that the Court will not dismiss the case, and focus on the question of equal protection.  This will put the spot light on Justice Kennedy who will most likely be the swing vote.  Kennedy is interested in interpreting and answering the question from the Appeals court, since he has authored other papers on equal protection for gays and lesbians before.