If you asked me 2 months ago whether or not the Supreme Court should strike down gay marriage I would have hesitated and said no for a few reasons. The main reason is that "activist courts" and "pro-gay Democratic senators" piss off conservatives and it hurts us in elections. As a heterosexual I would sacrifice gay rights for health care and sane policies in the Middle East. That was until I discovered that gay marriage rights are soundly rooted in the Counstitution; in fact, more soundly rooted than the status quo.
I have condensced the argumentation below in hopes that I can contribute something to the community other than trying to be the first to put up a hyperlink to a breaking story. Hopefully you all will find this insightful and may help you educate or win arguments with your friends, colleagues, and family.
Outline:
1. 1st Amendment
2. 14th Amendment
a. Due Process Clause
b. Equal Protection Clause
Note 1: This diary turned out to be somewhat long. I have it broken into three sections: 1st Amendment, Due Process Clause, and Equal Protection Clause. In my opinion, the Constitutional Right to gay marriage is rooted in the third section, the Equal Protection Clause. So if you are only in the mood for skimming, just go down to the bottom of the diary and read that. If you are looking for a thoughtful analysis of many Constitional issues regarding gay marriage read the whole thing. :P
Note 2: I used blockquote to organize the argument more so it's not just a hunk of text. It is easier to read. I am only adding this disclaimer so you all know that unless the text says otherwise, the blockquotes are original work.
Well the argument in favor of gay-rights pretty much boils down to the 14th Amendment. Before I get to that though, I'll pay some lip service to the another part that some might say favor gay marriage.
1st Amendment:
The 1st Amendment says that
Congress shall make no law respecting an establishment of religion, or prohibiting the free excercise thereof.
Some have construed that gay marriage prohibition "respect an establishment of religion" because anti-homosexuality is predominately rooted in the bible.
The main [secular] anti gay-marriage argument is that gay marriage will harm the traditional family structure (and thus the socialization of children) and discourage procreation. To determine if an establishment of religion exists we can look to the Lemon Test. The Lemon Test was created in Lemon v. Kurtzman. It has two components (originally had three but that has changed) and they are: Does the law have (1) a secular purpose and (2) a primary secular effect that neither advances nor inhibits religion.
Under the first part of the test the anti gay-marriage advocates argue that preserving families and encouraging procreation are the primary secular purpose. The primary effect of gay marriage bans is that gay people can not enter a legal contract known as marriage or enjoy the benefits thereof. I tend to agree with this reasoning. With the religious element out of the equation though there is only the "pro family" argument that the law has to rest on for justification. This will be important when we look at the next part of the Constitution...
Welcome to 14th Amendment:
The 14th Amendment was created in the aftermath of the Civil War to ensure the liberty and equality of black slaves. In fact most of the amendment deals with how to deal with the ex-rebels, claims by the South of monetary compensation for lost propoerty and also gives the right to vote to ALL 21 year old men. Anyway, I digress. Here's what the (important) part of the amendment says:
[No State] shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
This important part of the amendment is broken down into two parts: the Due Process Clause and the the Equal Protection Clause.
Due Process Clause
The government cannot take away liberty without Due Process. This applies to both federal and state governments. So what is Due Process? There are two mainstream standards used by our courts to give all liberty-breeches "Due Process." They are ordinary scrutiny and strict scrutiny.
Test 1: Ordinary Scrutiny Does the government have a legitimate interest to pass the law and are the means rationally related to meet that interest? This test is easy for the government to beat. The burden is on the complaintant to prove that the government has no reasonable interest. Almost any law can pass ordinary scrutiny... marijuana prohibition, speed limits and disorderly conduct laws are just a few examples that would withstand merely ordinary scrutiny. There are no Constitutional rights protecting our right to smoke pot so it is reasonable to use ordinary scrutiny in that case. But what if the government is passing a law that violates a fundamental right, like free speech?
Test 2: Strict Scrutiny Does the government have a compelling interest to pass the law and are the means neccessary to acheive the interest? With strict scrutiny, the burden is on the government to prove that theres a "compelling" reason to pass the law and to prove that the law absolutely is tailored to the compelling interest with no more restrictions than needed. The government usually loses when its laws are put up to strict scrutiny.
In regards to Due Process, this is used only for "fundamental rights" which includes essentially most of the Bill of Rights. But it also includes a "right to privacy" which is not expressly granted in the Constitution but was derived by some Supreme Court justices (see Griswold v. Connecticut) who thought the Constitution gave a right to privacy based on a "penumbra" of other constitutional rights (no search and seizure, right to free speech, right to excercise religion, etc.).
The right to privacy has been used since its mid-20th mostly to protect sexual and relationship decisions. It gave parents the right to home school their kids, the right for married (and later single) couples to use birth control, and most famously it was the foundation for Roe v. Wade.
So how does this tie into gay marriage? Well a couple of years ago the Supreme Court overturned sodomy laws (in Lawrence v. Texas) based on this right to privacy. Justice Kennedy, delivering the majority opinion, said:
The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.
I must make clear however that the court avoided using any language which would imply a right to same-sex marriage in Lawrence v. Texas. Regardless, if we have a fundamental right to make private choices in a marriage (for example, birth control), and a fundamental right to engage in same-gender sex, then do we have the right to enter marriage with someone of the same gender under our fundamental right to privacy?
Lawrence v. Texas was decided on a 6-3 decision with Justice Kennedy delivering the majority opinion. If the same case were held today, Alito would bring O'Connor's vote into a 5-4 decision upholding the same principles. Justice Kennedy has a reputation for upholding precedent and there are 4 other liberal judges right now. It's very possible that the current Supreme Court could rule gay marriage as a constitutional right.
On the other side of the Due Process (right to privacy) debate, I should also point out that the right to privacy is very controversial, even among liberals who pay close attention to the workings of the Supreme Court. Someone may strongly believe that a "right to privacy" is a great idea but that Congress, not the SCOTUS, should be the ones to give us that right. Remember that "over reaching" is a two way street and just imagine how mad we'd be a if a right-wing court established a fundamental "right to property" and said that anything about a 30% tax rate was a fundamental violation of our right to property. In this sense, perhaps the court should eliminate the right to privacy or refrain from expanding that right.
If we accept that gay marriage is not part of a fundamental right to privacy then anti gay-marriage reasoning undergoes the Ordinary Scrutiny Test and gay-marriage bans are upheld. If we believe that there is a fundamental right to privacy AND gay marriage is protected under that right to privacy then gay-marriage bans must undergo Strict Scrutiny and will most likely be ruled unconstitutional. It all hinges on whether gay marriage is a part of the right to privacy or not.
(note: I did not apply anti gay-marriage reasoning to ordinary and strict scrutiny under this part of the diary but I did apply it at the bottom of the diary because I think that the Equal Protection argument is more convincing than the Privacy/Due Process argument.)
So... right to choose the gender to marry based on the right to privacy or not? You decide.
I think the Equal Protection clause is the convincing reason that a right to gay marriage exists. You may want to go refill your cup of coffee quick. You think it's long reading this? Well, it takes longer for me to write it :)
Okay, I got my coffee. Let's rumble.
Equal Protection Clause
Everybody has a right to equal protection under the laws. "But wait!" One might ask, "if everybody has equal protection then why can an 18 year old vote but a 5 year old can't?" The reason why the government can discriminate sometimes but can't discriminate other times goes back to our old friends Ordinary Scrutiny and Strict Scrutiny. The tests remain the same as above but I'll copy and paste them down here and explain how they, and their new friend Heightened Scrutiny, apply to the Equal Protection clause and then we will see how gay marriage fits into all of this.
Test 1: Ordinary Scrutiny Does the government have a legitimate interest to pass the law and are the means rationally related to meet that interest? As stated before, the complaintant must prove the government's discrimination is unreasonable and the government usually wins. People with poor eyesite can't drive cars without restrictions and children cannot vote. These are examples of standard, justified discrimination that merely must pass ordinary scrutiny.
Test 2: Strict Scrutiny Does the government have a compelling interest to pass the law and are the means neccessary to acheive the interest? As stated before, the government must prove its discrimination is for a compelling purpose and the government usually loses anyway. This is applied whenever the category of individuals discriminated against are part of a "suspect class" (see below). Race is the main example of a suspect class. Any law that discriminates against blacks must withstand strict scrutiny.
Test 3: Heightened Scrutiny Does the government have an importantinterest to pass the law and are the means substantially relatedto acheive the interest? This is an in-between test that was created for gender-based discrimination (man versus woman discrimination). The justification was that women weren't as suspect of a class as blacks were but were definately subject to unfair discrimination. The benefit of this classification is that it reflects reality more: not everybody is at an extreme; some are in the middle and this test allows us to accurately scrutinize those that are in the middle.
(Cool New Term) Suspect Class. So how do we determine if someone is part of a suspect class? There are 3 main criteria. I will describe each criteria and apply homosexuality to it.
Does the Class (group) of people discriminated against have a(n):
1. Immutable condition. Race and gender are both immutable conditions-- you're virtually stuck with them. Age is not. Is homosexuality immutable? Well don't ask me, check out this FAQfrom our friends at the American Psychological Association. Here they say that
human beings can not choose to be either gay or straight... psychologists do not consider sexual orientation to be a conscious choice that can be voluntarily changed.
Seems convincing to me.
2. History of repressive legislation. Well members of minority races certainly have a history or repressive legislation (slavery and Jim Crow). Females were denied the right to vote for way too long but were better off than blacks were at any rate. There is definately been repressive legislation in regards to gays. A while ago Colorado passed Amendment 2 which was struck down by the Supreme Court because it eliminated all same-sex benefits offered by any local governments. We have 'Don't Ask, Don't Tell' in the military. Laws banning sodomy. There are plenty of examples of repressive laws.
3. Discrete and insular condition. How bright is the line seperating members of one Class from everybody else? Race has an obvious line (physical characteristics, most notably skin tone). Genitals are a rather insular difference between men and women. Homosexuality is harder to pin down. Bisexuals complicate matters quite a bit, but so might mixed ethnicities, hermaphrodites, and transgendered peoples. You also can't tell someone is gay just by looking at them or talking to them. Again, a man might look like a woman. Who knows. I personally don't like this criteria very much.
All of these factors are considered when deciding whether to label a certain class of individuals a "suspect class." This is all qualitative, so everyone might have different ideas about how immutable homosexuality is, or how repressive legislation has been against them.
Current precedent calls for merely ordinary scrutiny when deciding if laws that discriminate against homosexuals violate equal protection guarantees. Let me repeat that, because this is ridiculous. Current precedent calls for merely ordinary scrutiny when deciding if laws that discriminate against homosexuals violate equal protection guarantees.
So basically, the courts are saying that gays aren't significantly oppressed or unfairly discriminated against. They say that homosexuality is not immutable; it is indeed mutable. It's just a choice anyway, despite what the "scientists" have to say. This is outrageous and ridiculous. The courts are simply wrong.
I see no other choice except to use Strict Scrutiny to evaluate any governmental discrimination against gays. So how does the anti gay marriage hold up under Strict Scrutiny?
Refresh yourselves on the strict scrutiny test up above if you need to really quick, because we need to apply them to gay marriage. The only real secular argument that anti gay marriage advocates can claim is that promoting heterosexuality is good for families. Specifically, children are harmed by having homosexual prents and homosexuals can't procreate for society.
Application of Test 2: Strict Scrutiny Does the government have a compelling interest to pass the law and are the means neccessary to acheive the interest?
Compelling Interest? Personally, I accept (and almost any court) would accept that preventing harmful situations for our children and promoting procreation are probably compelling objectives for the state. After all, the well being of our children affects the health of our soceity once they become adults. In order for it to be a compelling objective though, this really has to be about the difference between healthy children and either socially harmful children or no children at all. Are gay marriage bans neccessarily tailored to this end?
Neccessary means? No. Gay marriage bans ARE NOT closely designed to accomplish the compelling objective of keeping our society's social fabric from deteriorating. According to the APA, children who grow up in homosexual households are JUST AS HEALTHY in regards to "intelligence, psychological adjustment, social adjustment, and popularity with friends." Here's a whopping surprise from the APA about gay men too:
Another myth about homosexuality is the mistaken belief that gay men have more of a tendency than heterosexual men to sexually molest children. There is no evidence to suggest that homosexuals are more likely than heterosexuals to molest children.
Gay marriage bans also have NO negative impact on procreation. Homosexuality is IMMUTABLE, so whether they are married or not they will procreate at the same rate. Marriage might actually encourage homosexual couples to adopt or bring a child into the relationship through a friend of the opposite sex. The reason marriage might have a positive impact on this is because there will be legal encouragements (inheritance, health care, etc.) to do so.
Remember here too that under strict scrutiny, the burden is on the government to prove that it's case is compelling and the means are neccessary to acheive the compelling interest. They simply cannot prove that legally sanctioned homosexual families are detrimental to society or (even if they were) that banning gay marriage will solve for the "problem" because that evidence does not exist.
Some people may argue we should use the heightened scrutiny test for gay marriage instead of strict scrutiny. Heightened scrutiny is the same test we use for gender discrimination. I think it is reasonable. I also think that gay marriage bans would be struck down under this test as well because the facts simply don't match the rhetoric.
In a nutshell: The Equal Protection Clause was added to our Constitution in the wake of the Civil War to make sure that equality was a Constitutional mandate. Homosexuality is more akin to "race" than "age" in terms of immutability and discrimination. Homosexuality is a suspect class. All legislation discriminating against gays should be subject to the Strict Scrutiny test. Since gay-marriage bans fail that test, gay-marriage bans are unconstitional and should be over ruled by the Supreme Court.
Thanks for reading. It was kind of long but it's a very important subject. I threw in some italicized and bold print to keep it pretty. :) Now remember that the strongest part of the argument hinges on whether homosexuals are a suspect class or not. I think it is easy to argue that they are a suspect class, and that's really the major flaw in (most) thinking in the courts these days. Go to your friends, families, and colleagues armed with this knowledge and upstage them with fancy legalese like: 14th Amendment, Equal Protection Clause, Strict Scrutiny Test, and Suspect Class. ;)