The 14th Amendment Solution
I have had a little back and forth with another blogger on another blog about utilizing the 14th amendment of the U.S. Constitution to fight anti-gay marriage laws. I want to open the discussion on my blog to broaden its scope because it is obviously not a clear cut issue. We both support equality of marriage among hetero and homosexuals, so the discussion is not whether or not gay marriage should or should not be legal. It is more about using the tools available to fight it in the courts, where the battle belongs, in my opinion.
The discussion is below (courtesy www.thedailydalia.wordpress.com) and lets open it further:
Me:
After reading this posting, I wanted to read a bit more about the Loving v. Virginia case because to me it sounds like the key to overturning discriminatory gay marriage laws using precedent set by this case. It seems that in good time, this case may be the one to give equal rights to all. Virginia commented on the anniversary of the court case:
“Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry.
I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”
Justin: The reason why loving v Virginia cannot be used for gay marriage is because it was fought using the arguments of due process and equal protections under the 14th Amendment and the 14th does not cover sexual orientation.
Me:
The 14th amendment does not actually specify what it can and cant be used for or against. The Equal Protection Clause of this amendment is left open and has been used in various civil rights fights.
It states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.
The language is flexible enough that one can argue that the 14th amendment does in fact nullify anti-gay marriage laws because these laws could be construed as depriving a group of people in committed relationships of equal protection under the law.
The marital communications privelege is one protection marriage law provides (though many states include this protection in civil union). This privelege allows communications between a married couple to be kept confidential by both members. Therefore, my communication with my partner does not necessarily receive the same protection as my heterosexual and married counterparts.
The idea that civil unions or domestic partnership laws may include this right does not nullify the idea that the 14th amendment applies. It only brings further argument that separate, but equal is never equal. Brown v Board successfully removed separate, but equal as a solution to segregation. A main argument of this case was the 14th amendment.
Therefore, I still believe the 14th amendment to be applicable in fighting marriage discrimation laws.
(Photo provided by The Ryan Thomas Collection. All rights reserved.)
(To Continue the Discussion)
One thing that is ironic about the 14th Amendment is that equal protections do include all marginalized groups but not equally. When a 14th Amendment case comes to the Supreme Court (either a state a or national court) they use a scrutiny test and it is actually quite interesting how these tests work. The three levels from most strict to most lenient are Strict Scrutiny, Intermediate Scrutiny, and Rational Basis Scrutiny. The court looks at different groups legal claims with different levels of scrutiny and they always use that same level (they can choose to use any level they want but they just always use the same one). Now how the levels are used by the US Supreme Court is as follows:
Strict Scrutiny: Suspect classes (race or national origin), and religion (for federal laws)
Intermediate Scrutiny: Gender, Sexual Orientation and Religion (for states laws)
Rational Basis Scrutiny: Everyone Else
Now the point on a scrutiny test is to look into why a law was passed and judge whether the reason is good enough to deny someone his/her rights. The best example of this I can find is Oregon v Smith. Basically, Oregon passed a law that banned smoking peyote and some native Americans lost their job because they smoked peyote as a religious exercise. The Supreme Court found in favor of Oregon 5 to 4 by using Intermediate Scrutiny, the decision written by my favorite justice, Justice Scalia (sarcasm), said Oregon’s limitation of a religious exercise was justified because peyote is dangerous and no one should smoke and the law applied equally to everyone. Now, because Scalia used Intermediate Scrutiny, every religious case since has been given the same level of scrutiny. The dissent favored Smith and used Strict Scrutiny saying an exception could have easily been given for peyote use in religious practices, but since it was a minority it does not really matter.
Now, to get back to the crux the matter, sexual orientation is given intermediate scrutiny and were specifically denied suspect class which means in the foreseeable future it will never be given Strict Scrutiny. This means, even if the state has a somewhat legitimate purpose for making gay marriage illegal it will pass Intermediate Scrutiny.
But for one last glimmer of hope, because I do support gay marriage (believe it or not), when the Massachusetts Supreme Court heard Goodridge v Department of Health they used rational basis scrutiny and of course legalized gay marriage. The purpose of doing so was they were saying “look, this law banning gay marriage is so discriminatory that it cant even pass the lowest test!” Thus, their clever use of scrutiny cemented gay marriage forever in at least one state.
The chances of that happening in the US though are very slim thus, for now, the only way for gay marriage to win is through law not the courts especially with Roberts leading the way for the next 40 years who will never grant sexual orientation as a suspect class.
I learned a lot in that post. Thanks Justin! Well done! Though I wish the Court did things differently, it is a bit understandable.
Ironically, I was reading today that in California, the state Surpreme Court is deciding on gay marriage in California.
And guess what I also read in the article:
“The crux of The City’s argument, which is supported by the National Center for Lesbian Rights and other advocacy organizations, is that the state’s 2000 voter-approved ban on gay marriage, Proposition 22, denies equal protection under law.
State attorneys defending California’s laws have argued in court that marriage should be limited to opposite-sex couples and that gay couples are offered similar rights under the state’s domestic-partnership laws, passed in 2005.”
(source: http://www.examiner.com/a-1392370~Day_of_reckoning_arrives_for_same_sex_marriages.html?cid=rss-San_Francisco)
On a federal level they may not be able to use equal protection clause, but it looks like at a state level today, it will be equal protection AND separate, but equal arguments on the table.
I guess it works in CA, sweet! West coast is the best coast!
(Photo provided by The Ryan Thomas Collection. All rights reserved.) That’s my favorite part of the post!!!
The trouble remains that activist judges exist. And these judges do not actually take into account the law. I look at the definition of marriage like the following:
If I go to a Texas courthouse with a man named Steve Perry and apply for a marriage license, I will be rejected, however if my sister the very next day goes with Steve Perry to the same court house to apply for a marriage license, it will be accepted. And thus, it isn’t discrimination based on sexual orientation, but gender (sex). Gender is clearly covered by the 14th
Also, I think the supreme court has ruled marriage as part of the 1st amendment.
And thirdly, there is something very strange with laws that do only to define a term, and at that define it to restrict citizens from it.
If I may: Nathan says, “And thirdly, there is something very strange with laws that do only to define a term, and at that define it to restrict citizens from it.”
I’m still trying to make some kind of sense of this statement. However, for the sake of time and good form I have a question:
I’ve been researching this idea of “sexual orientation” since the terms became ostensibly ‘truth’ as a matter of science vis-a-vie biology, anatomy, physiology, including mental physiological processes and although some rather irresponsible literature try to validate ’sexual orientation’ as something other than traditional heterosexual activity, there remains no basis anywhere for one to claim some ‘orientation.’
And seriously folks, between all of the political action committees, special interest groups, and advocacy organizations out there it seems that the only real discrimination going on is against those who choose to live a regular, ordinary life.
It is interesting however that one would look to ‘validate’ a particular action. Hmm…