Earlier this week, Lambda Legal and the ACLU of Illinois filed separate lawsuits challenging the constitutionality of the Illinois law that denies gay men and women the right to marry. There is little doubt among constitutional experts that the challenged law is unconstitutional. The central question is whether our Illinois judges will have the courage to say so.
More than most Americans today realize, throughout much of our history gay men and women have been branded as criminals, sexual psychopaths and perverts. They have been imprisoned, beaten, sterilized, ostracized, castrated, psychoanalyzed and publicly humiliated. They have been compelled to hide an essential facet of their nature, to deny who they are and to pretend to be what they are not. They have been shadowed by fear, fired from jobs, shunned by family members and friends and forced to live lives of shame. The history of our nation's treatment of gay men and women is a national tragedy.
Over the past forty years, however, we have made remarkable progress. As gays and lesbians have tentatively but courageously revealed themselves to friends and family, the views of most Americans have gradually changed. Most Americans have come to realize that gay men and women are not creepy degenerates, but people "just like us." We have discovered, often to our surprise, that they are our sons and daughters, our brothers and sisters, our neighbors and friends. With that knowledge has come greater tolerance and understanding. For most Americans, it has been an extraordinary journey of enlightened thinking and moral progress.
But we still have a way to go. The most important remaining remnant of an era now largely behind us is the continuing denial to gay men and women of the freedom to marry. This is not a mere technicality, as some would have us believe, but a grievous insult to the dignity of good and decent people and to the inherent worth of their loving commitments to one another. Indeed, from a moral and legal perspective, the refusal to recognize gay and lesbian marriage today is no more defensible than the refusal to recognize interracial marriage fifty years ago.
In an editorial on May 14, the Chicago Tribune applauded both the shift in American public opinion on this issue and President Obama's public declaration that he supports same-sex marriage. The Tribune went even further and endorsed legislation in Illinois that would recognize the right of gay men and women to marry. At the same time, though, the Tribune cautioned that courts should stay out of this matter and should "defer to the voters and their elected representatives." This is flat-out wrong.
Courts have a fundamental responsibility to enforce the Constitution. It is not their job to make political judgments about whether it would be good or bad policy for them to hold an unconstitutional law unconstitutional. If they conclude that a law is unconstitutional, then it is their duty to say so and to declare the law null and void. They have no legal authority to deprive individual citizens of their fundamental constitutional rights until "the voters" decide to grant those rights on their own. Such an approach is incompatible with the very idea of constitutional freedoms.
Before any state legislature voted to enact same-sex marriage, five state supreme courts (Hawaii, Massachusetts, Connecticut, California and Iowa) first had to hold the denial of marriage equality unconstitutional. As in so many areas of individual liberty, it took courts to lead the way. Without the constitutional foundation and legal momentum generated by those judicial decisions, it is doubtful that any state legislature would have had the courage to take on this issue. It is the very independence of courts from the electoral process that gives them the authority and responsibility to protect rights otherwise denied by "the voters."
To wait on the outcome of the electoral process to protect the constitutional rights of a group that has for so long been demonized in our society would be especially problematic. Although opinion polls show that a majority of Americans now support same-sex marriage, that is no guarantee that reform will come through the electoral process. As we have seen repeatedly in state-wide referenda on this issue, single-issue, single-minded voters, well-funded by religious organizations and driven by religious fervor, can effectively block the will of the majority. In our constitutional system, this is precisely when courts must intervene.
This situation is not dissimilar to that facing the United States Supreme Court in 1967 when it held in Loving v. Virginia that marriage is a fundamental right and that state anti-miscegenation laws prohibiting marriage across the color line violate the constitutional guarantee of "equal protection of the laws." The justices unanimously understood that they could not legitimately "defer to the voters" and hold off reaching the correct constitutional decision while the nation waited for those who feared and despised interracial marriage to catch up with the Constitution. The same is true here and now.
In addressing the fundamental constitutional issues posed by these lawsuits, our Illinois judges -- like the judges in Hawaii, Massachusetts, Connecticut, Iowa and California -- must not "defer" to the vagaries of the political process. If they conclude that it is unconstitutional for the state of Illinois to deny its gay and lesbian citizens the freedom to marry, then it is their constitutional responsibility to so rule. I predict that they will. It will be a proud day for Illinois.
This appeared in the Chicago Tribune on May 31, 2012.
Paul Brandeis Raushenbush: Would King Have Evolved on Gay Rights?
More specifically: Does the Constitution allow the government to deny benefits to one married couple while it grants benefits to a different married couple?
"In the end, the aggressive campaign to misuse the judicial retention vote, funded by out-of-state special interests, has succeeded," Drake University Law School Dean Allan Vestal said. "The loss of these three justices is most unfortunate, and the damage to our judicial system and the merit selection of judges will take much to repair."
http://www.desmoinesregister.com/article/20101103/NEWS09/11030390/Iowans-dismiss-three-justices
I suspect other states have similar set-ups so that lofted independent judiciary in other states may be as subject to attack by idealogues and outsiders as have been the legislators. Meanwhile I am proud to live in Iowa where Gay marriage is legal.
It will be nice when EVERYONE has the same RIGHTS, once and for all.
Gay marriage must have as a prerequisite, a certain moral affirmation, that there is nothing wrong with homosexuality. From this, arguments in its favor can then proceed. But, in a morally relativistic universe, who is to say what is universally moral or not?
That being the case, can anyone please tell us what relationships, then, are not morally equivalent to others. If marriage should now be based on a relationship's moral status and not its effects, and morality is relative to each person, then what relationship if any, can be denied marriage?
That is wrong with the entire same-sex marriage question: the contradictory moral foundation upon which it rests.
I'm pretty sure that the whole "I'm rubber you're glue" defense ended in grade school....
You're trying to sound intelligent, but your only real point is that if gay couples can get married, then supposedly other relationships can be solemnized in a marriage as well. That argument was demolished in the Prop 8 decision, but you're bringing it up again because you have no reasonable basis for your position.
Here's the answer to your question. Letting gay couples marry will have no effect on any other relationship. There's no "contradictory moral foundation" because equality under the law is grounded in the constitution, not in the moral beliefs of any group.
What do “moral beliefs” have to do with the moral status of a relationship? You missed that also. Listen, if you don’t understand something, just ask, instead of coming off like a fool.
Someone marrying his parakeet will have no effect on any other relationship, so let them marry also! That is the absurd implication of your argument. And then you invoke equality under the law, which returns to my original point: you mean to imply, evidently, a moral equality, which is the basis for a legal equality.
Now, go back and work it through again.
(Boy! The things I have to put up with!)
Is it a matter of religion? Well, yeah... especially in nations where Christianity is the predominant faith. Note the term, faith as opposed to the religious practice and traditional observance of the industry of religion. What I am writing about is where religion is social, faith is personal. This addresses the hypocritical factors of imperfect human characters no matter what faith and how diligently practiced.
So what does this minority hope to offer the greater community by liberalization of their prerogatives? Will redefinition of the concept of marriage lessen the biases and suspicions surrounding homosexuality? As much as it is hoped, that likelihood isn't probable. And, again we must ask why? To get started on a debate, the protagonist must not assume that they are justified simply because they are human. This argument did not work for other minorities and the circumstances are clearly different for this class of citizens. Why is this so? Simple answer is because the vast majority of the proponents are the children and entitled inheritors of the antagonist they oppose. Now, let the arguments begin with truer perspectives.
"...majority of the proponents are the children and entitled inheritors of the antagonist they oppose." By proponents I assume you mean gays, and since you refer to them as "the children and inheritors of the antagonist," I assume that by "antagonist" you mean the parents of gays. So I think what you are saying is "Ha! If your parents had been gay you wouldn't have been born." Cute, but irrelevant to the debate.
First, the law in the Loving case discriminated based on race. Classification based on race had long been a suspect classification (which subjects it to the high bar of strict scrutiny analysis) and laws based on race (e.g. the old Southern Black Codes) were the original basis for the Equal Protection Clause. In contrast, sexual orientation has never been considered a suspect classification (it is currently analyzed under rational basis like other criteria e.g. age) and there is no justification in the text or history of the Constitution to change that.
Second, although Loving declared marriage a fundamental right it didn’t need to do so. There was clear evidence that the law was passed to harm blacks by maintaining “white supremacy”. In other words, a racially discriminatory purpose is always sufficient to subject a law to strict scrutiny even if it’s facially neutral.
However, the Court did go farther and declare that heterosexual marriage was a fundamental right. The term “fundamental right” is a term of art in law. It means a practice that is deeply rooted in the Nation’s history and tradition (the Court’s words). But it would be nonsensical to conclude [heterosexual] marriage is a fundamental right- because its deeply rooted in our nation’s history/traditions- and then try to bootstrap gay marriage into the term marriage since up until recently gay marriage was nonexistent in our Nation’s history.
#2: Anti-gay marriage laws and constitutional bans aren't meant to be harmful and discriminatory towards gays?
#3: The Court affirmed that "marriage" is a fundamental right. The word "heterosexual" did not appear in the majority opinion.
This section of DOMA wasn't an "anti-gay" law. Any state that wanted to pass a gay marriage bill was still free to do so. Section 3 just defines marriage for federal law.
True. in the Loving case (the one defining marriage as a fundamental right) they never mentioned the term heterosexual marriage. However, the term fundamental right is a term of art in law. It means a right deeply rooted in our nation's history and traditions (the Court's words). It would be rediculous to conclude that gay marriage should be included in this definition since for most of our history it didn't exist i.e. gay marriage is not deeply rooted in our nation's history and traditions and thus doesn't qualify as a fundamental right.
What they CAN do is attempt to ban certain KINDS of marriage IF they can show an overriding need to do so. Since they cannot do so in the case of gay marriage (all arguments boil down to either being disgusted at the thought of homosexual sex or religious reasons....) the states CANNOT ban same-sex marriage!
And, by God, they will do so.
If such a classification should favor heterosexuals and not homosexuals, then that’s just too bad. Classifying does this all of the time. There is no obligation on the state that a law has to be convenient to every classification of persons. In fact, laws are mostly designed to inconvenience certain classifications of persons. Laws against robbery is very inconvenient to thieves; laws against smoking are inconvenient to smokers; laws against driving while drunk are inconvenient to drunks, etc.
So, the law doesn’t do what you say. It’s fair the way it is.
But seriously, the constitution is not a list of our rights, but a list of things the government may not do...a non-inclusive list at that. Marriage is a fundamental right, not because of some reference in the Constitution but because the SCOTUS said it was.
Of more importance however, is that the 14th amendment requires that the government treat everyone the same. If the government chooses to subsidize a legal contract, then it can't arbitrarily decide that one group of people don't get to participate. It's even more black and white in situations where one state allows gay people to get married and the federal government decides that those married people aren't eligible for the same benefits and recognition at the federal level as married straight people from that state.
There is no redefinition beyond the decision by the federal government to treat one group of married people differently from another group of married people.
So, the definition of marriage among states, these being different definitions, complicates things. Which definition should the federal government abide by? It has apparently established its own, which happens to be consistent with the overwhelming majority of states and not the few contrarian outliers.
Marriage is defined as the sexual and romantic union of a man and a woman.
The entire purpose of marriage is, ultimately, to encourage a stability in society. Re-defining it will serve no purpose. Marriage is most certainly NOT a fundamental right because it requires the consent of the betrothed/spouse AND the consent of the state.
alisa
Someday your country will put on its big boy pants and accept *everyone* as a true equal. Till then, you're great at talking the talk. but walking is apparently a bit of a challenge.
- First cousins
- Brother & sister
- Brother & brother
- Brother & 2 sisters
- Multiple husbands marrying multiple wives
Before anyone hysterically screams "homophobe!" please calmly and rationally give me a counter-argument. Save the name-calling for another post.
Taken to whatever reasonable or ridiculous degree someone will take this - and you know someone will always push the envelope - where does it end? When does the government say no? When should society say no?
At this point ... a L-O-T of working people (very likely a majority of voters), union members, lifelong moderate Democrats and Democratic-leaning Independents no longer have any effective representation in the American political system ... and the GOP is likely to run away with the presidency, both houses of Congress, and a majority of of governorships and mayoralties. The Democratic Party of The Great American Century will have faded into history.
Now that the two are separated, does anybody really care anymore?
Censorship is evil.
Sort of like the old parental threat: "Stop your fussing or I will really give you something to cry about"