In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: same-sex couples and marriage.
The statements at issue:
"There's no reason that people ought to be deprived of their constitutional rights now that those rights have been affirmed by the Court of Appeals."-- David Boies, one of the attorneys for two California same-sex couples, during the PBS NewsHour broadcast, Feb. 7, commenting on the decision that day of the Ninth U.S. Circuit Court of Appeals striking down the Proposition 8 ban on gay marriage.
"The court has rendered a powerful affirmation of the right of same-sex couples to marry."-- California Gov. Edmund G. Brown Jr., in a statement issued by his office, Feb. 7, referring to the Ninth Circuit Court's ruling.
The language of rights, and especially of constitutional rights, is sometimes not used with precision. More can be claimed by a simple suggestion that rights exist than is, in fact, true. One could say that Attorney Boies and Governor Brown were right in their comments about the Ninth Circuit Court's decision on Tuesday in the case of Perry v. Brown. But only up to a point, and only if some added facts are taken into account.
If they were referring to rights under the California state constitution, they may prove to be correct. The Circuit Court's decision will have the effect (if it holds up after an appeal) of re-instituting a California Supreme Court decision in 2008, titled In re Marriage Cases. In that ruling, the state court declared that there is a fundamental right to marry under the California constitution, and it cannot be denied to same-sex couples.
That decision, of course, was overturned in November 2008 when the state's voters approved Proposition 8, amending the state constitution to declare that "only marriage between a man and a woman is valid or recognized in California." Under the Ninth Circuit Court's new ruling, Proposition 8 was found to violate the federal Constitution, so it no longer would control, and thus the right of gays and lesbians to marry would be restored fully under that ruling, assuming that the decision stands. It is still on hold, pending appeals.
Although that decision was based upon the guarantee of legal equality, in the Fourteenth Amendment, it did not declare that same-sex couples have a fundamental right to marry under the federal Constitution. Indeed, the court explicitly avoided deciding that question. The ruling was limited to the conclusion that it is unconstitutional discrimination for a state, once it has given gay couples a right to marry, to take it away from them when that has been done solely in reaction to the sexual orientation of those couples.
The Circuit Court thus stopped well short of what, in an earlier stage of the case, U.S. District Judge Vaughn R. Walker of San Francisco had decided. He ruled that same-sex couples do have "a fundamental right to marry," under the Fourteenth Amendment's Due Process Clause, and that California could not take away that right based on a couple's sexual identity.
Since the Circuit Court did not embrace that part of the ruling, it essentially has lost its status as a binding precedent for this case.
It is true that there is, indeed, a fundamental right to marry under the federal Constitution. The U.S. Supreme Court ruled that way as early as 1942, in the case of Skinner v. Oklahoma, declaring: "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race."
The Court ruled in 1967, in the case of Loving v. Virginia, that it violated the Fourteenth Amendment to deny that fundamental right to couples based upon the differing races of the man and woman. But the Court has never ruled explicitly, as Judge Walker did, that the right exists for couples of the same sex.
There is a dispute, and it figured in the Proposition 8 case, over the current meaning and impact of a decision the Supreme Court made in 1972, in the case of Baker v. Nelson. There, without briefing and hearing, the Supreme Court dismissed an appeal by a Minnesota gay couple. The Minnesota Supreme Court had rejected their claim that denial of a marriage license for them violated their rights under the Fourteenth Amendment. That "summary dismissal" is a binding precedent, just as a full-scale decision would be, if a later case is found to be a close or exact parallel to the Baker lawsuit.
But, in the Ninth Circuit Court ruling Tuesday, none of the three judges-including the judge who dissented on the same-sex marriage part of the ruling-found that 1972 decision to control the Proposition 8 case.
No doubt, though, the opponents of same-sex marriage will be attempting, as their case moves up in the federal court system, to continue to rely upon the Baker precedent to make their point.
Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.
Follow Lyle Denniston on Twitter: www.twitter.com/ConDailyBlog
Since the primary justification for discrimination against GLBTQ people is a religious one, which is well documented and constantly asserted by opponents of civil equality for GLBTQ people, it appears that all such laws violate the 1st amendment rights of freedom of religion for GLBTQ people, by effectively forcing them to live by a religious belief they do not believe.
These punitive, coercive laws are attempts to legislate a particular religious belief and to punish those who fail to live by them. They prohibit the free expression of 'homosexuality is not sin' - which is the religious belief held not only by many GLBTQ people of faith, but a growing body of heterosexual people of faith.
So - in your opinion, why are attorneys avoiding this argument? The evidence that imposition of religious belief is the purpose of such laws is overwhelming.
The "legitimate reason" cannot be religiously-based for the very reasons you outlined. Which is what gives me hope that either (or both) the full 9th circuit and/or the Supremes will decide in favor of liberty and justice for all.
Here's another; Anti-gay groups tout freedom of religion. Well, assume that the JC Church of God believes that marriage is available for everyone and WANTS to marry same sex couples, but the state law forbids it. Is this not an intrusion upon the free exercise of religious beliefs??? Is this any less an intrusion than a state law prohibiting mixed race marriage???? As we should have learned from our sorry past, separate is not EQUAL!!
Besides, the SCOTUS has twice declared that marriage is a right.
Since when is "liberty and justice for SOME" and not "all"?
Whether they have sex or not isn't a consideration. Numerous men and woman marry and live together without having sex or children,and they are still considered married. Why should two men or two women be denied the same right. Having sex isn't a consideration or a law when getting married, no one asks you to prove whether having relations. It's assumed, but not required, neither is having children. What marriage does declare is you are joining together with someone to make a family. Family member's have rights under state and federal law. Inheritance is one, so is getting health insurance, making decisions for one another, taxes, buying property and so forth. It's a basic right in America that people can join together and form families, whether they are two people or a hundred. Why would we as Nation want to prevent that. No consideration should be given to whether they are the same sex. Does this mean two sisters aren't a family, two brothers? Shame on America for sticking your nose in other peoples bedrooms.
Opposing same sex marriage is the same as opposing peoples rights to form families.
Do they have a right to get married in any church they want to? NO
Some churches may say it's OK, other's might oppose it, but the right to be recognized as married in the eyes of the state is a constitutional right...since all of us are equal.
The mormon church and the evangelicals have crossed a line in political interference...they deserve to lose their tax free status.
Personally, I think the Government should get out of the Marriage business altogether. Let them offer Civiil Unions and let people decide what marriage means. If Catholic Church wants to define it a certain way, then more power to them. If Druids want to define it another, then more power to them. If Mormons want to practice poligamy, then go for it (although the Civil Union would be limited to 2 people).
This is America. Let people be free to do what they want as long as they aren't infringing on anybody else's rights.
This is the very job of government, and they're not about to get out of that "business". It simply is not possible.
I also disagree with your proposed 'solution'. "Civil" unions do NOT bestow what marriage bestows. In some of the 30-odd States that changed their Constitutions specifically worded the changes to ensure the effects that flow from marriage do NOT accrue to "civilly-unionized" couples, or "ANY relationship even resembling marriage". They are not "equal" and are specifically designed NOT to be equal. They don't even match from State to State among the few States that have them. The "D"oMA even EXEMPTS ITSELF from the Full Faith & Credit Clause of the US Constitution, which reinforces their inequality.
Besides, why invent an entirely new institution - separate and demonstrably UN-equal - which is supposed to result in the exact same thing that allowing all couples to marry does?
continued ...
It is, in fact, the Churches that have confused marriage with the Rite of Holy Matrimony. So let's get the Church out of the marriage business. No church can (or should) decide on any of those "effects that flow from marriage". I sure wouldn't want a Church to decide about my spouse's inheritance/health care/social assistance, immigration status, etc. And, no church marriage is recognized - by the State - without the accompanying State-issued license/certificate or without the magic words, "And now, by the authority vested in me BY THE STATE ...". Without the government trappings, the Rite is nothing but religious bells and whistles and is not a legal marriage.
Churches already CAN - and do - decide whom they will marry. That has not changed nor will it.
Your last sentence is very telling, since without equal access to society's institutions. SOME people's rights ARE being infringed upon. Please reflect on that.
"The ruling was limited to the conclusion that it is unconstitutional discrimination for a state, once it has given gay couples a right to marry, to take it away from them when that has been done solely in reaction to the sexual orientation of those couples."
And since this conclusion is not based on reality and historical events, it will not be upheld.
Do better.
Marriage licenses are a civil enterprise, superstition or lack thereof is of no consequences.