February 29, 2004
The Economist Makes the Case for Gay Marriage
Some have sought to explain this action away simply as cynical politics . . . Yet to call for a constitutional amendment is such a difficult, drastic and draconian move that cynicism is too weak an explanation.
If you ever read The Economist - the UK's news and business publication written expressly for top business decision-makers and opinion leaders with a world-wide circulation of well over 800,000 - you know that it is NOT a big fan of George W.'s. I've read some pretty disgusted and scathing comments about Mr. Bush in The Economist before, but this week's cover story is dedicated to raking our president over the coals for proposing a constitutional amendment so unequal, intrusive and... well, unconstitutional that The Economist seems to be as appalled by and disapproving of Mr. Bush's views and actions on this subject as any other of his past actions that the American people have let slide but The Economist has called him on. With this kind of consistent negative press in such an influential and respected publication, it's not difficult to gauge just what other nations must think about our president and us. Oh, the shame... too bad GW can't feel any of it from up on his political power-high.
Comment on Matt Holohan's comment on this posting
Yes, O'Connor did list "preserving the traditional institution of marriage" as an example of a legitimate state interest and alluded to "other reasons... to promote the institute of marriage" the state could come up with in order to exclude homosexuals. However, it is interesting that she places "preserving the traditional institution" in opposition to "mere" "moral disapproval of same-sex relations", which Lawrence found to NOT be a legit state interest. O'Connor goes on to say that this is because "legal classifications must not be 'drawn for the purpose of disadvantaging the group burdened by the law.'" This seems to have the effect of diffusing any purely moral arguments for preserving the institution as-is that opponents of same-sex marriages could bring... and since the only marginally good arguments I've heard from them are purely moral, that could hurt them a lot. Furthermore, the fact that the amendment would be created specifically to deprive same-sex couples of a vast array of marital benefits and rights, it will definitely be a classification that is drawn specifically to disadvantage them in this area.
Another example of an illegitimate state interest O'Connor gives is "a bare ... desire to harm a politically unpopular group". She points out that "When a law exhibits such a desire to harm a politically unpopular group, [the Court has] applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause." Earlier in her concurrence, O'Connor notes that the Court's finding the sodomy law unconstitutional "does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review." Under this standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." One of the examples O'Connor gives of a politically unpopular group is hippies:
In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to " 'discriminate against hippies.' “The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review.
Although I kinda hate hippies, that's not why I think that the comparison of hippies and homosexuals as targets for government harm understates the importance of the discrimination that gays face at the hands of both the government and the average Joe. It's also a bit of a slap in the face to suggest that laws that deny hippies government food stamps are unconstitutional because they are specifically designed to discriminate against them a group when you just said a few lines earlier that laws can be designed specifically to deny homosexuals the right to marry.
However, even if a ban on same-sex marriage can somehow pass under either a normal or "more searching" rational basis review, there is some chance that the Court will decide that this issue is deserving of strict/heightened scrutiny. It is clear that this issue most closely resembles the struggles of African-Americans to gain equal rights under the law. In Toyosaburo Korematsu v. U.S. (1944), the court noted that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny," (emphasis added), a notion that was echoed in the case that finally banned antimiscegenation laws, Loving v. Virginia (1967). In that case, the Court found that such classifications are "odious to a free people whose institutions are founded upon the doctrine of equality" and if they "are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate." Although both Korematsu and Loving were both narrowly tailored to the issue of racial discrimination, they could be persuasive as to the general proposition that discrimination based sexual orientation should also but subject to strict scrutiny. It is an arbitrary classification that is being used to curtail their civil rights and so any showing of a legitimate state interest must not be motivated by a plain intention to harm or discriminate against homosexuals, must not be purely moral, and subject to the highest scrutiny.
In Zablocki v. Redhail (1978), the Court specifically stated that "By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed." In his concurrence, Justice Powell reiterated the notion that not all marriage limitations are subject to strict scrutiny, but stressed past Courts' findings in the fundamental nature of marriage:
On several occasions, the Court has acknowledged the importance of the marriage relationship to the maintenance of values essential to organized society. "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Our decisions indicate that the guarantee of personal privacy or autonomy secured against unjustifiable governmental interference by the Due Process Clause "has some extension to activities relating to marriage..." "While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage . . . .' "
Thus, it is fair to say that there is a right of marital and familial privacy which places some substantive limits on the regulatory power of government. But the Court has yet to hold that all regulation touching upon marriage implicates a "fundamental right" triggering the most exacting judicial scrutiny.
It will be an uphill battle to argue that bans on same-sex marriages should be repealed for and subject to strict scrutiny for the same reasons as interracial marriage and other discriminatory limitations on the marriage right. However, I think that it's entirely possible the Court would at least entertain such arguments in order to reach the obvious conclusion that these laws are just as blatantly and purposefully discriminatory as others that have been struck down by the Court and haven't limited as many otherwise eligible people from exercising their right to marry.
Posted by Kristina at February 29, 2004 10:47 AM