Law Students

Democracy in the Constitutional Republic.

By Steve Pirates

Proposition 8 seems to be mutating into one of those watershed events in the history of America where the delicate balance between our Constitution and our Democratic Republic seeks a new fulcrum. Twice in the past decade Californians have voted to deny gays the right to marriage. The actual effect of the vote was to impose gender-restrictive marriage regardless of orientation. But denying the right of marriage to gays was the intent of those who voted in favor of Props. 22 and 8.

Those in favor of Prop 8 point to the vote and say “The people have spoken, Courts should butt out.” Those in opposition point out that it is not the role of the electorate to define what liberty means, that is the specific role of the Court. Don’t like it, then overturn Marbury v. Madison and kiss the judiciary goodbye. Now, as a member of the legal community, I believe that it is the proper role of the Courts to protect rights of unpopular minorities (See, e.g., Brown v. Board of Education). As someone who believes in civil liberty, I also believe that people should be able to marry anyone they’d like assuming both are above the age of consent. I firmly believe that the California Supreme Court will step in and invalidate Prop. 8 on the grounds that it violates the 14th Amendment. I also believe that the U.S. Supreme Court will eventually get a shot at this. And they’ll either drop another Brown on us, or another Dredd Scott. I believe that even the conservative members of the Court who are so enthralled with history are capable of seeing the trends of history towards greater freedom and liberty. I have to believe that even with the current Court makeup, Prop. 8 cannot stand.

So, why do I believe that? Simple, Prop. 8 is repugnant to the text of the 14th Amendment.

Marriage gives rights, liberties and privileges to those in the marriage. Gay Rights Advocates often point to estate issues and medical directive issues. But there are quite a few other rights, like the Marital Privilege or the Spousal Privilege in evidence. Tax benefits of course, Social Security benefits.

But a big one for me is Immigration Benefits. If you are an American Citizen, one of the rights you’re entitled to is to marry a foreign subject or citizen. As the spouse of an American citizen, your spouse gets expedited immigration treatment. Pretty cool right? Ok, so there is a concrete right that we’ve identified. And that 14th Amendment with its Equal Protection nonsense basically makes that right uniform.

Except for Gays.

You see, gays currently CAN marry. They just can’t marry the people they love. Well that’s fine, because no where in any statute does it say anything about love. Just go ask Anna Nicole Smith. John Edwards (the psychic not the adulterer) can help you with that. Ok, so a gay man can marry a woman, that’s fine right?

Well, in the immigration context the government is concerned with sham marriages. It makes sense, why let people marry just to immigrate to the U.S. They make you actually prove that you love your spouse and have a legitimate marriage. So that’s fine, whatever. Except we’ve now created two groups that gay people can’t marry. They can’t marry one another (of the same gender), and now they can’t marry opposite gender foreigners. Now, how equal protection is that? As a straight man, I can marry (and did marry) an American woman for any reason, or a foreign woman for love. If I were a gay man, I could have married an American woman for any reason, but could not have married a foreign woman… you know, because of the gay thing.

Right there, I have identified one concrete gap in equal protections when you impose gender restrictions. Without the immigration thing, there is a symmetry to gender restrictive marriages, men can only marry women and women can only marry men, regardless of orientation. But, in the immigration setting, you add that element of “legitimacy” and equate that with love. Now you’ve started asymmetrical discrimination. And that is inherently violative of the 14th Amendment.

So, I guess at this point the Courts can either allow sham marriages for immigration to let gays marry foreign people of the opposite sex… or they have to scrap the gender restrictive nature of marriage.

Heck, I’ll even let the Republicans decide that one. Which would you rather have, more immigrants, or happy gays?

Full post as published by Jolly Lawger on November 19, 2008 (boomark / email).