The U.S. Supreme Court will convene Tuesday March 26,2013 to begin hearing oral arguments based on the 2010 federal district court decision in Perry v. Schwarzenegger and the 9th District’s ruling to affirm under Perry v. Brown which overturned California’s 2008 Prop 8 Defense of Marriage Act (DOMA).
Judge Vaughn R. Walker cited Loving v. Virginia to conclude that “the constitutional right to marry protects an individual’s choice of marital partner regardless of gender”. In the Ninth Circuit Court of Appeals Judge Reinhardt rendered his opinion concluding that the California law violated the Fourteenth Amendment to the Constitution. Judge Reinhardt wrote “the people may not employ the initiative power to single out a group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry”.
However, the underlying basis for Judge Reinhardt’s decision relied on the fact that California had previously endowed same-sex partners with all the rights except official designation of marriage through the 2003 Domestic Partner Act. The decision was not therefore based on a Constitutional right to marriage but rather the act of being denied rights that had been previously awarded by the state.
If the conservative U.S. Supreme Court chooses to merely uphold the lower court’s decision in overturning Proposition 8 it could very well leave the Defense of Marriage Act in place. The much broader and underlying issue of gay marriage may be left unsettled. If, however; the Supreme Court is willing to hear argument on the basis of the Fourteenth Amendment a landmark decision in same-sex marriage might be possible.
Historically there is some precedence in the case of Loving v. Virginia dealing with interracial marriage. The Supreme Court’s unanimous decision held that the anti-miscegenation statute, Racial Integrity Act of 1924 was unconstitutional. Chief Justice Earl Warren’s opinion held that:
“Marriage is one of the “basic civil rights of man.” Fundamental to our very existence and survival…To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”.
Judge Walker’s conclusion that the Constitution protects an individual’s choice of marital partner regardless of gender is what is at stake. In the Loving case there already existed a protected ‘class’ since the Civil Rights Act of 1964 provided protection against discrimination based on race. No such protected class exists for gays at the constitutional level. What the Court may consider is if there is a violation of the Due Process Clause and the Equal Protection Clause.
It may be argued that each party has all the rights to marriage but not to each other. Denying the right to marriage of persons of the same sex to each other therefore violates those rights by depriving the citizens of exercising those rights between each other although they would be free to exercise those rights with another. This could very well be the open door by which the right to same sex marriage may pass.
However, might the Court be concerned that this door should swing too wide? What about Polygamy? If it were determined that the right to marriage should be afforded to any citizen what would prevent the pursuit of marriage between any consenting adults? Since marriage is officially a contract and treated as such in divorce proceedings should then such a contract be valid if entered into by any combination of consenting partners? While the religious community may very well rebuke such classifications it is for the Court to determine the legal definition of marriage based on the Constitution and each citizens right to privacy and not primarily the culturally acceptable one.
One only has to refer to Lawrence v. Texas (2003) http://www.religioustolerance.org/polylaw.htm
to see that such concerns already arose in the Justice’s minds. Although this case involved same-sex behavior the underlying principles being considered in the current matter are too close to ignore. Justice Kennedy wrote for the majority stating:
“The case involves two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Their right to liberty under the Constitution gives them the full right to engage in their conduct without the intervention of the government…They are entitled to respect for their private lives….in our tradition the State is not omnipresent in our home…Liberty presumes an autonomy of self that includes freedom of thought, expression, and certain intimate conduct.”
Justice Scalia wrote in dissention that the majority Justices pretended that they left enough freedom:
“…so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada…do not believe it.. [The majority opinion] dismantles the structure of constitutional law that has permitted distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”
He also wrote that laws against bigamy, adultery, prostitution, bestiality and obscenity were susceptible to challenges. Justice Scalia and many other constitutional authorities have suggested that this decision makes it impossible for states to make or enforce laws criminalizing behavior based on the morality of an act. For this purpose Lawrence v. Texas could possibly be overturned.
A much greater question arises from the citizens, should the state be allowed to legislate morality? Considering the most recent confirmation of two strict constructionists as Justices of the Supreme Court it is likely that these issues will figure prominently in the Courts consideration of this case before them. They certainly will be weighing the much broader implications of any ruling that they make and whether or not it would undermine the narrow interpretation they seem inclined to pursue.