Friday, August 13, 2010

Equal and No Longer Separate

Equal and No Longer Separate

Michael Maynard
August 9, 2010

On August 9th, U.S. Chief Judge Vaughn Walker ruled that California’s adoption of Proposition 8 was unconstitutional. Proposition 8 attempts to prohibit same-sex marriage in California and was voted in favor 52% to 48%. This was how Judge Walker determined the basis for his ruling.

“Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”

What is the Equal Protection Clause? It was enacted in 1868, after the Civil War. The Thirteenth Amendment, enacted in 1865 abolished slavery. However, the defeated Confederate states, in an attempt to prevent blacks from gaining full citizen status, tried to restrict the rights of blacks to own property. The Equal Amendment Clause, the 14th Amendment, was enacted to prevent those and future attempted restriction of equal rights for all U.S. citizens.

Section 1 - 14th Amendment to the United States Constitution - The Equal Protection Clause

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.

What was equally meaningful of the overturning of Proposition 8 was the coalition of the two of the most famous liberal and conservative lawyers, previous combatants, to have this proposed law overturned.

"It's not judicial activism, it is judicial responsibility in its classic sense," said Theodore Olson, prominent conservative lawyer, who argued the 2000 Supreme Court case that put George W. Bush in the White House.

"We do not put the Bill of Rights to a vote," Olson said. "We ask judges to make sure that when we vote for something we're not depriving minorities of their constitutional rights, and that's what the judge did."

Olson added that "41 states once prohibited interracial marriage, so that [until] the Supreme Court finally struck that prohibition down, the President's parents could not have been married."

Olson's co-counsel David Boies, who argued for the Democrats in the landmark Bush versus Gore showdown, ridiculed opponents of same-sex marriage for offering "junk science" and legal theories that were "just made up."

"A witness stand is a lonely place to lie," Boies told "Face the Nation" on CBS. "We put fear and prejudice on trial, and fear and prejudice lost."

Tony Perkins of the Family Research Council countered that "anybody with a half a brain can see" that policies like no-fault divorce have weakened traditional marriage "and, as a result, have impacted the well-being of children."

(Source: New York Daily News “Prop 8 attorneys Theodore Olson and David Boies say judge's ruling is 'constitutionally sound' - August 9, 2010)

The Family Research Council, not surprisingly, is presenting erroneous information.. One of this right-wing organization’s objection to overturning Proposition 8 was that it would “undermine the social foundation of marriage.” The same argument was made to attempt to prevent no-fault divorce. California that was the first state to adopt no-fault divorce in 1970. The national rate of divorce since universal no-fault divorce adoption has decreased from 23 per 1000 couples in 1970 to 17 per 1000 couples in 2005.

What Judge Walker’s ruling does is affirm the sanctity and specialness of marriage.

So what is the real issue being raised by th Family Research Council? I must assume that the members of this organization are well-intentioned and believe they have a legitimate complaint?

They represent a sector of this country who believe that the supremacy of Caucasian heterosexuals is under assault and from their limited perspective, they’re correct. Caucasians’ are no longer in the majority - they represent approximately 40% of the population. While they yearn for their “normalcy” of the Eisenhower presidency, there is an African-American president. The fight for the protection of unionism has been turned against them as their manufacturing jobs are being exported and replaced with lower paying, no-benefit jobs at Walmart. Undocumented immigrants are being used for low-wage, manual labor jobs. And now they have to see two men or two women holding hands as they walk in the lover’s lane of the park.

What they don’t get is that Judge Walker’s ruling doesn’t undermine the sanctity of marriage, the ruling enhances it. Judge Walker recognized that when two people fall love in want to have the state recognize their union legally, it means the two people respect the institution of marriage, not trying to tear it down.

The brilliance of Judge Walker’s ruling is he did not directly attack homophobia, but he legally shamed those who still embrace it. The best approach to overcome irrationality is still to provide an irrefutable rational judgement. What is sad is that some of those who oppose the ruling are attacking Judge Walker by questioning his sexuality. This is the equivalent of questioning Supreme Court Justice Clarence Thomas for any ruling he makes involving race.

Thank you,Judge Walker and Attorneys Boies and Olson, for applying common sense to combat right-wing fear mongering.

For that, every citizen, whether they agree with his ruling or not, owes Judge Walker a large debt of gratitude. That would be just constitutional.