Regardless of my personal opinions, the concept of “civil marriage” is still operative across the United States, and today the San Francisco Ninth Circuit Court of Appeals weighed in on the idea of civil marriage equality. The decision was handed down this morning that the voter-approved ban on same-sex marriage in California is unconstitutional and the ban has been struck down. This will not affect just the state of California, but the case will serve as a precedent for other court cases dealing with marriage equality.
The District Court ruling on Proposition 8 in California found that marriage equality does not exist when a person is prohibited from marrying fully one-half of the population. That is to say, as a woman I am allowed to marry any man that I can catch, but I cannot marry any woman at all. Conversely, men are not allowed to marry anyone except a woman—something that Michele Bachmann seems to think is a way to solve the problem of “gay marriage.” Her idea is that a gay person can absolutely get married, to anyone of the opposite sex that they wish. And although I applaud her for acting on that conviction and marrying a gay man, it doesn’t solve the problem of a same-sex couple who wish to marry each other.
What is emerging here is not a redefinition of marriage, because marriage ought to be defined by the Church (in all its incarnations). What the court is really talking about is civil unions. So I am not distressed by the ruling, although the Religulous Right is now expecting the Apocalypse any minute over it. What the Ninth Circuit has really done is struck a blow in another issue entirely, and it is much more important than who can enter into a civil union and who can’t.
The un-Christians have been making their argument against the treatment of LGBT citizens across the whole fabric of society on the basis of “religious freedom.” This term is code language, calculated to alarm and confuse the public. We all know that America was founded on the concept of “religious freedom,” as various groups crossed the ocean to found colonies in the New World that put their religious beliefs in a safe place where they could practice their faith. So who, in America (the cradle of religious freedom, after all) would dare to infringe on my religious freedom?
Who, indeed? The un-Christians don’t just want to infringe on my religious freedom—they consider it part of their religious freedom to persecute LGBT people in every arena of public and private life. They want to bring charges against gay couples and drag them into court for “sodomy;” they want to prevent gay couples from adopting children; they want, as we know, to prevent gay couples from entering into a civil marriage; they want to discriminate against them in housing and employment; and of course they exclude them from their denominations.
So the Ninth Circuit has just told the im-Moral Majority that their religious freedom does not include the restriction of civil liberty as far as gay Americans are concerned. This is a stroke of the axe to the root of the tree—don’t be deceived. It may seem like common sense; it may seem like an adjustment to reality on the part of state governments. But it is much more than that. It is the next step on Proposition 8’s journey to the United States Supreme Court.
But on the way, the basis of the challenge must be defined. Here is the legal basis of the case, taken from court transcripts (I have edited it to make it more readable):
“The Due Process Clause provides that no State [shall] deprive any person of life, liberty, or property, without due process of law.
“1. Plaintiffs contend that the freedom to marry the person of one’s choice is a fundamental right protected by the Due Process Clause and that Proposition 8 violates this fundamental right because:
“1. It prevents each plaintiff from marrying the person of his or her choice;
“2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice; and
“3. California’s provision of a domestic partnership—a status giving same-sex couples the rights and responsibilities of marriage without providing marriage—does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.
“The Equal Protection Clause provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.
“According to plaintiffs, Proposition 8 violates the Equal Protection Clause because it:
“1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and
“2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.”
Okay, so the first objection is that all Americans are covered by the Due Process Clause of the Constitution. The Court doesn’t recognize second-class citizenship.
The second objection is that there has been an “unwarranted usurpation,” or an unjustified interference, in the rights of Californians to choose their life partner without due process of law.
The third objection is that domestic partnerships are not an equal, interchangeable substitute for marriage.
Under the Equal Protection Clause of the Constitution, the case deals with the following:
The first objection is that gay citizens may not marry the person of their choice, while heterosexual citizens can do this.
The second objection is that Proposition 8 has created a “suspect class” of people who do not enjoy equal rights and protection under the Constitution.
I think that many of my readers will think that this is quite a distance—legally speaking—from the arguments of certain (un-) Christian denominations who refuse to accept LGBT persons into their congregations and teach their parishioners to hate and reject them. And that is exactly the point, isn’t it?
The Ninth Circuit found that a few religious denominations have no business creating civil laws that enforce their hate. They found that LGBT citizens are equal under the law and that is the precedent that has been established by this decision. The court was looking for the following information:
“WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX;
WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS;
WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST.”
Was there any evidence to support the refusal of marriage equality? The Ninth Circuit found no such evidence.
Was there any evidence to show that California, as a state, benefits in any way from refusing same-sex couples to marry? The Ninth Circuit found no benefit to California.
Does Proposition 8 create a new law that enforces someone’s private moral view but doesn’t do California any good? The court found that to be the case.
So the Ninth Circuit found that there is no benefit to California as a state of the Union in Proposition 8, which is nothing more than a civil expression of the prejudice against LGBT people that is found in certain un-Christian denominations. Now the Court of Appeals has concurred, or agreed, with this finding.
At the time that the Proposition 8 ruling was announced, the judge was praised for his objective treatment of the case. This doesn’t happen in the religious community, where emotions run rampant and no respect is accorded to second-class Christians that have been targeted by some groups. The objections to this new court finding will be on that basis: an emotional objection to living with gay people, to working with gay people, to allowing gay people to live their lives unmolested.
But there is no basis, legal or moral, for discrimination. When people commit crimes they are separated from society, but gay people commit no crime by living their lives. The continuing actions against gay American are based on what they are, not what they do. This is going away—it is getting less every day—and until Americans give up their barbaric desire to hurt those that they don’t like, they will have to be restrained by the courts and the police and civil law to mind their own business and leave their fellow citizens to live their lives.
In short, the Equal Protection and Due Process clauses of the Constitution forbid the states from creating a “suspect class” of people because all Americans are guaranteed equal protection and due process. Simply put, prejudice cannot be legislated. No matter whether the will of the people approves of discrimination under certain circumstances, the “tyranny of the majority” cannot be used to discriminate in civil law.
Mitt Romney has made a statement as I write this, decrying the court’s overriding of the will of the people of California. However, in the days when Mormons were discriminated against, persecuted and driven from their homes, I doubt that he would have agreed that the will of the people should rule. It is a shame that he has a selective memory where his faith is concerned.
Comments