|I hate gays, is no argument against loving couples marrying|
As a great civil rights case of our day (Hollingsworth V. Perry) (12-144) is heard this week by the U.S. Supreme Court, a 1970s Wisconsin state statute, Zablocki v. Redhail (No. 76-879), struck down as unconstitutional stands as a precedent for marriage equity for gay and lesbian Americans in establishing marriage as a fundamental right of Americans.
There are no serious arguments against marriage equity for gays and lesbians. 'I believe what I believe' does not qualify as a serious argument (as most of us learned in elementary school composition) anymore than my-god-mommy-religion-tells-me-so counts as an argument. This is however, the argument repeated today by Republicans over and over.
As with the major civil rights battles of the past 60 years, a coalition of religious and political forces allied with unvarnished hate is armed with a striking lack of intellectual artillery in their views opposing the Constitutional rights denied a class of Americans, in this case the right of gay and lesbian Americans to marry.
Meet the Press, we have established that marriage is a fundamental right of the American people, and proved three things to prevail at the U.S. Supreme Court.
- "We needed to prove first that marriage is a fundamental right. And I think we did that."
- "Second, we needed to prove that depriving gay and lesbian citizens of the right to marry seriously harm(s) them and seriously harm(s) the children that they are raising. And we proved that too."
- "Even if you simply applied a rational basis test. ["Under the rational basis test, the courts will uphold a law if it is rationally related to a legitimate government purpose," notes the Cornell Law School's Legal Information Institute.] There us no rational basis to justify this (gay marriage) ban. And that's because of the third thing we proved, which was there no evidence, none, that allowing gays and lesbians to marry harms the institution of marriage, or harms anyone else." ...
"Certain fundamental rights are too important to be left to the ballot box," said Boies.
Zablocki v. Redhail (No. 76-879) (1978)
Wisconsin's statute enacted in the late 1970s -- preventing those falling behind in child-support payments from getting married -- was overturned as unconstitutional (Zablocki v. Redhail ((No. 76-879)) in an eight-to-one decision opposed only by the late, statist-reactionary Justice William Rehnquist.
The relevance of the Wisconsin case to Perry is the Court's establishing, along with other precedents, the Constitutional importance of the right to marry. Having established marriage as a fundamental right, it becomes constitutionally difficult to deny this right to a particular class of Americans, though this difficulty will not likely prevent at least four (Republican) U.S. Supreme Court Justices from voting specifically to deny this right to gay and lesbian Americans.
But a majority of Americans in a given state in favor of bigotry towards gays and lesbians does not place the majority on firm constitutional ground.
As David Boies said (Bill Moyers Journal, Feb. 26, 2010):
If you didn't tell the majority of the voters they were wrong sometimes under the Constitution, you wouldn't need a constitution. The whole point of the Bill of Rights and the 14th Amendment is to say, 'This is democracy. But it's also democracy in which we protect minority rights.' The whole point of a Constitution is to say there are certain things that a majority cannot do, whether it's 52 percent or 62 percent or 72 percent or 82 percent of the people. They can't say, for example, that blacks and whites can't go to school together -- even though 82 percent of the people may think that. They can't say that women aren't allowed to vote, or are not allowed to work in the workplace, or not allowed equal rights or equal wages -- even though a majority of people might vote that way in some places.
There are certain rights that are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for. And remember, what Ted (Olsen) said is very important. Nobody's asking to create a new constitutional right here. This is a constitutional right that has already been well recognized by the Supreme Court. And what the Supreme Court has said is that even a democratic-elected legislature in Wisconsin cannot decide by majority rule that marriage scofflaws, (p)eople who don't pay their child support, who abuse their children, abuse their wives, cannot get remarried again.
They said marriage is so fundamental that you can't take it away, even for people who have abused an initial marriage.Boies' colleague in Perry, Ted Olson, amplifies the point:
David (Boies) mentioned that we have a Constitution and we have an independent judiciary for the very protection of minorities. Majorities don't need protection from the courts. The original Constitution didn't have the Bill of Rights attached to it. And the framers of our Constitution had a big debate and people said, 'Well, we're not going to ratify that Constitution unless you attach a Bill of Rights, which protects individual liberty, individual freedom, the right to speak, the right to assemble,' and those sorts of things.
Over our history, the voters have decided, because they get passionate about certain things, and they may not like certain minorities. Minorities are disfavored. Blacks have been denied the right to vote. California prohibited Chinese, a Chinese person from having any kind of business in California, or getting married. Those kind of votes are not acceptable if they violate fundamental constitutional rights. ...
The Internet offers us a window in the slow-motion civil rights battle of what will likely be a landmark legal case when it reaches the U.S. Supreme Court sometime in the next one to four years.The Congress and the President of the United States 50 years ago made it illegal for someone who is a gay or lesbian to have a job working for the federal government. Many states made it a crime for a homosexual to be in a bar and have a drink. We all remember the '50s. When civil rights were taken away from people because they were suspected of being a member of an organization that -- those sorts of things happened. And we frequently go to the courts and, Bill, it often happens that the measures that are passed almost unanimously in Congress, because Congress gets carried away, are overturned by the Supreme Court. And you go back to Members of Congress and you say, 'What happened there?' And they'll say, 'Well, we knew it was unconstitutional. We expected the courts to take care of that. We wanted to get reelected. The courts are the ones that come back and help us.'
See Proposition Eight Trial Tracker for legal and political updates.
(Hollingsworth V. Perry) (12-144)
Gay Marriage and the Constitutionby David BoiesWhy Ted Olson and I Are Working to Overturn California's Proposition 8
A similar version of this piece appeared in 2009 here.