06 August 2010

State Lacks Rational Basis to Ban Same-Sex Marriage

(courtesy of obeygiant.com)

A U.S. federal district court judge in San Francisco struck down California's infamous Proposition 8 as violating the Due Process clause of the Fourteenth Amendment and the lacking a rational basis for distinguishing between same- and opposite-sex couples violating the Equal Protection clause of the Fourteenth Amendment. The 138 page ruling can be found here.

Both retired U.S. Supreme Court Justice Sandra Day O'Connor and current Justice Anthony Kennedy have said the next twenty years in the courts will be characterized as the period of advancement of civil and political rights for gays and lesbians. When they said this ten years ago, it seemed curious and a bit strange.

In his ruling U.S. district court Chief Judge Walker found that state laws that burden the right to marry (due process claim) must pass the constitutional test of strict scrutiny, that is the state must have a compelling state interest that is narrowly tailored to effect the compelling interest and no more. Banning same-sex marriage lacked a compelling state interest. He also found that state laws that discriminate on the basis of gay or lesbian status (equal protection claim) must pass the more liberal constitutional test of rational basis, that is that the state must have a rational basis for treating people differently. Banning same-sex marriage lacked a rational basis.

(Patrick Lagon and the late Joseph Melillo, Plaintiffs in the Baehr case
photo courtesy of HonoluluAdvertiser.com)

The trial was hauntingly similar to the Baehr v. Lewin litigation in the U.S. state of Hawai'i in the 1990s. After the Hawai'i Supreme Court ruled in 1993 that laws prohibiting same-sex marriage must survive a "strict scrutiny" analysis under the Hawai'i state constitution, a trial was held in 1996 (Baehr v. Miike). The attorney general's office defended the state law with the same theory as the California litigation: one male parent and one female parent married is the optimal familial relationship for raising children. Hawai'i State circuit court Judge Kevin Chang found that the state's case was wholly lacking and found in favor of the suing gay couples. Banning same-sex marriage violated the couples constitutional right to marry. His decision was stayed pending appeal and the Hawai'i Supreme Court held off decision until after a state constitutional amendment was passed authorizing the Hawai'i state legislature to limit how marriage is defined. At that point, the case was moot in the Hawai'i Supreme Court's view.

The difference between the Hawai'i case in the 1990s and this case now is two: first, the state officials charged with enforcing the law refused to defend it and it was the official proponents of Proposition 8 that defended the law; second, the case was pursued on the basis of the U.S. constitution not a state constitution.

Subsequent to the famous Hawai'i Baehr v. Lewin case which was the first legal case anywhere in the world to find that the constitutional right to marry included same-sex couples, U.S. state Supreme Courts in Vermont, New Hampshire, Massachusetts, Connecticut, California and Iowa citing Baehr v. Miike have held that each state's constitution includes same-sex couples in its constitution's concept of ordered liberty.

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