Gay Marriage is a Fundamental Right Under the U.S. Constitution
Published November 03, 2009 @ 01:15PM PT
Two federal cases are moving forward challenging the legality of bans on same-sex marriage. One case, stemming out of Massachusetts, asserts that the Defense of Marriage Act unjustly hinders states from fully recognizing the equal rights of gay and lesbian citizens. Another case, out of California, is challenging Proposition 8, the ballot measure passed last year that rescinded the rights of gays and lesbians to marry in the state.
This particular lawsuit has made a big splash this year, in part because the two lawyers behind it are Ted Olson and David Boies, the two attorneys that argued Bush v. Gore, respectively. Today, Boies penned an op-ed in the Philadelphia Inquirer that made a pretty damn bold statement. To play off a Miracle on 34th Street reference, Boies essentially said, "Yes, Virginia, there is such a thing as a constitutional right to gay marriage."
Boies makes the case that if you look at U.S. Supreme Court jurisprudence, it's clear that precedent falls on the side of letting people love whoever it is that they want to love.
"The constitutional issue is quite simple," Boies writes. "The Supreme Court repeatedly has held that the right to marry the person of your choice is a fundamental human right guaranteed by the equal-protection and due-process clauses of the Constitution."
Boies goes on to cite some of the cases that have become quite familiar to us all over the past couple of years. There's Loving v. Virginia, the case that ended state bans on inter-racial marriage. There's Zablocki v. Redhail, which overturned a Wisconsin law that banned people delinquent on their child support payments from getting married. And then there's Lawrence v. Texas, the 2003 case that finally overturned statewide laws banning sexual relations between people of the same gender.
In all of these cases, Boies argues, the U.S. Supreme Court made one thing clear: there should be no limitations on the right to marry for individuals.
How timely, given today's vote in Maine that could very well overturn a state law recognizing same-sex marriage.
Boies ends his piece with a curious quote from Justice Anthony Kennedy, who many people think will be the swing vote on any same-sex marriage case that goes before the court. It's a quote that Justice Kennedy wrote when he gave the majority opinion in the Lawrence v. Texas decision, and it's a brilliant example of why it's appropriate to view marriage rights as compatible with constitutional rights.
"Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress," Kennedy wrote. "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
Gay marriage is a constitutional right. That might make the folks at the National Organization for Marriage squirm, but they better get used to hearing that sentence. History is on the side of equality, and so is the U.S. Supreme Court's jurisprudence.
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Comments (13)
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Author
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Michael is the Communications Director for the Human Rights Program at Harvard Law School, and previously was Communications Director for Pax Christi USA, a progressive Catholic human rights organization.
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Michael,
I truly believe that Kennedy will be the swing vote; however, I'm not so sure that Sotomayor is on board at this point. She has never ruled on such a case in the past, and to my knowledge has never given any public statements regarding the rights of LGBT citizens.
And none of us knows whether or not the Obama WH actually vetted her on this issue. I know that during testimony she simply said, like all potential Supreme Court Justices, that she would have to look at the facts of the case.
As I'm sure you can tell, I'm not really sold on Sotomayor at this moment, only time will tell. But I don't think she is as liberal as any of us thought she would be, or the liberal that we believed Obama would appoint.
Posted by Dave Hershey on 11/03/2009 @ 03:28PM PT
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I don't get it. A state recognized marriage is just the acknowledgement of a contract. It is a specific agreement between parties. If a church sees a morality issue it is free to bring it up, free even to not recognize it, have its own recognized relationships, but to define a contract? Seems like two different issues. Though, I am neither lawyer nor judge.
Posted by wendell otu'upu on 11/03/2009 @ 05:53PM PT
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You may be neither a lawyer or a judge, but you would be absolutely correct!
Posted by Dave Hershey on 11/03/2009 @ 05:57PM PT
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It is our constitutional right to marry no matter what the opposition say.Unfortunately lies keep on prevailing,We need to do like dave says and expose lies of the opposition.
Posted by Martin Martinez on 11/05/2009 @ 08:26AM PT
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Well we lost in Maine. I now have lost any and all hope for this country or its people. Well done Obama. Sit on your ass, go golfing, take your family out on more vacations, while we cannot even legally call our families... family.
We have played the nice game for too long. Using love, kindness, compassion, sincerity, where have we gotten with the public? No where. No where at all. We all know that it should not decided by the public who gets what rights in a democracy... oh that's right we do not live in a democracy we live in an anti gay christian theocracy. I am so sorry I completely forgot about that little detail.
Oh and we can't use love or any other insipid emotion to stir the non-existent hearts of the heartless. No no no... they run on fear, retribution, damnation, and oppression. So perhaps it is about time we speak to them in their own language. We use fear against those who use fear against us. Not hate against hate, but fear against fear. Perhaps after they learn that we are an immense force, the likes of which to never be reckoned with, they will finally respect us, and in turn accept us as the normal human beings we are. It is time my brothers and sisters that we take a stand and this time we refuse to lose at all cost.
Posted by Chris Marshall on 11/04/2009 @ 12:22AM PT
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Chris, honestly? it is Prop 8 redux. The bigots and the homohaters, like Mr. Loew in a previous thread won. The biggest problem is that our side is WEAK! Yes, there I said it, they are WEAK!!!!!! Unless someone (our side) is willing to call out the LIES as LIES, then NOTHING will change!
I don't give a shit if you call the people LIARS and BIGOTS! It HAS GOT TO BE SAID!!!!!!!! I'm tired of these campaigns beign so god damned positive!!!!! CALL THEM OUT!!!!!!!!! Plain and simple! I will NOT dedicate another dime, or my time to ANY campaign that is not willing to refer to the opposition as LIARS AND BIGOTS!
Posted by Dave Hershey on 11/04/2009 @ 12:47AM PT
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I am firmly in agreement that those who oppose gay marriage, after having given the issue careful thought and deliberation, are indeed bigots and hypocrites. The majority of heterosexual marriages (more than 50%) end in divorce, and this trend is even more pronounced with respect to second marriages (where the divorce rate is in the region of 60%).
We may have lost the fight to retain gay marriage in Maine, but I would not be celebrating were I Maggie Gallagher or any other member of the hard right. The majority was razor-thin -- and in the years to come, as more and more younger people replace older people (who tend to vote against gay marriage), the tide will definitely turn in favour of gay marriage. Those who oppose gay marriage have won nothing more than a temporary respite -- and they should think long and hard about the road ahead of them...
The time will eventually come when those who were opposed to gay marriage will be looked upon with the same degree of contempt and disgust as is currently reserved for racists and opponents of mixed marriages.
The US Supreme Court has consistently upheld the status of marriage as a fundamental right (Zablocki v. Redhail, 434 U.S. 374 (1978), Loving v. Virginia, 388 U.S. 1 (1967)). Thirteen years ago, the US Supreme Court (hardly a bastion of liberal thinking) made it abundantly clear that anti-gay bigotry has no place in American society (see Romer v. Evans, 517 U.S. 620 (1996)). And just six years ago, the US Supreme Court struck down all state statutes that criminalized gay sexual relations (Lawrence v. Texas, 539 U.S. 558 (2003)).
It is sometimes necessary to force societal change by changing policy at the courthouse, as opposed to by legislative action. Had matters been left to the state legislatures in the 1950s, racial discrimination would still remain legal to this day. However, the US Supreme Court held, unanimously, that racial discrimination was unacceptable in American society (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)). It was as the direct result of that decision that schools became integrated, and the pernicious doctrine of "separate but equal" was struck down under an equal protection analysis.
Those who continue to oppose gay marriage should hang their heads in shame...
PHILIP CHANDLER
Posted by Philip Chandler on 11/04/2009 @ 02:58AM PT
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I am firmly in agreement with you -- but what, exactly, do you propose?
I believe that the worst thing we can possibly do as a community is to sit on our hands and to cry out in defeat. Now is the time for us to take action with more vigor and more determination than ever before -- and this means pressuring Governor Patterson, of New York, to advance the gay marriage act through the state Senate (as he has indicated he will do; a companion measure has already cleared the state Assembly). Sitting and crying will get us absolutely nowhere...
So exactly what do your propose? I am genuinely interested, and would like to hear more...
PHILIP CHANDLER
Posted by Philip Chandler on 11/04/2009 @ 03:02AM PT
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Dave we have been calling them out, and the sad part is people get stuck in a turbine of who is telling the truth and who is not. So i have a better idea. Fear. It is prodigiously terrifying when religious leaders, who support bigotry, suddenly go missing without a trace.
As for what we should do philip.... it certainly is not what we are doing now or were doing. It is evident that using a positive light no longer guarantees our rights. Our people are long overdue for a riot I say its time we start having some. Despite the bad press I think it would suffice to say that the headquarters of nom and the churches that supported stripping us of our rights are fair game. Looking at it from a biological standpoint when you have a pathogenic bacteria you treat it with antibiotics. When you know there is a presence of a certain strain of virus in the environment you create and administer a vaccine. It is has become apparent that the pathogens have taken over and we have two options left, ether let it kill this country as it has been slowly doing, or we treat the infection at the source.
Another problem I see is that many of our own people are not willing to risk their lives for our rights. The willy nillies of civil rights movements. King once said that a man who is not willing to die for what he believes in is not a man. I agree.
We can no longer say an eye for an eye makes the whole world blind because it appears the people in this country are already blind. My generation is proving that, by being too fucking lazy to vote even when begged by their closest of friends. Unless they are gay the majoritarian attitude of my generation is "what does it have to do with me." So I say it is evident that even though you have the support of my generation they are too lazy to get off their ass and vote. We should know by now that our compassion, tolerance, patience, and absolute altruism is getting us nowhere fast.
So outside of treating the infection we can also hope, which is insipid at this point, that the USSC, when and if they hear this, takes it on the account of strict scrutiny and once again forces the people to accept change as they have so many times in the past.
Where does that leave us? It leaves us screwed. The only way we will get our rights is if we take it to the USSC and you know as long as that prick Scalia is on there we have no chance.
Right now outside of rioting we need people to start emailing Ted Olson, and David Bois on Ref 1 and add Maine to the list of ballot measures that are unconstitutional. Then we need to start organizing direct nonviolent and violent protest in different parts of the country including Maine. Many people do not see the damage no care to see the damage and pain we suffer because of this oppression. It is time we bring that suffering to such a height it can no longer be dismissed. I am willing to risk my life for my people the question is are you willing to risk yours.
Posted by Chris Marshall on 11/04/2009 @ 08:43AM PT
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Chris, yes, we are calling them out as liars and bigots, but the problem is that the "official campaigns" are not. They use weaselers like "mislead, and incorrect information," they need to start coming out calling a spade a spade.
Posted by Dave Hershey on 11/04/2009 @ 09:51AM PT
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I say take it one step farther and do what the rational response squad does and humiliate them for their arrogance of ignorance.
Posted by Chris Marshall on 11/04/2009 @ 12:36PM PT
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As a New Englander, I'm shocked and saddened by ME's outcome. I can't believe it.
I'm so sorry!
Posted by Leigh Graham on 11/04/2009 @ 05:00AM PT
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It's not your fault. It is the fault of every person who believes that the right to marry the person you love should be curtailed by the issue of sexual orientation. It is the fault of every heterosexual person in Maine who supports gay marriage but who refused, or simply did not bother, to vote yesterday...
PHILIP
Posted by Philip Chandler on 11/04/2009 @ 05:17AM PT
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