Monday, July 20, 2009

Gay Marraige and the Constitution

Interesting Op-ed piece by famous lawyer David Boies in today's WSJ about the lawsuit he has filed attempting to overturn California's gay marriage ban. I personally do not understand how the equal protection clause, amendment 14, of the constitution does not protect the right of people to marry anyone they want. Right now, I have the right to marry a woman (not that I'm gonna!), but my sister does not (not that she wants to!). How is that equal protection?

This seems to be the approach that Boies is taking. A few quotes from his article:

The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it. In 1978 the Court (8 to 1, Zablocki v. Redhail) overturned as unconstitutional a Wisconsin law preventing child-support scofflaws from getting married. The Court emphasized, "decisions of this Court confirm that the right to marry is of fundamental importance for all individuals." In 1987 the Supreme Court unanimously struck down as unconstitutional a Missouri law preventing imprisoned felons from marrying.

So the ban on permitting gay and lesbian couples to actually marry is simply an attempt by the state to stigmatize a segment of its population that commits no offense other than falling in love with a disapproved partner, and asks no more of the state than to be treated equally with all other citizens. In 2003 the United States Supreme Court in Lawrence v. Texas held that states could not constitutionally outlaw consensual homosexual activity. As Justice Anthony Kennedy elegantly wrote rejecting the notion that a history of discrimination might trump 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. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.

Let's hope he succeeds, and we can put this ridiculous issue behind us, and the dinosaurs who promote these bans go extinct from having their heads up their asses.

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