Friday, February 24, 2012

Our Wonderful Constitution

As many of you have already heard, Proposition 8 was ruled unconstitutional by the United States Court of Appeals; indeed this is a great leap towards a better future. However, now that the court of appeals has given its ruling, we are now faced with many questions. Many of us are thinking how this will affect our state but unfortunately it doesn't. The case seems to have focused on the State of California and set precedent there only. But do not despair! There is an extremely large chance that it will reach the nation's Supreme Court. Once it reaches SCOTUS (Supreme Court of the United States) I believe they will declare Prop. 8 unconstitutional. Let me tell you why now that I have become a decent Constitutional interpreter ;)

The Court of Appeals for the 9th Circuit relied on 14th Amendment Jurisprudence, specifically citing the Due Process Clause and the Equal Protection Clause. The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without proper due process. It was precisely this clause that ended states from prohibiting interracial marriages. Let me refer to a specific historical example: In Loving v. Virginia SCOTUS determined that marriage was a right that all US citizens should enjoy, thus any law prohibiting interracial marriages was depriving US citizens of a right with out proper due process. This case was often predicted to be cited in any case regarding gay marriage. Lo and behold! The court of appeals alluded to Loving v. Virginia. However interestingly enough, the court of appeals did not use Lawrence v. Texas precedent and used strict scrutiny (the highest form of judicial review, often reserved for laws discriminating against races and religious groups and not for gender discrimination). Lawrence v. Texas involved the arrest of two gay men participating in anal sex. One can interpret the precedent set by the latter case in many ways but SCOTUS held that morality cannot be regulated by the individual states or the federal gov't (unless there is a COMPELLING state interest, but that rarely happens). I would have to say that this would shut any moralist out there who argues that the State may indiscriminately create moral laws. Moralists fail in their argument, the law says the state can't.

Furthermore, gays and lesbians (unfortunately there is no mention of trans-folk in the opinion of Court of Appeals) are not protected equally under the law of California. Instead they are treated as second class citizens stripped of the right to marry, as claimed in Loving v. Virginia. The Equal Protection Clause protects citizens from being exposed to unjust and cruel laws by both the individual states and the federal government. Although many argue that such laws broaden the federal government's powers while it makes the States' power moot. That point is advocated by those who believe in a smaller government, but I have to retort. I see no better way to create a smaller government by imposing on them such a maxim: we the people have chosen not to have cruel and unjust laws imposed upon us; It is precisely what the 14th Amendment does. It incorporates the Bill of Rights into the States (yes there was a time where a state may proclaim a state religion or ban certain types of speech), protects our rights from being taken away without proper due process and it protects us from being treated unequally under the law by the government.

I myself have thought of how same-sex marriage bans could be declared unconstitutional, and there are many ways. The main and most powerful way is to invoke 14th Amendment jurisprudence. Another interesting way could be a more active initiative taken by Congress (yeah right) and justifying the law under the Commerce Clause. That way the federal government can claim that they can declare same-sex marriage bans void because it gives other states unfair advantages in commerce. For example Congress may say that many queer professionals are leaving Texas and are going to other states like Washington, Massachusetts, New York etc. and because of those reasons Congress may ban such laws in order to regulate commerce between the states; thus all states can compete equally. However it is clear that the US will not take that route and instead take a more dramatic one.

Whatever cases the Court decides to cite as precedent may not ultimately matter because as we can see, the Supreme Law of the Land (Article VI, Clause 2) makes it clear that queer people are protected from cruel laws. Now let us hope that our federal democratic republic lives up to its words and continues its journey to create a more perfect union.

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