Not Wanting the Public to Watch

A few years ago, the California Supreme Court ruled that by legislatively creating an equivalent alternative system mirroring the institution of marriage (Domestic Partnerships) in terms of its rights, benefits, and responsibilities, the state had implicitly acknowledged that gay citizens and non gay citizens benefited from gay access to such an institution. The court then reasoned, based on equal protection jurisprudence, that reserving the prestigious label "marriage" for straight unions implicitly stigmatized gay unions as less valuable or important, even though the two institutions are identical except in name. For this to be legal under California law, California had have a compelling interest in stigmatizing gay unions. As the Court found that California had no such interest, it struck down the State's ban on gay marriage.

In 2008, the people of California amended the State's Constitution to define marriage constitutionally as a union of one man and one woman. California's Proposition 8, which passed by a 52% to 48% margin, overturned the California Supreme Court's decision legalizing same sex marriage.

Today in Federal Court, trial begins on a Federal Constitutional challenge to Proposition 8. At issue is whether legislative and/or constitutional bans on gay marriage are constitutional under the federal constitution.

This case is likely to have an enormous impact on our law, given the nature of the legal challenge, and given the fact that Federal equal protection jurisprudence is nearly identical to California's jurisprudence. The Courts will ultimately have to determine whether "gays" constitute a suspect class - a group that has been singled out by the State and subjected to some form of harm, burden, or restriction that it does not impose on non-class members.

If it finds that gays are a suspect class, which seems very likely, it will then have to determine whether the harm, burden, or restriction being imposed is related to some rational purpose. To make this determination, the court will first have to decide how important the interest, or how fundamental a liberty or right, is being infringed by the harm, burden, or restriction. If the Court finds that the interest, right, or liberty is relatively unimportant, it will simply ask "does the harm, burden, or restriction imposed by the State, serve any rational purpose? And if it finds one, it will uphold the State's action. Similarly, if the court finds that the interest, liberty or right being infringed is important, it will ask "does the state have a good or important reason for imposing the harm, burden or restriction" and "could the state achieve its purpose by instituting a less onerous policy?" Again, if it answers "yes" to both of these questions, it will uphold the policy.

But if the Court finds that the interest, right, or liberty being infringed is fundamentally important, it will ask, "does the State have a "compelling" - really important = interest justifying the imposition of the harm, burden or restriction?" and "could the state achieve its purpose by instituting a less onerous policy?" and "is the policy by which the state is imposing a harm, burden or restriction designed to impose the least amount of harm necessary to accomplish its purpose?" For a court to uphold a policy that infringes on a fundamental right or interest of a suspect class, it must be convinced that the answer to all three questions is "yes."

The Supreme Court has already said, numerous times, that marriage is fundamental to human well-being and the right to enter into marriage is fundamental. Therefore, for the Courts to uphold bans against gay marriage, they will need to be convinced that the the State has a compelling interest in excluding gays from the institution. And this will be particularly difficult to do after a State like California has legislatively created an identical institution with a different (less prestigious) title, for gays. At that point, the State is reduced to explaining its compelling interest in stigmatizing gay unions.

Two very well known and experienced lawyers, Theodore B. Olsen and David Boies - the lawyers who represented George W. Bush and Al Gore, respectively, in Bush v. Gore, have teamed up to challenge proposition 8. Judge Walker is holding a full trial, complete with opening and closing arguments and lay and expert testimony - which he ordered streamed to other federal courtrooms and distributed online throughout the course of the trial.

However, just hours before the testimony was to begin, the United States Supreme Court intervened, temporarily staying Judge Walker's decision to allow the proceedings to be broadcast. Apparently, the supporters of Proposition 8 objected to the plan to make the proceedings available for public viewing.

This is telling. Over the years I've repeatedly pointed out to friends who oppose gay marriage that they are losing ground in public opinion because they are not making any arguments - or at least, any convincing arguments. The reason for that is clear - there are no good arguments to be made against including gays within the institution of marriage. In fact, the opposite is true - there are rather powerful arguments in favor of including gays within the institution. Arguments based in justice and fairness, but also arguments demonstrating that gays and straights alike would benefit, and that the institution of marriage would be strengthened. Don't believe me? Pick up a copy of "Gay Marriage" by Jonathan Rauch. Its a tour de force.

I'm guessing that supporters of Proposition 8 know (in their hearts) that their case is weak and worry that a fair airing of the evidence and arguments before the American people would further undermine opposition to gay marriage. That's a telling indicator of where social conservatives stand in this last great battle of the culture wars.

Joe H.