Last week my blog was oddly silent throughout the closing arguments of the California Prop 8 trial. Okay perhaps not oddly silent since I write so infrequently. However, I kept tuning into the affair to see how it was progressing. One fascinating observation I noted was the number of references the attorney Ted Olson made to U.S. Supreme Court rulings in support of same-sex marriage. It is almost certain that the U.S. Supreme Court will cite these same cases in determining the constitutionality of Prop 8 and other state laws banning same-sex marriage. I mention this as regardless how the circuit court rules, the case will most certainly be appealed. And to continue following this, it is helpful to understand those cases that challenged some popular, yet discriminatory laws.
Loving v. Virginia
In 1958, Richard Loving and Mildred Jeter, an interracial couple married in Washington D.C., were arrested when they returned home to Virginia. Their crime was violating the state’s ban on interracial marriage. Their one-year jail sentence was suspended on the condition that they leave the state and not return for 25 years. The Lovings left, but took their case to multiple courts, including Virginia’s Supreme Court of Appeals, which ruled in favor of the state’s right to ban and penalize interracial marriages. The case reached the U.S. Supreme Court in 1967 where it overturned the decision, ruling that the ban on interracial marriage violated the Fourteenth Amendment’s protection of individual liberties.
The law’s supporters said it was “God’s will” that people of different races not be married. Sound familiar? Judge Leon Bazile at the Lovings trial actually said:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
How does this relate to same-sex marriage?
Swap gender for race and the injustice is evident. The U.S. Supreme Court also noted that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The ruling did not state anywhere, “And this applies only to heterosexuals.”
Interesting side-bar
At this very moment the Texas Republican state party platform officially states: “We support legislation that would make it a felony to issue a marriage license to a same-sex couple and for any civil official to perform a marriage ceremony for such.” They also oppose the legalization of sodomy which leads me to my next significant court case...
Lawrence v. Texas
In 1998 Houston police officers entered John Lawrence’s apartment after receiving a disturbance call from a neighbor, and found him having sex with another man which was against the law in Texas. The men were arrested and convicted of “deviate sexual intercourse.” This case ended up before the U.S. Supreme Court where they struck down the sodomy law holding that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. This further invalidated similar laws throughout the United States which criminalized sodomy between consenting same-sex adults acting in private.
How does this relate to same-sex marriage?
The Supreme Court’s ruling stated:
Our laws and our tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationship, child rearing, and education. Persons in a homosexual relationship may seek autonomy for these purposes just as heterosexual persons do.
Wow. It does not get much clearer than that. Ted Olson also argued last week that Prop 8 “takes away the fundamental right to marry from a class of persons based upon their practice of something that’s been decided to be a fundamental constitutional right of liberty, privacy, and association.”
Romer v. Evans
In 1992 Colorado voters approved an amendment which barred state and local governments from protecting people’s civil rights based on their sexual orientation. The U.S. Supreme Court ruled that this voter-approved amendment to the state constitution surreptitiously violated the Fourteenth Amendment. The state argued that Amendment 2 merely blocked gay people from receiving “special rights”, to which Justice Kennedy wrote:
To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.
He further argued that protection offered by antidiscrimination laws was not a “special right” because they protected fundamental rights already enjoyable by all other citizens. And it gets better. Kennedy also wrote that the amendment did not even meet the much lower requirement of having a rational relationship to a legitimate government purpose:
Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.
How does this relate to same-sex marriage?
I feel as if I am stating the obvious here. Prop 8 denies people’s civil rights based on sexual orientation.
Sweatt v. Painter
Heman Marion Sweatt was denied admission to the School of Law of the University of Texas on the grounds that the Texas State Constitution prohibited integrated education. During the trial, Texas created a separate law school for blacks and offered Sweatt admission. Yet in 1950 the U.S. Supreme Court ruled in Sweatt’s favor, again based on the Fourteenth Amendment.
And how does this relate to same-sex marriage?
Separate is not equal. Despite Texas’ attempt to create a separate environment for blacks, the “separate but equal” philosophy which was the norm was overturned. And the direct correlation is that domestic partnerships are not equal to marriage.
Reitman v. Mulkey
In 1964 the voters of California approved Prop 14 which amended the state constitution nullifying the Rumford Fair Housing Act. The amendment stated:
Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part of all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.
It sounds like it merely says you can sell or rent to whomever you choose. Read it again slowly. It means you can discriminate against anyone – legally.
The U.S. Supreme Court set an important legal precedent here. A state’s amendment passed by initiative could be removed from their constitution if the proffered amendment “encouraged” racial discrimination. The Court noted that this was nothing less than considering a permissive state statute as an authorization to discriminate.
How does this relate to same-sex marriage?
The fact that an amendment is approved by voters does not mean it can enforce discrimination. And any such amendment can, and should be, removed.
These are some of the most significant court cases quoted during the closing arguments. There are many more. Those curious may read the trial proceeding for themselves as well as look up the court cases I referenced above (there are numerous law sites which provide all of the details). I particularly find the direct questions by the court and the answers by the attorneys very enlightening. And while it is true that California voters approved Prop 8, if a public poll were taken in the 1960s, to decide the fate of interracial marriage, an unjust outcome would have been just as predictable.
Loving v. Virginia
In 1958, Richard Loving and Mildred Jeter, an interracial couple married in Washington D.C., were arrested when they returned home to Virginia. Their crime was violating the state’s ban on interracial marriage. Their one-year jail sentence was suspended on the condition that they leave the state and not return for 25 years. The Lovings left, but took their case to multiple courts, including Virginia’s Supreme Court of Appeals, which ruled in favor of the state’s right to ban and penalize interracial marriages. The case reached the U.S. Supreme Court in 1967 where it overturned the decision, ruling that the ban on interracial marriage violated the Fourteenth Amendment’s protection of individual liberties.
The law’s supporters said it was “God’s will” that people of different races not be married. Sound familiar? Judge Leon Bazile at the Lovings trial actually said:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
How does this relate to same-sex marriage?
Swap gender for race and the injustice is evident. The U.S. Supreme Court also noted that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The ruling did not state anywhere, “And this applies only to heterosexuals.”
Interesting side-bar
At this very moment the Texas Republican state party platform officially states: “We support legislation that would make it a felony to issue a marriage license to a same-sex couple and for any civil official to perform a marriage ceremony for such.” They also oppose the legalization of sodomy which leads me to my next significant court case...
Lawrence v. Texas
In 1998 Houston police officers entered John Lawrence’s apartment after receiving a disturbance call from a neighbor, and found him having sex with another man which was against the law in Texas. The men were arrested and convicted of “deviate sexual intercourse.” This case ended up before the U.S. Supreme Court where they struck down the sodomy law holding that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. This further invalidated similar laws throughout the United States which criminalized sodomy between consenting same-sex adults acting in private.
How does this relate to same-sex marriage?
The Supreme Court’s ruling stated:
Our laws and our tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationship, child rearing, and education. Persons in a homosexual relationship may seek autonomy for these purposes just as heterosexual persons do.
Wow. It does not get much clearer than that. Ted Olson also argued last week that Prop 8 “takes away the fundamental right to marry from a class of persons based upon their practice of something that’s been decided to be a fundamental constitutional right of liberty, privacy, and association.”
Romer v. Evans
In 1992 Colorado voters approved an amendment which barred state and local governments from protecting people’s civil rights based on their sexual orientation. The U.S. Supreme Court ruled that this voter-approved amendment to the state constitution surreptitiously violated the Fourteenth Amendment. The state argued that Amendment 2 merely blocked gay people from receiving “special rights”, to which Justice Kennedy wrote:
To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.
He further argued that protection offered by antidiscrimination laws was not a “special right” because they protected fundamental rights already enjoyable by all other citizens. And it gets better. Kennedy also wrote that the amendment did not even meet the much lower requirement of having a rational relationship to a legitimate government purpose:
Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.
How does this relate to same-sex marriage?
I feel as if I am stating the obvious here. Prop 8 denies people’s civil rights based on sexual orientation.
Sweatt v. Painter
Heman Marion Sweatt was denied admission to the School of Law of the University of Texas on the grounds that the Texas State Constitution prohibited integrated education. During the trial, Texas created a separate law school for blacks and offered Sweatt admission. Yet in 1950 the U.S. Supreme Court ruled in Sweatt’s favor, again based on the Fourteenth Amendment.
And how does this relate to same-sex marriage?
Separate is not equal. Despite Texas’ attempt to create a separate environment for blacks, the “separate but equal” philosophy which was the norm was overturned. And the direct correlation is that domestic partnerships are not equal to marriage.
Reitman v. Mulkey
In 1964 the voters of California approved Prop 14 which amended the state constitution nullifying the Rumford Fair Housing Act. The amendment stated:
Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part of all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.
It sounds like it merely says you can sell or rent to whomever you choose. Read it again slowly. It means you can discriminate against anyone – legally.
The U.S. Supreme Court set an important legal precedent here. A state’s amendment passed by initiative could be removed from their constitution if the proffered amendment “encouraged” racial discrimination. The Court noted that this was nothing less than considering a permissive state statute as an authorization to discriminate.
How does this relate to same-sex marriage?
The fact that an amendment is approved by voters does not mean it can enforce discrimination. And any such amendment can, and should be, removed.
These are some of the most significant court cases quoted during the closing arguments. There are many more. Those curious may read the trial proceeding for themselves as well as look up the court cases I referenced above (there are numerous law sites which provide all of the details). I particularly find the direct questions by the court and the answers by the attorneys very enlightening. And while it is true that California voters approved Prop 8, if a public poll were taken in the 1960s, to decide the fate of interracial marriage, an unjust outcome would have been just as predictable.
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