The first major battle in the legal war over gay marriage ended last week when Judge Vaughn Walker overturned California’s Proposition 8. Judge Walker’s decision, though dense to those outside the legal world, is not particularly daring in its logic. For the most part, the only question left for him to answer was, “Does the government have a rational or compelling interest in prohibiting gay marriage?”
Let’s start with the due process claim. The due process clause has been the central source of justification for rights not explicitly mentioned in the Constitution — the right to privacy, the right to vote and the right to marry. The Supreme Court ruled, in Loving v. Virginia, that the right to marry is fundamental, meaning that the government must show a compelling interest for any law that restricts it.
So far, no opponent of gay marriage has been able to successfully show such an interest.
Lawyers arguing in support of Prop. 8 attempted to justify state interests in protecting tradition, promoting opposite-sex parenting and protecting the freedom of those who oppose same-sex marriage. These purported interests ranged from merely weak to borderline offensive — the freedom of those who oppose same-sex marriage? Really? Walker rejected these interests, since the trial did not show any social, economic or political disadvantage to allowing same-sex marriage or parenting.
Without a compelling interest in prohibiting gay marriage, a law that expressly prohibits some from exercising the fundamental right to marry is a clear violation of the due process clause. The equal protection claim proceeded roughly similarly.
The 14th Amendment’s equal protection clause reads, “No state shall … deny to any person the equal protection of the laws.” Contrary to common belief, this does not outright prohibit discriminatory legislation. It merely requires that there be, at least, a rational reason for that discrimination.
The government has set up rules barring women from combat service in the military on the presumed reason that men are better suited to the physical act of killing. And the Court has generally shown a lot of deference to the government’s interest. Think medical marijuana prescriptions — just about any reason will do.
But where legislation is so ill-conceived that no rational reason whatsoever can justify it, it must be struck down.
That is the story with Proposition 8. Judge Walker’s decision notes the chance he gave counsel to provide such a reason: “The court asked the parties to identify a difference between heterosexuals and homosexuals that the government might fairly need to take into account when creating legislation. Proponents pointed only to a difference between same-sex couples (who are incapable of [procreation]) and opposite-sex couples (some of whom are capable through sexual intercourse of producing such offspring).”
In all seriousness, what would we think of a law prohibiting infertile couples from marrying? If the ability to bear children is the only difference between gay and straight couples that government could conceivably concern itself with, then Prop. 8 is in some serious trouble. What seems clear is that Prop. 8 was passed with no legitimate purpose in mind — only malice toward a group of people that voters simply do not like.
The 14th Amendment was passed in the wake of our devastating Civil War, fought partially to end the enshrinement of malice and cruelty against a minority. While its authors may not have foreseen the issue of gay marriage, it is an issue that also revolves around the proper treatment of minorities by law.
It may never be possible to end homophobia in our society, but it is within our grasp to purge it from the law. Though the legal fight is not over — this case will certainly be appealed to the Supreme Court — this decision brings us one step closer to protecting a right owed to everyone by our basic notions of equality.