On Prop 8 ruling: Reply to Stepen Smith and my concerns on the political fallout

Yesterday’s decision on the constitutionality of California’s Proposition 8 will engender plenty of commentary from those on both sides of the issue.  I’ll add my own thoughts here, though I harbor no illusions that I will change anyone’s opinion.  I merely want to state my own and also my concerns about the political fallout should the case ultimately be affirmed by the Supreme Court, or if that court declines review following an expected affirmance by the ninth circuit panel that will likely hear the case.  Mind you, I don’t think these concerns would justify not moving forward with efforts to secure equal marriage rights for gays and lesbians.

Stephen Smith, Warren Distinguished Professor of Law at the University of San Diego, who blogs at Law, Religion, and Ethics, wrote yesterday that he did not have to read the opinion to know what it said.  He states three reasons for this, which I paraphrase here.  First, that today’s judges and academics have “detached” the meaning of the equal protection and due process clauses from any meanings intended by their original authors.  Second, “elite culture in this country, including the academy and the mainstream media, is generally hostile to traditional judgments about family and sexual morality, and to practices and institutions that embody those judgments.”  Third, the judge was looking to make a name for himself.

I’ll take the easiest charge first – Why would one presume a judge making a decision favoring the progressive side of an argument would be anymore likely to be seeking the limelight than one choosing the opposite course?  This is simply an ad hominem attack, and is not worthy of any further comment.  As to Smith’s first argument, that the drafters of the 14th amendment and those who ratified it did not intend such effects, I daresay the law of unintended consequences is a slim argument. I suggest that at the time of debate on the amendment, no one asked the proponents, “Do you want to extend this to advance equal rights for homosexuals?” Society changes substantially in only  twenty years, and has undergone more than sea change in the 144 years since the amendment’s submission to the states.  It is entirely reasonable for a court, or a society, looking to apply the principles of “equal protection,” to find today that denial of equal rights to what most believe is a “benefit conferred by the state” violates those principles.

Finally, Smith argues that elites are hostile to traditional values and practices of family and institutions.  In other words, discrimination is justified because “it’s always been done that way.”  I’m certain that had Smith been writing 55 years ago he would have said the same about the decision in Brown v. Board of Education or 43 years ago about that in Loving v. Virginia.  “We’ve always done it that way” is the refuge of those who have no rational basis for their position.  And nothing about extending state recognition of marriage between same-sex couples will affect other families or non-governmental institutions.  In our society, marriage carries meaning to both government and to the church.  Nowhere is a court telling a church it has to conduct same-sex wedding ceremonies.  If you want to belong to a church that hews to the traditional meaning, you are more than welcome to do so.  But the government may not enforce or condone such discrimination in its activities.  I would even go so far to say that using the religious basis for keeping the state from recognizing marriage for same-sex couples is a violation of the establishment clause.

My concerns on the political process reflect the current extreme conservative mood in the much of the country, and most notably in Congress.  Republican leaders are giving serious consideration to proposing the fourteenth amendment be modified to deny automatic citizenship to all born in our country.  It is no stretch to see them adding to that proposal the provision that either defines marriage as between a man and a woman, or more cryptically says that notwithstanding the amendment, equal protection shall not be applied to prevent states from defining marriage.  It is not impossible to imagine such a proposal getting a favorable 2/3 vote in a slightly more conservative Congress, and I truly wonder whether the need to have thirty-eight states ratify such a discriminatory amendment will stand as a bulwark against such a mean-spirited proposal.

5 thoughts on “On Prop 8 ruling: Reply to Stepen Smith and my concerns on the political fallout

  1. “I would even go so far to say that using the religious basis for keeping the state from recognizing marriage for same-sex couples is a violation of the establishment clause.” This is what I said to Will years and years ago, but he pointed out that the equal protection argument is much stronger.

    1. Kimberly,
      I agree with Will’s point. I mention the argument only to counter Smith’s assertion that the court is too readily dismissing moral values held by families and institutions. When there is a conflict between long-standing “values” held by the church and others and the Constitution, where government is a party the constitution must prevail.

  2. Ken, you’ve expressed my views much more eloquently than I could have myself. I think that many people don’t realize that one of the primary purposes of the judiciary is to protect minority rights from the democratic will of the majority.

    The most recent clear example of this that I can think of is Brown vs. Education. If a vote had been held on Brown vs. Education in the southern states 40 years ago, there is no doubt in my mind that the democratic will of the states would have affirmed segregation. I hope that most people in our day and age can see that that would have been a monumental mistake.

    1. This is true to a degree. Arbitration clauses in contracts can provide this, and to date the Congress and the U.S. Supreme Court have placed few limits on organizations that seek to resolve disputes through arbitration. I don’t know whether anyone has tried to raise an establishment clause claim on these provisions.

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