‘Strongest’ Evidence for Constitutionality of Same-Sex Marriage

Cynthia Grant Bowman, a professor at Cornell Law School, was recently quoted by Newswise as stating that the decision in Perry v. Schwarzenegger (the Prop 8 case) gives the strongest legal and factual support of any case claiming that a state ban of same-sex marriage violates the federal constitution.  She said that it “…reaches its conclusion that Proposition 8 is unconstitutional under the U.S. Constitution based upon an extremely strong record of evidence laid down at a thoroughly litigated trial.”

I am currently in the process of wading through the decision myself (it is a 138 page pdf online).  So far, I have seen arguments which basically state that Prop 8’s definition of marriage is out of date and that the initiative was pushed for with gay stereotypes.  The decision also discusses the history of California state law.  Additionally, it cited the precedents of Turner v. Safely, 482 US 78, 95 (1987), which states that “the decision to marry is a fundamental right,” and Cleveland Board of Education v. LaFleur, 414 US 632, 639-40 (1974), which states that “…freedom of personal choice in matters of marriage and family life is one of the liberties protected by the due Process Clause of the Fourteenth Amendment.”  Of course, none of this involves the actual definition of marriage.

My main concern with the decision is the application of the 14th Amendment to the legal definition of marriage.  The well known part of the amendment reads:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Any privileges and immunities of the citizens of the United States are privileges and immunities brought about by federal law.  This basically means that any federal law that is within the federal government’s legitimate powers must be applied equally to citizens in all states, regardless of what the states want (this is the point of the equal protection clause). However, the federal government has no legitimate authority through the Constitution to have any say in the definition of marriage; therefore, the issue is delegated to the states via the 10th amendment.  Note that this also implies states can opt out of the Defense of Marriage Act, which they have done in some cases (Massachusetts, New Hampshire, Vermont, Iowa, and Connecticut all allow same-sex marriage, according to Wikipedia).   So even if the right to marry is protected under the 14th Amendment (this is dubious, regardless of the precedents), the 14th amendment does not allow the federal government to define marriage.

Additionally, I do not see how Prop 8 violates the due process clause, as was stated in Cleveland Board of Education v. LaFleur.  Prop 8 certainly does not deprive gays of their life or property.  One could argue it deprives them of liberty, but it really does not.  Prop 8 does not permit the State of California to prevent gays from having affection for one another.  It merely distinguishes legal recognition between same-sex couples and dual-sex couples.

This is really the crux of the issue with Judge Walker’s ruling.  The federal courts have no business hearing anything on this matter.   Of course, the case may create a precedent, but that does not mean that the federal government’s involvement is constitutionally sound.  I can hear my high school government teacher screaming ‘Marbury v. Madison’ at me.  However, even the decision to allow for judicial review does not allow the federal courts to create constitutional rules.

If this case goes to SCOTUS, I hope Chief Justice Roberts will have the decency to turn it back to the lower courts.  However, he may feel his hands are tied if the lower courts uphold this ruling.

I welcome folks with greater legal background to comment on this.  Read the already posted comments for more background on exactly what I was saying throughout this.