In the last post, we considered the arguments against same-sex marriage. We began by listing several which we often hear, but which the lawyers supporting California's Proposition 8 and the federal Defense of Marriage Act (DOMA) certainly did not bother to make at the Supreme Court.
Marriage is a fundamental constitutional right.
Prop 8 violates that right by denying it to same-sex couples.
DOMA violates that right by denying recognition and benefits to same-sex married couples.
Equal protection of the laws is a constitutional guarantee to all persons against discrimination.
Prop 8 and DOMA violate equal protection by discriminating against gays, lesbians, and same-sex couples when they choose to marry.
True, no right is absolute.
But in order to abridge a fundamental right, government must have some compelling reason that makes the abridgment necessary.
There is no such compelling reason that necessitates Prop 8's denial of the right to marry to same-sex couples.
There is no such compelling reason that necessitates DOMA's denial of recognition and benefits to same-sex married couples.
True also, everyone need not be treated exactly the same--government may make relevant distinctions.
But for classes of people who have historically suffered invidious discrimination--e.g., Blacks, women, and non-marital children--the constitutional requirement is tougher.
Regarding such classes, government must have some very strong reason that necessitates any different treatment.
Gays and lesbians are a class of people who have historically suffered invidious discrimination.
There is no very strong reason that necessitates Prop 8's or DOMA's different treatment of gay and lesbian couples.
The lawyers against Prop 8 also argued:
There isn't even a relevant, rational reason for the different treatment of gay and lesbian couples.
So those laws are invalid even without resort to the more stringent tests used to protect fundamental rights and historically discriminated against classes.
Those were the principal points in the briefs and oral arguments at the Court pressed by the lawyers opposing Prop 8 and DOMA.
Their arguments to counter those made by the lawyers supporting Prop 8 and DOMA were, if anything, easier to make and less debatable. Here are the main ones:
Prop 8 and DOMA are based primarily on moral disapproval of gays and lesbians.
That is not a constitutional basis for the disparate treatment.
Indeed, the supporters of Prop 8 and DOMA didn't even bother making the "moral disapproval" argument at the Court.
More than that, it was even conceded at the Court that the "moral disapproval" argument would be invalid.
Prop 8 and DOMA cannot be justified as protections of traditional marriage.
Again, the supporters of Prop 8 and DOMA didn't even bother making such an argument at the Court.
No one suggested that traditional opposite-sex marriage was at any risk.
Prop 8 and DOMA cannot be justified on the purported purpose of marriage to protect the children born to opposite-sex couples.
That is simply not the purpose of marriage.
It is certainly not the primary or exclusive purpose of marriage.
Marriage is not restricted to couples who are willing or able to have children.
It is not denied to couples who are clearly incapable of having children or who have no intention of doing so.
In fact, the right to marry is extended to opposite-sex couples without any regard for the reason they choose to be legally joined--e.g., love, taxes, creating a household, etc.
Nor can Prop 8 be justified by the states' traditional prerogative to define marriage as they choose.
Neither can DOMA be justified by the federal government's prerogative to have a uniform definition of marriage.
Such purported justifications beg the question whether the definition of marriage, excluding same-sex couples, is constitutional.
The states cannot define marriage in such a way that violates the fundamental right to marry or that violates equal protection of the laws. (E.g., they cannot define marriage that excludes inter-racial or inter-religious couples.)
The same for the federal government.
So those argued justifications resolve nothing about the validity of those laws in the first place.
Nor can Prop 8 or DOMA be justified in order to give the states and the federal government, as well as the voters in the democratic process, more time to resolve the issues raised by same-sex marriage.
First, that is small consolation and no answer to the gays, lesbians, and same-sex couples who are currently suffering the discriminatory treatment.
Second, that is no justification for upholding unconstitutional laws.
So that argued justification resolves nothing about the validity of those laws either.
Now, I have made no bones about my own position on same-sex marriage. In my view, laws like Prop 8 and DOMA that, respectively, prohibit such marriages and discriminate against such married couples are invalid vestiges of bigotry and ignorance and misplaced moral or religious hostility.
That being said, as noted in the last post, there is certainly justification for the Supreme Court to restrain itself from jumping into the fray too soon.
To restrain itself from too readily overturning decisions of the states and of the democratically elected representatives in the other two branches of the federal government.
To restrain itself from expending too much of the judicial capital that it needs to insure respect for its decisions generally.
To exercise humility in deciding whether to condemn a long-lived convention by judicial fiat.
Yes, the exercise of judicial restraint. It is an essential quality of courts and judges in a democratic, self-governing society.
And it is the very reason that a majority of the Court may choose to render narrow decisions in the 2 cases.
To dismiss the Prop 8 case--on the ground that the California government itself doesn't support the law and, therefore, that there is no constitutionally required case or controversy.
To rule narrowly that the federal government must recognize and provide benefits for same-sex marriages which have been entered in states where legal--but to avoid addressing DOMA's provision that other states need not allow or recognize same-sex marriages.
Or a majority of the Justices may decide that the issue of same-sex marriages is too critical and, therefore, that it should be addressed squarely.
Life is a bit easier for those of us who need not worry about exercising judicial restraint.
So I won't be so restrained.
For me, the discrimination against gays and lesbians unquestionably rises to the level of sufficiently historic and invidious that it should be treated much like racial and gender discrimination. That is, that it should be subject to very close scrutiny by the Court.
Accordingly, unless Prop 8 and DOMA can be justified by some compelling, overriding governmental need, they should be invalidated.
In my own view, the issue is not even close.
None of the reasons proffered to justify Prop 8 or DOMA even approaches that standard.
The Court should invalidate them both.
We will see shortly when the Court releases its final decisions of the term over the next 2 weeks.
[Here again are links to the videos of the interviews with me on the same-sex marriage cases on Liz Benjamin's Capital Tonight::
Albany Law’s Bonventre on SCOTUS Same-Sex Marriage Hearings
Albany Law’s Bonventre Explains Latest in Supreme Court Same-Sex Marriage Cases
Albany Law’s Bonventre on Supreme Court and Same-Sex Marriage