SCOTUS upholds equal protection, rules against laws excluding gays and lesbians from marriage

What a long, strange trip it’s been.

In 2003 I was a graduate student in the philosophy program at UCSD, taking a seminar on jurisprudence from the eminent moral philosopher David Brink. In his seminar we read and discussed a variety of arguments by scholars ranging from Justice Antonin Scalia on “originalism” to Joel Feinberg on free expression vs. “offensive nuisances,” and we also read and discussed seminal Supreme Court cases relating to these issues. I had been interested in law and legal issues for many years by that time, having taken up policy debate as a way of life in high school, not to mention mock trial and Model U.N. in college. Moreover, I was a gay man and conscientious citizen who had already concluded that legal discrimination on the basis of sexual orientation had no place in a constitutional democracy that depends, in its very meaning, on the motto “equal protection under the law.” In other words, I was a “second-class” citizen with an axe to grind and had the analytical skills and arguments to hone its edge to near perfection. Sharpen Sie!

It was in that seminar that a close reading of constitutional principles and significant SCOTUS decisions on due process and equal protection convinced me there was one, and only one, simple line of argument leading from the 14th Amendment to the legal validity of same-sex marriage. I wrote my seminar paper on this topic, revised it later that summer, and sent it out for publication. The paper was titled “Equal Protection and Same-Sex Marriage” and it was published in the Journal of Social Philosophy in 2004. In it, I argued that the proper constitutional argument for supporting a decision on behalf of same-sex marriage and invalidating both federal and state laws defining “marriage” as a union of a man and woman is easily discerned in equal protection doctrine.

Admittedly, there is a lot of semantic confusion about the word “marriage” and its proper referent in this case, as well as a lot of empirically inaccurate, vaguely historical arguments about its definition as such a union (truthfully, before the emergence of the modern democratic state in Western societies only recently, and in much of the world still, “marriage” really refers to men owning and treating women like property). However, there is a precise legal meaning to the word “marriage” in this constitutional debate, and here we are talking exclusively about “civil” marriage, or the state’s legal recognition of a union between two persons that includes all the benefits and burdens that such recognition entails. Insofar as the state recognizes such unions from a legal standpoint they cannot exclude some persons from participating in it but not others. To do so is to violate the letter and the spirit of the equal protection clause of the 14th Amendment, which can be found at the very end Section 1 of that amendment. The sections reads:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”

Unfortunately, the inane and insanely inaccurate debate sponsored by American-style conservatism about re-defining the word “marriage” has simply muddied the water to what is otherwise a crystal-clear expression of the obvious:  The decision that the Supreme Court reached in Obergefell v. Hodges on June 27, 2015 doesn’t redefine “marriage” at all, doesn’t substitute the judgment of “five lawyers” on the bench for the “will of the people,” and doesn’t even invent a new “gay” right on anything. Rather, the landmark ruling does nothing more and nothing less than enforce the equal protection of the clause of the 14th Amendment concerning the “civil” recognition of marriage laws by states. In short, there are already are “marriage” laws on the books, and since the 14th Amendment states to the letter, “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,” it follows without remainder that the majority decision of this civil rights case is exactly right.

Now for those who unfamiliar with its history, the 14th Amendment to the United States Constitution was adopted on July 9, 1868, as one of several Reconstruction Amendments drafted in response to issues related to former slaves following the American Civil War including the intransigence of southern states to accept the rule of law. In short, the amendment was created as a means of strengthening our constitutional system against detractors and scofflaws. We fought them in the Civil War, we fought them against Jim Crow, we fought them to desegregate. Therefore, it is important to recall that the basis of this landmark decision overturning anti-gay marriage laws, that civil rights are for all not just for some, is rooted in this country’s long and painful history to overcome, confront, overcome again and confront yet again.

By Kory P. Schaff, Editor

Breaking: Attorney General of PA won’t defend marriage prohibition

From the NYT’s News Desk:

Pennsylvania’s attorney general, Kathleen Kane, said on Thursday that she would not defend the state against a lawsuit to overturn a ban on same-sex marriage.

The lawsuit, filed by the American Civil Liberties Union with 23 plaintiffs, including 10 gay and lesbian couples, two teenage children of one couple and a widow who lost her partner of 29 years, cites a ruling last month by the Supreme Court striking down the federal Defense of Marriage Act.

It was the first of a wave of lawsuits that activists are planning to file to expand the number of states allowing same-sex marriage, including in Virginia and North Carolina.

Attorneys general in Illinois and California have previously declined to defend their states in similar cases. In Pennsylvania, the general counsel’s office of Gov. Tom Corbett, a Republican, was seen as likely to pick up the defense.

Americans return Obama to the job

The most expensive election campaign in U.S. history came to an end yesterday. According to FEC and independent estimates over $4 billion was spent in the race between President Obama and former Gov. Mitt Romney. Although the race appeared to be tight, and in the final days appeared to be a dead heat, in the end the electoral map barely changed and Obama was swept into power with 303 electoral college votes and a much slimmer margin of victory by popular vote. (This morning Florida’s 29 electoral college votes are still undecided as counting continues in that state. The race is very close there with Obama ahead by a mere .07 of a percent.)

The balance of power in Washington remained largely the same despite the large sums of money thrown into this race by individuals, parties, and Super PACs alike. Democrats picked up 1 additional seat in the Senate and 2 additional seats in the House. The President returns for a second term to confront the political gridlock that stymied efforts in his first term to pass a comprehensive jobs bill and financial regulation. The country is poised to dip back into recession as growth slows, revenues drop, job creation remains slack, and the soaring deficit run amok. To avoid another financial cliff more compromise by the Republican Party will be needed, but whether it can get beyond its vicious anti-Obama sentiments in order to do the hard work of governing remains to be seen. It is, in fact, doubtful given its track record during the President’s first term.

In other electoral results the news for progressive politics was largely great. The night was a major political victory for the Constitution and gay and lesbian politics. In Wisconsin, Rep. Tammy Baldwin defeated former governor Tommy Thompson by a decent margin, making her the first lesbian elected to the U.S. Senate. Voters in Maryland and Maine voted to legalize same-sex marriage, while voters in Minnesota rejected a constitutional ban on same-sex marriage. Referendum 74 to legalize same-sex marriage in the state of Washington was ahead in the polls, and with King County still tallying its ballots the measure will most likely pass. These important votes in four states represents a water-shed moment for the equality movement because they are the first time states have voted to uphold rather than deny the constitutional rights of gay and lesbian citizens. Minds really do change.

The election was also an important victory to bring the senseless and costly war on marijuana to an end. Voters in Washington and Colorado voted to legalize recreational use of the drug. Although a similar measure failed in Oregon, this represents a direct challenge to the federal government by states to change its drug policy. Recent backlash against medical marijuana users by the DEA in California and other states is a case in point why the federal law needs to change to accommodate states’ rights.

Here in California, several important initiatives passed. Voters passed Prop 30 to raise taxes on the wealthiest Californians and temporarily increase sales taxes in order to avoid otherwise devastating cuts to education. Although Prop 34 to eliminate the death penalty did not pass, it was by a narrow margin (53 to 47 percent), signaling the public’s shifting mood on capital punishment. In a victory for criminal justice Prop 36 to reform the state’s draconian “3 strikes” law passed by a wide margin, and this victory should bring some relief to an overcrowded prison system filled with non-violent offenders. Finally, the State Assembly is approaching Democratic supermajorities in both houses, which may help alleviate the state’s governance and budget problems.

In the end, American voters rejected Republican lies that deregulation and less taxes on the wealthy is the solution to a slow economic recovery. Across the nation, voters who were concerned about unemployment voted for Democrats by a significant margin. Perhaps people did not easily forget that 4 years ago the recession swept across America because of, not in spite of, those same policies. The question remains whether President Obama and Congress can get the job done and bring the economy back with healthy, sustainable growth. In the meantime, this victory of progress over the forces of reaction will almost certainly go down in the history books as a vindication of the hard work Obama has done bringing the country back from economic ruin and a crucial turning point in American politics.