Raising the stakes on the freedom to marry

Posted by Eugene Robinson on truth-out.org:

"The 14th Amendment is a mighty sword, and U.S. District Judge Vaughn Walker used it Wednesday to flay and shred all the specious arguments -- and I mean all of them -- that are used to deny full marriage rights to gay and lesbian Americans. Bigotry has suffered a grievous blow.

"Walker found that California's Proposition 8, which sought to ban marriage equality in the state, violated not one but two of the amendment's clauses -- those guaranteeing due process, and equal protection under the law. By deciding the case on constitutional grounds, and by crafting such a detailed and comprehensive ruling, Walker all but guaranteed that the issue will eventually reach the Supreme Court.

"It is not irrational for proponents of the freedom to marry to worry how the high court will finally rule, given its recent record of conservative activism. But Walker's ruling will not be so easy to assail. At trial, the losing side presented a shockingly weak case. By contrast, the plaintiffs' legal team -- led by two superlawyers from opposite ends of the political spectrum, conservative Ted Olson and liberal David Boies -- offered witnesses and arguments that covered every conceivable base.

"'Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,' Walker concluded. 'Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.'

"That's the kind of language that qualifies as 'sweeping.'

... "The clause guaranteeing equal protection under the law was the basis of the 1954 Brown v. Board of Education ruling in which the Supreme Court banned discrimination in public schools. Walker used the same clause to rule that there was no 'rational justification' for treating same-sex relationships as inferior. 'Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,' he wrote.

"The Supreme Court used the due process clause in its 1967 Loving v. Virginia decision that struck down laws against interracial marriage. Walker used the same language to rule that Proposition 8 was unconstitutional because it denies a 'fundamental' right to selected citizens without a legitimate, let alone compelling, reason to do so.

"One decision by one federal judge does not settle the controversy over the freedom to marry. But Walker's 136-page ruling lays down a formidable marker because it changes the terms of the debate. He frames marriage equality as a question involving the most basic, cherished rights that the Constitution guarantees to all Americans. In doing so, he raises the stakes sky-high: Are gays and lesbians full citizens of this country, or are they something less?

"Walker stepped up to the plate and swung for the fences. He hit a home run."

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