Tuesday, November 25, 2008

Next Year or 2024. When Gay Marriage will be ruled a constitutional right?

My, sez Djinn, prediction. Next year. Or 2024. It's a long post, I know, but this is as short as I can make it. Want more info? Just ask.

California put on its ballot, this year, a citizen initiative to change the California constitution to declare marriage as allowable between only a man and a woman. The famous Proposition 8.

Subsequently, the California Supreme Court declared gays a protected class, subject to strict scrutiny; which means under the 14th amendment to the Constitution, they have a right to marry.

All discrimination is not created equal. In US law, there are three distinct categories, strict scrutiny, intermediate scrutiny, and rational relationship.

Strict scrutiny, as you may be able to ascertain from its name, is the strictest, and only applies when a fundamental right is infringed, or when a "suspect classification" is used. Race is a suspect classification. Under suspect classification, for example, blacks and whites cannot have separate water fountains, "separate but equal" does not win.

The California Supreme court has determined that Sexual Orientation is a "suspect classificaion" with the effect that laws applying to sexual orientation must be justified by a "compelling government interest," must be "narrowly tailored," and must be the "least restrictive means" of achieving the compelling governmental interest.

Gays in California used to have, and currently have the option of entering into "domestic partnerships" which have most, but not all, of the benefits of marriage at the state level. They have no benefits at the federal level.

Under "strict scrutiny," such "separate but equal" rights are clearly disallowed. It's why you or I cannot put up separate water fountains for blacks, or whites.

So.... The people of California have amended their constitution (with only 52% of the vote! But that's for a different rant.) to require marriage (this is a completely civil right, in that the benefits are granted totally by the government) to be between only a man and a woman.

But, under strict scrutiny, there are only two possible ways to handle one group being denied rights granted to another group. 1. Give the rights to the denied group (integrate schools, no separate water fountains) or, 2. Take the rights away from the privileged group. Bang, Zoom, thank you m'am, or sir.

The California constitution, by disallowing marriage between two people of the same sex, has now invalidated reason 1 of the possible solutions. Gays cannot be given marriage rights. However, reason 2 is still open; that is, Marriage can be denied to all. This is, I suspect, what the actual outcome will be. There is 3; another choice, the amendment could be declared a "revision," and thus subject to stricter standards to pass, that is 2/3rds majority in both CA governmental houses and a vote by the people. This would invalidate it, but there is very little case law to determine the probability of this, so let's think of the exciting possibilities.

Assuming the court doesn't choose revision, the only option available is to deny Marriage to all Californians, and give them all civil unions. This has serious consequences, as civil unions are not recognized by the US government, which would deny those couples now able to get married that right.

That is an important point, because state constitutions can add extra rights not guaranteed by the US constitution, but cannot subtract rights guaranteed by the constitution to all.

So, when (or if) California declares all marriages invalid under their constitution, we will be in a unique situation. For the very first time, the issue of Gay Marriage will be "ripe" to be heard by the Supreme Court.

Currently there are four almost 100% probable no votes for gay marriage, one unknown vote (Kennedy, the only vote that counts, because he is the swing) and four at least potentially probable yes votes. So, there's probably even odds, if the Supreme court hears this issue, that they will say "No."

However, Kennedy wrote the opinion in "Lawrence v. Texas," the ruling that gave gay people the constitutional right to have sex (in 2003!) and so is at least a probable "yes" vote.

In Lawrence, Kennedy penned that
"our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." ... "Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
Sounds like he sees Gay marriage as a fundamental right. If so, then Americans might soon have a constitutional right to gay marriage, fueled, (ouch. My irony meter just broke...back to the shop.....) by the diligent efforts of the "Yes on 8" people in California.

Scalia, in his angry dissent in Lawrence agreed, stating:
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.

Assuming Kennedy votes "no", I ran a statistical analysis on the ages of the conservative justices to determine the average year one would die. (I possess such superpowers; but, to compensate look somewhere between silly and stupid in a bodysuit and cape. Not true, I can rock the cape, but no bodysuits or tights for me.) It's just about 16 years from now. If there is a Democrat in the White House in 2024, and an interceding Republican administration hasn't installed an anti-gay conservative (bit, uh opinionated, Djinn? Hell Yeah!) we, after every single other country in the first world (assuming we're still in that group) will finally decide that gay people have the right to get married. Pretty depressing.

Postscript. There are only five conservative justices, so the error bars on my prediction are pretty wide, but I used what material was at hand for my prediction. So there.


Anonymous said...

cool, ma. good stuff!

kerfuffler said...

I look forward to your rant about making amendments to constitutions with a mere 52% majority. Seems like such major decisions should at the very least be endorsed by an overwhelming majority.

Also, I feel bad being so eager for something incapacitating to happen to one----or more-----of the conservative Justices. But I am so sick of that absurd judicial philosophy called originalism. What a crock!