Point Me

Thursday, August 5, 2010

It's Called the US Constitution

There goes my streak of having all my posts this month start with the letter W. Oh well...

I want to write a little bit about the overturning of Prop 8 brouhaha that's going on right now in the good ol' US of A. It's exciting news for gay people and their allies, and I believe strong, positive step towards the firming of America's promise that "all men are created equal." Our country is so wonderfully diverse, in race and belief and lifestyle, it's hard to imagine that there would be any room to legislate the relationships between two consenting adults.

There's a lot of negative, opposing sentiment towards this judicial move floating around out there though. The most common complaint is of straight up judicial activism. I heard a woman on the radio this morning say "Why should people even bother to vote, if some judge is just going to overturn it and disobey the will of the people?" 53% of Californians agreed, and this lousy judge is going to override the choice of the majority.

It seems that these people forgot their high school history! In our country, we have a wonderful little thing called "judicial review," where decisions made by the legislative or executive parts of our "Three Ring Circus" can be scrutinized (and potentially overturned) by the judiciary.

This law wasn't solely overturned by a power/fame crazy dude with a gavel. Everyday citizens filed a suit in order to have the constitutionality of this ballot initiative examined. And guess what? The judge decided that this law was indeed unconstitutional, on the grounds that it defied the part of our founding document that protects citizens from discrimination. And if they want to try and fight this decision, they can appeal it! Oh...they basically already have.

I heard another person on the radio this morning say "You can read the constitution end to end, and you'll never find anything guaranteeing the right to homosexual marriage." Well, having read the bulk of the constitution this morning, I'm pretty confident that there's nothing in their expressly forbidding it either. In fact, there's very little legal precedent dealing with gay rights at all.

In reading up on the 14th Amendment, I was surprised to see that so few cases of discrimination due to sexual orientation have been considered under the Equal Protection Clause. This makes this court ruling all the more important, because it's working to define laws that are still so malleable.

I found this part particularly interesting, about how these 14th amendment cases get considered:

"The Supreme Court has defined these levels of scrutiny in the following way:

  • Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.
  • Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest.[20]
  • Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest."
So basically, the prop 8 opponents have to prove that defining who can receive full marriage rights is not a beneficial to our larger government and society. That the reasoning behind such a ban would be faulty, and not reasonably connected to the good of the whole.

I also hope that this case will help bring sexual preference out from under the blanket label of "some other basis", jeez.

I feel like Judge Walker,the former Reagan appointee who decided the case, summed up the unconstitutionality quite simply and brilliantly, strongly relating his ruling to the demands of the Rational-basis test:

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. 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."

And there you have it! But still we get the moral outrage, and the melodrama, and all the ignorance.

What really galls me is that the people who largely oppose the overturn are the same people who scream and cry about socialist-communist-dictator obama coming down their chimney at night to take control of their lives. Always complaining about how the democrats are shredding the constitution with their razor sharp demon teeth. All people should be free to live life unimpinged from the demands of the federal government! In other words: "Don't tell me what I can't do!"

Unless people are building a scary mosque...then tell them they can't build it. And ban this reading material because it offends me, and therefore nobody else would like it. And while you're at it, let's just ignore parts of our constitution that are 240 years old.

Hey, it's ok when they do it!

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