Chemerinsky On Prop 8 Ruling: No Good Reason To Deny Gays And Lesbians Equal Rights
UC Irvine School of Law dean Erwin Chemerinsky explains in the LAT:
Tuesday's federal court ruling declaring Proposition 8 unconstitutional can be easily explained: There is no legitimate government interest in prohibiting same-sex marriages. It is for this reason that the Supreme Court is likely to affirm the U.S. 9th Circuit Court of Appeals and hold that the denial of marriage equality to gays and lesbians violates the U.S. Constitution.In one sense, the 9th Circuit ruled narrowly, holding only that Proposition 8 was unconstitutional because it rescinded an existing right in the state. In another sense, though, the reasoning of the court stands for a broader proposition: The ban on marriage equality for gays and lesbians serves no legitimate government interest. Under this reasoning -- though it was not the holding of the case -- any law denying marriage equality would be unconstitutional.
Laws that discriminate against individuals must, at the very least, serve a legitimate government purpose. The 9th Circuit found no such compelling purpose in a California ballot initiative that rescinded the right of gays and lesbians to marry. Instead, the court concluded, the reasoning behind the law could be explained only as impermissible animus.
One contention frequently made is that marriage, by definition, is between a man and a woman. But this is not an argument; it is just a definition. Certainly marriage can be defined this way, but it also can be defined to include same-sex couples exchanging the same vows, going through the same rituals and receiving the same benefits.
...One central criticism of the 9th Circuit's decision is that it was wrong for the court to substitute its decision for that of the voters. However, it is a crucial judicial role to interpret the Constitution and to remedy unjust discrimination and violations of rights. It was not impermissible judicial activism when the Supreme Court invalidated laws prohibiting interracial marriage, and it is equally appropriate for courts to declare unconstitutional laws rescinding the right to same-sex marriage.
Love his ending:
No doubt many are offended by the idea of same-sex marriage. But, of course, those who don't like the idea of same-sex marriage don't have to marry someone of the same sex.
That bit in the Declaration of Independence about government deriving its just powers with the consent of the governed is no longer in effect.
This time, you might argue they got it right. They sure as hell got it wrong in Dredd Scott and Kelo to cite a few of the more famous stinkers. Griggs vs Duke Power is why you need a college degree and a whole bunch of debt to get a job that doesn't require one.
Get used to the judicial dictatorship kids.
MarkD at February 9, 2012 5:56 AM
Usually I don't agree with the 9th, but this one I can support. Did they change JUDGES OR SOMETHING?
Jim P. at February 9, 2012 5:56 AM
MarkD: they are not dictators, silly.
They're oligarchs.
-Jut
JutGory at February 9, 2012 6:55 AM
Meh, my opinion has developed over time on this.
I don't think homo marriage is the reason why hetero marriage is going down the tubes. I think that has more to do with government interference and intrusion into people's lives. The level of government involvement with the nuclear family is increasing and as a consequence, its rendering the importance of accepting personal responsibility (for yourself or teaching it to your children) a pretty low priority. The absence of that important life tenant can do a lot of damage in ones general attitude and how they approach obstacles in life - in just about any area. I don't think it has anything to do with Sally and Trudy wanting to hitch their scissors up to the same giddiup.
I would prefer for the Feds to NOT be involved in marriage in the first place. I do think Gays wanting a federal blessing for their shared love with one and other, not really well thought out in the long run. Why on Earth do you want the feds involved - e.g. DOMA? But what is granted to one, should be granted to all equally.
I mean, why do people want more government in their lives like this - especially if they aren't planning on having kids?
The rest of it, ppppttthhhhhtttt. I can't say from what I see on facebook these days that many of the same-sex marriage advocates have NOT been scoring any points with people like me (quasi fence sitters) and more moderate reasonable folks on this issue. Someone posted something the other day about opponents having ugly fucking children. Really? The mean spiritedness and tone is too much for me. I am becoming tone deaf to the whole thing. Good luck guys!
When you start acting like adults I'll start becomming more willing to be more persuasive for ya, but today - this is all I got.
Feebie at February 9, 2012 7:44 AM
The court's given reason for the ruling is idiotic. But Chemerinsky compounds the idiocy by reading a broader "what they really meant was" reason into the ruling. If there is a good reason to rule the way the court did, they should have used that reasoning and not cobbled together the absurd rationale they used.
Then again, courts have had grotesquely bad decisions stand in the past so I wouldn't bet against it.
BlogDog at February 9, 2012 7:46 AM
I've given up on these courts, and trying to explain to people that even if you agree with the ruling....the fact they didn't go through the proper consitutional and legal routes to make the legitimate changes - You.Will.Be.Fucked. down the road.
Good luck!
Feebie at February 9, 2012 7:53 AM
Prop 8 is an unfair, unjust bigoted constitutional amendment. However, ruling that a constitutional amendment is unconstitutional is absurd. Because it is part of the constitution, it is by definition constitutional.
I opposed it at the ballot box and support effort to remove it from the constitution. But as long as it part of the constitution, it should be the law of the state.
Curtis at February 9, 2012 9:16 AM
Curtis, the Prop 8 amendment was added to the state constitution, but was found by the 9th Circuit Court to violate the federal Constitution.
Conan the Grammarian at February 9, 2012 9:29 AM
I mean, why do people want more government in their lives like this - especially if they aren't planning on having kids?
Some of them are planning on having kids, or do have kids. And given how effectivly the 'social' vs the 'legal' parent can get cut off from the kids if they break up, I dont blame them for wanting governemnt interference.
At the very, very least such interference will leave a paper trail to show the kids when they show up asking why they were abandoned
lujlp at February 9, 2012 3:41 PM
"Tuesday's federal court ruling declaring Proposition 8 unconstitutional can be easily explained: There is no legitimate government interest in prohibiting same-sex marriages. "
Wow, a federal court invokes the Tenth Amendment, even if tacitly. Is there any other case in the last 100 years where a court found that a government body can't do something simply because the Constitution doesn't grant it the power to do that? Never knew the Ninth Circuit was so full of strict constructionists.
Cousin Dave at February 10, 2012 4:45 PM
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