Tilted Forum Project Discussion Community - View Single Post - California Senate votes to allow gay marriage

smooth · 09-07-2005, 01:18 PM

j8bear, here's one of the rough drafts I have on my home computer:

Quote:

Our analysis begins with the recognition of marriage as a vital social institution. The abundance of legal, financial, and social benefits conferred upon married couples attests to the importance citizens and government place on this intimate, exclusive union between two individuals. Not only do married couples obtain over one thousand federal and hundreds of state rights as a result of their status, marriage helps stabilize domestic relations, encourages interpersonal love, devotion, and support, and fosters a nurturing environment for children. While the State has broad regulatory authority over marriage in the furtherance of these social goals, the Supreme Court has determined such power is not absolute. See Loving v. Virginia, 388 U.S. 1, 12 (1967). In addition to its impact on the social structure, marriage must be understood in light of its personal value to individuals. As we reaffirmed in Lawrence, decisions whether to marry or have children are central components to shaping one's identity. See Lawrence v. Texas, 123 S. Ct. 2472, 2480 (2003). Since California's restriction against same-sex marriages prevents entire classes of citizens from participating in this highly valued social institution and personal behavior, this Court must decide whether California’s restrictions forbidding same-sex marriage serve a rational and legitimate state purpose in accordance with the protections guaranteed by the U.S. Constitution. Because the challenged policy expressly discriminates among applicants on the basis of sex and gender, it is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment (Craig, et al. v. Boren, 429 U.S. 190 (1976); (United States v. Carolene Products Co., 304 U.S. 144, 82 L. Ed. 1234, 58 S. Ct. 778 (1938); United States v. Virginia, 518 U.S. 515 (1996) "all gender-based classifications" need to be evaluated with "heightened scrutiny"). The Supreme Court has held that legislative classifications that burden a fundamental right or target a suspect class will not be allowed unless they bear a rational relation to some legitimate end. Romer v. Evans, 517 U.S. 620 (1996). For purposes of equal protection analysis, sex is a "suspect" classification. See Frontiero v. Richardson, 411 U.S. 677 (1973). The burden of legitimacy is met only by showing that the classification serves "important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Mississippi University for Women, et al. v. Hogan 458 U.S. 718 (1982); Orr v. Orr, 440 U.S. 268 (1979); and Reed v. Reed, 404 U.S. 71 (1971) (laws classifying on the basis of sex must be "substantially related to an important governmental interest"). The level of scrutiny appropriate in cases such as these, as Justice O'Connor stated for a unanimous Court, must lie "between the extremes of rational basis review and strict scrutiny." Clark v. Jeter, 486 U.S. at 461 (1988).

The State claims a legitimate interest in restricting marriage to opposite-sex couples as a means to discourage morally reprobate conduct, encourage procreation, provide a stable setting for child rearing, and conserve State resources. Laws that recognize, promote, and protect marriage as the basis of the family, which we agree is an essential unit of society, are laudable and integral to the social and moral fabric of our culture. The fact that laws have historically criminalized homosexual conduct, however, does not create precedent for this Court to deny same-sex couples the right to marry. Neither appeal to tradition nor personal belief (religious, moral, or otherwise), can justify subordinating the desire and rights of homosexual couples to those of heterosexual families. See Lawrence v. Texas, 123 S. Ct. 2472, 2486 (2003) (O'Connor, J., concurring) (moral disapproval, with no other valid State interest, cannot justify law that discriminates against groups of persons); Planned Parenthood v. Casey, 505 U.S. 833, 850 (1992) ("Our obligation is to define the liberty of all, not to mandate our own moral code"); Romer v. Evans, 517 U.S. 620, 624 (1996) (“If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest"). The fact that this statutory policy discriminates against homosexuals rather than against heterosexuals does not exempt it from scrutiny nor does it reduce the standard of review.

III

The Supreme Court has already held marriage and procreation to be fundamental to the very existence and survival of the race. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Despite the powerful government interest in regulating marriage to promote child-bearing, California’s own circuit Judge Richard Kramer aptly ruled, “One does not have to be married in order to procreate, nor does one have to procreate in order to be married” (Marriage Cases, Judicial Council Coordination Proceeding, 4364 (2005)). The desire or ability to bear children is not a requirement presented to opposite-sex couples before they may marry. The State does not mandate fertility testing of couples before granting them marriage licenses. Nor does it rescind marriage licenses from childless unions. While recognizing that raising children in a healthy and stable environment is a legitimate and long-standing State interest, we can not conclude that the State’s interest in promoting stable households for children is met by denying loving, homosexual parents from marriage. Whether they are allowed to marry, homosexuals can and do raise children. Scientific studies presented to the trial court found that children of homosexual parents tend to have fewer psychological problems than children reared by heterosexual parents. Given the legal barriers and social animosity homosexual couples face in becoming parents, homosexual parents must engage in careful deliberation before choosing to raise children. Such parents can not accidentally have children as a result of sexual activity, whereas heterosexuals can and do. Adopting children is a lengthy, carefully screened process requiring motivation, patience, and appropriate financial means. Impoverished homosexuals do not have children whereas poor heterosexuals do. These factors lead us to conclude that homosexual parents provide at least as positive an environment for children as heterosexual parents. If the State is truly concerned with the welfare of children, it should focus on issues of unwanted pregnancy and poverty rather than restricting same-sex couples from engaging in one of our nation’s most cherished and fulfilling human interaction. In respect to the conservation of State resources, it is well settled that a State's interest in conserving resources does not allow it to create invidious distinctions between classes of citizens. See Plyler v. Doe, 457 U.S. 202, 216-217, 227 (1982).

The State contends that granting civil union contracts bestows many of the same rights and privileges as marriage does on couples. This Court must recognize a vast array of benefits is granted to married couples that civil unions do not obtain. Non-married couples are precluded from special tax provisions, inheritance protections, and civic respect, among other factors. The fact that California argues both marriage and civil unions are essentially the same in order to legitimate the distinction must prompt the Court to determine whether, if the two be equal, the State has a compelling reason to differentiate between them by name. The United States Constitution affirms the dignity and equality of all individuals and forbids the creation of second-class citizens. Distinguishing between heterosexual couples and homosexual couples by name is likely to promote discrimination in the social domain, even if legal distinctions were eradicated. Maintaining a dual-classed system that identifies same-sex couples as part of an unpopular segment of society runs afoul of the values this bench is charged to uphold. This Court is precluded from validating a State system of classification that publicly brands same-sex couples as second-class citizens.

IV

Plaintiffs also contend restrictions against same-sex marriage deprive them of a fundamental liberty interest. This Court must examine whether marriage is a fundamental right and, if so, whether California’s restrictions impede citizens who wish to marry partners of the same sex, whom we have determined to be a suspect class of individuals, from exercising it. The Supreme Court has insisted that liberties must be both fundamental and traditionally protected by society in order to obtain protection under the Due Process of the Fourteenth Amendment. See Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Planned Parenthood, et al. v. Casey, et al. 505 U.S. 833 (1992) confirmed that “the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” This Court has long recognized the institution of marriage as a fundamental right that "is deeply rooted in this Nation's history and tradition" Michael H. v. Gerald D., 491 U.S. 110 (1989). See Goodridge v. Deptartment of Public Health, 440 Mass. 309 (2003) ("The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference"); Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ("the right to marry is of fundamental importance for all individuals"); Loving v. Virginia, 388 U.S. 1, 12 (1967) (freedom to marry is "one of the vital personal rights essential to the orderly pursuit of happiness by free men" under due process clause of Fourteenth Amendment and "fundamental to our very existence and survival"); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage is one of "basic civil rights of man"). "Our doctrine known as "substantive due process" holds that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest" (Lawrence quoting Washington v. Glucksberg, 521 U.S., at 721 (1997)). We have already reviewed the State’s interests in restricting same-sex partners from marriage and found them to be lacking a compelling state interest.[...]

Hopefully you find this piece stimulating.