Tuesday, March 26, 2013, marks the start of the Supreme Court decision regarding the constitutionality of California’s Proposition Eight, which makes the marriage between homosexuals illegal. However, before I tell you why they are going to rule against Prop 8, I need to clear up an issue: the disputed neutrality of SCOTUS.
The foremost reason people claim the Supreme Court slants one way or the other is their rulings on controversial issues, which is seen as bias. They are seen as being personally in favor or not in favor of the issue on hand, whereas SCOTUS’s purpose is not to be the morality police, but rather to decide whether something is legal or not. Of course, existentially, the legality of something may very well determine the morality, but that’s another post.
SCOTUS is the ultimate authority of legality and constitutionality, and their rulings do not necessarily reflect their personal views. For example, in the landmark case Lemon v Kurtzman , the Supreme Court ruled on the legality of government-funded religious displays and activities, while simultaneously creating the “Lemon Test”, which still stands today. The Lemon Test reads as follows:
Three ... tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.[1]
This was seen as a quite liberal decision; however, the Chief Justice at the time, Warner Burger, was considered both a conservative and an originalist, meaning he believed that it was not the Supreme Court’s job to strike down laws, but merely to uphold them. One can clearly see the conflict between the justice’s personal views and that of his ruling.
Now that I have established SCOTUS’s neutrality, I will predict what ruling they will make in the coming months.
The main legal argument against Prop 8 is that of the first part of the 14th Amendment, which reads:
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[2]
Specifically, the part about “abridge[ing] the privileges or immunities of citizens of the United States,” along with “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.”
I think it would be correct in assuming that privileges include the right to get married, and that it is the purpose of the law to uphold these privileges. Therefore, it is unconstitutional to deny citizens a privilege such as marriage.
Case closed.
But not quite.
The argument for Prop 8 defines marriage as between a man and a women, citing tradition. I guess that also means we shouldn’t have a democracy, or free speech, or abolition, or cars for that matter, because these are not traditional. Gee, see how that logic works against you, hard righters?
The second way the pro-Prop 8 attorneys are blatantly disregarding the 14th Amendment is by also defining the purpose of marriage as for reproduction. According to this logic, infertile men and women, along with the elderly and those who do not wish to have children, cannot marry. What would be really interesting is if one of the pro-8 attorneys turned out to be infertile, or gay for that matter.
Any other arguments, especially those along the lines of “It’s against the Bible” will be easily thrown out by SCOTUS as hogwash, with the justices citing, “This is not a Christian nation. It may be a nation of Christians, but it was in no way based on the Christian religion.”[3]
Simply, the only reason to keep Prop 8 is if you are homophobic bigot that enjoys taking rights away from people different than you.
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