Do gay marriage bans violate the Constitution’s equal protection clause?
When the California Supreme Court ruled in 2008 that same-sex marriage was permitted under the state constitution, voters spoke out.
Campaigns were waged, rallies were held, and Proposition 8 – a voter referendum amending the state Constitution, declaring that “only marriage between a man and a woman is valid or recognized in California” – was passed by 52 percent of voters.
Now a federal judge says that Prop 8 is unconstitutional. In early August, U.S. District Chief Judge Vaughn R. Walker ruled that gay and lesbian couples have a right to marry under the U.S. Constitution. In his ruling in Perry v. Schwarzenegger, Walker said the state’s marriage law “both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” The decision is expected to be appealed in what is shaping up to be a lengthy legal battle, possibly culminating at the Supreme Court.
Defense of marriage or violation of rights?
The gay marriage movement has steadily built momentum since 2000, when Vermont became the first state to legalize same-sex civil unions – legally recognized domestic partnerships given many of the benefits of marriage without actually being called marriage. Since then, four other states and the District of Columbia have passed laws allowing same-sex couples the right to obtain marriage licenses. In 2009, Vermont modified its civil unions law to allow for same-sex marriage as well.
Support is growing, but the public is still largely resistant to allowing same-sex couples the right to marry. Bans were approved by 52 percent of voters in California and 53 percent of Maine voters; Pennsylvania’s House of Representatives passed a gay marriage ban by a 136-61 vote, but the companion bill still lingers in the state Senate.
Many opponents of same-sex unions, including the group Protect Marriage, argue that marriage “is an essential institution of society,” and should be defended. Supporters of Prop 8, for instance, said homosexual couples should not redefine marriage for heterosexual couples; they worried that children raised by same-sex couples would not fare as well as children raised by a father and a mother; they feared that public schools would teach about gay marriage in a positive light.
Supporters of same-sex unions agree that marriage is fundamental to society. That’s why they believe it should be extended to include all couples, straight or gay. They believe that denying same-sex couples the right to marry – or outright banning gay marriage– violates the 14th discriminates against homosexual couples , they argue.
Walker agreed. In his ruling on Aug. 4, he wrote that the ban “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”
“Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples,” he wrote.
The decision is expected to be appealed to the 9th U.S. Circuit Court of Appeals.
What do you think?
Did Judge Walker rule correctly in overturning Proposition 8? Does a ban on same-sex marriage violate the equal protection clause of the Constitution? Imagine you are a judge on the 9th U.S. Circuit Court of Appeals. How would you rule?
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