Thursday, August 5, 2010

Now that Proposition 8 has been struck down, will gay marriage become the law of the land?

That's the central question of my Scripps Howard column with Ben Boychuk this week. My take:

Whether the Supreme Court strikes down gay-marriage bans may depend entirely on the attitudes and disposition of Justice Anthony Kennedy, who tends to be the swing vote on controversial issues. Reading his 2003 opinion in Lawrence v. Texas -- the ruling that struck down laws making homosexual sex a crime -- it's difficult to see how state bans on gay marriage will survive.

It is true that Kennedy, in his 2003 ruling, was careful to state that decriminalizing such sexual practices did not require formal government recognition of gay relationships. But the logic of that ruling is compelling in the context of gay marriage.

The logic was this: To use the law to set apart homosexual conduct "demeans the lives of homosexual persons," and thus is at odds with the guarantees of liberty provided by the U.S. Constitution.

Kennedy was right then, and he would be right now to say the same thing about gay-marriage bans.

Such a ruling would invariably bring cries of "judicial activism" from the right, but it's entirely appropriate for the courts to get involved. Since at least the late 1960s, the right to marry has been considered a "fundamental right" under the U.S. Constitution --and nobody seriously contests that. Fundamental rights, it should be noted, cannot and should not be contravened by legislative action or statewide referendums. They simply exist.

Walker correctly realized this in his ruling. Gay couples, he wrote, "do not seek recognition of a new right. To characterize (their) objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy -- namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

If the Supreme Court follows its own precedent, it will agree. And that will be a good thing.

Ben obviously has a different take on things, about which I can say little more than what I have. I do have to take issue, though, with one of his remarks:

Marshalling one-sided testimony from social scientists led Walker to conclude: "Gender no longer forms an essential part of marriage," "parents' genders are irrelevant to children's developmental outcomes" and, incredibly, "the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage."

Here's where it must be noted that if the testimony in the case seems "one-sided," it's because the Proposition 8 proponents who argued the case at trial barely bothered to put on a case. They called just two witnesses, one of whom -- David Blankenhorn -- wasn't a researcher, exactly, but a pundit. (From Prop 8 on Trial: "He has never written a peer-reviewed article on the effects of same-sex marriage nor, by his own admission, studied any of the legal cases in which the United States Supreme Court has declared marriage a fundamental right.") I think it's fair to say that Ben is just about as qualified as Blankenhorn to make the pro-Prop 8 case -- and Ben, despite being widely read and a great writer, isn't qualified at all to testify as an expert witness.

Qualifiactions aside, though, he wasn't exactly a stellar witness for his side:

Under cross-examination by David Boies, an attorney for challengers of the ballot measure, Blankenhorn admitted he knew of no study that showed children reared by gay couples fared worse than those raised by heterosexual parents.

Blankenhorn also conceded that same-sex marriage would probably "improve the well-being of gay and lesbian households and their children."

Further down our column, Ben complains that Judge Walker "simply asserts" that voters based their decisions based on moral disapproval. But the pro-Prop 8 attorneys basically tried to assert their way to legal victory in this case. That's not the fault of Walker, nor is it the fault of gay marriage advocates. And it's hard to avoid the conclusion that the pro-Prop 8 lawyers barely put on a case defending the Constitutionality of a gay marriage ban because, well, they didn't have much of a case to make.

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