Thursday, June 27, 2013

DOMA & Prop 8 - Victories for Civil Rights

In handing down a decision on U.S. v. Windsor (better known as the DOMA decision), the U.S. Supreme Court today hands down a historic decision in the nearly traditional format of a 5-4 majority opinion. Not surprisingly, I believe the majority was not merely morally correct in their analysis, but legally and logically as well. I strongly urge reading, with a quad mocha venti in hand to fend off jargon induced snoozing, the original opinion linked above rather than relying on second hand analysis.

That said, I'm going to do some of that analysis and a bit of opining. But first...


With that out of my system, equality before the law is a consistent thread that has long run through my advocacy for both LGBT rights and Second Amendment rights - with some of the most personally challenging moments in my activist adventure being dealing with individuals in either camp that fail to see that freedom is one size fits all, and doesn't just apply to folks we like or agree with or whose lifestyles (or, when it comes to LGBT issues, drawing an especially interesting hand in the poker game of the fates).

Moving to todays decision on DOMA, however, we see five justices adhering to the settled principles laid out in Loving v. Virginia and Lawrence v. Texas. In Loving v. Virginia we saw the Supreme Court of the United States unanimously hand down a decision invalidating restrictions on interracial marriages nation wide, holding such regulation as unconstitutional under the provisions of the first section of the 14th Amendment.

"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."
Probably the best summary of the decision is found in this quote

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State." 

Race is an inborn (if largely irrelevant in most instances) characteristic, and the evidence increasingly supports that orientation is an equally inborn (and largely equally irrelevant) characteristic outside of a very narrow band of activities. In each instance, outside of very narrow fact sets, we see the expression of the individuals possessed of these inborn characteristics as primarily a series of acts motivated by personal history and acculturation.

The Warren Court found race an impermissible classification upon which to deny the right to marry, finding that such a bar was odious to the Fourteenth Amendment.

In Lawrence v. Hardwick, the Court referenced a long line of cases reaching as far back as 1925 that developed the "right of privacy" as we know it today before reaching - again, under the Fourteenth Amendment - a decision ruling sodomy laws in Texas specifically (and by implication, throughout the United States) to be unconstitutional.

Feel free to skip ahead, but I think a quick review of the Courts line of cases will make clear why I associate these cases. Much like Miranda v. Arizona, the DOMA decision did not spring like a newborn unicorn in full flight leaving rainbow contrails behind it from the collective foreheads of five Justices - in each instance, the later decisions are built on a long list of prior decisions rather than originating in more fanciful realms.

In Griswold v. Connecticut, 381 U.S. 479 the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives describing the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. 

In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons, stating “It is true that in Griswold the right of privacy in question inhered in the marital relationship… . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id., at 453.

Griswold and Eisenstadt provided intellectual underpinning for Roe v. Wade, 410 U.S. 11(1973), the well known case that challenged the Texas law prohibiting abortions, but the laws of other States were affected as well.  Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.
In Carey v. Population Services Int’l, 431 U.S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.

Bowers, later ruled as decided in error, had some similarities to Lawrence v. Texas. A police officer observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male in violation of the Georgia sodomy statute. Hardwick alleged the criminal prohibition violated rights guaranteed to him by the Constitution. The Court sustained the Georgia law. 1

Lawrence v. Texas rotates (again) around police finding two gay men rather enthusiastically in flagrante delicto in the home of one of the men, a presumptively private space. In Lawrence  the court over-ruled their prior decision in Bowers and cited  Romer v. Evans, 517 U.S. 620 (1996) in a lengthy dissection in detail of the errors of Bowers. In Romer the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution set forth homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” id., as a special class  anddeprived them of protection under state anti-discrimination laws. In Lawrence, the Court held "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."
Concurrent to the later decisions in the chain above we saw early and abortive attempts to legalize same sex marriage in some states and subsequent to Lawrence, the successful passage of a variety of domestic partnership and marriage statutes accommodating same sex marriage in a number of states.

During this era we also saw the passage of DOMA and several other state and federal statutes emerge with the stated goal of ensuring that LGBT persons would be continued in a state of second class citizenship, denied a broad range of rights and privileges based upon their membership in the broad class "homosexual" in the sense of the word used in Romer.

It was in this contradictory environment that the Court found United States v. Windsor (Defense of Marriage Act challenge, Section 3 - ed.) hurled at it, not unlike a stink bomb at a cotillion. Section 3 of  DOMA specifically defined for all federal purposes marriage as  being exclusively the union of one man with one woman with no other permissible definition - in turn modifying the meaning of over 1,000 federal statutes including such wide-ranging subjects as burial next to a spouse in a veterans cemetery, immigration, tax law and far beyond. Further, the legislative and subsequent practical history made abundantly clear that the purpose of DOMA was to set forth a class of persons to be systematically deprived of rights that would otherwise be available to them in those instances where their resident states allowed same sex marriage in a broad new assertion of federal law as superseding the historic regulation of marriage standards by the states (while not exclusive, as shown in Loving, it in the greatest part has been a state issue and could likely be argued under the Tenth Amendment even more effectively).

The decision of the court should, in light of prior decisions, not have been a surprise to anyone. While it is a dissapointment that several justices chose to cling to the reasoning of Bowers, today we celebrate a triumph for civil rights and, perhaps, the beginning of an era where the response to the announcement of ones orientation is "So?"

Much of DOMA remains standing. The provision that allegedly relieves states of the onerous burden of recognizing same sex marriages performed in other states remains active, and in my understanding similarly relieves states of the burden of recognizing same sex marriages performed in other nations.

No case has yet appeared to examine how DOMA holds up to the Full Faith & Credit clause of the Constitution, which would seem to compel states to recognize marriages performed in accordance with the laws of other states. This, however, would seem to only be a matter of time.

Windsor is a step forward, a battle won. It is not the end, and as with most decisions raises more questions that future Courts must resolve. It is, however, a major step forward in the ongoing battle against legislated bigotry and for individual rights.

Without the legalese, which consenting adults get naked with other consenting adults is increasingly simply not the business of governmental nannyism.

1This section is largely a summarized quote from Lawrence v. Texas 

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