A Tribute to my Love – Justice O’ Connor

            It was difficult for me to see Sandra Day O’Connor leave the court after being its most influential member as the “swing vote” for almost two decades, but she saw Lawrence v Texas (and likely same-sex marriage) as an equal protection issue instead of a substantive due process issue as the majority of the court did. In her concurring opinion O’Connor wrote  “The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, (1982). An obvious obstacle for further cases will be to define whether same-sex couples are “similarly situated,” but at least further rulings may be less ambiguous.

 

 In addition, O’Connor held that “We have consistently held that some objectives, such as “a bare … desire to harm a politically unpopular group,” are not legitimate state interests. Department of Agriculture v. Moreno. This point merits consideration as on the whole it appears a mere vote, such as proposition eight in California, may not hold up to a challenge which merits strict scrutiny. If a challenge of Proposition 8 finds – as the Massachusetts Supreme Court did – that not allowing same-sex couples the right to marry creates “second class citizens” then the fact that “The Equal Protection Clause ” ‘neither knows nor tolerates classes among citizens.’ ” (Plessy v. Ferguson (1896)) may play a role in the Supreme Courts’ decision.

 

A closer look at Lawrence v Texas

         According to the Congressional Research Service, Lawrence v Texas (2003) stated that the 14^th amendment’s due process clause guarantees privacy for same-sex couples to engage in consensual sexual practices; and that the due process right to privacy prevents governmental interference and protects personal decisions. Within these decisions were specific protections of issues dealing with contraceptives, abortion, marriage, procreation, and family relations.

From Massachusetts to Florida

The Supreme Court of Massachusetts found the following conclusion: “The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.” Goodridge vs. Dept. of Public Health (2003).

 

Massachusetts was not the only state to find no reason to deny same-sex couples the right to marry. The Supreme Court of Florida also asked itself if same-sex marriage passed two tests. 1. Does it pass the “rational basis test” and 2.  Is it a “suspect” classification, in other words, is there a fundamental human right implicated in the legislation with regard to same-sex marriage.

 

The court found that “It appears that no rational purpose exists for limiting marriage to opposite-sex partners” and that “the fact alone that the discrimination has been sanctioned by the state for many years does not supply such constitutional justification.” I would like to point out that the court does two important things within these quotes. First, it states that preventing same-sex marriage is discrimination, and Second, that allowing same-sex marriage is as rational as it is constitutional.

 

Even Florida’s moderately republican Chief Justice Ronald M. George, said he sees the fight for equality of same-sex couples as tantamount to that of the one fought by African-Americans. He told Time magazine that, “I think there are times when doing the right thing means not playing it safe.” From a judicial standpoint Justice George was simply following the precedent set in the case of Romer v Evans (1996) which stated that legislation adverse to homosexuals was to be reviewed under “strict scrutiny” so that it did not violate the equal protection clause of the 14^th amendment.

The Legal Side of Marriage

“Civil marriage is a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.” Goodridge vs. Dept. of Public Health (2003). “[Civil marriage] is an association that promotes a way of life; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut (1965). These excerpts help define what a civil marriage is. And because it is “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey (1992). And because civil marriages are issued by a secular state, I believe civil marriage is an individual right.  

 

 

In the case of Lawrence vs. Texas, the Supreme Court “affirmed that the core concept of human dignity protected by the Fourteenth Amendment precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one’s choice of an intimate partner.” By applying this meaning of the United States Constitution to the issue of gay marriage, it is difficult to understand how the government can justify its intrusion, outlawing the right of same-sex couples to marry – especially, when civil marriage was deemed a “civil right” in the landmark case of Loving vs. Virginia.

 

Before Massachusetts found same-sex marriage to be constitutional in 2003, Judges argued that the primary purpose of marriage was “procreation,” and therefore the denial of that right to same sex couples was constitutional. (I have yet to find the legal backing to this argument however I will continue to look). The procreation argument would also imply that there must be a fertility requirement in every marriage.  The Massachusetts Supreme Court ruled that “fertility is not a condition of marriage” and that it is not rational (as not every heterosexual couple is fertile) to require it. In addition, I would like to point out that the definitions given above do no mention procreation.

 

“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Skinner v. Oklahoma (1942). If this is the case, then our survival is at stake because there are many homosexual couples in the United States who cannot receive a civil union, let alone marry. And if it is true that “Civil marriage enhances the ‘welfare of the community’ and is a ‘social institution of the highest importance.’” (Goodridge vs. Dept. of Public Health (2003) quoted from French v. McAnarney). Then would it not be reasonable, if not necessary to guarantee this right to same-sex couples?

 

A further analysis shows that “The United States Supreme Court has described the right to marry as ‘of fundamental importance for all individuals’ and as ‘part of the fundamental ‘right of privacy’ implicit in the Fourteenth Amendment’s Due Process Clause.’” (Goodridge vs. Dept. of Public Health (2003) quoted from Zablocki v. Redhail (1978)). Consequently, it appears that because the Fourteenth Amendment provides for the “equal protection” of “liberty” for every “person” under its jurisdiction, that same-sex marriage is an individual right. This argument is clearly stated in Loving v. Virginia where it states that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”.  Moreover, “There can be no prohibition of marriage except for an important social objective and reasonable means” (Perez v. Sharp (1948)). The violation of our individual rights seems anything but “reasonable.”