Saturday, November 14, 2009

A Professor's Influence Suggests A Promising Outlook for the Future Gay Rights.

Despite the defeat of same-sex marriage in Maine and the possible upcoming battle over same-sex marriage in New Hampshire, where two legislative proposals aim to overturn the new law set to take place January 1 of next year, it's important to realize that the legalization of gay marriage is inevitable.

Exposing the hypocrisy - most recently evident when Carrie Prejean, who is against gay marriage, and at the same time, known for hard-core sex tapes, nude pictures, lying, and cover up, took her microphone off in the middle of an interview on CNN's Larry King Live. Why? She did not want to answer questions from Larry King and a caller inquiring about her views on gay marriage - is crucial to speeding up the process of legalizing same-sex marriage.

Laurence H. Tribe, author of An Invisible Constitution, Professor of constitutional law at Harvard Law School, who said that Obama was "overall the most impressive student he's ever had" (out of 7,000 students including Chief Justice John Roberts ), and who also served as judicial adviser to Obama's campaign, has the experience, depth of knowledge and understanding of what it takes to evolve gay rights to a point of total equality.

In his article, Toward a Less Perfect Union, written in 1996, Tribe pointed out the irony of eviscerating the Constitution's Full Faith and Credit Clause —by giving a state the right to deny the validity of a marriage already sanctioned by a another state - the provision in DOMA that discriminates against gay marriage,

"..The Constitution's principal device for assuring a "more perfect union" is the Full Faith and Credit Clause, which requires that each state must fully credit "the public acts, records, and judicial proceedings of every other state." More than half a century ago, the Supreme Court described the clause as "a nationally unifying force" that transformed the individual states from "independent foreign sovereignties, each, free to ignore rights and obligations" created by the others, into integral parts "of a single nation, in which rights . . . established in any [state] are given nationwide application."
And he went on to say,

This would convert the Constitution's most vital unifying clause into a license for balkanization and disunity.
Laurence Tribe, knowingly gave up any chance of winning a place on the "Reagan" Supreme Court when he argued Hardwick’s case in Bowers v. Hardwick, which resulted in a US Supreme Court decision that upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults which was primarily targeted at homosexuals, even though heterosexuals violated this law nightly. Regarding that case, Tribe said he knew he "couldn't win but wanted to get some good dissents in".

"Tribe, was at the time, probably the only straight lawyer in the country to receive the National Lesbian and Gay Law Association’s Allies for Justice Award, which was bestowed on him in 1996. Tribe was so pleased when notified of the honor, that he asked the person on the phone if he could bring his wife to the award ceremony. There was a few moments of stunned silence on the other end. But, of course, this was all part of that same cultural change. The struggle for gay rights had transcended the gay community — equality under the law had become a fight by all and for all." -- Kathleen Sullivan, his student and later faculty colleague who went on to be named dean of Stanford Law School
After the Bowers decision, Tribe told his students that "time would correct the injustice". Seventeen years later in 2003, his words came true in Lawrence v. Texas, the landmark U S Supreme Court case, that struck down the sodomy law in Texas. Tribe wrote the ACLU brief that the courts accepted when it overruled Bowers.

He said that this is the only case in history that he knows of, where the court said that the earlier decision was wrong on the day it was decided. In other words, the court did not preface their decision with the rhetoric normally spoken before overruling, such as: things have changed, the world has changed, Brown v. Board addresses a world that's different than Plessy v. Ferguson, etc. Instead the court said, "the original decision fundamentally denied the dignity and equality of gay people and was wrong from the start."

One has to ask in light of the recent election results regarding Prop 8, if the right at issue (gay marriage) belongs to the public at large or is it, rather, an individual right that is not subject to majority infringement? Could the following be applied to same-sex marriage? I think so, but what do I know, I'm not an attorney.

The Fifth Amendment's Due Process Clause has been interpreted to require non- discrimination in treatment of people.

Specifically, regarding gender, * Reed v. Reed, established that, "arbitrary preference established in favor of males by § 15-312-14 of the Idaho Code cannot stand in the face of the Fourteenth Amendment's command that no State deny the equal protection of the laws to any person within its jurisdiction." That later lead to the equal protection component of the 5th Amendment Due Process Clause stated this way: "confers on petitioner a federal constitutional right to be free from gender discrimination that does not serve important governmental objectives or is not substantially related to the achievement of such objectives."

In addition, the Equal Protection Clause of the 14th Amendment was used in deciding Loving v. Virginia, the Supreme Court decision that stated blacks and whites could not be prevented from marrying as it clearly violated the 14th Amendment's due process clause.

In Laurence Tribe's book, The Invisible Constitution, he refers to the Ninth Amendment as an example that supports the recognition of rights not explicitly mentioned.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
We can only hope the influence of Harvard Law Professor Laurence Tribe will shape the fundamental character and underlying assumptions that will inform the Obama administration regarding equal rights, freedom, liberty, and the chance for all citizens to engage in the pursuit of happiness.

Major court decisions effecting same sex marriage:

Griswold v. Connecticut (1965)
The U.S. Supreme Court held that a Connecticut law prohibiting the sale and use of contraception could not apply to a married couple because the U.S. Constitution generally guarantees a right to marital privacy.

Loving v. Virginia (1967)
The U.S. Supreme Court invalidated a Virginia law banning interracial marriage, partly on the ground that the 14th Amendment’s Due Process Clause guarantees a fundamental right to marry.

Eisenstadt v. Baird (1972)
The U.S. Supreme Court invalidated a Massachusetts law prohibiting the distribution of birth control to single people.

Bowers v. Hardwick (1986)
The U.S. Supreme Court upheld a Georgia anti-sodomy statute on the ground that the constitutional right to privacy does not guarantee the right to have private, consensual sex with a person of the same gender.

Romer v. Evans (1996)
The U.S. Supreme Court invalidated an amendment to the Colorado Constitution that nullified local anti-discrimination protections for gay and lesbian people.

Lawrence v. Texas (2003)
The U.S. Supreme Court invalidated a Texas anti-sodomy statute for violating the 14th Amendment’s Due Process Clause, thereby overruling Bowers v. Hardwick.

Goodridge v. Department of Public Health (2003)
The Massachusetts Supreme Judicial Court held that a state law limiting marriage to opposite-sex unions violated the Massachusetts Constitution.

Marriage Cases (2008)
The California Supreme Court held that sexual orientation is a "suspect class" under the California Equal Protection Clause, and state laws limiting marriage to opposite-sex unions therefore violate the state constitution.
Links:
Same Sex Marriage Timeline

"I want judges who have a heart, have an empathy for the teenage mom, the minority, the gay, the disabled. We want them to show empathy. We want them to show compassion." -- President Elect Obama
*An example of how some twist the meaning and intent of the law in the most outrageous ways to fulfill their own discriminatory agenda. This guy wants feedback. Give it to him.

2 comments:

Anonymous,  21:39  

Obama wants judges to show empathy and feeling? I thought the judge was supposed to stick to the facts and the law when making a ruling, not use his feelings to make decisions.

If this is a sign of things to come ...gay marriage and an invisible constitution, this country is over.

dontaskme,  11:52  

I don't know who this Tribe guy is but he sounds like some kind of nut.

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