Friday, December 07, 2012

Supreme Court to take up Prop 8 Case.

According to Fox News:
The Supreme Court will take up California's ban on same-sex marriage, a case that could give the justices the chance to rule on whether gay Americans have the same constitutional right to marry as heterosexuals.
The justices said Friday they will review a federal appeals court ruling that struck down the state's gay marriage ban, though on narrow grounds. The San Francisco-based appeals court said the state could not take away the same-sex marriage right that had been granted by California's Supreme Court.

The court also will decide whether Congress can deprive legally married gay couples of federal benefits otherwise available to married people. A provision of the federal Defense of Marriage Act limits a range of health and pension benefits, as well as favorable tax treatment, to heterosexual couples.

The cases probably will be argued in March, with decisions expected by late June.

The Fox News opening paragraph is a classic example of framing the issue by begging the question. So, rather than swallow the hook, let's ask, "is the right ot marry a constitutional right?" and "is a homosexual right to marry the 'same' constitutional right as the heterosexual right to marry?"

The answer to both is "no."  My initial thought was that the right to marry was not a "constitutional right" - i.e., a right created by the Constitution - but a natural right - a right created by the nature of human beings - which the Supreme Court recognizes that the state has no right to interfere with.

My initial thought is correct. Here is the United States Supreme Court in Loving v. Virginia, which struck down anti-miscegenation statutes:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. HN5The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Loving v. Va., 388 U.S. 1, 12 (U.S. 1967)
So, yes, the right to marry is not a right created by the Constitution. Rather, it is a "vital personal right essntial to the orderly pursuit of happiness by free men," i.e., a natural right, although it is passe for a modern court to say "natural right."

Moreover, it is a natural right because of its role in the preservation of the human race. Again, from Loving:

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.

Loving v. Va., 388 U.S. 1, 12 (U.S. 1967)
So, marriage is a basic civil right because it is fundamental to our very existence and our survival.  That certainly is the case with respect to heterosexual marriage, because we don't simply abandon children to fend for themselves after birth; rather, we ordinarily rear them within the biological family in which they were born.

Is that the case with homosexual marriages?  Are homosexual marriages ordered to the "very existence and survival" of human beings.  Obviously not, unless we are going to indulge in fiction and fantasy, in which case the end of that particular game will be water down the actuality of marriage as 'fundamental to our very existence and survival."

Note further that the Court quite properly describes racial classifications as being unsupportable. Why does it say that?  Because when it comes to making babies and raising them, mixed race couples are just as capable of fulfilling that function which is "fundamental to our very existence and survival" as homogenous raced couples.

Also, note how the Court deals with hypocrital illogic of racial classifications:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed  to maintain White Supremacy. n11 We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.


n11 Appellants point out that the State's concern in these statutes, as expressed in the words of the 1924 Act's title, "An Act to Preserve Racial Integrity," extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia's miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve "racial integrity." We need not reach this contention because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the "integrity" of all races.

Loving v. Va., 388 U.S. 1, 11-12 (U.S. 1967)
So, Virginia was perfectly understanding of people who wanted to "mongrelize" any race other than the "white" race. This is obviously the epitome of unequal treatment, which had as its purpose the continued unequal treatment of African-Americans.

So, is homosexual marriage a "natural right" in the sense that homosexual marriage is " fundamental to our very existence and survival"?  Well, given the fact that mankind has managed to muddle through the last 100,000 years without homosexual marriage, and given the notorious sterility of homosexual unions, the answer seems fairly obvious.

Not that we shouldn't expect the court to find that times have changed.

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