So, when dealing with issues of gravity, emotionally charged matters of conscience and morality, how do you best go about handing down a ruling that some will simply not be able to comprehend because it doesn't fit in their worldview?
Take your time.
Two days ago U.S. Senior District Judge Terence Kern ruled, over the course of 68 legal pages, that couples in Oklahoma, regardless of their individual genders, have a constitutional right to seek marriage licenses. A November 2004 amendment to the Oklahoma State Constitution stating:
"Marriage in this state shall consist only of the union of one man and one woman."It's a pretty big deal, and dozens of states have similar (if not identical) amendments to their constitutions. A principal concept of the federal legal system in the United States is primacy of the United States constitution - not law or constitutional clause of any state may override the federal constitution.
The Supreme Court of the United States (SCOTUS) recently ruled in United States v Windsor that Section 3 of the Defence of Marriage Act (DOMA), explicitly defining marriage as between a man and a woman, violated the Equal Protection clause of the Fourteenth Amendment which confers equal protection of the law on all people in the jurisdiction. This is the same, powerful clause that finally saw the end of segregated schools and other public facilities. What I don't quite understand is, why does this clause exist?
A: "So, we've got these laws..."
B: "Who do they apply to?"
A: "um... well the people I guess."
B: "OK, as long as it's not everyone and at the same time to the same standard that's fine!"
A: "Whoa, that's not right, we'd better put that piece of common sense in the constitution to force government, courts and everyone else to be fair."
Back on topic!
These documents can be dry reading, since by their nature they have to be precise about often imprecise things. Some are a pleasure to read, and this is one of them. The judge litters the footnotes with everyday language and points out little absurdities here and there, while giving a very concise summary of all signifcant actions leading up to that point.
The takeaway, which I am sure will make the (Religious) Right fume is this one line on SCOTUS' Windsor decision and supporting opinion:
"The Windsor Court did not apply the familiar equal protection framework, which requires as to the applicable level of scrutiny and then analyzes the law's justifications. Instead, the Windsor Court based its conclusion on the law's blatant improper purpose and animus." (Italics in original, bold added)
That's legalese for "This is a crock of shit, and always has been, and I didn't even have to smell it or poke it to find out". This had considerable bearing on the federal judge's sway in determining this case which could potentially have been influenced by the previous dismissal of a case known as Baker v Nelson in Minnesota, almost identical in substance to the two couples' complaints (refusal to issue a marriage license to a same-sex couple) but handled forty years earlier. The judge even includes criticism of the total omission of reference to Baker in SCOTUS' Windsor ruling despite this being the basis for summary dismissal of pretty much all subsequent complaints, on face. Not often do you see a federal judge handing out tut-tuts to SCOTUS...
He also praises the temerity of the couple and legal team who fought for over a decade to bring an issue through the legal system that would have resulted in the same questions and likely the same verdict as Windsor. Nice to see praise.
I've been looking at some interesting on-line discussions comparing gay marriage to interracial marriage, how the stigmas, doomsday predictions and other negative predictions are broadly the same, and finally saw the concrete reference in this document that I missed having never actually read Windsor (I skipped it as it only allowed all persons to have the marriages recognised federally, a small victory IMHO concerned primarily with taxes and estates).:
"Loving v Virginia 1967 established Virginia's prohibition on interracial marriage violated the equal protection (amendment) and substantive due process clause" of the constitution, and they're right. "A citation to Loving is a disclaimer of enormous proportion.".
This is the beginning of the undoing. While slavery was undone by a specific constitutional amendment (13th) it is the 14th that has held the big stick ever since. It has been used to justify desegregation, deprivation of voting rights, disability and sexual discrimination, and now finally sexual orientation.
I still don't know why a specific line in the constitution needs to tell Americans what pretty much all the developed world knows: Everyone deserves the equal protection of and access to the services of the state. Why wouldn't they? Sure, the amendment has it's civil-war and reconstruction history, but even today... What is wrong with Americans that they even have to cite it, and for blatant stuff no less?
Which legally-illeterate Congress thought this wasn't a violation of the Fourteenth Amendment?
Americans are weird...
