Lovg the Supreme Court’s cisn to take on gay marriage - The Washgton Post

Contents:

• IS GAY MARRIAGE REALLY PROGRSIVE?
• LOVG THE SUPREME COURT’S CISN TO TAKE ON GAY MARRIAGE
• ANDREW SULLIVAN: WHY GAY MARRIAGE IS GOOD FOR AMERI
• GAY MARRIAGE FULFILLS 'PURSU OF HAPPS'
• GAY MARRIAGE IS PART OF 'PURSU OF HAPPS'

IS GAY MARRIAGE REALLY PROGRSIVE?

(Disclosure: The thors of this preview are affiliated wh the law firm that reprents the Rponnt Wdsor and prevly reprented parti ligatn claimg a right for gay and lbian upl to marry unr New York’s Constutn. Agast that background, the Nth Circu found that none of the reasons offered by s proponents to jtify Proposn 8 provid any nceivably ratnal basis for the whdrawal of that right and ferred that the only explanatn for Proposn 8 was mere disapproval of gay and lbian persons.

Evans, [3] held that such a law nied equal protectn to California’s gay and lbian rints. Bee of the California-specific circumstanc on which s analysis was premised, the Nth Circu found unnecsary to nsir, and exprsed no opn, as to “whether same-sex upl have a fundamental right to marry, or whether stat that fail to afford the right to marry to gays and lbians mt do so.

”[4]In the Supreme Court, the two lbian and gay upl who are challengg Proposn 8, urge a broar posn. They argue that Proposn 8 not only vlat the Equal Protectn Clse, but ni gay and lbian persons the fundamental right to marriage guaranteed by the Fourteenth Amendment’s Due Procs Clse.

LOVG THE SUPREME COURT’S CISN TO TAKE ON GAY MARRIAGE

”The Send Circu found that gays and lbians satisfied all the qualifitns of a “spect class” that triggers heightened scty, namely that they are members of a group that has been historilly subjected to discrimatn; that they have an immutable or distguishg tra that do not affect their abily to ntribute to society and that they are a polilly weakened mory. Proponents of both Proposn 8 and DOMA offer some of the same jtifitns for the distctn disfavorg gay and lbian persons.

[13] That is surely required here where the ligatn-crafted ratnal proffered by proponents of both Proposn 8 and DOMA mask the realy of the bias and irratnal fears regardg gay and lbian cizens that marked the mpaign that led to Proposn 8’s enactment and the legislative history of any event, the qutn of which standard of review should be applied evaluatg the jtifitns offered by the proponents of Proposn 8 and DOMA is certa to be a central foc of qutng by the Jtic both arguments.

ANDREW SULLIVAN: WHY GAY MARRIAGE IS GOOD FOR AMERI

[15]A lbian uple and a gay male uple, Krist M. Zarrillo, as well as the Cy of San Francis, subsequently filed su the Uned Stat District Court for the Northern District of California, allegg that Proposn 8, by nyg gay and lbian California cizens the right to marry based solely on their sexual orientatn vlat the Due Procs and Equal Protectn cls of the Fourteenth the Governor of California and the State Attorney General, named as fendants the su, announced that while they would enforce the law, they would not fend .

Moreover, bee Proposn 8 did not change the California laws that nferred on civil partners all of the same benefs and rponsibili applible to married oppose-sex persons, the Court nclud that the practil effect of Proposn 8 was to leave gay men and lbians wh the “cints” of marriage while whdrawg om them the “stat and digny” that beg a regnized marriage Nth Circu then examed each of the jtifitns proffered by the proponents for Proposn 8 light of this special California amework and nclud that none of them provid any nceivable legimate or ratnal basis for the whdrawal of the right of gays and lbians to the signatn marriage. It therefore ferred that Proposn 8 uld only have been motivated by disapproval of gay and lbian persons and held that unr the U. [18]Bee s cisn was premised on California’s special circumstanc, the Nth Circu found unnecsary to “nsir whether same-sex upl have a fundamental right to marry, or whether stat that fail to afford the right to marry to gays and lbians mt do so.

GAY MARRIAGE FULFILLS 'PURSU OF HAPPS'

Rponnts assert that petners lack standg bee petners do not ntend that they would personally suffer any jury if gay men and lbians were given the right to marry California. They further assert that any argument petners might have about the alleged overbreadth of the junctn entered by the district urt was waived by petners’ failure to raise the issue prr to this appeal and that, any event, the junctn was appropriate bee Proposn 8 impos an intil jury on all gays and lbians throughout California.

Petners argue that Proposn 8 was not a nstutnal amendment to remove the rights of gay men and lbian women to marry, but rather an amendment to clarify the fn of marriage California as had always been unrstood by the people. Unlike Romer, they argue, Proposn 8 do not reflect any anti-gay anim.

They note that Proposn 8 achieved s purpose to rtore the tradnal fn of marriage as referrg to a unn between a man and a woman, whout affectg California laws that, addn to the laws providg same-sex partners wh the benefs available to oppose-sex married upl, provi gay and lbian persons wh some of the most prehensive civil rights protectns the natn. Petners, advance four arguments that the Equal Protectn clse do not require regnn of gay and lbian marriag, all ground the prumptn that ratnal basis review, and not strict or heightened scty, appli. Fally, petners argue that the legimate terts refute the Nth Circu’s fdg that Proposn 8 mt have been motivated by anim towards gays and lbians.

GAY MARRIAGE IS PART OF 'PURSU OF HAPPS'

It is an issue about which reasonable people may disagree whout any bias agast gays or RponseRponnts’ brief go beyond the narrow, California-specific approach taken by the Nth Circu, argug that Proposn 8 not only vlat Equal Protectn, but vlat Due Procs by nyg gays and lbians the fundamental right to marry. They assert that California n offer neher a pellg state tert, nor even a legimate or ratnal state tert for privg gay men and lbians of the right to marry.

Permtg gay men and lbians to marry would acrdgly not add a new right, Rponnts argue, but ensure that a fundamental right is guaranteed to all persons, regardls of sexual orientatn.

[24]Rponnts’ scribe the judicial regnn, the trial rerd, and other evince that shows beyond dispute that gay men and lbians have been the victims of a long history of discrimatn based on an immutable characteristic that has no bearg on their abily to ntribute to society.