Monday, April 06, 2009

Letter From the Editor: Why Opponents of Same-Gender Marriage Will Ultimately Lose

Arguments to Keep Laws in Place That Restrict Marriage to Opposite-Gender Couples Are Failing to Pass Constitutional Muster, Thanks to Three Landmark U.S. Supreme Court Decisions Invoking the Fourteenth Amendment

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Opponents of same-gender marriage are increasingly running into a constitutional brick wall as a growing number of courts are ruling that gay and lesbian couples have a constitutional right to marry. The U.S. Supreme Court, albeit unwittingly, paved the way for that standard more than a generation ago when the court ruled unanimously in 1967 that state laws banning interracial marriages were unconstitutional. Combined with a 1996 decision that states cannot single out gays and lesbians for exclusion from the constitutionally-protected rights and freedoms enjoyed by everyone else, and a 2003 ruling that fully legalized same-gender relationships by striking down state anti-sodomy statutes, the justices effectively may have pulled the legal rug out from under same-gender marriage opponents. (Image courtesy

(Posted 5:00 a.m. EDT Monday, April 6, 2009)
(Updated 12:00 noon EDT Tuesday, April 7, 2009)

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MONTPELIER, Vermont -- The Vermont Legislature Tuesday overrode Governor Jim Douglas' veto of legislation to grant full marriage rights to gay and lesbian couples, making Vermont the fourth state to legalize same-gender marriage, but the first to do so without prompting by a court order.

The 30-member Senate's 23-5 vote to override the governor's veto was widely expected after senators voted 26-4 last week. The real drama was in the 150-member House, where the measure passed on Friday by a 96-52 margin, four votes short of the two-thirds majority.

The House vote to override was 100-49.

Several of the 11 House Democrats who voted against the bill voted in favor of the override because they objected to what they saw was Douglas' disregard of the will of the legislature.

The bill will take effect on September 1 -- two months after the ninth anniversary of the civil-union law it will replace.

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Dear Readers,

The philosopher George Santayana warned that "Those who fail to learn from history are condemned to repeat it." As the battle over the legalization of same-gender marriage heats up, opponents of gay and lesbian couples' desire to marry would be wise to heed Santayana's warning.

Many of the arguments that opponents have employed to keep marriage exclusively for opposite-gender couples are nearly identical to those employed by those who wanted to prevent interracial couples from marrying.

As history proved, the anti-interracial marriage side lost. And history may likely prove that the same fate awaits the opponents of same-gender marriage.

In the first place, the opponents cite religious objections -- failing to take into account the fact that the Constitution does not allow the imposition of religious dogmas as state law when they contravene the Bill of Rights.

In the second place, the U.S. Supreme Court declared more than a generation ago that the freedom to marry is a freedom that is guaranteed by the Fourteenth Amendment when the justices, in Loving v. Virginia, unanimously struck down state laws that barred interracial marriages. Constitutional freedoms cannot be denied to an entire class of law-abiding American citizens, the justices held, no matter how unpopular that class is with the majority.

In the third place, The justices ruled in 1996 that the states cannot single out gay and lesbian Americans for exclusion from the Fourteenth Amendment-protected rights and freedoms enjoyed by all other Americans. Ruling in Romer v. Evans, the high court struck down a voter-approved amendment to the Colorado Constitution that overturned all state and local laws that banned discrimination against gays in employment, housing and public accommodations and barred the legislature and municipalities from passing any similar laws in the future.

In the fourth place, the Supreme Court in 2003 fully legalized gay and lesbian relationships when, in Lawrence v. Texas, the justices struck down -- again, on Fourteenth Amendment grounds -- the last remaining anti-sodomy laws, all of which were enforced against homosexuals, but not against heterosexuals who performed the same sexual practices.

Taken together, the Supreme Court's thrice-invocation of the equal-protection clause of the Fourteenth Amendment puts in serious constitutional jeopardy the 1996 federal Defense of Marriage Act and all similar state laws that restrict marriage exclusively to opposite-gender couples.

Already, a lawsuit has been filed in U.S. District Court in Boston challenging the constitutionality of the Defense of Marriage Act on Fourteenth Amendment grounds. And it's only a matter of time before similar lawsuits against state laws barring same-gender marriages will be filed in the federal courts as well.

Here in Vermont and in other states, opponents of same-gender marriage have insisted that the issue be decided by voter referendum. There's one huge problem with that: It's unconstitutional under the Fourteenth Amendment to have a referendum on whether certain classes of citizens can or cannot enjoy the rights and freedoms guaranteed by the Constitution to everyone else.

(Besides, the only binding statewide referendum that's authorized under the Vermont Constitution is a ratification vote on amendments to the constitution itself.)

That's a big reason why California's voter-approved Proposition 8, which bans same-gender marriage, is unconstitutional -- it directly defies the Supreme Court's 1996 Romer decision by deliberately excluding same-gender couples from a constitutionally-protected freedom that opposite-gender couples take for granted.

Vermont Governor Jim Douglas has vowed to veto a bill passed overwhelmingly by both houses of the Lesiglature to accord full marriage rights to gay and lesbian couples and is expected to carry out his threat as early as today (Monday).

But in vetoing the bill, Governor Douglas is also acting in open defiance of the Romer decision, making Douglas as much an obstructionist in the cause of equality for gays and lesbians under the Constitution -- figuratively standing in the town clerk's door -- just as Governor George Wallace of Alabama was an obstructionist in the cause of equality for African Americans a generation ago when he literally stood in the schoolhouse door.

The U.S. Supreme Court has ruled numerous times in our nation's history that constitutional rights are sacrosanct and beyond the purview of the government and of popular opinion. And the nation's highest court is certainly not alone.

On the same day that the Vermont House of Representatives gave its final approval to the marriage bill, the Iowa Supreme Court unanimously declared unconstitutional that state's ban on same-gender marriage. And its California counterpart is due any day now to rule on whether the state's controversial Proposition 8 is an unconstitutional exclusion of gays and lesbians from the freedom to marry.

Regardless of how the California court rules, there is little doubt that, based on past U.S. Supreme Court precedents -- as well as on a 1948 California Supreme Court ruling that invalidated that state's ban on interracial marriages nearly 20 years before the nation's highest court extended that ruling to the entire country -- Prop. 8 and all similar laws banning same-gender marriage violate the Fourteenth Amendment.

While voters in more than 30 states have voted overwhelmingly to ban same-gender marriage, either through statutory initiatives or state constitutional amendments, the movement to keep gay and lesbian couples from marrying will inevitably fail.

How does allowing gay couples to marry harm existing marriages of heterosexual couples? Every argument to date claiming that gay marriage harms heterosexual marriage has failed to provide any solid, concrete evidence that they do.

Quite the contrary, nearly five years after same-gender marriages became legal in Massachusetts -- and nine years after same-gender civil unions became legal in Vermont -- there is a wealth of evidence that the exact opposite is the case. Therefore, that argument is one that cannot be proven.

What really harms heterosexual marriage is jealousy, possessiveness and infidelity -- which lead to divorce. The notion that two people of the same gender who love each other and seek to spend the rest of their lives together with the benefits of marriage is a threat to the marriages of opposite-gender couples is utterly absurd -- a notion held most strongly by a certain group of heterosexual men over a certain age who view homosexuality as a threat to their masculinity.

Even archconservative Supreme Court Justice Antonin Scalia warned in his dissent to the high court's Lawrence v. Texas decision that the ruling removes all legal justification to continue to bar gay couples from marrying.

Implicit in Scalia's dissent is the fact that the ruling exposed the ban on same-gender marriage as inextricably rooted in a religious dogma that condemns homosexuality as a sin. Unfortunately for same-gender marriage opponents, there is a little-noticed clause in the U.S. Constitution (Article VI, Section 3) that does not permit the government to employ a religious doctrine to justify denying a class of persons of their constitutional rights.

It's no secret that the movement to ban same-gender marriage is dominated by religious conservatives. Indeed, the fight over same-gender marriage has become an even more fever-pitched crusade among the Religious Right than their more-than-35-year-old battle to ban abortion.

And therein lies the problem: Too many religious conservatives have confused the civil institution of marriage with the religious sacrament of holy matrimony. Contrary to popular belief, the two are completely separate entities.

Civil marriage is a creature of the state -- over which religious institutions have no jurisdiction. They have every right under the First Amendment to refuse to accord the religious sacrament of holy matrimony or to perform civil marriage ceremonies for gay and lesbian couples in accordance with their religious principles. But it is unconstitutional for religious approbations against homosexuality to be made the law of the state.

So it's no longer a question of if the bans on same-gender marriage -- both the federal Defense of Marriage Act of 1996 and all similar state laws -- will be declared unconstitutional by the U.S. Supreme Court, but rather, when.

Skeeter Sanders
Editor & Publisher
The 'Skeeter Bites Report

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Volume IV, Number 27
Copyright 2009, Skeeter Sanders. All rights reserved.


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Chris Moran said...

The the anti-gay-marriage people really wished to protect their "marriage" traditions, why are they not coming after atheists like myself who are "married"?
They've got nothing but bigotry on their sides. They hate atheists, but they are pent up and afraid of homosexuals.
In another 5 years, the only people still complaining will be the religious nutjobs we probably should be afraid of anyway.

Nice report Skeeter. And I'm glad you've come along over the last 10 years.