BY ADEYEMI OSHUNRINADE March 26, 2013
On Tuesday the Supreme Court hears arguments on Proposition 8, a California State ban on same-sex marriage. Hollingsworth v. Perry, got filed in 2009 by David Boies and Theodore B. Olson, two high-profile Attorneys who stood on opposite sides in 2000 when same Court ruled on Bush v. Gore, a controversial election decision that returned George Bush to the White House.
The challenge to Proposition 8, brought by two California couples who say the ban as it stands, precludes gay and lesbian couples from marriage, with a deep and distinctive meaning and thus contradicts the guarantee of equal protection under the Fourteenth Amendment to the Constitution. Tuesday’s hearing is the first time the Supreme Court, is taking up the controversial issue that could make gay marriage legal.
For years, the court refused to consider arguments on same-sex marriage. But fact that polls show most Americans favor gay marriage and the status of same-sex marriage as a national issue may have swayed the court to reconsider. Those against the ban have said if subject to constitutional scrutiny, it would fail the Equal Protection test because it denies homosexuals same rights it affords heterosexual couples.
The movement in favor of gay marriage want the court to cement their victories on what they believe is a human right issue that some states have decided to support over the years. Eight states offer committed gay and lesbian couples with all legal benefits and burdens of marriage through civil unions or domestic partnerships but withhold only the name “marriage.” Proponents want the problem resolved once and for all by the court. They also want the court to strike down Proposition 8 as legally unconstitutional civil right violation.
Supporters of ban Want same-sex marriage as a matter for the states to decide. They want the states to work out for themselves whether to allow same-sex marriage. In their view, the court could not intervene in a matter the constitution has failed to discuss and as a result, would prefer the matter is left alone.
While it is incontestable that from time immemorial marriage has been a matter for the states, an argument could be raised that the Federal, entangled itself in a matter meant for the states, with the Defense of Marriage Act, a Federal law that defines marriage as an institution between a man and a woman. Such argument makes it plausible for the Supreme Court to hear the case since it has become a Federal matter.
Besides fact that the Equal Protection question makes the issue a matter for the court to decide, most arguments against same-sex marriage are on moral grounds. But an argument that something is morally wrong cannot lead to the conclusion that it is legally wrong. Such argument, is legally unsound and will not pass judicial review if put to test. American laws are never a product of moral fortitude though, the legal system sometimes refer to morality in its opinions.
The question is whether the Fourteenth Amendment guarantee of Equal Protection, prevents states from defining marriage as California has. The two plaintiffs Paul Katami and Jeff Zarillo have said that the state discriminated against them, based on their sexual orientation. “I think that anytime there is discrimination in the country, it needs to be addressed and it needs to be taken care of,” Katami said. “And that’s why we feel that anytime in our history when there’s been racial discrimination or sexual discrimination of orientation, or in particular marriage at this point, that we should bend toward the arch of equality,” he told CNN.
With fingers crossed throughout the nation, people are unsure where the Supreme Court would lean. The court has finished hearing arguments from both sides. A ruling in favor of gay marriage would mark a shift in how marriage is seen in the country and could be the beginning of across the board end to the movement against homosexuality and all forms of anti gay, lesbian and transgender rhetoric.
The court could consider other measures such as leaving in place the current States’ process of dealing with same-sex marriage as a state matter. It could set up a constitutional backing for gay marriage that would apply in all 50 states or conclude that appellant were not directly injured and therefore, lacked required standing to petition the highest court. A move to the extreme could be a decision by the court that as a state matter, same-sex couples are free to migrate to states where gay marriage is legal. However, such a ruling by the Court is unlikely.
Dr. Adeyemi Oshunrinade [E. JD] is the author of ‘Wills Law and Contests,’ ‘Constitutional Law-First Amendment’ and ‘SAVING LOVE’ available at http://www.amazon.com/author/adeyemioshunrinade. Follow on Twitter @san0670.