Monday, December 6, 2010

Thoughts on The 9th Circuit Appeals Court Hearing on Prop 8

Today a historic hearing on the validity of the unconstitutionality of Proposition 8 took place in the 9th Circuit Court of Appeals.

This was one of the first judicial tribunal hearings that I have listened to all the way through. Both sides worked hard to present their arguments thoroughly and the Judges gave an excellent example of fair jurisprudence in their questions to each side of the argument.

After arguing the validity of the claim and the claimant (an Imperial County Deputy Clerk not wanting to "deal" with same sex marriage) the heart of the arguments were heard, whether or not the voters of the State have the right to a. deny a group or "class" of individuals set "rights" because of the traditional values, roles and definitions of those rights, b. take away a set of rights that were allowed to a group of citizens and c. enact laws against a special class of citizenry because of "bigotry" and what the definition of "bigotry" is.

The three main things that I have to say, from a legal standpoint, are the fallacy of the Pro-prop 8's attempt to distance this case from the Loving case where mixed race marriage was the issue, the argument and definition of the "purpose of marriage," and the rational basis test.

In the Loving V. Virginia a mixed race couple was refused to marry because of laws on the books in Virginia that for all intents and purposes prohibited "mixed race" relations. To avoid the implications of the Racial Integrity Act, a state law banning marriages between any white person and any non-white person, the couple married in the District of Colombia and returned to Virginia to be arrested for engaging in interracial sex. After seeing their out of state marriage certificate the couple were instead arrested under Section 20-58 of the Virginia Virginia Code, which prohibited interracial couples from being married out of state and then returning to Virginia. The Proponents of Prop 8 attempted to argue that since the marriage between an interracial mixed sex couple could produce children, meeting the definition they were apparently putting forward of the role of marriage - procreation. There was a dizzying attempt to show that bastards and children of single parents were some how less well adjusted to society as those with a 2 parent mixed sex household and a burden on the state and would be the same with same sex couples. In essence this means that any single parent household AND any barren mixed sex marriage were violating the rules or "sanctity" of marriage and failing at meeting the purpose of marriage. Over all both the arguments trying to distance Prop 8 with Loving and the attempt to define this role of marriage failed and it seemed laughable that this attempt to re-instate Proposition 8 was even seeing light of day.

This feeling was compounded when the issue of "Rational Basis Review" was breached. In rational basis, the base level of scrutiny is applied by courts when deciding constitutional equal protection and due process issues. In most instances, rational basis is the default level of review and does not usually apply in situations where a suspect or quasi-suspect classification is involved, or a fundamental right is implicated which, in the mind of this non-lawyer, both apply here.

The passion could be felt and it reminded me of watching Inherit the Wind, the movie regarding the Scopes Monkey trial. I wonder when the movie will be made of this. I also must say that it was rather great to hear the judges and the advocates engaging in some levity here and there, like the comic relief in a Shakespearean Drama.

Over all it was quite enjoyable and look forward to reading the decisions of the Judges.

Democracy in action.

No comments:

Post a Comment