An unconstitutional ban

An unconstitutional ban

February 8th, 2012 in Opinion Times

A federal appeals court ruling Tuesday that overturned California's controversial ban on gay marriage on constitutional grounds seems likely to propel the case to the U.S. Supreme Court. That's not a certainty, but it's certainly about time for that. It is no longer tenable to accept laws, applied in more than 40 other states, including Tennessee, that the equal rights proclaimed for Americans under the United States Constitution do not extend to same-sex couples the right to marry whom one wishes.

"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats people differently," Judge Stephen Reinhardt wrote in the 2-1 ruling in the California case. "There was no such reason that Proposition 8 could have been enacted."

That rationale is as clear as it is simple. Regardless, there is hardly any doubt that proponents of California's Proposition 8, the statewide referendum under which the ban on same-sex marriage was narrowly approved in November 2008, will appeal Tuesday's ruling by the three-judge panel which overturned that proposition. They are likely to seek an appeal before an expanded panel for the 9th Circuit Court of Appeals, which has jurisdiction for nine states, and then to the Supreme Court if the expanded appeals panel also rules against them.

But if they lose again on appeal, the high court would be almost certain to hear the case before letting it become a national precedent. That would at last allow a definitive hearing by the U.S. Supreme Court on the core equal rights issue inherent in state bans and the federal Defense of Marriage Act against same-sex marriage.

While there seems to be a clear path for religious institutions to deny marriage rites to same-sex couples as a rule of religious doctrine, states' bans on civil marriages, as opposed to civil unions, pose an entirely different issue. The argument for equal rights before the law is inseparably linked to state and federal government rules that tie marriage spousal rights with myriad state and federal benefits which are financed by taxpayers, and others which are entwined with spousal rights granted by civil law.

Wikipedia, for example, cites a report by the federal Government Accountability Office which found that marriage confers more than 1,138 rights and protections to spouses in such areas as: Social Security and veterans' benefits, estate taxes, health insurance, hospital visitation, retirement savings, pensions, family leave and immigration law. These rights in many cases go well beyond those conferred on partners in civil unions.

Most marriage-based rights make no distinction for marriages as a civil institution, moreover, whether granted by civil authorities, a county clerk or judge, or a minister in a place of worship. That provides legal standing for advocates of same-sex marriage to claim a civil right to the status and title of marriage, and all its attendant government benefits, regardless of the religious values that opponents of same-sex marriage claim on a religious basis.

The weight of public opinion has shifted, as well, in recent years in favor of legalizing same-sex marriage, apparently for the same anti-discrimination sentiment that finally ended the anti-miscegenation laws that barred interracial marriage in some states until 1967.

Marriage rights, as a number of other countries have recognized, should be granted to same-sex couples as a matter of simple fairness and equal rights. The legal battle will continue until that premise becomes settled law.