www.ambiente.us   AUGUST |AGOSTO 2010

Proposition 8 and the separation of powers | The Legal Branch
By Carlos T Mock, MD

A federal judge in San Francisco struck down California’s voter-approved ban on same-
sex marriage Today, handing a temporary victory to gay rights advocates in a legal
battle that seems all but certain to be settled by the Supreme Court.   In San Francisco,
the plaintiffs’ case was argued by David Boies and Theodore Olson, ideological
opposites who once famously sparred in the 2000 Supreme Court battle between
George W. Bush and Al Gore over the Florida recount and the presidency. The lawyers
brought the case — Perry v. Schwarzenegger — in May 2009 on behalf of two gay
couples who said that Proposition 8 impinged on their Constitutional rights to equal
protection and due process.

In his 2003 dissention of the famous Lawrence v. Texas case, Justice Antonin Scalia
actually predicted this moment would arrive. That decision left laws prohibiting same-
sex marriage “on pretty shaky grounds,” he warned, since it undercut the traditional
moral basis for opposing homosexuality. The Justice Department cited those words
when it abandoned its defense of the law as related to procreation, which, in turn,
helped lead to today’s decision. The process of justice can take years, but in this case
it seems to be moving in the right direction.

For gay rights advocates, same-sex marriage has increasingly become a central issue
in their battle for equality, seen as both an emotional indicator of legitimacy and as a
practical way to lessen discrimination. The defendants

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a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the
sodomy law in Texas. The court had previously addressed the same issue in 1986 in Bowers v.
Hardwick, where it upheld a challenged Georgia statute, not finding a constitutional protection of
sexual privacy. Lawrence explicitly overruled Bowers, holding that it had viewed the liberty
interest too narrowly. The majority held that intimate consensual sexual conduct was part of the
liberty protected by substantive due process under the Fourteenth Amendment. Lawrence has
the effect of invalidating similar laws throughout the United States that purport to criminalize
sodomy between consenting same-sex adults acting in private. It also invalidated the application
of sodomy laws to heterosexuals. This is a clear example of a minority being protected from
         the majority through judicial acts. Even though not decided upon equal
                 protection grounds, sexual liberty supporters still hope that the majority
                       decision will call into question other legal limitations on same-sex
                         sexuality, including the right to state recognition of same-sex marriage,
                         and the right to serve openly in the military.

                    Helped by the landmark civil rights case, Loving v. Virginia, in which the
                United States Supreme Court, by a 9-0 vote, declared Virginia's anti
           -miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional,
        thereby overturning Pace v. Alabama (1883) and ended all race based legal
     restrictions on marriage in the United States by ruling that Virginia's anti
 -miscegenation statute violated both the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment.

“Marriage is one of the "basic civil rights of man," fundamental to our very existence and
survival.... To deny this fundamental freedom on so unsupportable a basis as the racial
classifications embodied in these statutes, classifications so directly subversive of the principle
of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of
liberty without due process of law. The Fourteenth Amendment requires that the freedom of
choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the
freedom to marry, or not marry, a person of another race resides with the individual and cannot
be infringed by the State.” Loving v. Virginia.  “Being gay is about forming an adult family
relationship with a person of a same
requested a ruling at the same time as Judge Walker issues the opinion, setting the stage for a
quick appeal to the Ninth Circuit Court of Appeals "and, if necessary, the Supreme Court."

It was the wisdom of our Founding Fathers in establishing a government ruled by separation of
powers, with one branch specifically dedicated to protect the rights of minorities, like me—a
homosexual—from the whims of the
majority: The Judicial Branch of our government.

In Elena Kagan's confirmation
hearings, conservative senators
made two things clear: their
disdain for "liberal activist"
judges and their fear she will
be one. When conservatives
talk about judicial activism,
they have in mind a variety
of Supreme Court decisions
— legalizing abortion,
hindering the death penalty,
allowing flag-burning and
preventing officially sponsored prayer in
public schools. All these, they believe, ignored the plain words
or the original meaning of the text.

But there is another decision that fits any definition of a liberal, activist approach. It came in a
2003 case, Lawrence v. Texas involving two men who were prosecuted after being caught by
police having sex in a bedroom in a private home. Lawrence v. Texas, is
sex, so denying us equality within the family system is to deny respect for the essence of who we
are as gay people,” said Jennifer Pizer, the marriage project director for Lambda Legal in Los
Angeles, who filed two briefs in favor of the plaintiffs. “And we believe that equality in marriage
would help reduce discrimination in other settings because the government invites disrespect of
us when it denies us equality.”

That’s why the lawyers from both sides of Bush v. Gore—Theodore Olson a
Washington, D.C. lawyer and Republican Solicitor General, and David
Boies a liberal lawyer who argued for Mr. Gore, joined forces in fighting
for same sex marriage in California. The lawsuit was filed by four same
-sex couples after California voters approved Proposition 8 in November
2008. The measure, which affirms that marriage is between one man and
one woman, was placed on the ballot after the California Supreme Court
ruled same-sex marriage to be a right in May 2008.

Again, The judicial branch is defending the rights of minorities (gay and lesbian tax paying
citizens) to be denied a constitutional right by a suffrage referendum from the heterosexual
majority. Attorney Ted Olson, making the closing argument against Proposition 8, contended that
proponents had failed to show that same-sex marriage would harm the institution of marriage or
impede society's interest in procreation. He compared the situation of gay couples to that of
slaves. Under slavery at the time of the nation's founding, slaves could not be married legally,
and that being prohibited from marrying was "the very essence of slavery," he said. Mr. Olson
said there was no logical reason for voters to support Proposition 8, and therefore they must
have acted out of "animus."
Dr. Carlos T Mock is a native Puerto Rican who resides in Chicago, IL and Three Oaks, MI.
He has published four books and is the GLBT Editor for Floricanto Press in Berkley, CA. He
contributes columns regularly to Windy City Times in Chicago, Ambiente Magazine in
Miami, Camp Newspaper in Kansas City. He's had several OP-Ed published at the
Chicago Tribune. Inducted in the Chicago Gay & Lesbian Hall of Fame October 18th, 2007.
He can be reached at: http://www.carlostmock.com/

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