Inalienable Rights: Perry V Schwarzenegger

Posted on 14 Aug 2010 at 11:44am
There is a lot of discussion going on about the recent decision in the Perry Vs. Schwarzenegger case, and the related issues surrounding it.
Let's take a moment and look at some facts, some of the arguments being used, and the realities of Law in America.
One of the current memes being circulated with a lot of fervor is, in the law, literally without any basis or merit. This is the idea that Judge Walker's sexual orientation (which Judge Walker has never publicly discussed, ever) has bearing on his decision.
If Judge Walker's sexual orientation had a bearing on the case, then the sexual orientation of any judge who would rule on the issue will equally have bearing on the matter. Which means one would have to find someone without any sexual orientation (ergo, no gay, not straight, and not bisexual) to decide the case — and there are no publicly asexual judges currently sitting in the Northern Court that walker sits in.
People who use this argument are, therefore, essentially saying something that suggests that gay people are less than straight people — less trustworthy. This is established by the fact that if you mention the above to the people saying this, they say no, that's not the case, a straight person wouldn't benefit or be biased, when the basis of the argument most widely spoken against allowing gay people to marry is that they are “protecting traditional marriage” which would be, logically, a benefit to a straight person.
One cannot have it both ways, and so that shows a logical, reasonable failure of understanding, and demonstrates an irrational ideation that gay people are something to be avoided, or intensely disliked, or fearful of (in this case, the fear involved is that they will cause damage to the idea of traditional marriage).
When one is irrationally driven to aversion (avoiding, disgust), intense dislike (literally, hate), or fearful reaction to something, that's called a phobia. IN this case, Homophobia, which makes the statement regarding Judge Walker homophobic.
Now, the statement being homophobic doesn't mean the person is — they could, for example, merely be parroting the stuff said by the absolutely homophobic leadership of various organizations.

The case that Walker decided on, as well, was not about “gay marriage” as something distinct and separate from “traditional marriage”. In Law, it's all just “marriage”.
Marriage, under the Constitution, is a civil right. It has been, as well, of rover a hundred years, reaffirmed by 14 different rulings on the matter. This is why convicted mass murderers and child rapists can get married, even while on Death Row or in prison. Indeed, those weddings often take place in prisons, and the states and counties have to pay the cost of providing security and so forth for those weddings.
Now, one can argue that marriage shouldn't be a civil right, but that's just like arguing that the sky isn't blue — it's a fun little mental exercise, perhaps, but has little effect or bearing on the reality of the situation. It is, basically, a waste of time.
Indeed, it is an inalienable right. It is not a right of men to marry women or women to marry men. It is, simply and basically, a right to marry. And that's the word that is used: marriage.
How would those opposed to people exercising that right feel if someone passed a law that said they couldn't speak out against gay people. They probably wouldn't like it. In fact, it's a certainty they wouldn't, since that's what they say allowing gay to engage in marriage is going to do, it's what they saying passing ENDA is going to do, and it's what they say that passing DADT is going to do.
Its part of the fears they use, and what they are talking about when they say that is a State or Government passing a law that deny's them access to exercise their right to free speech.
Now, the government *can* do that. As one of the Family Research Council's leaders recently said, there are limits on marriage. This is true. He also said that the public should be able to put limits on marriage. That's true, too.
Now, here's the thing. In order to put limits on someone's ability to exercise a fundamental right, under the constitution, you have to pass a test that's generally called strict scrutiny. Sometimes its a lesser charge, but it depends on the way the question in court is phrased.
In this case, the question is based on two parts of the 14th Amendment; two parts which basically say that the States have to honor the bill of Rights (because the Bill of Rights is strictly speaking only applicable to the actions of the federal government, not the States).
One of these is due process, and under a due process claim, the standard in situations like this one — and free speech, and free press, and all the rest of the “big deal' rights — is strict scrutiny.
The other section is called Equal protection, and that one can be rational basis (the lowest standard) or intermediate basis (the middle one, with strict being the highest).
Strict scrutiny has three sections that have to be proven, and this is what Judge Walker did. He looked at the facts of the case — and note carefully that the only facts he can look at are those facts that are shown to him in the case itself. The same will apply in each of the appeals courts.
Now, strict scrutiny is a seriously hard test. And when you are arguing with them, you should point out that it exists specifically to protect rights.
First, there's gotta be a compelling governmental interest. That means something necessary or crucial, not merely something folks would like, but seriously important to protecting stuff like life and limb. Stuff like national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
Next, it has to be narrowly tailored — which means that it has to follow a strict semantic meaning and go for strictly the specific thing that meets the above part. It can't just be an across the board deal. If it goes too far or doesn't deal, specifically, with the aspects that the government has an interest in stopping, then it's not a narrow enough rule or law, and fails this test.
And, lastly, because it is dealing with a critical right, it has to be the least restrictive means for stopping that exercise of that right. This is why you can yell “Fire!” in a park, but not in a crowded movie theater. Now, there can be a couple of ways to do it, and if they are equally the least restrictive, then it doesn't matter, but if one is more restrictive than the other, then the least must be used.
Now, anything that happens has to pass all three of those things to be considered “ok”. This is why Corporations get freedom of speech and that means you can't just say across the board that they cannot donate. They are thought of as people (and, therefore, it is conceivable that two of them could get married), just like marriage is a right, and as a result of that, they have freedom of speech.
In law, the judges have to look at the facts that are determined in the process of the trial. That's why judges need so much time to go over the trial record and all that. Once those facts are known (findings of fact) they are pretty much there permanently for that case.
For any other case, though, they have to be done again. From scratch. So, anyone planning to file in federal court against the unlawful restriction on their right to marry (and yes, all citizens of the US have a right to marry) best get a copy not merely of the ruling, but of the transcripts and filings as well.
Now, why's that, if one case can be cited in another? Because when you cite a case in a different trial, all that anyone is really allowed to look at is the conclusions of law — the part where they say this is what X does. The rest of it — the law that was challenged, the reasons why it was challenged, all of that stuff, is called “dicta”, and no longer matters. So, for example, when someone cites Loving V Virginia in a court of law, what they are doing is saying that at a different time in a similar case, the judges said that a law that stops people from exercising their inalienable rights was wrong.
In this case, Prop 8 was found to not meet a governmental interest (procreation is not a government interest in times of overpopulation), was not narrowly tailored (it prevented tens of thousands of citizens from exercising their right at all), and was not the least restrictive way of achieving the oft stated goal of protecting traditional marriage.
Which is why it failed the due process challenge.
And it's important to note that the questions Judge walker was asked were very simply stated: Does a specific law prevent citizens of the United States from exercising their inalienable rights in an unconstitutional manner?
There's no mention of marriage in that.
And that's why it isn't about marriage. It could be about freedom of speech, or the right of privacy, or freedom from search and seizure, or any of the other rights that we have. And that's critical to understand.
So ask yourself a simple question:
Do you want to grant to the States the right to take away *your* civil rights with a popular vote?
Because that is, in fact, what this case is about, and the Constitution of the United States says that they cannot.
So those who are trying to deny gay people the right to marry (and that right doesn't mean limiting it to someone of the opposite sex as that does not meet the test described earlier), are, literally, saying that they want to give the states the power to take away their rights under the law without any good reason.

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