California Approves Gay Marriage

[Morrigoon]

I've already posted this on the other board, but I know not everyone reads both, so here's the outline of a presentation I once did on the legal justification for the approval of gay marriage rights. (The top paragraph was an explanation of the presentation)

Originally Posted by Morrigoon

What I did was I set up the case showing that marriage was considered a fundamental right in the eyes of the courts, showed how that opinion was used to enforce interracial marriage as protected by the 14th amendment, showed how the 14th amendment protection had been used to prevent discrimination based on sexual orientation, and then referred to a recent case where homosexual relations was declared protected by the 14th amendment (2003, Lawrence v. Texas), and drew the conclusion that since marriage is a fundamental right, and cannot be denied people on the basis of racial discrimination because of the 14th amendment, and since the 14th amendment has been used to prevent discrimination against gays as well, that it could soon be declared that denying marriage licenses to gays was in violation of their 14th amendment rights.

Quote:
I. Intro – The issues cover many areas of law, such as family law, contract law, and constitutional law/civil rights.
a. Civil Rights / Constitutional Law – Main topic in gay marriage discussion
b. Legislative and judicial branches are still deciding upon this issue.

II. The fundamental right to marry
Meyer v. Nebraska –
“The liberty guaranteed by the 14th Amendment to the Federal Constitution denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” and that, “The liberty protected by the 14th Amendment to the Federal Constitution may not be interfered with, under the guise of protecting the public interests, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect.”

III. Equal Protection
14th Amendment, section 1 – “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Romer v. Evans – shows that the intent of the 14th amendment (preventing racial discrimination), also applies to preventing discrimination based on sexual orientation.
Decision: Colorado state constitutional amendment, effectively repealing state and local provisions that barred discrimination on basis of sexual orientation, held to violate equal protection clause of Federal Constitution's Fourteenth Amendment.

Lawrence v. Texas – held “The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; for example, neither history nor tradition could save a law prohibiting miscegenation from attack under the Federal Constitution. In reviewing such a law, the United States Supreme Court's obligation is to define the liberty of all, not to mandate the court's own moral code.” and that, “Individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the due process clause of the Federal Constitution's Fourteenth Amendment. This protection extends to intimate choices by unmarried as well as married persons.”

IV. A comparison to interracial marriage
In Loving v. Virginia, the Court expressly recognized that the right to marry is one of the fundamental liberties embodied in the Due Process Clause of the Fourteenth Amendment. The decision by Warren also specified, “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 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.”

V. Conclusion
The decision of Meyer v. Nebraska establishes that marriage and the establishment of a home are fundamental rights protected under the 14th amendment. Loving v. Virginia establishes an individual’s right to determine whom they will marry as a right protected by the same amendment, and establishes that racial discrimination is an unsupportable basis on which to justify denial of these rights. In Romer v. Evans, the 14th amendment has been applied to the prevention of discrimination against homosexuals, further backed by the 2003 decision of Lawrence v. Texas, which establishes homosexuals’ rights to conduct intimate relations. With this history, it could soon be established that denial of marriage licenses to homosexuals intending to marry members of the same sex, is in violation of the 14th amendment.