June 7, 2014

"Equality is the soul of liberty"

"We will never have true civilization until we have learned to recognize the rights of others."  ~Will Rogers

Here is the complete text of the decision from Judge Barbara Crabb striking down Wisconsin's constitutional amendment banning same-sex marriage. At 88 pages, it's pretty long, but it's worth reading in full; it seems to me to be quite even-handed and well thought out (with extra bonuses of lots of quotes from Justice Scalia, whose karma is deliciously biting his ass).

Some excerpts:

Under these circumstances, personal beliefs, anxiety about change and discomfort
about an unfamiliar way of life must give way to a respect for the constitutional rights of
individuals...In doing this, courts do not “endorse” marriage between same-sex couples, but merely affirm that those couples have rights to liberty and equality under the Constitution, just as heterosexual couples do.

Second, even if I assume that the state would be free to abolish the institution of
marriage if it wished, the fact is that Wisconsin obviously has not abolished marriage; rather,
it has limited the class of people who are entitled to marry. The question in this case is not
whether the state is required to issue marriage licences as a general matter, but whether it
may discriminate against same-sex couples in doing so. Even in cases in which an individual
does not have a substantive right to a particular benefit or privilege, once the state extends
that benefit to some of its citizens, it is not free to deny the benefit to other citizens for any
or no reason on the ground that a “positive right” is at issue. 

Although Wisconsin’s same-sex marriage ban was approved by a majority of voters,
is part of the state constitution and deals with a matter that is a traditional concern of the
states, none of these factors can immunize a law from scrutiny under the United States
Constitution. The Supreme Court has not hesitated to invalidate any of those types of laws
if it concludes that the law is unconstitutional.

To the extent that defendants mean to argue that a special rule should apply to the
issue of same-sex marriage, they cite no authority for that view. There is no asterisk next to
the Fourteen Amendment that excludes gay persons from its protections.  (BOOM)

Defendants’ observation that the Supreme Court has not yet recognized a “right to
same-sex marriage” is both obvious and unhelpful. When the Court struck down Virginia’s
anti-miscegenation law in Loving, it had never before discussed a “right to interracial
marriage.” If the Court had decided previously that the Constitution protected marriage
between same-sex couples, this case would not be here. The question is not whether
plaintiffs’ claim is on all fours with a previous case, but whether plaintiffs’ wish to marry
someone of the same sex falls within the right to marry already firmly established in Supreme
Court precedent. For several reasons, I conclude that it does. 

If the scope of the right to marry is broad enough to include even those whose past
conduct suggests an inclination toward violating the law and abdicating responsibility, then
it is difficult to see why it should not be broad enough to encompass same-sex couples as
well. Defendants do not suggest that the decision about whom to marry is any less
important or personal for gay persons than it is for heterosexuals.

Past practices cannot control the scope of a constitutional right. If the scope of the
right is so narrow that it extends only to what is so well-established that it has never been
challenged, then the right serves to protect only conduct that needs no protection...Thus, the scope of the right must be framed in neutral terms to prevent arbitrary exclusions of entire classes of people. In this way, courts remain true to their “obligation . . . to define the liberty of all [rather than] mandate [their] own moral code."

Although amici try to rely on the inherent “nature” of marriage as a way to
distinguish anti-miscegenation laws from Wisconsin’s marriage amendment, the argument
simply reveals another similarity between the objections to interracial marriage and amici’s
objections to same-sex marriage. In the past, many believed that racial mixing was just as
unnatural and antithetical to marriage as amici believe homosexuality is today.

As an initial matter, defendants and amici have overstated their argument.
Throughout history, the most “traditional” form of marriage has not been between one man
and one woman, but between one man and multiple women, which presumably is not a
tradition that defendants and amici would like to continue. Stephanie Coontz, Marriage,
a History 10 (2005) (“Polygyny, whereby a man can have multiple wives, is the marriage
form found in more places and at more times than any other.”).

Defendants identify no other situation in which a right could be denied to a class of citizens
simply because of a perception by the state that the class “doesn’t need” the right as much
as another class. Treating such a fundamental right as just another government benefit that
can be offered or withheld at the whim of the state is an indicator either that defendants fail
to appreciate the implications for equal citizenship that the right to marry has or that they
do not see same-sex couples as equal citizens.

The lack of any attempts by the state to dissuade infertile persons from marriage is proof that marriage is about many things, including love, companionship, sexual intimacy, commitment,
responsibility, stability and procreation and that Wisconsin respects the decisions of its
heterosexual citizens to determine for themselves how to define their marriage. If Wisconsin
gives opposite-sex couples that autonomy, it must do the same for same-sex couples.

In any event, neither defendants nor amici cite any evidence or even develop a cogent
argument to support their belief that allowing same-sex couples to marry somehow will lead
to the de-valuing of children in marriage or have some other adverse effect on the marriages
of heterosexual couples. Thus, it is doubtful whether defendants’ belief even has a rational

Second, there are obvious differences between the justifications for the ban on same-
sex marriage and other types of marriage restrictions.  For example, polygamy and incest
raise concerns about abuse, exploitation and threats to the social safety net.  A more
fundamental point is that Wisconsin’s ban on same-sex marriage is different from other
marriage restrictions because it completely excludes gay persons from participating in the
institution of marriage in any meaningful sense.  In other words, gay persons simply are
asking for the right to marry someone.  With the obvious exception of minors, no other class
is being denied this right.  As in Romer, plaintiffs are not asking for “special rights”; they are
asking only for the rights that every adult already has.

Third, opponents of marriage between same-sex couples have been raising concerns
about the slippery slope for many years, but these concerns have not proved well-founded.
Again, there is no evidence from Europe that lifting the restriction on same-sex marriage has
had an effect on other marriage restrictions related to age, consanguinity or number of
partners.  Eskridge and Spedale, supra, at 40.  Similarly, in Vermont and Massachusetts, the
first states to give legal recognition to same-sex couples, there has been no movement toward
polygamy or incest.  Further, I am aware of no court that even has questioned the validity
of those restrictions. 

Sorry for the length...the more you get into this decision, the more you find to quote.

I believe the tide has turned. It's pretty much a foregone conclusion how this is going to go when the issue makes its way back to the Supreme Court. Needless to say, in all the states that have allowed same-sex marriage, the sky has not fallen.

It's a wonderful thing.

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