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Courts justified in overturning Prop 8

Justice contributing writer

Published: Monday, February 13, 2012

Updated: Monday, February 13, 2012 23:02

democracy

Arielle Shorr

Last Tuesday saw a major victory for lesbian, gay, bisexual, transgender and queer rights when the United States Court of Appeals struck down Proposition 8, California's gay marriage ban, in a two—to—one decision. This upheld a previous ruling that also struck down the ban, which was proposed and passed by the people of California in November 2008. Even though it passed by a narrow margin—500,000 votes or just five percent of the total vote—Californians approved the ban on same-sex marriage in 2008. By finding Prop 8 unconstitutional and overturning the ban, the court rejected a democratic decision; a potentially dangerous action, but one I believe was justified.

In August 2010, two years after it was passed, Prop 8 was found to be unconstitutional. Chief Judge Vaughn R. Walker of the Federal District Court for Northern California said Prop 8 was "unconstitutional under the Due Process Clause because no compelling state interest justifies denying same-sex couples the fundamental right to marry." Last Tuesday, the Court of Appeals upheld the District Court's decision that Prop 8 violated the Equal Protection Clause of the 14th Amendment to the Constitution, which states that no state can "deny to any person within its jurisdiction the equal protection of the laws."

The only time a state government can violate the Equal Protection Clause is when a "compelling state interest" exists, such as when there is a national security concern or a specific constitutional right would be violated.

However, both the district court and court of appeals have recognized that no compelling state interest exists that would allow the government to violate the Equal Protection Clause by banning same-sex marriage. Therefore, it is unconstitutional for states to apply marriage laws exclusively to opposite-sex couples, as same-sex couples are entitled to the same protection under those laws. This is the exact logic the Appeals Court used to declare Prop 8 unconstitutional.

The ruling also represents a great victory for LGBTQ rights. By upholding the lower court's ruling, the Court of Appeals has strengthened the case against Prop 8. Unfortunately, the panel ruled same-sex couples have to wait until any further appeals to finish before marriages can resume. Regardless, the appeals court ruling makes it even more likely for the Supreme Court to strike down Prop 8 and set a strong precedent in favor of same-sex marriage for the entire country. That is, of course, assuming the Supreme Court hears the case.

Although this is a substantial constitutional victory, there is a potentially dangerous issue arising from the court of appeals' decision.

Though the ruling was justified, the court did override a democratically—passed state constitutional amendment. By superseding the will of the people, the court of appeals could be seen as undermining the democratic process.

After all, the state and Federal Constitutions and the Bill of Rights are there to protect the people and provide a government to represent the people. Doesn't that mean if a majority of the people wants to deprive a group of their rights, the courts should respect their decision?

Though this logic may make sense to an extent, our constitutionally guaranteed rights are also there to help protect the rights of the minority from a "tyranny of the majority. "

In the case of Prop 8, the people of California tried to deprive a minority (gays and lesbians) of their right to marriage. If courts let any popularly passed amendment stay in a state constitution, anything from no more taxes to a ban on people wearing purple shirts could be put into effect.

In fact, the situation with Prop 8 is very similar to the Civil Rights movement, specifically the Civil Rights Act of 1964. In that case, Congress recognized that despite the fact that a majority of Southerners, along with other Americans throughout the country, supported segregation, legal action had to be taken to end the awful racist practices.

That means those unconstitutional discriminatory practices were unwarranted and done simply out of deplorable racial hatred. The Civil Rights Act of 1964 ended those practices and protected the rights of the black minority in the same way the court of appeals defended the rights of a minority by declaring Prop 8 unconstitutional.

The court is saying that just as African Americans are not threats to society because of their race, gays and lesbians, and by extension, same-sex couples, are not threats to society because of their sexual orientation.

By recognizing that the actions of same-sex couples (the "minority") also don't harm anyone, the court preserved the minority's freedom, despite the wishes of the public. While the people's voice has a place, when it is used to oppress and violate the rights of others, courts are justified in stepping in to prevent those abuses. That is why I hope this ruling will be looked at as a profound victory for the Constitution, for LGBTQ people, for Americans and for human rights everywhere.

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