Wednesday, July 26, 2006

This Just In...

The State Supreme court ruled on our DOMA law and found that it didn't violate our state constitution. Before starting law school I would have been pissed off right now. I was one who was certain that our constitution had to allow for the protection of the rights of homosexuals to engage in the same legal arrangements that are legal for the majority, how could it stand for this blatant discrimination? Having friends who are homosexual and knowing them as I do, I can say that I find it repugnant that the state can deny them a legal relationship that has been essential to the happiness I share with my wife.

However, after a short time in school, I have already changed my mind on this issue. I agree with the ruling! I still think it's morally repugnant to deny homosexuals the right to marry with all the duties and benefits provided, but I don't think it's illegal anymore. States have the right to establish due process and via laws deny certain activities if the people (voters) so choose and if they are justified in some fashion. Sometimes, the people (voters) make mistakes (ala our President), but in a democracy they have the legal right to collectively make them. Although specifically dealing with homosexual sodomy, there are two national cases:Bowers, which was later overturned by Lawrence, that help might you understand the current trend in the courts. While the SCOTUS overturned Bowers with Lawrence, I think the legal argument presented by the majority was rather weak in term of law but great on the aspirational side, especially when compared to Scalia's dissent (I just shivered in acknowledging my agreement with Scalia). States do have this right, they have the right to create laws that they believe are to the benefit of their society. That said, it should become a legislative debate to determine what is in the best interest of society, it is not that realm of the courts.

I think this is homophobias last gasp though. In the end, I believe the society will determine that is better to demonstrate respect, love, and equality and embrace non traditional families than to fear imagined culturalbogeymenn. I think that progressive states like NYC, WA, and CA; upon realizing that the laws do not automatically afford marriage to gays, will have to become proactive. Just as there is nothing preventing States form banning gay marriage, there is nothing preventing them from making it legal. This is something to be solved in legislature, no matter how slow the process.

However, on the national front, I think thatO'ConnorrĂ‚’s concurrence, but with dissent as to the analysis in Lawrence, does point out a key flaw that homophobes have in regards to the US Constitution and why they desperately want a banning amendment passed. The US Cont's equal protection clause is difficult to get around for them, I think if there are more cases brought in front of SCOTUS on these grounds they'll eventually have to rule gay marriage bans contrary to the US Constitution. In other words, drop the due process attack because you'll loose, the key is go after equal protection.

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