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The Rights of the People

by James Spurgeon, published

Prop 8: Majority Rule Of Minority Rights

Today the Supreme Court of the United States (SCOTUS) is hearing the case regarding the constitutionality of California's Proposition 8 (Prop 8) which made same-sex marriages in the state illegal.  Two lower courts have overturned the proposition, so the question of whether the Supreme Court could intervene was brought into question since the lower court's ruling was not overturned by the Appeals Court.  Also called into question was whether the federal courts could decide an issue that was based solely in the states which would be based on 10th Amendment to the US Constitution.  (SCOTUS blog)  However, SCOTUS is hearing the case and will be making its ruling later this year.  It could indeed overturn the lower courts on the grounds of the 10th amendment, but it's not likely since there has been a precedent set by such cases as Lawrence v. TexasRomer v. EvansLoving v. Virginia, and even Brown v. Board of Education.

Though the Appeals Court did not overturn the lower court's ruling, there was a difference between the two.  The lower court ruled that a majority vote cannot strip away the rights of a minority.  Basically, this would make all constitutional bans on same-sex marriage null and void if upheld and not just California's Prop 8.  The Appeals Court would rule that it just applied to California and to no other state because same-sex marriages were legal before Prop 8 was passed thus stripping away the rights once they had been granted; whereas, other states simply banned same-sex marriage before it became legal.  So there are two ways for the Supreme Court to rule if it upholds the lower courts.

gay-marriage-debate-thumb-320x240-9845We'll start with the lower court's ruling that a majority vote cannot strip away the rights of a minority thus making all the state constitutional bans unconstitutional.  Thomas Jefferson would have disagreed with this notion.  He felt that since we had such a diverse population that the will of the majority should always be upheld since it would be void of outside influence and would point the nation in the best possible direction.  However, we have the luxury of a bit more history to look back on than Mr. Jefferson did.  We can see that the will of the majority is not always correct.  Case in point the Territory of Wyoming.  When the territory was set up in 1868, it included the right for women to vote.  This was long before the passage of the 19th Amendment (1920).  When Wyoming applied for statehood, the federal government said it would have to get rid of its suffrage in order to be admitted since the rest of the US didn't allow women to vote, and it was still the majority opinion that they shouldn't.  The territorial government refused to budge and said it would wait for the rest of the country to catch up.  Wyoming would be admitted in 1890 as the 44th state without giving up the right for women to vote in the state.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  9th Amendment

supreme-courtIn Afroyim v. Rusk (1967), the Supreme Court ruled that Congress could not strip away a person's citizenship which is guaranteed under the Citizenship Clause of the 14th Amendment.  With this ruling though, the court was stating that once you have a right, it cannot be stripped away.  In Brown v. Board of Education (1954), the Supreme Court ruled that states could not establish separate schools for black and white students (state-sponsored segregation).  As a result, racial segregation in all matters was ruled to be in violation of the Equal Protection Clause of the 14th Amendment.  It did not matter if a state had passed segregation laws or not.  The case Griswold v. Connecticut (1965) set the legal precedent for the 9th Amendment to the US Constitution.  Though the case pertained to a person's right to privacy, the ruling had something more to it.  In writing his concurring opinion, Justice Arthur Goldberg stated, "Other fundamental personal rights should not be denied protection simply because they are not specifically listed ."

The Supreme Court has already ruled that government cannot ban interracial marriage (Loving v. Virginia, 1967), so what would be the difference between that ruling and the ruling to come regarding Proposition 8?  Opponents to interracial marriage were making the same arguments then that opponents to same-sex marriage are making now.  It's not so much whether Prop 8 is going down or not.  The real question is going to be how and the full effect of that ruling.  Will it be more in line with Afroyim and thus would technically only apply to the state of California (since they are the only state to strip away the right to same-sex marriage after it was granted), or will it be more toward the Brown and Griswold rulings which would negate all same-sex marriage bans?  Though it has been completely overlooked, will the precedent set by the 9th Amendment come into play as much as the Equal Protection Clause of the 14th Amendment?  These questions will be answered in a few months when the court's decision is announced, but it will be felt for ages to come.


Prop 8: Oral Arguments - Audio

Prop 8: Transcript


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