supreme_court_buildingLanguage is what bogs down our country’s people’s road to freedom, liberty, and uniform rights. This is why “separate but equal” was the law of the land until 1954 when it was declared “inherently unequal.” The law that African Americans used to achieve their accomplishments in the civil rights movement is the same law that homosexuals are using to achieve marriage equality.

That law is the progeny that follows the 14th Amendment, the rights it affords individual citizens, and the way these rights interact with the rights of states to regulate their citizens under the 10th Amendment. The language of these cases makes the argument over the language of marriage far more confusing.

Today’s Supreme Court docket included Hollingsworth v. Perry (oral argument audio here): a constitutional challenge to California’s Proposition 8: a state constitutional amendment to its bill of rights that defines marriage as between a man and a woman. The District court of California declared Proposition 8 unconstitutional under the U.S. Constitution’s 14th Amendment. Imperial County, California filed an appeal when the State of California did not. Ultimately, a California Court of Appeals declared that Imperial County, California had standing and could defend Proposition 8, but the appeal was unsuccessful.

The California District Court declared Proposition 8 unconstitutional under the 14th Amendment’s substantive due process clause. The 9th Circuit Court of Appeals declared the law unconstitutional under the equal protection clause. There were two questions before the Supreme Court today, one procedural, the other substantive. First, Do the proponents of Proposition 8 have standing. They likely do not. The result is that the appeal will likely fail and the substantive issue will not be reached. If the question is reached, though, it is whether or not marriage is a (“big F”) Fundamental right.

This entry is pretty dense on legal language, I apologize. However, that’s what I really want to talk about. I’ve argued my personal position with Sean Hannity. I firmly believe that the right to marry is a fundamental component of the right to privacy. Whether or not the Supreme Court agrees and believes the right extends to homosexual couples, time will tell.

This entire argument is over the definition of a word and the legal consequences of that definition. How long-term, homosexual, monogamous relationships are treated by probate courts, insurance policies, hospitals, and employers is a critical issue for our country to resolve.

If opponents to Proposition 8 prove that homosexual couples wishing to get married are a “discrete and insular class“, the burden is on the State to show that Proposition 8 is “necessary to achieve a compelling state interest.” If homosexuals are not a discrete and insular class, (like women, non-citizens, and illegal immigrant children), then opponents to Proposition 8 must prove that it is “not rationally related to a legitimate government interest.”

These arguments are all about words and their definitions. The language. Expert testimony on the nature of being a homosexual, the effect of homosexuality on the community, the effects of homosexual marriages on the court system and the community all come into evidence to determine 1) is homosexuality a “discrete and insular” class and 2) is the Government’s interest “compelling” or “legitimate”?

There is no way to determine how the Supreme Court will decide this issue because the language is flexible and very personal. When the decision falls, be sure to remember what seems like a simple definition of a relationship is actually a complex definition of the way individual rights measure up to states’ rights. How we name classes of people and the purposes of our government are critical to decide this issue.

What’s in a name? A lot. The decision is expected in June. We’ll know what the word “marriage” means for Californians, and maybe the rest of the country, then.




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