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Too Safe For Safety

Wait. Run that by me again?

California’s Proposition 8, banning gay marriage, is having its day in court, testing whether the law is constitutional. Now, courts can apply different degrees of rigor to the question of constitutionality, and justices can be quite arbitrary in deciding which degree to apply.

1.By one measure, a law unconstitutionally restricts freedoms—and all laws restrict freedoms—unless the state has a compelling reason to put it into effect. Example: the government may use eminent domain to seize land to create fire stations, the lives and property thus saved presenting a compelling interest exceeding individual property rights. This judicial measure gives the benefit of the doubt to individual freedoms, and places the burden of proof as to the law’s necessity on the legislature.
2.By another measure, a law unconstitutionally restricts freedoms unless the state has a valid reason to put it into effect. Example: the government may use eminent domain to seize land to create a highway system and preserve freedom of movement for the community. One might argue whether the reason is compelling, but this judicial measure holds that the benefit of the doubt should be given to lawmakers, presuming them to be competent to judge which of competing freedoms is more important.
3.By a third measure, a law unconstitutionally restricts freedoms unless the state can provide a plausible reason to put it into effect. For example, the government might use eminent domain to seize land and grant it to a private sports franchise in the hopes of stimulating economic growth. This is weak sauce indeed! The reason doesn’t have to be weighed against competing interests, or even demonstrably true; the legislature is given the benefit of the doubt simply for allowing itself, intelligently or otherwise, to be persuaded to enact the law. To use the same example, the proposed stadium may never generate the expected revenues, but the law is held constitutional so long as legislators might reasonably, if incorrectly, expect them.

Nevertheless, some reason must be given; otherwise, the law serves no purpose at all but cruelty. And so, attorney Charles Cooper offered to the court the state interest that “The marital relationship is fundamental to the existence and survival of the race.” Clearly, Cooper is hoping to defend the law merely by the third and weakest of the standards above, since humans are quite capable of reproducing without marriage and marriage is quite possible without producing offspring.

Judge Walker noted much the same thing when he noted Supreme Court rulings that extend marriage as a right to, among others, infertile couples incapable of reproduction, prisoners incapable of building a stable, two-parent home, and parents failing to pay child support (and therefore unquestionably failing to maintain a healthy nuclear family). To which Cooper replied that same-sex couples are incapable of “irresponsible procreation,” which marriage laws are designed to discourage.

So…because homosexual couples, being unable to procreate, offer no threat to the community by marriage, they cannot be allowed to marry because one of many motivations to enshrine marriage in law does not apply? Wait. Wait. I’m confused again. That’s like saying people violently allergic to alcohol should not be allowed to drive, because DUI laws would have no impact on them. We have to restrict freedoms because they don’t present a sufficient threat to the community at large? Such extremes of logical pretzel-tying are prima facie evidence of a specious argument. No ethical principle worth adopting requires such tortuous (and torturous) reasoning. Judge Walker has every reason to strike down Prop 8, and that seems to be where his sentiments lie. Things look good for the saner majority, despite refusing to be seen by the crazy minority of California.

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