Thursday, October 9, 2008

The need for a marriage amendment in the form of Proposition 102

One of the common criticisms leveled at Proposition 102 is that Arizona law already adequately supports marriage between one man and one woman and there is no need for a constitutional amendment. At the same time, opponents of Proposition 102 maintain that the proposed Amendment is "mean spirited" and would discriminate against those with same-sex relationships. These two positions are incompatible, a law cannot be unnecessary and discriminatory at the same time.

Those who claim that Proposition 102 is unnecessary are not being entirely candid, they know full well that unless the law is codified in the state constitution, any court in Arizona could hold the existing law to be unconstitutional and thereby void all of the existing laws, just as happened in California. They oppose Proposition 102 not because it is unnecessary, but because they would then lose the opportunity to challenge the existing laws through the Court system. Passage of Proposition 102 is necessary to foreclose that avenue of attack on the institution of marriage.

The further criticism, that the effort to pass Proposition 102 is a mean spirited attempt to deny people their "rights" and to discriminate, is also misdirected. When the California Court decided the marriage cases, they created rights that had never previously existed. The most recent case on this subject in Arizona is the case of Standhardt v. Superior Court ex rel. County of Maricopa, 206 Ariz. 276, 77 P. 3d 451 (App. 2003).

In that case, the Arizona Court of Appeals held as follows:

"Recently, in Lawrence v. Texas, 539 U.S. 558, ----, 123 S.Ct. 2472, 2484, 156 L.Ed.2d 508 (2003), the United States Supreme Court struck a Texas statute that prohibited certain sexual activity between persons of the same sex. The Court reasoned that the statute impermissibly infringed on homosexuals' liberty interest under the Due Process Clause of the Fourteenth Amendment to the United States Constitution to engage in private, consensual sexual activity without state intervention. Id.
In the wake of Lawrence, we are asked to declare that Arizona's prohibition of same-sex marriages,Arizona Revised Statutes (“A.R.S.”) sections 25-101(C) and -125(A) (2003), similarly violates the federal and state constitutions. For the reasons that follow, we hold that Arizona's prohibition of such state-licensed unions does not violate Petitioners' rights under either constitution. Therefore, although we accept jurisdiction of this special action, we deny relief to Petitioners."

The Court of Appeals held that the Petitioners did not have a fundamental right to marry each other. The Court explained its position as follows:

"Petitioners contend that the State's purpose in prohibiting same-sex marriages is to “single out gay persons to impose a particular disability on them,” which cannot serve a legitimate state objective for the reasons explained in Romer v. Evans. In Romer, the Court addressed an equal protection challenge to Colorado's “Amendment 2” to its constitution, which prohibited all legislative, executive, or judicial action designed to protect homosexual persons from discrimination. 517 U.S. at 624, 116 S.Ct. 1620. The Court held that Amendment 2 did not bear a rational relation to a legitimate end due to its “peculiar property of imposing a broad and undifferentiated disability on a single named group,” with a breadth “so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects.” Id. at 632, 116 S.Ct. 1620.
In contrast to Amendment 2, A.R.S. §§ 25-101(C) and -125(A) are not so exceptional and unduly broad as to render the State's reasons for their enactment “inexplicable by anything but animus” towards Arizona's homosexual residents. Arizona's prohibition of same-sex marriages furthers a proper legislative end and was not enacted simply to make same-sex couples unequal to everyone else. Cf. Romer, 517 U.S. at 635, 116 S.Ct. 1620 (concluding that “Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else”). Consequently, we reject Petitioners' equal protection challenge to A.R.S. §§ 25-101(C) and -125(A)."

The Court of Appeals goes on to discuss, at length, the issues of due process, equal protection and the application of Arizona's explicit privacy provision as contained in the Arizona Constitution. The Court concludes as follows:

"For the foregoing reasons, we hold that the fundamental right to marry protected by our federal and state constitutions does not encompass the right to marry a same-sex partner. Moreover, although many traditional views of homosexuality have been recast over time in our state and Nation, the choice to marry a same-sex partner has not taken sufficient root to receive constitutional protection as a fundamental right. Because Arizona's prohibition against same-sex marriage rationally furthers a legitimate state interest, we further decide that the prohibition does not deprive Petitioners of their constitutional rights to substantive due process, privacy, or equal protection of the laws. Consequently, it is for the people of Arizona, through their elected representatives or by using the initiative process, rather than this court, to decide whether to permit same-sex marriages. Having accepted jurisdiction of this special action, we deny relief."

The entire case can be reviewed at http://www.cofad1.state.az.us/opinionfiles/SA/SA030150.pdf

In essence the Court holds that the present law does not discriminate because neither Arizona law nor the U.S. Supreme Court recognize same-sex marriages as a constitutional right.

However, as the Court notes "it is for the people of Arizona, through their elected representatives or by using the initiative process, rather than this court, to decide whether to permit same-sex marriages." That is exactly what Proposition 102 is intended to do.

More later on discrimination

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