Gay Marriage: U.S. Supreme Court Justices Are “Outed”

Whatever consequences they were afraid of may never be fully revealed.   But the fact of the matter is, five of the nine U.S. Supreme Court Justices have been “outed,” after not having the fortitude to allow the public to view what could end up being one of the most historic trials in the history of civil rights in the United States. The justices banned the broadcast of the trial to determine if homosexuals can be denied the right to marry in California.

Despite that decisive action to muffle the court proceedings, the justices cloaked in robes were impotent to prevent the trial from being re-enacted live on stage and broadcast internationally on the Internet.

On March 3, 2012 The American Foundation for Equal Rights and Broadway Impact joined with playwright Dustin Lance Black and a star-studded cast to present “8.” As is often historically the case – it took artists, imitating life, to bring forth the critical issues and facts, to illuminate them for all to see.

This is how the fallacy of the U.S. Supreme Court’s silencing of the trial of Proposition 8, banning gay marriage in California, was brought to light:

Directed by Rob Reiner – the dynamic cast included: Brad Pitt, George Clooney, Kevin Bacon, Martin Sheen, Jamie Lee Curtis, Christine Lahti, Mathew Morrison, Matt Bomer, Chris Colfer, John C. Reilly, and Jesse Tyler Ferguson, among other talented actors who participated bro bono.

How ironic, that the U.S. Supreme Court aided and abetted in the throttling of free speech by refusing to allow the trial to be aired. How chilling, that the same U.S. Supreme Court Justices will likely hear an appeal of the lower court decision which overturned California Proposition 8. Can the U.S. Supreme Court Justices be relied on to confer “Equal Protection” of the law with a track record like this?

The foundation of the rights of U.S. Citizens is embodied in the United States Constitution. The Equal Protection and Due Process Clauses are fundamental to the belief system that the country was founded on:

“No State shall make or enforce any law…[to] deprive any person of life, liberty, or property, without due process of law…nor deny to any person within its jurisdiction the equal protection of the laws.” – 14^th Amendment to the United States Constitution

Historically, the U.S. Supreme Court has applied “strict scrutiny” when laws had a “suspect” component of discriminating against a politically powerless class or unpopular minority, or, if the law adversely impacted a “fundamental right” or interest.

If either of these instances existed, then the legal Constitutional standard has been that the law should be upheld only if it is “necessary to achieve a compelling governmental interest.”

Many years back, the U.S. Supreme Court ruled that the right to marry is a “fundamental right” protected by the Due Process Clause and that “direct and substantial interference with it should be subject to strict scrutiny.”

Previous court rulings have determined:

“The decision to marry is a fundamental right and marriage is an expression of emotional support and public commitment.” Turner v. Safely

“The right to marry is of fundamental importance for all individuals.” Zablocki

“This court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v. LaFleur

U.S. Supreme Court case law from 1984 underscored and affirmed that: “The Constitution cannot control [private biases] but neither can it tolerate them.” In 1992: California’s obligation is to treat its citizens equally “not to mandate its own moral code.”

The same must be said for all states in the United States. It is disingenuous for any elected official or candidate to say that the issue of marriage equality should be left to the discretion of each individual state. The candidates or elected officials both believe in and defend Constitutional Rights, or they do not.

As the case determining the fate of marriage equality moves through the court system on its way to the U.S. Supreme Court, it is critical to recognize that fundamental constitutional rights are at stake here, and that silence is a form of complacence. The denial of rights tends to lead to the erosion of other rights – and our dignity towards each other.

The American Foundation for Equal Rights has an extensive website outlining the organization’s actions to secure Marriage Equality, and how you may participate: http://www.afer.org

Leslie Gainer interned with the American Civil Liberties Union of Southern California, and went on to become a public policy lawyer based in Washington D.C.