Ban on same-sex marriage:
Does it violate 'due process'
and 'equal protection'?

By Alan Shapiro

To the Teacher:

Now that California District Court Judge Vaughn Walker has ruled that Proposition 8 is unconstitutional, the issue of same-sex marriage will be heard before an appeals court, then probably before the Supreme Court. And in the process, the issue will repeatedly come before the court of American public opinion.

The student reading below provides an excerpt from Walker's ruling that Prop 8 denies gays and lesbians "due process" and "equal protection of the law," gives other examples of rulings involving those concepts, and describes competing opinions on gay marriage. The judge's controversial decision is a good subject for student critical thinking. An approach to fostering such thinking follows the reading.

Student Reading:
'Due Process' and 'Equal Protection' for Gays & Lesbians

"Only marriage between a man and a woman is valid or recognized in California."
-- Proposition 8, "California Marriage Protection Act"

On November 8, 2008, 52% of the Californians who voted in state elections approved this ballot proposition.

Two gay couples sued in May 2009, saying that Proposition 8 violated their constitutional rights to due process and equal protection. On August 4, 2010, Judge Vaughn Walker, chief judge of the Federal District Court in San Francisco, agreed with them.

The Fifth Amendment to the Constitution says that no person shall "be deprived of life, liberty, or property without due process of law." The Constitution's Fourteenth Amendment declares that no state shall "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 law."

"Due process" has played a major role in many court cases. A well-known example is the Supreme Court's 1966 decision in the Miranda case. Ernesto Miranda confessed to a crime without knowing he had a right to have an attorney with him during a police interrogation. The Court overturned his conviction and established the rights of defendants not only to an attorney, but also to remain silent and to be warned that anything they say may be held against them.

"Equal protection of the law" has also been a prominent element in many cases. Notably, it was key in a 1954 Supreme Court decision which found that state laws establishing separate public schools for black and white students denied African-American children equal educational opportunities.

Excerpt from Judge Walker's ruling

"Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce, but that recognition or lack thereof has no effect on the relationship under state law….

"Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus toward gays and lesbians or simply a belief that a relationship between a man and woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. The Constitution cannot control private biases, but neither can it tolerate them….

"California's obligation is to treat its citizens equally….Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional….

"Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8…."

Competing views of same-sex marriage

Judge Walker, who was nominated by President Ronald Reagan and appointed by President George W.H. Bush, is regarded as a conservative. His decision applies only to California, but will not lead immediately to gay marriages even in that state. A federal appeals court extended a stay on same-sex marriages there until it makes its own decision on whether such marriages are constitutional. No matter what that court decides, the case will probably then be appealed to the Supreme Court.

Kristin Perry, one of the plaintiffs, said, "This decision says that we are Americans, too. We should be treated equally. Our family is just as loving, just as real and just as valid as anyone else's."

Theodore Olson, one of the gay couples' attorneys, called the judge's decision "a victory for the American people" and anyone denied rights "because they are unpopular, because they are a minority, because they are viewed differently."

A defense lawyer, Andrew Pugno, disagreed. He argued that California voters "simply wished to preserve the historic definition of marriage. The other side's attack upon their good will and motive is lamentable and preposterous."

Though not recognized by federal law, same-sex marriages are legal and currently performed in Connecticut, Massachusetts, New Hampshire, Vermont, Iowa and Washington, D.C. The Coquille Indian Tribe in Oregon has also granted legal status to same-sex marriages. Same-sex marriage was also legal for a time in California, and 18,000 gay couples were married in the state before passage of Proposition 8.

Judge Walker's decision may affect the election of California's next governor this fall. Democratic candidate Jerry Brown is a longtime supporter of gay marriage. But his Republican opponent, Meg Whitman, says she supports only domestic partnership, which provides many, but not all, marriage rights.

Whitman's position is similar to that of President Obama, who said in an ABC interview during the presidential election campaign: "I'm a strong supporter of civil unions….I believe that marriage is between a man and a woman, but I also think that same-sex partners should be able to visit each other in hospitals, they should be able to transfer property, they should be able to get the same federal rights and benefits that are conferred onto married couples.

"And so, you know, as president, my job is to make sure that the federal government is not discriminating and that we maintain the federal government's historic role in not meddling with what states are doing when it comes to marriage law. That's what I'll do as president." (6/16/08)

More recently, his senior advisor, David Axelrod, explained on MSNBC that the president continued to oppose same-sex marriage. "But he supports equality for gay and lesbian couples, and benefits…." Axelrod added, "He does believe that marriage is an issue for the states." (8/5/10)

For discussion

What questions do students have about the reading? How might they be answered?

Critical thinking: two "games"

The believing game asks students to enter as fully as possible into a point of view that may be unfamiliar or even disagreeable to them, to suspend judgment and experience it, to look for virtues and strengths that might otherwise be missed.

Play the game using the excerpt from Judge Walker's decision. Divide students into discussion groups of four to five students. Urge them to work at this approach even if it feels artificial to them. Ask them to consider how his argument might possibly be right. Ask them to find in it anything they can regard as worthwhile. They are not to make any argument in opposition. They are to stay in the believing mode.

If this is the students' first experience with the believing game, give them five to eight minutes. Move from group to group to prevent students from slipping into negativity. Call next for another five minutes of work at formulating questions in the believing mode. Such questions put to other students are not argumentative, but aim for clarification and invite fuller understanding.

Examples: "Help me to understand why X makes sense or can be true," a student might ask the others. "I've never heard that before, so can someone explain further?" These questions might be answerable by others in the group and will further deepen the discussion.

Then have students assess their experience; they will later share this assessment with the rest of the class. Ask students to consider: What success did they have in believing the judge's decision? What problems did they have? How did they deal with them? To what extent did the experience feel authentic? What did they notice about other students' statements and questions? Did the experience affect their point of view, even if only slightly? How? Or why not?

Again ask each group to assess their experience and present a summary report to the class. Then invite full class discussion followed by an overall assessment of the two games.

See "Teaching Critical Thinking: The Believing Game and the Doubting Game " on www.teachablemoment.org for a fuller discussion of both games and a third element that can follow--integrating student thinking.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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