The 9th Circuit Did NOT Invent Equal Protection

— by Rich Dunn, NVRDC 2nd Vice Chairperson

“After the voters of Nevada passed a law designating that marriage be defined as a union between a man and a woman, Nevada’s Democrat (sic) attorney general has co-opted with the ultra-liberal Ninth Circuit Court of Appeals and decided that ‘we can’t win after the Ninth Circuit changed the rules’ (by deciding in another case that any law that deals with homosexual people requires heightened scrutiny with regard to possible discrimination).”
-Teri A. Cotham of Gardnerville in a letter published in the Feb. 18th Nevada Appeal

Teri doesn’t seem to have heard about United States v. Windsor, the Supreme Court case which struck down Section 3 of the Defense of Marriage Act, thereby granting federal benefits to same sex couples who are married under state law. That’s the case upon which the Utah and Virginia same-sex marriage bans have been ruled unconstitutional, and upon which Nevada’s same-sex marriage ban will no doubt be overturned, regardless of whether the State of Nevada chooses to defend it. And it’s worth noting that the Windsor case came from the Southern District of New York in the 2nd Circuit, not the 9th Circuit.

Teri also doesn’t appear to understand what role the 9th Circuit played in Hollingsworth v. Perry, the case she appears to be citing. That was a 50-page ruling by Judge Vaughn Walker of the U.S. District Court for the Northern District of California that Prop 8, the anti-gay marriage initiative on the 2008 ballot, was unconstitutional under both the Due Process and Equal Protection Clauses of the 14th Amendment.

The 9th Circuit issued a stay to give Prop 8 proponents an opportunity to appeal, then passed that appeal on to the U.S. Supreme Court, which refused to hear it, ruling that proponents of initiatives such as Prop 8 don’t have standing to defend the resulting law. On that basis, the court directed the 9th Circuit to lift its stay and vacate its concurrence, allowing Judge Walker’s ruling to stand. And that is how Prop 8 was overturned.

Lastly, Teri seems unaware that the concept of subjecting certain kinds of legal challenges to “heightened scrutiny” is based on the 14th Amendment’s equal protection clause. When a law has the potential to infringe upon a civil right, the government is called upon to defend it. If it’s found to be too broad in scope, fails to accomplish its stated purpose, or unreasonably infringes upon constitutionally protected rights, it will be struck down in any circuit, not just the 9th Circuit.

Twisting a Rite to Deny Rights

Yesterday, presidential candidate Mitt Romney blasted the ruling put forth by the 9th Circuit Court of Appeals:

“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage,” Romney said. “This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”

And like Romney, conservative media pundits piled thickly on that theme claiming the court had “no” right to overturn a majority of the voters. Excuse me? Apparently conservatives believe that if a majority of Americans voted to say that black Americans had no right to vote, or that women had no rights to property that would be acceptable to them as well?

I’m sorry Mr. Romney, but I agree with the 2-1 ruling of the Circuit Court Panel which said, “Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.” Proposition 8 may have been approved by 52% of California’s voters, but a majority vote should never be the standard for denying equality of rights to any of American’s citizens. “Proposition 8 served no purpose and had not effect, other ban to lessen the status and human dignity of gays-and-lesbians, in California.” As such, the Panel declared Proposition “unconstitutional” under the U.S. Constitution.

The whole issue of “marriage” is a tricky thing. If marriage were just a religious rite, that would be one thing, but marriage goes far beyond just a religious rite. Marriage is a legal construct recognized within our tax code that bestows beneficial tax privileges to such couples, not just annually, in terms of what couples jointly are required to pay, but in terms of property inheritance rights as well. There are also other legal ramifications relative to who can or cannot speak for your interests when you’re incapacitated, and even who might be handed this country’s flag when one’s partner makes the ultimate sacrifice for this country.  Denying the right to marry to gay and lesbian couples legalizes discrimination against them in the following ways:

  • Denying more preferential “joint income” tax rates by the IRS and state taxing authorities
  • Denying them the ability to create “family partnerships” which would allow them to divide their small business income amongst family members
  • Denying them the ability to “inherit” a share of a spouse’s estate without tax consequence.
  • Denying them any exemptions from estate and gift taxes
  • Denying them the ability to set up estate trusts that are restricted to just “married” couples
  • Denying them priority in being appointed as a “conservator” for your partner’s (spouse’s) affairs when he/she is incapacitated
  • Denying them the ability to obtain spousal benefits under government Social Security, Medicare, or disability programs
  • Denying them the ability to obtain veterans/military benefits as spouses
  • Denying them the ability to draw spousal retirement plan benefits as the spouse of the deceased plan member
  • Denying them the ability to take bereavement leave for the death of their partner (spouse).
  • Denying them the ability to be considered as “immediate family” for purposes of being able to visit in an ICU
  • Need I go on?

Gay and Lesbian couples had been given, by law, the right to marry. Then in 2008, a majority of voters participating in the 2008 election decided they wanted to take that fundamental, given right away for no reasonable and necessary reason. In addition, it would have “legalized” discrimination in terms of taxation and other allowable rights against an entire class of people in our society. If we permit this type of discrimination and taking of rights for this one class of citizens, who or what is next? How long would it take for our nation to approach they type of tyranny that was every present in pre-WWII Nazi Germany where millions of it’s citizens were ultimately condemned and went up in the smoke of a large number of incinerators.

Well, Mr. Romney, who’s the Nazi now?

Read more about the Rights and Benefits of Marriage the Right wants to deny to Same-Sex couples here