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Has anyone actually read the Constitution?

12 January 2010

In light of the moralistic reasoning in defense’s legal argumentation in the defense of the case Perry v. Schwarzenegger (the US District Court case on the constitutional validity of California’s Proposition 8), I thought a few interesting points should be mentioned.

1)     The defense’s arguments so far have referenced no judicial precedent. They are arguing solely upon the “unpredictability” of what would happen should same-sex marriage go through. The last time I checked, it is law and constitutionality that is argued in a district courtroom, not questions about social change.

2)     Thompson (a lawyer for the defense) in the cross-examination against Dr. Nancy Cott–a Harvard history professor specializing in the history of marriage in the United States–built an argument claiming that American marriage law is based on Christianity. Interestingly, the Founding Fathers foresaw this kind of argumentation; the first two clauses of the First Amendment, and of the Bill of Rights as a whole, are called the Establishment and Free Exercise Clauses and read as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

This argument is absurd and invalid because it is in direct opposition to the Constitution. It is completely unconstitutional to posit any piece of American law based upon any religious tradition. Thompson may have completely destroyed the entire argument for Prop 8 based on the First Amendment, not the Fourteenth Amendment (which includes the Equal Protection Clause) upon which the prosecution is basing its argument.

Of course this case is going to end up at the Supreme Court, so this District Court hearing is just a formality. However, if this is the kind of argument the defense is going to be using, they will lose this case not on unconstitutionality of Prop 8 according to the Fourteenth Amendment, but based upon the absence of any legal questions. You cannot argue for a law based upon a particular set of mores, but upon the legal precedent set by the Constitution, Bill of Rights, and past court rulings. This is not a question about morality, but a question about what is legally right. Part of what makes America great is that we do not legislate morality, but focus instead upon the “certain inalienable rights” envisioned by the Declaration of Independence and guaranteed to us by the Constitution.

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