Norm Kent

How I Would Rule if I Were a Supreme Court Judge

Filed By Norm Kent | December 12, 2012 6:30 PM | comments

Filed in: Living, Marriage Equality
Tags: DOMA, gay marriage, Norm Kent, same-sex marriage, Supreme Court

Here is Justice Norm Kent's ruling in the DOMA and Prop 8 Cases

Writing for the court, March 1, 2013:

Thumbnail image for supreme_court_seal.jpgThe first question before this court is whether a California law stating that marriage is an institution only available to men and women can be sustained as constitutional.

Of course not, and it's an easier question to answer than most might think.

Discrimination against gay men and women in the United States is legally intolerable, morally unconscionable, constitutionally unacceptable, inherently invidious, and must come to an end.

Ours is a nation of growth and acceptance. Our constitution is an evolving document, which has grown with the ages. Our nation is one of acceptance and inclusion. What once was, no longer is.

African Americans are no longer three fifths of a citizen, even though our Constitution once read that way. They serve in our military too, though it took a presidential order to do so.

Women have the right to vote, even though it took a constitutional amendment to make it happen.

Women have a right to control decisions about their bodies, though it took a Supreme Court decision to preserve and protect that right.

Inter-racial marriages are now legal, and African American students attend public schools and colleges, even though it took federal troops and this court to insure that equality.

Our nation fought a civil war to ensure that the Emancipation Proclamation protected the rights of African Americans. Today, we address a legal war to insure the rights of gay and lesbian Americans.

Americans with disabilities now have access to campuses and public institutions, by law, by statute, and by moral imperative, even though it took legislation to enact and ensure it. For decades, many classes of Americans remained unprotected by law or statute, and it has fallen upon the Supreme Court to implement and ensure those protections. We do so again today.

Gay men and women now hold public office, serve in the military and hold a precious space in the rubric and fabric of America. Their rainbow is America's, and their rights can no more be denied than that of women or blacks or other American populations once treated as second class. Those days are over.

As this Court wrote in Lawrence v. Texas, declaring sodomy laws to be illegal, mere disapproval of an institution without a rational basis cannot be sustained as a public policy. Our society comes together as a society not to restrict the rights of any, but rather to secure the rights of all. Some like butter on their bread, others margarine, but all Americans ought to be able to make their own lunch.

Our decision today to declare gay marriages legal does not turn the Constitution on its face. It ensures that it is an enduring, expansive document, embracing equal rights for all, repairing the errors of the past by ensuring sound principles for the future, while saving and rescuing lives in the here and now.

Congress has no duty to protect heterosexual marriage and traditional notions of morality, reasons it gave for passing this law in the first place. The duty of Congress is to protect the rights of heterosexuals and homosexuals, not to empower a class they are comfortable with while shutting out others of equal stature and circumstance. If anything, historically disadvantaged groups need laws that insure parity, not preserve discrimination.

It is easy to conclude that homosexuals have suffered a history of discrimination. The most telling proof of animus and discrimination against homosexuals in this country is not just a tax code that treats same sex couples differently than heterosexuals, but for so many years, and in so many states, homosexual conduct itself was criminal. Even today, it is still the cause for wrongful bullying and physical abuse. Thus, this court must necessarily have a heightened scrutiny of any legislation and laws that could further perpetuate discrimination against this class of citizens.

Consequently, we find the law passed by Congress, known as the Defense of Marriage Act, unconstitutional, as there is no rational basis for treating same-sex couples any differently in a courtroom or their bedroom, then opposite-sex couples.

As Chief Judge Dennis Jacobs in New York wrote, "the laws of this land is not concerned with holy matrimony... a state may enforce and dissolve a couple's marriage, but it cannot sanctify or bless it. For that, they must go next door."

DOMA imposes unique and unconstitutional burdens on gay couples. Any attempt by government to discriminate against gay people must have an "exceedingly persuasive" justification. This law does not.

Correspondingly, we find the law passed by California citizens, Proposition 8, barring same-sex marriage also unconstitutional, as it unjustly discriminates against similarly situated citizens, same-sex couples, to perfect their love with civil unions and contracts already granted to opposite-sex couples.

We did not allow the governor of Mississippi the right to deny James Meredith entrance into Ole Miss in 1962 because the Caucasian public disapproved of Negroes in a state university. Nor can we disallow a same-sex couple to share equal marital status in a California community because a majority of their citizens find it offensive. It is not for them to so decide. Moral disapproval is an insufficient justification for discrimination on the basis of sexual orientation.

As stated by U.S. Circuit Judge Stephen Reinhardt, "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort."

The duty of this court is customarily to give breadth to the acts of congress or the will of the people, but those acts and decisions must protect and embrace the rights of all Americans, not the partisan preferences of some.

It is therefore the ruling of this court that gays can marry anywhere and everywhere, from Seattle to Santa Fe, from South Florida to the shores of Maine.

Gentlemen, you may now kiss your husbands. Ladies, you may now kiss your brides.

Justice Norm Kent, presiding....

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