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    Posted August 18, 2010 by
    San Francisco, California
    This iReport is part of an assignment:
    Judge strikes down Prop 8

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    The 'Will of the People' Doesn't Matter for Gay Marriage


    Robert F. DiCello, Esq.

    August 13, 2010

    Gay Federal Judge Strikes Down Gay Marriage Ban - Now What? (Part II)

    The shock of the decision has worn off just enough for the media to stop putting this on the front page of every television program and newspaper. As I stated, last week, many just don't want the traditional notions of marriage to be tossed aside in deference to the professed rights of homosexuals. Others think it's time to welcome gays to the experience of state-sanctioned marriage. Now, it is in court where the matter will be decided. For that, I am again extremely proud to say I am an American trial lawyer, and I welcome this opportunity to share my ideas about this very important legal event.

    What about the voters? Can the judge disregard their wishes?

    Absolutely (and thankfully) yes. Many have argued that the judge made a terrible mistake by discounting the will of the people in passing Proposition 8 by virtue of a ballot and a vote. But, the very organization of our government stands against the notion that the will of the people ought to be the final say on this (or any other) piece of legislation.

    One should be thankful that the judiciary is an independent branch of government that cannot be told what to do by any other branch. This judicial autonomy protects us all from unconstitutional legislation. Remember, the will of a majority of people might not ensure that a proper, valid law is passed. Said another way, the majority can pass laws that oppress or injure the constitutional rights of the minority. And when that happens, our judicial branch of government stands ready to protect us. That's why we ought to be thankful that a judge can disregard the will of the majority.

    What Did the Equal Protection Challenge Mean

    The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const Amend XIV, § 1. Equal protection is “a pledge of the protection of equal laws.” This means that we are all entitled to equal treatment under the law, and so the question presented by the opposition to the gay marriage ban was: whether the different classes of marriage set up by the ban (gay marriage vs. opposite sex marriage) were unconstitutional.

    In such a situation, the court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. In law school we learned that a "rational" basis for classifying people differently can be virtually any reason that a court could conceive of, not necessarily whether the classification is found in the evidence presented at trial. This is a very legislature-deferential level of analysis. Still, the judge noted, "Even under the most deferential standard of review, however, the court must “insist on knowing the relation between the classification adopted and the object to be attained.”

    In the end, the judge ruled Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.

    Rather, the evidence shows that Proposition 8 harms the state's interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.

    For more from Bob DiCello and Real Law Radio, visit http://www.reallawradio.net/.

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