on same-sex marriage:
Does it violate 'due process'
and 'equal protection'?
To the Teacher:
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.
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.
'Due Process' and 'Equal Protection' for Gays &
marriage between a man and a woman is valid or recognized in California."
Proposition 8, "California Marriage Protection Act"
November 8, 2008, 52% of the Californians who voted in state elections
approved this ballot proposition.
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.
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."
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.
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.
from Judge Walker's ruling
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
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
obligation is to treat its citizens equally
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
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
views of same-sex marriage
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
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."
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."
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
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
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.
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.
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."
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)
questions do students have about the reading? How might they be
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.
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.
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.
"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
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
the groups have presented their summary assessment to the class,
have them return to their groups to play the more familiar doubting
game. What arguments might they make against the judge's decision?
What critical questions might reveal flaws in his thinking?
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.
"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
lesson was written for TeachableMoment.Org, a project of Morningside
Center for Teaching Social Responsibility. We welcome
your comments. Please email them to: firstname.lastname@example.org.