Wednesday, August 4, 2010

Brody's Scribbles... Dr. Jillian Weiss: Brief Summary Of Judge Walker's Reasoning In Perry v. Schwarzenegger

By Dr. Jillian Weiss (Mahwah, New Jersey) AUG 4 | Judge Walker said that he found Prop 8 in violation of the Due Process and Equal Protection Clauses of the US Constitution. Our hero!
Here's a quick definition of these terms:
Due Process: the gov't may not deny anyone life, liberty or property without due process of the laws.
Equal Protection: the gov't may not deny to any person the equal protection of the laws.
Judge Walker held that the the right to marry for same-sex couples is a fundamental right, the same as for opposite-sex couples. That's revolutionary.
Domestic partnerships do not satisfy the rights of same-sex couples because they were created in order to deny same-sex couples the right to engage in the institution of "marriage," while approximating the benefits of marriage. Domestic partnership is a substitute and inferior institution.
He said the evidence showed that same-sex couples and opposite-sex couples are equal in fact, and should be equal in law. The only difference between them is an intangible one: moral disapproval by opponents, and that's not a legitimate reason for a law.
Well done, Judge Walker!
Judge Walker found that, as a fundamental right, the right to marry cannot be denied by law under the Due Process clause; that is, unless there is a compelling reason to do so.
He found that there is no such compelling reason. He also went even further, and said that there is no legitimate reason at all, compelling or not.
This is important on appeal, for the appeals courts may decide that the right to marry as applied to same-sex couples is not a "fundamental right," and therefore any legitimate reason can uphold Prop 8's denial of marriage to same-sex couples. Thus, Judge Walker's decision, while calling the right to marry as applied to same-sex couple a "fundamental" right, also finds that, even if judged under an easier standard, Prop 8 violates due process and equal protection.
Here's why Judge Walker said there is no legitimate ground for Prop 8:
Dr. Jillian T. Weiss is the Deputy Managing Editor of The Bilerico Project & has a J.D. and a Ph.D. in Law, Policy & Society. Currently Associate Professor of Law and Society at Ramapo College of New Jersey. Dr. Weiss is also Principal Consultant for Jillian T. Weiss & Associates, a consulting firm that works with organizations on transgender workplace diversity issues. She has trained hundreds of employees at corporations, law firms, diversity trainers and governmental organizations.