Assuming yesterday’s closing arguments are any indication of which way Judge Walker will rule in the Perry v. Schwarzenegger Prop 8 case, it looks like an obvious victory for marriage equality advocates. In a statement on the National Organization for [Heterosexual Only] Marriage’s website the group’s messiah, Maggie Gallagher, seemed to admit this defeat, stating:
Americans have a right to vote for marriage. Ted Olson doesn’t seem to understand the argument, and judging from today’s exchanges neither does Judge Walker. I expect Judge Walker will overrule Prop 8.
But what makes marriage different from other things on which Americans don’t really have the right to vote, like for president in the landmark case, Bush v. Gore, 531 U.S. 98 (2000)? In that case, the Supreme Court negated the recount of votes (cast by Americans) which effectively secured the previously certified win of George W. Bush in Florida and gave him the necessary electoral votes to be President (like it or not). Why was that ruling “ok” but a ruling to grant civil rights to a suspect class of people that were taken away by voters not “ok?” I’m sure Attorney Cooper would answer with something about the natural creation of children – as that’s about all he could come up with in the closing arguments for any question posed by Judge Walker.
The real parallel of the two cases is the rationale used by the Supreme Court in determining George W. Bush was the winner. In its decision, the Court declared, in part, that the method for recounting ballots used in Florida was a violation of the Equal Protection Clause of the Fourteenth Amendment, which states, “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” That clause was included within the Constitution of the United States in an attempt to prevent violations of the well known standard, “all men are created equal.” The Supreme Court decided that there was no “equal” standard for counting votes in Florida so votes in one county might be counted one way, while votes in another county might be counted another. This logistical problem was enough to invalidate the right to vote based upon the Equal Protection Clause of the United States Constitution (as least in the Court’s opinion at that time).
In the Prop 8 case, we clearly have a much more blatant violation of the Equal Protection Clause than we saw in Bush v. Gore. There is no hypothetical “it might happen” in the Prop 8 debacle, there is an “it did happen and will continue to happen.”