Let us now praise those to whom we give power and who choose to use it wisely, and let us remember this day when some of them did. (Actually, yesterday, since it's well past midnight as I write, but you get the idea.)
Two events. Different subjects, different states, different government officials. But still.
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You know about the Honorable Vaughn R. Walker, Judge, United States District Court for the Northern District of California. In 138 pages Judge Walker said what is clearly true. Denying same-sex couples the right to marry is, plainly and simply, irrational.
Marriage, Judge Walker said (and everyone agrees; this is as close to settled law as you'll get these days), is a fundamental right and fundamental rights cannot be abridged without compelling reason. There is no such reason. Thus, California's ban on same-sex marriage violates the Due Process Clause of the Fourteenth Amendment. To the canard that those seeking the legal right to marry persons of their own sex are asking for the recognition of a new right, Judge Walker (I keep giving him the honorific because he so fully earned it) responded simply and accurately. They do not ask for a new right; they ask, rather, to be allowed the same right as those who would marry persons of of the opposite sex: The right to have their loving, committed, and it is to be hoped lasting relationships recognized as marriages.
That voters approved Proposition 8 denying same-sex couples the right to marry, Judge Walker said, is irrelevant since
fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.
That's a quote from the Supreme Court's 1943 decision in West Virginia State Board of Education v. Barnette.*
There's really not much need to say more. But Judge Walker did. He concluded that California's ban on same-sex marriage also violated the Equal Protection Clause. Even under the most deferential legal standard of review for such claims, the ban on same-sex marriage fails. All the arguments of the proponents of the ban, he concluded, really amount to no more than "[m]oral disapproval," and that's an insufficient and irrational basis for discrimination.
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California 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.
We're not done, of course. The case now moves to the Ninth Circuit. Then to the Supreme Court. Prediction is dangerous. But here's one.
Prohibiting people of the same sex from marrying each other was just found unconstitutional. The sun will rise in the east tomorrow, and the republic will survive.
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Meanwhile, in the occasionally great state of Ohio, the Mike Wagner and Alan Johnson, writing in the Columbus Dispatch, report that Governor Ted and Attorney General Cordray now think DNA testing is a good idea.
When Arthur Swanson died in 2006, he left behind a faded box on the floor of his prison cell that contained paperwork showing how long he had begged for a DNA test to try to prove he didn't rob an Amish family.
The 54-year-old Mansfield man was never granted that test, but he might get his wish from the grave.
Gov. Ted Strickland and Attorney General Richard Cordray wrote today to prosecutors in seven criminal cases, including Swanson's, urging them to allow DNA testing that could confirm guilt or prove innocence. In each of those cases, DNA testing has been opposed by prosecutors and ultimately refused by judges.
The other six cases involve one man on Death Row, two inmates serving long sentences and three men who no longer are in prison but want to clear their names.
"I really think it's irrational not to take advantage of methods that could establish either guilt or innocence when those technologies are available to us," Strickland told The Dispatch. "I can think of no good argument why anyone would be denied DNA testing if, in fact, there is a reasonable or relevant opportunity to bring clarity to whether or not someone is guilty of a crime."
Glad to see they've come around.
Of course, given Ohio's balkanized system of juridical fiefdoms, they don't have the power to do more than urge the prosecutors to quit stonewalling. Still it's something.
It was, after all, back in April that Ohio murdered Darryl Durr while he was asking for DNA testing "to bring clarity to whether or not [he was] guilty of a crime."
And, oh, while it was the county prosecutor who provided the formal opposition to the testing, by the time we were arguing it in federal court, it was representatives of General Cordray who led the fight against testing. After all, why would we want to know?
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Today's good news may not be tomorrow's.
The future of same-sex marriage is not, alas, in the hands of Judge Walker. It will rest, at least for the relatively short term, with the Roberts Court.
Whatever Governor Ted and General Cordray may urge today, Darryl Durr is still dead. And they aren't offering blanket support for DNA testing. These are seven guys we're talking about. And one of them is dead.
But these are, absolutely, developments to savor.
So let us now praise those to whom we give power and who choose to use it wisely, and let us remember this day when some of them did.
*The full paragraph from which Judge Walker lifted those words is worth reproducing here:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
Barnette is the case in which the Court said that students cannot be compelled to recite the pledge of allegiance. Justice Jackson explained.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.