This was of course stricken by the Court, citing the 14th Amendment's Equal Protection Clause. As Warren wrote
"We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." (Brown v Board Opinion, p 495)
Now, why would this matter today?, the schools are no longer segregated, public education has been multi racial since that point in time. The question here comes under the 14th Amendment, as related to the California Supreme Court's recent decision, rendering Proposition 8 legal and binding. For those living under a rock, Proposition 8 sought to ban gay marriage in the State of California, which was approved with a 52-47% vote by the voters in California. Legal challenges were mounted, and eventually Prop 8 was affirmed. The interesting clause in the Prop 8 decision from the California State Supreme Court, was that all previously administered same sex marriages were allowed to stand as valid.
Why? Now, logically, and legally speaking, the 14th amendment provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." Doesn't this clearly violate that provision of the Constitution? Going further, marriage and civil union; as the Warren Court declared "separate is not equal," how does this stand? Granted, no major court challenges have been mounted against this, as I am sure there will be here, but alas, I wonder, what will come of this in the Federal Courts? I have no doubt in my mind that with makeup of the current US Supreme Court, this challenge would be another highly contentious 5-4 split vote banning the practice.
It's been 55 years since Brown v Board of Education, where separate but equal does not exist. Will it reign true today? The moral and racially motivated challenges then, are no less bigoted than the theologically motivated challenges of today. It's going to be an interesting event to watch...hope I get front row seats...
Note: Feel free to comment, even argue, but leave the bashing and bs behind. This is meant to be a thought provoking piece, not a battleground...
M
Man that's a good piece, but doesn't what the decision and the Amendment state apply to education only? I mean, I understand the plight and struggle, especially in California, but you know there's gonna be nit-picky lawyers who'll find loopholes like that or something. There's no doubt in my mind that with the current make-up of the Supreme Court some things will change. Like Obama said though, that change is only going to come if those who want it do something about it. And on your bigoted and theology comment, I think that separation of Church and State is one of the most ambiguous "claim" that America has ever made.
ReplyDeleteLook at you with the blog...look forward to reading more bro.
ReplyDeleteMy biggest issue with all the Prop 8 hoopla isn't whether its homophobic or not.
ReplyDeleteNo, my problem is when judges of any stripe, liberal or conservative, MAKE the laws, instead of decide based on laws.
The creation of laws is left into the hand of legislators who, in turn, are elected by the general public. Prop 8 was an overwhleming decision by the people of California.
Those who ended up on the short end of the stick should harness their energy towards a Prop 9, 10, etc to overturn Prop 8, instead of sowing their own brand of "H8" towards groups like the Mormons.
And please, leave Hollyweird to the Hollyweirdos. They only support this fight because its an opportunity to get some face time on TV.
My 2 cents are up. Next?
If only pro-gay legislature could secure the mexican and latino votes, they would win any issue for their cause. there, i just gave you your next blog, you can thank me later.
ReplyDeleteI read somewhere, that when European countries voted to allow Gay Marriage, their towns went up in flames and the sky fell. . .This issue has nothing to do about the protection of marriage, or the protection of childrens traditional upbringing. instead, it has everything to do with intolerant upbringing.
Ed, I would certainly agree that the heart of your point is that of judicial restraint. However, I do believe in the principle of stare decisis, to a point. Because a precedent was set in 1879 (much like the case from the Sotomayor discrimination fiasco), does not mean it is correct today.
ReplyDeleteLike I said, irregardless of judicial activism, I think we do need to seriously take a look at this...
and I would hardly call 52-47 a ferocious majority. I would consider this the largest victory for the Religious Right as of late, and it's going to end in controversy no matter what.
Still ironing out some ideas for the next topic, suggestions?
TheBitterAmerican, the issue is where the line exists between interpreting the law, and making the law. For instance, many would say the Supreme court's decision in Brown v. Board of Education was judicial activism. If you had gone to Alabama or Mississippi and had a vote the likely outcome would have been a SIGNIFICANTLY more overwhelming vote in favor of segregation than the vote for Proposition 8.
ReplyDeleteOur country isn't a democracy, it's a constitutional democracy, meaning it's not just the majority's vote. The Judicial Branch exists to determine if the laws the legislative branch hand down are "constitutional", meaning to make sure they don't trample the rights of minorities, and are themselves legal.
Justin,
ReplyDeleteI would wholeheartedly disagree that Brown was a form of Judicial Activism. The Warren Court, was by far the most liberal court this country has ever seen. I believe that they were looking at other Civil Rights based cases, Plessy V Ferguson, Dred Scott, et al, and realized that equal protection under the laws, is equal protection.
They unanimously ruled that separate is not equal...now, this doesn't mean that there wasn't public outcry, there way. However, that is what makes the Supreme Court a hallowed institution. The public only has a say in their selection and confirmation based upon their electoral power of the other two branches of government.
My primary concern, Justin and Matt, was this: Prop 8 was put to a vote. Both sides said their peace. The anti-homosexual marriage group won out. The California Supreme Court agreed. That should be the end of it. But it isn't. Too many times, the courts have been asked to MAKE laws favored by a minority that lost in the general population arena. Rational minds in the pro-gay camp should now concentrate on creating a more palatable legislative challenge instead of continuing to cry "Foul!" over and over again.
ReplyDeleteBTW, Matt - the last person I heard use the phrase "stare decisis" was John Roberts. Something I don't know??
This is true Ed, however, I think that it is important that the courts continue to stand up and protect the rights of all people, as our Founders left England due to the tyranny of the masses. The legislature really has nothing to do with this, this is now going to become a Federal Issue, as Proposition 8 is now an amendment to the California State Constitution.
ReplyDeleteI think the equal protection clause, is there for this specific purpose. It hasn't been since Prohibition that the US Constitution has taken rights away from the people, and I believe it to be bad practice to attempt doing this again. The Federal Challenge could very well be two pronged, first on the Constitutionality of Proposition 8, as well as the Federal Defense of Marriage Act.
I'm not sure what you mean on the stare decisis comment, the role of precedent is important in the interpretation of the Constitution by our courts, even if the previous interpretation no longer applies in modernity.
M