Wednesday, May 26, 2004

Equal protection under the law

I watched the oral arguements before the California Supreme Court on television today. The case concerns, for those of you unfamiliar with it, the validity of approximately 4,000 marriage licenses granted in San Francisco in contravention of various state provisions. There were tough questions all around, but I think Ms. Stewart, San Francisco's attorney, definetly had the hardest time of it. Of all the lawyers, I was most impressed by the performance (although decidedly not the position) of Jordan Lorence, a lawyer for a conservative private organization opposed to same-sex marriage. His presentation was by far the most internally consistant, and I think he handled the questioning better than either the deputy attorney general or Ms. Stewart.

Echoing the sentiments of most news reports, I expect that San Francisco will lose. The question is actually quite narrow, focused on the mayor's authority to issue the licenses as opposed to the broader issue of same-sex marriage. The court wasn't particularly impressed with the rationale offered for the mayor's actions, and I think it is pretty clear that he was just going it alone on this one. Although it is possible to support almost any view with caselaw, what with there being so many cases to chose from, the weight of authority was definetly against San Francisco. Technically, Ms. Stewart's argument seemed pretty weak. Personally, I not only think San Francisco will lose, I think it should lose, at least insofar as we limit the issue to procedural matters. Allowing municipal executives to flaunt state law is not the best way to run society.

On the broader question, I think the only fair, the only American position, is the opposition of arbitrary discrimination. If equal protection under the law is to mean anything, it can only stand for the proposition that the government shall not be used as a tool of oppression. We have a collective obligation, each to the other, in the vigilence and maintenance of our rights. That we may not agree in thinking a behavior proper not only fails as an excuse, it requires us to act all the more feverently in the protection of communal liberties sacred above all else. No other responsibility will rise to the dignity that one citizen owes to all others, and no privilage more noble than to stand for the defense of another; even when, indeed especially when, the particulars may be personally disagreeable. Our duty as Americans requires us to stand our turn at watch, to ensure liberty for ourselves by protecting it for others. To abrogate this responsibility, to act instead as an embattled individual seeking to clothe one's own prejudices with the austere majesty of the law is an incomparable disservice. Success in such an endeavor brings only dishonor, a shame compounded over time, and a burden from which the future never truly escapes.

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