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I Hope Elena Kagan Is Gay

It’s really none of my business. Really. But I hope Elena Kagan is gay.

The U.S. District Court in San Francisco struck down California’s Proposition 8 on the grounds that, among other arguments, it violated the Equal Protection Clause because there was no rational basis for discriminating against gays and lesbians. For those of you non-lawyers out there, rational basis analysis is the weakest test applied to discriminatory laws. If you were comparing rational basis analysis to limbo, let’s just say it would be ankle-high: not a hard hurdle to overcome. And yet the proponents of Proposition 8 failed to overcome it.

So imagine how lame Judge Vaughn Walker thought the justifications for Proposition 8 were that he ruled that they didn’t pass rational basis analysis, to wit:

1) Preserving the institution of marriage as between a man and a woman;
2) Proceeding with caution when implementing social changes;
3) Promoting opposite-sex parenting over same-sex parenting;
4) Protecting the freedom of those who oppose same-sex marriage;
5) Treating same-sex couples differently from opposite-sex couples; and
6) Any other conceivable interest.

Perry v. Schwarzenegger, (2010) No, C-09-0299 VRW (N.D. Cal.) at p. 123. So let me get this straight – you’re going up against Ted Olsen and David Boies, two veritable legal giants who have appeared numerous times before the U.S. Supreme Court, most notably against each other in Bush v. Gore, and this is the best you can come up with? I hope those Prop. 8 supporters didn’t spend a lot of money on their legal talent.

Depending on the patchwork of state and federal court decisions determining whether prohibiting gay marriage violates equal protection and due process under our federal Constitution, the U.S. Supreme Court might be enticed to take this case to settle the law once and for all. Maybe.

And if it does, I hope Elena Kagan is gay. I wonder how many gay people the Justices know. I wonder if they know that gay people aren’t trying lessen the meaning of marriage for others; they’re just seeking equal rights under the laws. If states hadn’t gotten into the business of regulating marriage in the first place, we wouldn’t be in this position. Everyone would just go to their church, synagogue, supreme leader, open pasture or whatever, declare themselves married, and prepare to get screwed by the IRS. But nooooooo . . . . the states had to get all up in our business and license and regulate marriage. Well, guess what? The state doesn’t get to play favorites, even if a majority of people want it to. That’s what the Constitution is for – to protect the rights of people who happen to be in them minority, no matter what you think of them. Once the government got involved in marriage, it ceased to be just a religious rite. Now it’s an individual right. And that, in a nutshell, is why you shouldn’t be able to discriminate as to who gets to enjoy that right.

If Elena Kagan is gay, I want those Justices who think it’s okay to discriminate based on sexual orientation to look her in the eye and make that argument.

And then prepare for the legal smackdown of a lifetime.

We’ve heard similar arguments before, folks, and so has the U.S. Supreme Court -- in Loving v. Virginia, 388 U.S. 1 (1967), where the State of Virginia had the audacity to argue the constitutionality of its anti-miscegenation laws. In holding Virginia’s anti-miscegenation law up the Court had this to say:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

Loving v. Virginia, 388 U.S. 1 at 12. If gay and lesbian people love their mates half as much as I love Black Man Not Blogging (BMNB), well, then, their right to marry is worth fighting for. I wish them well.

And I’m hoping against all hope that Elena Kagan is gay.

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