The University News (Irving, Tex.), Vol. 36, No. 2, Ed. 1 Tuesday, September 21, 2010 Page: 10 of 12
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^Commentary
10 — September 21, 2010
The University News
Does the wedding bell toll?
Mark Kubisch
Contributing Writer
Last month, a federal
district court judge ruled
that Proposition 8, which
defined marriage as the
legal union between a man and a
woman, violated the Due Process
and Equal Protection Clauses
of the Fourteenth Amendment.
While the case of Perry v.
Schwarzenegger is now on appeal
before the Ninth Circuit Court
of Appeals, it will probably end
up before the Supreme Court.
If it does, the Court may likely
recognize a fundamental right to
same-sex marriage.
For the advocates of same-
sex marriage, significant parallels
can be drawn to the historic case
of Loving v. Virginia. In that 1 967
case, the Court struck down a
Virginia statute that prohibited
and punished miscegenation.
Although the statute reflected a
long-held public belief that blacks
and whites should not be allowed
to marry, the Court rightly struck
down the law because marriage
is "one of the basic civil rights
of man" and, thus, "the freedom
to marry, or not marry, a person
of another race resides with
the individual and cannot be
infringed by the state." Applying
this rationale to the question of
same-sex couples, the argument
can be made that the state should
not impair the freedom of an
individual to marry, or not marry,
a person of his or her own gender.
Now, advocates of same-
sex marriage recognize that
such unions cannot lead to
the procreation of children, a
key reason for the institution
of marriage in the first place.
Nevertheless, they point to the
fact that infertile and elderly
heterosexual couples are both
still allowed to marry under state
law. Furthermore, if the goal of
marriage is to create a stable
environment for the development
of children, the fact that
homosexual couples can already
adopt in states such as New York
and Indiana indicates that there is
no longer a rational relationship
between the state's refusal to
recognize same-sex marriage and
the legitimate state interest of
sanctioning procreation within an
enduring family structure.
In Lawrence v. Texas, a
2003 case that struck down
Texas' anti-sodomy law, the
Court held that the framers of
the Fourteenth Amendment
knew that "times can blind us
to certain truths" and that later
generations often find "laws once
thought necessary and proper
in fact serve only to oppress."
Consequently, according to the
Court in that case, "persons in
every generation can invoke [the
Constitution's] principles in their
own search for greater freedom."
Same-sex couples thus are asking
that the state no longer refuse to
recognize their "right to define
[their] own concept of existence,
of meaning, of the universe,
and of the mystery of human
life." Many on this campus find
such an invocation troubling.
Yet, considering that five of the
justices who struck down the
Texan law are still on the Court,
precedent exists for this decision,
and public support is increasing,
they should not be surprised if
the Court rules in favor of such a
right to marry.
Justice Breyer unsure if
First Amendment protects provocative speech
Kevin Burns
Contributing Writer
For several decades,
the United States
Supreme Court
has held that
flag burning and other
provocative speech is
protected by the First
Amendment. But just last
week, Justice Stephen
Breyer announced that
a Florida pastor's plan
to publicly burn a Koran
might not be a protected
action under the First
Amendment.
A few centuries
ago, Breyer might have
been correct. In some
of the Court's older
case law, actions and
words that deliberately
insulted religion were not
protected under the First
Amendment. Blasphemy
laws were in place to
protect religion from public
actions or utterances that
struck at the very source of
moral obligation (see, for
example, People v. Ruggles).
Bear in mind, however,
that Christianity received
a special protection as the
religion of the majority and
as an important foundation
upon which American
government was built.
Whether the burning of
the Koran - a book revered
by the 3 percent of our
population that is Muslim
- would be considered an
attack on morality is harder
to say.
More recently, the
Supreme Court has
moved to a more liberal
interpretation of the
First Amendment, ruling
that only speech that
presented an "immediate
and imminent danger"
was not protected (see
Brandenburg v. Ohio).
Essentially, the Court ruled
that provocative speech
would be allowed unless
the speaker was trying
to rouse his audience to
immediate and imminent
violence against others.
In the case of Koran
burning, Breyer seems to
be applying the immediate
and imminent danger
test. Breyer certainly has
a legitimate concern, with
regards to the danger
the burning of the Koran
may pose. Although the
pastor never burned any
Korans, riots broke out in
the Middle East and people
were killed. But Breyer is
warping the immediate
and imminent danger
test. Breyer warned, "it
doesn't mean you can shout
'fire' in a crowded theater .
. . Why? Because people wiil
be trampled to death. And
what is the crowded theater
today? What is the being
trampled to death?"
In essence, Breyer
seems to be implying
that the immediate and
imminent danger test
will now be applied not
against the perpetrator
of violence, but against
the victims. One cannot
burn a Koran, not because
that act would inspire
violence against Muslims,
but because the act might
inspire violence against
the one who burned the
Koran. This is a horrific
twisting of Supreme Court
precedent. Instead of
defending speech unless
that speech will cause
harm, Breyer wishes to ban
speech because that speech
might provoke others into
attacking the speaker.
I, for one, do not think
that burning Korans is
actually helpful. But the
larger point, and the larger
battle, is whether the First
Amendment will be used
to protect all speech that
does not directly cause
harm, or whether it will
be emasculated to protect
only that speech that does
not anger people. I can
only hope that the other
eight members of the
Supreme Court will realize
that the First Amendment
exists precisely to protect
unpopular speech against
those who would silence it
by violence.
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Chee, Gabbi. The University News (Irving, Tex.), Vol. 36, No. 2, Ed. 1 Tuesday, September 21, 2010, newspaper, September 21, 2010; Irving, Texas. (https://texashistory.unt.edu/ark:/67531/metapth201527/m1/10/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting University of Dallas.