Rich Lowry’s column (Aug. 9) about the Proposition 8 ruling in California missed the mark. The judge did not avoid “the legal merits” or “re-litigate” the issue of marriage of gay and lesbian couples. In our system of checks and balances, the judge evaluated whether Proposition 8 betrayed the constitutional guarantees of liberty and equality for all.

Ruling that Proposition 8 lacked a rational basis is a far cry from calling its supporters bigots, as Lowry claims. Under rational basis review, the government needs a legitimate purpose for a law, and then must explain how the law (denying marriage to gay and lesbian couples) accomplishes that purpose. Proposition 8’s defenders focused on marriage as a stabilizing force for couples and children. But as the judge found, “[p]ermitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriage.”

Proposition 8’s defenders had every opportunity to make their case, but denying marriage to gay people hurts only gay people and their children while doing nothing to improve the lives of others.

Lowry assumes that voter approval insulates a law from constitutional review. Courts have struck down other voter-approved measures that reflected the passions of their day: banning German language instruction in public schools, requiring attendance at public (not parochial) schools, invalidating race discrimination laws, and denying gay people claims of discrimination.

In our legal system, the Constitution has the last word.

Mary L. Bonauto, Portland

Civil rights project director for Gay and Lesbian Advocates and Defenders

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