As I mentioned earlier today, the Prop 8 decision was handed down around 4:30pm this afternoon. The cynic in me was quite skeptical, but to my surprise, it was ruled unconstitutional. Well how about that?
When it comes down to it, it’s a legally consistent move to make. There’s a significant difference between a law that actually abides by the rule of law and a law that was voted in by popular demand. In fact, we have a history of laws, norms, and behaviors perpetrated by civilians and the government alike that are sanctioned by society at large for some time that do not fit within the rule of law as defined by the Constitution of the United States. A few that come to mind include: segregation, banning interracial marriage, holding “enemy combatants” at Guantanamo Bay, slavery, Jim Crow laws, police not advising suspects they have the right to remain silent, etc. You’ll notice that I only included laws and actions that have been defined by the courts to be unconstitutional. Simply put, just because a policy, law, or action is supported by the “majority” of Americans doesn’t make it legal.
Where does that leave us when it comes to the issue of same-sex marriage? In an ideal world, it would leave it at the steps of the courthouse and nowhere else. Not up to popular vote, not up to popular demand. No, it would be assessed according to the rule of law (e.g. the U.S. Constitution). Now, the plaintiff’s attorneys argued that Prop 8 violated their 14th Amendment right to equal protection under the law. Section 1 of the 14th amendment reads as follows:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
No State (e.g. the state of California and/or its citizens) shall make or enforce any law (even those “passed” as an “amendment” through a ballot initiative) which shall abridge the privileges or immunities of citizens of the United States (not just its straight citizens, or its white citizens, or its male citizens…all citizens); nor shall any State deprive any person of life, liberty, or property, without due process of law; nor (pay attention here) deny to ANY PERSON within its jurisdiction the EQUAL PROTECTION of the laws. This includes any and all benefits associated with the institution of marriage in the state of California. It cannot be extended to some citizens, and explicitly denied to others.
Not once have I heard a single *legal* argument in support of bans on same-sex marriage. Not once. And I’ve been listening. I really have been. If you know of one, please, enlighten me. The only inkling that I have heard of a legal argument has been related to the 1st Amendment right to “freedom of religion”. In fact, this is one of the most oft-cited “reasons” why same-sex marriage should be banned, and ironically, one of the least relevant laws to be citing in this debate. What does the 1st Amendment state? Well,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Notice the first thing to come, and it’s not the prohibition of free exercise of a religion…this Amendment was drafted in a time period when its writers were especially terrified of being forced to practice under the Church of England and/or face the punitive measures if they chose not to. The irony is that citing this Amendment in the same-sex marriage debate is that it actually serves as an argument for same-sex marriage, not against it. Using religious reasons to justify an action would be respecting the establishment of that religion in order to govern. That’s AGAINST the First Amendment. So long story short, try again.
That aside, I would argue that there simply is no legal justification available that can be used to ban same-sex marriage. There simply isn’t. The U.S. Constitution is a document that was designed to protect the liberties of its citizens first and foremost, and grant the government power as a distant second. It doesn’t matter if we’re talking about the right to bear arms or the recognition of same-sex marriages by all 50 states and the federal government. The supporters of Prop 8, and the opponents of same-sex marriage, do not have a legal leg to stand on, which is why they are so afraid of the courts. I would even argue that they KNOW they do not have any legal justification so they use paranoia and popular bigotry in order to push through their agenda. Then, ironically enough, they scream about how their democratic rights have been violated. However, they forget that rule of law in this country was designed to protect the individual from the idiotic mob. You have the right to “disagree” with “homosexual behavior,” but you do not have the right to force everyone else into compliance with your so-called standards of behavior by enacting laws and legislation. Individual people may be intelligent, but people in groups and mobs are always stupid and quick to push through actions that infringe on the individual. Thankfully, this was recognized earlier this afternoon in CA, and hopefully it will continue through the Ninth Circuit Court of Appeals and eventually the U.S. Supreme Court.