Home > CALIFORNIA’S CONSTITUTIONAL BAN ON SAME-SEX MARRIAGE IS UNCONSTITUTIONAL

CALIFORNIA’S CONSTITUTIONAL BAN ON SAME-SEX MARRIAGE IS UNCONSTITUTIONAL

by Open-Publishing - Monday 22 December 2008
9 comments

Edito Discriminations-Minorit. Justice USA

by David R. Hoffman

When I was a teacher, I would often tell my students this hypothetical: “Our classroom has decided to form a new country and create a new government to run it. Now imagine that everyone in this class practices the same religion, except for two students.

History has shown that many nations have been involved in violent conflicts because of religious differences, and some are still engaged in such conflicts today. To eliminate this problem in our new nation, we are going to hold an election to decide what religion our citizens, and those who reside within our borders, can practice. Once we have a winner, all other religions will be banned.

Assuming that everyone will vote in accordance with their faith, it is obvious that two of your classmates will no longer be allowed to practice their religion. So my question is this: Since America is a democracy, why has such a vote never taken place?”

Usually, to my dismay, I would hear responses trumpeting the virtues of diversity and tolerance. But rarely did I hear the correct answer: Such a vote has never occurred in the United States because it is prohibited by the Bill of Rights.

What I wanted my students to understand is that America was created as a “democratic-republic,” where the “majority rules” in many instances, but not all. The nation’s founders determined that there are certain rights and liberties so fundamental to the individual that neither the government nor the majority can take them away. One of these, of course, is the right to “freedom of religion.”

The results of this freedom are evident. According to the book How the Great Religions Began, over two hundred denominations of Christianity exist in the United States. Clearly the outcry would be deafening if the followers of the most popular form of Christianity possessed the power to ban all others.

Yet today many of the minority sects of Christianity—that might not even exist if America had been created as a pure democracy—are hypocritically promoting the idea of “majority rule” when it comes to another fundamental right—the right to marry. This was in evidence during the November 2008 election, when many religious organizations in California successfully campaigned for the passage of “Proposition Eight.”

“Proposition Eight” banned same-sex marriages, which had been legal in California, via a constitutional amendment. But, in a paradox that is nonetheless true, this constitutional ban on same-sex marriages is unconstitutional.

Just as the federal government has the United States Constitution, every American state has its own constitution. State Constitutions can provide more legal protection for the fundamental rights of their residents than the Federal Constitution requires, but they cannot provide less.

An example of how a State Constitution provides greater protection was shown in the case of a convicted drug dealer who, under state law, was sentenced to a long-term prison sentence. This individual challenged the law in federal court, arguing that its harsh penalties violated the Federal Constitution’s Eighth Amendment prohibition against “cruel and unusual punishment.”

The United States Supreme Court disagreed, ruling that while the punishment this law demanded was either “cruel,” or “unusual,” it was not both, and to be declared unconstitutional a law has to offend both prongs of the Eighth Amendment.

Fortunately for the defendant the Constitution of the State where he was convicted banned “cruel or unusual” punishment; therefore the challenged law only needed to offend one of these prongs to be declared unconstitutional. Since it had already been held to do so, the defendant’s sentence was overturned.

An example of how the Federal Constitution can provide more protection than State Constitutions occurred in the 2003 case of Lawrence vs. Texas, when the United States Supreme Court ruled that the “liberty” prong of the due process clause voided state sodomy laws that prohibited consenting adults from engaging in certain types of sexual activity.

The Lawrence decision was an anomaly for two reasons: first, it occurred within the confines of a legal system that has historically been loath to protect the liberty interests of gays and lesbians; second, it overturned Bowers vs. Hardwick, a case this same Court had decided just seventeen years earlier. Bowers had held that laws prohibiting certain types of sexual activity between consenting adults did not offend the Federal Constitution. When one considers that it took over half-a-century to overturn Plessy vs. Ferguson, the case that once made racial segregation the law of the land, the Court moved with remarkable speed.

Still, despite this progress, America remains a nation where gays and lesbians appear to be the last minorities who can be openly hated, ridiculed and maligned, even by those in power. Vice-presidential candidates Joseph Biden and Sarah Palin, in a debate conducted prior to the November 2008 election, did not hesitate to condemn gay marriage in front of a national television audience.

But would Biden and Palin have been equally at ease condemning interracial marriages, or marriages between people of different faiths? It is doubtful, because such condemnations would not be politically profitable in today’s environment. But just a few decades ago politicians were perfectly comfortable condemning interracial marriages as “abnormal” and “immoral.”

This changed in 1967, in the case of Loving v. Virginia, when the United States Supreme Court ruled that laws banning interracial marriages violated the Federal Constitution. In its opinion the Court confirmed that marriage was “one of the ‘basic civil rights of man,’” and that denial of this right can “deprive all the State’s citizens of liberty without due process of law.”

This recognition of marriage as a fundamental right means that neither the government nor the majority can take it away, unless there is a “compelling reason” for doing so.

In the Lawrence decision, Justice Kennedy writes, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.” Denying “equality of treatment” in these areas is “an invitation to subject homosexual persons to discrimination both in the public and private sectors.”

Yet gays and lesbians in California, and numerous other states, only enjoy three of the four freedoms that “liberty presumes.” They are conspicuously denied equality of treatment in the area of expression—the right to express love and commitment through the institution of marriage.

In overturning the Bowers decision, Kennedy noted that the Court committed a fundamental error when it confined its analysis strictly to the “sexual conduct” involved: “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. . . . To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”

This right to an enduring personal bond, and this acknowledgment that the motivations of gays and lesbians seeking to marry are not significantly different from heterosexuals seeking to marry, establishes that there is no legal basis, compelling, rational or otherwise, for the government to ban same-sex marriages. In fact, as reported by USA TODAY, heterosexual couples are increasingly choosing to cohabit rather than marry; thus it should be refreshing to learn that same-sex couples still place a great deal of importance on the institution of marriage.

The courts, when dealing with cases involving religious discrimination, never question the sincerity of one’s faith, nor does society question whether a man and woman are marrying for the “right” reasons. Why then should such litmus tests be required for same-sex marriages? Why is it not presumed that two people in love sincerely wish to spend the rest of their lives together?

The tragedy of American society, and indeed of all societies, is it is so easy to blame scapegoats for all social ills. Throughout American history people of different races, religions and ethnic backgrounds were often looked upon by the majority with fear and loathing, and thus had to struggle to gain the rights that others took for granted. Sadly, when it comes to the rights of gays and lesbians, the descendants of many of these people are now chanting “majority rules.” Perhaps a constitutional amendment should be passed decreeing that those who seek to deny fundamental rights to others must sacrifice those same rights themselves. After all, as Abraham Lincoln said, “Those who deny freedom to others deserve it not for themselves.”

David R. Hoffman, Legal Editor of Pravda.Ru

– http://newsfromrussia.com/opinion/c...

Forum posts

  • 1. The Democratic Party is not going to be crucified on the cross of gay marriage, period.

    2. Gays are intrinsically immature. Their sexuality is simply one facet of a personality wide arrested development. Thus even if marriage is allowed, they should never be allowed to adopt.

    3. In 25 years there will be no young gays anyway. Once the genetics are known, couples will cease having them.

    • You can’t have it both ways. On one hand you claim being gay is a result of a psychological disorder, then you turn around and claim it’s genetic. And it won’t be a political party to decide the issue. Just as in Loving and Lawrence, it will be the Federal Courts. They are not beholden to elections or popular opinion and thus can do what elected politicians can or will not.

  • This article discusses the matter in terms of legal opinion, assuming that an improvement by the innately superior Federal courts means an evolution. It also states incorrectly that the Republican candidates disparaged homosexuality; Palin has stated at least once that she has a gay friend. It is a lie to say that those opposing gay marriage are all hostile towards homosexuals; do your own head count. I was raised a liberal, a Democrat, and drifted into the gay lifestyle, which I hope others are also reexamining. I have learned that the "liberal" leadership did not respect the rights of religious belief and local life, among other problems, so I ditched them. It is up to people what environment they want their kids raised. Their childrens’ social environment may determine whether they have children of their own, and that is their concern, not the State’s. At the moment, the State is Evil. It’s not always Evil. But that someone Evil got in there has created a good example of instances in which the State’s laws lack force.

    The Constitution and State Constitutions have no more bearing on the American people than they do on Native Americans on Reservations, nor on the French or Norweigans. If they say their rights are protected, they are protected, because they are the source of those rights, not a bunch of lawyers who live somewhere else. These documents enunciate hereditary rights that are part of the culture. The people whose culture became the legally recognized law were rather prim and monogamous people, and they raised their kids to be so. They also generally raised them not to be murderers. Cannibalism is generally very unfamiliar to this particular culture, which developed legal standing. Whether "a family" gets certain protections and benefits is a matter similar to the death penalty, excessively harsh punishments, requiring contributions to the needs of group life, etc. They are social and come from local culture, which is hereditary and only known to the families that comprise it. Just because enough people say that "this is how we decide these things," and because enough of them are lawyers or can get on TV, that "we are making progress". This is not unlike bringing up that the Constitution defined a black man’s vote as a fraction of a white man’s vote and permitted slavery.

    Gay marriage is simply an intrusion into the lives of people who do not like it. It means telling people who have for eons showed their children by example how to marry happily and plan for old age, that an example generally considered as bad is now okay. If your society says, "It’s okay not to have kids, you’re still part of society," your society has just enunciated at least a comparative lack of interest in reproduction. The culture that had legal standing put a high priority on having one’s own family as it did on "being nice" and sharing your money. They also generally suggested work was better than hedonism. Now gay marriage is another way to legitimize that what gay couples are doing is okay. So no matter what you thought of other people’ methods of getting grandchildren, it’s a simple matter of them attending to affairs that do not concern outsiders.

    That does not ignore complaints about financial and tax inequity, or the sodomy statutes, which most people found harsh, ineffective and not generally "American". (Please do your own head count, because the media and politicians are lying.) Even when my opinions were "liberal" I never wanted anything more than repeal of any sodomy statutes. Now in addition to "Heather Has Two Mommies," it seems someone has decided that everyone, everywhere, must accept that marriages between ostensibly sterile couples is one option one may imitate and be rewarded for, with the protections afforded by legal marriage.

    This is just too stupid to ignore. Does any creature in nature teach its offspring to find sterile mates? Do human children learn by example from their community, and is becoming a parent one thing that is taught in this way? If you go to one of the creatures in the forest, one that could talk to you, and say they must all make this great change in their mating dances, and the creature replies, "No, that’s not for us," what do you do then? When you tell each of the families near you their kids will see this particular example of "it’s okay to be gay," you are telling them you just fooled with their natural habitat. You didn’t tell them they can’t enslave other human beings. You told them they are now to change a practice that was intended to promote reproduction, by promoting families.

    The problem here is that the academic establishments have become ignorant of basic human nature, including parenting. These discussions about rights and their supposed evolution is not "the way we do it here". The vast majority of working people, and religious people, accepted me as a person despite my having chosen that lifestyle. Those of you who say they are all bigots are yourself bigots. I’m sorry, but in combination with all the other debacles we now see came from unskilled oversight by "the educated" among us, you progressives are among those who will be handed their walking papers. The religious right has already been rejected by popular vote and you are merely the next group to be detected as "not the people to listen to". You are not able to recognize your failure to extend to people indigenous to the US the same rights you extend to natives whose land is being colonized. That is a disqualifying error.

    • For such a lengthy diatribe, it would seem you would have read the article better. It does not say Republicans disparage gays, it says Palin and Biden condemned gay marriage, which they did. If you think gays and lesbians can’t be openly ridiculed, tune into national syndicated radio shows like "Bob and Tom," Words like "queer" and "homo" ran rampant.

      Also, it is true it’s a legal argument. That’s the point from the way I read the article. Brown v. Topeka, which did away with the doctrine of "Separate But Equal," was also made in federal courts. If the nation had to depend on elected officials to do it, segregation would still be the law of the land.

      I agree that the court system is not always a panacea. In fact, federal courts seem to be abdicating their role as a check and balance on the other two branches of government. But they are still the only place minorities, whether it is minority groups, minority religions or minority opinions can turn to ensure their rights. After all, it is doubtful that an article appealing to the "best" in people would change many minds.

    • Most people who think of themselves as progressive think of those who voted Republican as backwards or as bigots. When McCain and Palin oppose gay marriage, the progressives think, "Oh, those people who voted for McCain and Palin are so backwards, or perhaps even bigots.". Sorry, that’s how "progressives" have been taught to think and its bigotry.

      Naturally, I do not like nasty talk on the radio. But if people do not want others adopting your lifestyle and voting as you do, they may say bad things about you.

      Add into this equation the gay scout leaders, gay teachers in mandatory public schools. Too much. You now have this legal argument, supposedly based on accepting people as equals, which says people have to permit their children to be exposed to role models who don’t marry so as to have kids. It’s a simple matter of setting norms. "It’s good to marry and have kids, we do that here" is not unlike, "It’s good to be nice, we share our stuff here.". If you don’t understand about children and role models then you do not get a say in others’ childrearing and other cultural practices. It doesn’t matter to the Bantu or Mao Mao that you have a law degree, and it doesn’t matter to me, either.

      It’s really very simple. Here is the applicable American law. You’re allowed to go intervene when someone abuses another human being. You’re not allowed to go tell other people how to do things such as have families within a group where they live locally. That’s the law.

      Erect a Constitution with a hierarchy of Federal courts over State courts and then have the former tell the latter it’s okay to enslave black people, and you are in violation of American law. Tell local people they cannot define their traditions such as marriage and you are in violation of American law in the same way. This is all being debated at the State level of course, and done through elections within the States. But if you consider the people running politics are distinct from the general population, you still have the same thing - some people telling others how to have marriage and families.

      So you’re all fired, you progressives. You will mostly disband when you see how you were tricked. Just ask yourself if its really proper for you to tell a Bantu or a Mao Mao how to marry, and then ask yourself why you have jurisdiction over people who do not live where you live.

    • It’s Mau Mau. As was said in the movie "Porky’s," apparently you aren’t even intelligent enough to be a good bigot.

    • Thank you for correcting my spelling. However, you have reminded me why you who call others, "unintelligent" or "bigots" are to be expelled from influence. It’s your lack of mental ability. That the gay marriage and similar matters show a clear lack of fairness and due process is in the record, if you’ll look. "You people" just say, "Oh, he’s a so-and-so, don’t listen to him.".

      I have described why some of you have committed the sin of xenophobia. (I was raised "liberal". According to that upbringing, I am supposed to tell you not to do that.) I have disclosed that your group supposedly does this on my behalf, and that you are therefore abusing these others in my name. Yet your response is that I am a poor speller and a bigot. So not only do you reach for the Sneer Stick, not only do you ignore the content of my complaint, you call the supposedly downtrodden man you are fighting for a bad name, after he criticizes your efforts on his behalf. You do not address the facts.

      I strongly prefer a person more educated than me to for things such as surgery. But some of you seem to have been educated into the belief it’s for you to decide how others are to live. What bothered me about the article was its apparent assumption that "we" use "our" Supreme Court to "evolve". May I suggest you read Lysander Spooner’s "The Constitution of No Authority" to be reminded that not everyone read the Constitution and okayed it. It even has a proviso that if there’s any monkey business as happened in Europe, the people shitcan the whole thing and start over - it’s called the Bill of Rights. I oppose revolution, I oppose armed conflict. But you who support these laws, despite numerous, clear complaints, are behind the enforcement of those laws. If you will not heed your neighbors’ complaints you are a poor neighbor.

      That is why I have said the entire "educated" class must learn to heed these complaints or be dismissed. Not the government, not society or its legal powers - just those who have influenced them to the detriment of those who live here. My complaint is really social and moral.

      I was always behind the entire fairness doctrine, always paid willingly, opposed bigotry. But if you’re not fair towards all people, and won’t answer to basic questions about the laws’ fairness, you are disqualified for lack of ability. I direct this at nearly all the pundits, activists and elected officials who are "progressive" or "Left".

      I wish I had some magic word to whoop everyone up to dismiss the "liberal" establishment. They are better at that in the Middle East. I don’t want a Constitutional Convention. The current Congress is not the group of people to write Acts of Congress. I don’t want to learn how to shoot people. I must make something up in order to fix this ... ah, what should I do? How shall I call for the replacement of this bad leadership?

      I declare an Empanada on the Left and Progressive Leadership! That’s right. The Left and Progressive Leadership have demonstrated a lack of ability and have failed to protect the rights of local people. I call for an Empanada on the Left and Progressive Leadership, such that they may be expelled from office and from influence. Let all these fences mend themselves as people start listening to one another again.

      You really have to do something wrong for me to come out here and do this. Maybe one person will get the point. Local people = local rights.

  • RE: Still, despite this progress, America remains a nation where gays and lesbians appear to be the last minorities who can be openly hated, ridiculed and maligned, even by those in power. Vice-presidential candidates Joseph Biden and Sarah Palin, in a debate conducted prior to the November 2008 election, did not hesitate to condemn gay marriage in front of a national television audience.

    How does opposition to same-sex marriage equal hate?

    • When I was a teacher, I would often tell my students this hypothetical: “Our classroom has decided to form a new country and create a new government to run it. Now imagine that everyone in this class practices the same religion, except for two students.

      thats way this teacher is going back to CAnada or MEX to leave us all alone here.

      LOL