An elderly couple in their mid-80's have been informed their marriage is no longer valid. They have been told the person they have been devoted to for thirty years is no longer their spouse. They are reassured there is another separate institution for them – something different from marriage. Holding many of the same rights, the state assures them this institution will be just as good. Their union simply will not be recognized in other states and traveling abroad. Their not-quite-a-marriage would also require them to hire a lawyer to acquire durable power of attorney. Also, some of their social security payouts, in the extremely likely event one of them dies, would not go to the other. Other than these few oversights, they are told, they hold the same rights as anyone else.
This situation would be an outrage to the common person. An American being denied something most take for granted. This exact thing has happened to Del Martin and Phylis Lyons. After the California supreme court decided to allow same sex marriage under California Constitution on the grounds of equal protections, they were the first same-sex couple to be wed.
Their happiness was short lived. Proposition 8 was passed this November due in part to heavy financial backing from a number of large religious institutions. Proposition 8 added a new piece to the California constitution: only marriage between a man and a woman is valid or recognized in California.
The majority voted it in and now it is law. However, it is unconstitutional on a few grounds. It takes a little background to understand this, but I hope to use my sometimes burdensome intelligence and eloquence to make a bit more sense of this complicated issue.
I've had exactly one person come to me and complain that to overturn an amendment is to drown out the voice of the people, defeating the purpose of voting. Something important to note is the constitution exists almost solely to prevent the majority from doing stupid shit. It does not defeat the purpose of voting. Conversely, it holds the majority accountable. The constitution is the last bastion of defense for the minority. When the majority is wrong, it is an aegis behind which the oppressed can stand. It is my opinion that this is the constitution's most important function. The vast majority has favored many ill-conceived ideas. Think hard enough, I know you can come up with a few.
Moving on, California, along with the 49 other states, have their own constitutions. Article VI of the United States Constitution states “[the US constitution] shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Essentially this means the United States Constitution trumps the California Constitution. If California passes a law that violates anything in the United States Constitution, it is void. This is known by constitutional law scholars as the Supremacy Clause.
Why would that matter? To tell one group of people they are allowed to do something, but another group cannot is pretty explicitly prohibited in the 14th Amendment. It states “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.” Key phrase, equal protection. Therefore, to tell one couple, Mozoltov! While telling another couple, “I'm sorry we can't let you do that,” is blatantly unconstitutional. Also, I know the California constitution has something similar written in it, however, I don't give enough shits to look it up. The US constitution wins all arm wrestling contests, sort of like Sly in Over The Top.
But wait, there's more. I know you're saying, “wait a minute, this amendment doesn't violate just one part of the US Constitution, but two? How did this gobbledigook end up on a ballot?” You've got me. Money helps. Ignorance helps more. I know it sounds cliché but honestly, I can't think of any other reason.
So secondly, the first Amendment of the Constitution has the Establishment clause. Essentially saying, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” We all know it. It is nothing new. My home-boy, Thomas Jefferson, described the establishment clause as erecting “a wall of separation between church and state.”
This part of the constitution was fairly loosely interpreted until it landed in the lap of Chief Justice Warren Burger, my second favorite Warren. Second to, of course, Warren Sapp. I couldn't see the Warren Burger w/ cheese sacking fools. And I'm sure he's was not nearly as light on his feet as #99.
Anyway, in Lemon v. Kurtzman, Justice Warren Burger Deluxe blew everyone's mind by coming up with the Lemon Test to decide if a law violated the establishment clause. The Lemon Test has three prongs. The three prongs are: a law cannot be religiously motivated, a law cannot explicitly benefit or hinder religion or the lack thereof and a law cannot cause excessive entanglement between religion and government.
Initially, Prop 8 fails the first prong. The proposition was clearly religiously motivated. For example, Mormons make up 2% of the population of the state of California. However, they were attributed with more than half the money put forth for the movement. The Church also did the majority of the canvasing, telling people that Prop 8 would hold up “God's plan for marriage.” If that isn't religiously motivated, I'm not sure what would qualify.
The law also offends the second prong since it would further fundamental Christians attempt to paint the gay community as different and even as abominations. Their words, not mine.
Ultimately, as great as it would be to invoke Article VI and drop the 1st and 14th Amendment on them, it is unlikely to happen. They do not want to legally challenge the Prop based on the above two arguments (though they are spot on) because it would escalate it to the US Sup. Court. If this happens there is potential to have gay marriage banned nation-wide. Opponents of the proposition don't want to take that risk. So the route they are having to take is pointing out that such a large change to the state constitution is not an amendment, but a revision, since it is in contradiction with California's own equal protection clause. Therefore it cannot become law without the 2/3rd vote from state legislature. Their defense of this is shaky at best, and I'll be honest, I don't know much about the California state constitution.
Either way, I am just absolutely baffled as to how anyone could see this law as just or constitutional. I am not usually one to have trouble seeing the other side of an argument. In fact, anyone who knows me knows that I will actively seek it out, just to start a fight.
The argument that somehow the state of California has to enforce a morality is against everything the country was founded on. I know that is a tired argument but it is true. The claim is that gay marriage somehow cheapens straight marriage. Gay marriage somehow ruins the family. However, no one can produce numbers to prove that children of gay couples are any worse off than children with straight couples. I would like to see some clear empirical evidence that suggests that gay marriage breaks children. I want a control group of single parent households, straight couples and then gay couples. I bet the results will surprise the prop 8 supporters. The reason we never hear about studies like this is because -- once again not trying to be cliché it just sort of happens -- this has never been about protecting marriage. It has never been about the children. It is about hate. No matter how against gay couples, no matter how you think they will burn in hell, no matter how hot your hate burns for their sins, any good Christian knows that we are all sinners.
Someday I hope that the sinners can sin, the saints can pray and everyone else can go about their business.
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