California Supreme Court Justifies Second-Class Citizenship

As expected, the California Supreme Court upheld the slim majority that provided the margin for Proposition 8 to step outside of the boundaries of the constitution. In doing so, it has applied an asterisk next to the equal protection under the law clause at it relates to California's LGBT community.

By upholding the proposition that limited marriage as something between a man and woman, while preserving the 18,000 marriages performed based on the court's decision last May that same-sex marriage was lawful, there are troubling anomalies created.

California became a state that went from debating equal protection under the law to one that now clearly operates with two different class distinctions. Not only are there gays who did not marry before Proposition 8 passed, but now they are a subset of the 18,000 same gender couples who had their marriages performed before the election.

How can the equal protection clause in California's Constitution be reconciled with the by-product of the court's decision to uphold Prop. 8? The court's ruling hardly places a period on the issue, more like a comma or semicolon perhaps.

Several justices who voted to overturn Prop. 22, legalizing same-gender marriage, seemed reluctant to overturn the will of the voters this time around, although Prop. 8 passed by a much smaller margin than Prop. 22, which also banned gay marriage in 2000.

Can the will of the people operate outside the jurisdiction of the constitution? If equal protection under the law is to have any merit, how can there be two classes of citizens?

Regardless of where one comes down on the issue, the trajectory in California is clearly headed toward full equality for gay marriage. While that, along with the affirmation of the 18,000 couples whose marriages are still valid ought to provide some measure of comfort, it is difficult to be hopeful when one's second-class citizenship has been justified by the court.

The court was deferential to the will of the people by allowing marriage to only to be between a man and a woman. But I can't help but wonder for all of the resources spent, and time allocated, was the most significant distinction made by the court one of nomenclature?

If the court is saying the will of the people can extend to depriving same-gender couples from the label of marriage, as long as the benefits are not deprived, we're still left with two classes of people.

The court wrote: "It is only the designation of marriage -- albeit significant -- that has been removed by this initiative measure." Does the court believe it is possible for the state to hold two conflicting positions simultaneously?

How can the state comply with having the definition of marriage for one class of people, deny it for another, and not have it challenge the equal protection clause? If it can comply with what seems inherently contradictory, then are we not talking about the use of a single word: marriage?

Maybe the court ruling suggests that it's time for the state to get out of the marriage business altogether. Though the history of marriage has had its own evolutionary process outside the church, based on issues ranging from class to procreation to race, it still possesses strong religious overtones for many.

Why not find out if those religious institutions that supported Prop. 8 are truly committed to the so-called sanctity of marriage? Though I have my doubts that the debate is truly about marriage, let religious institutions have the word. What's wrong with "marriage" being a ceremony that is performed within religious institutions?

All of the legal rights conferred to married couples from the state can be rolled into domestic partnership agreements, which can be recognized by all states. Everyone, regardless of their beliefs, must apply and receive a domestic partnership license that provides equal rights and privileges.

This would allow the state to be consistent with its own constitution. Remove marriage from the debate and ensure that all are created equal and have been endowed with certain unalienable rights, among them life, liberty and the pursuit of happiness.

Byron Williams is an Oakland pastor and syndicated columnist and blog-talk radio host. He is the author of Strip Mall Patriotism: Moral Reflections of the Iraq War. E-mail him at [e-mail] or visit his website: byronspeaks.com

Comments

[mredder4]

Mr Williams, how does the strong support that Prop 8 received among minority voters (specifically black voters) affect your argument that it is only the courts who condone second-class citizenship? Isn't it ironic that there was such strong support for civil rights suppression among black voters?

[Byron Williams - Huffpost Blogger]

Below is a piece I wrote about the African American vote and Prop.8. But to directly answer your question: it does not affect my argument. It is the courts responsibility to make sure the rest of us (including the majority however large or small) stay within the framework of the Constitution. Black voters are just a likely any other group to grant someone they deem as "other" to second-class citizenship. Are we not a nation of laws and not people?

http://www.huffingtonpost.com/byron-williams/blaming-the-african-ameri_b_143892.html

[K.J. Dwyer - Huffpost Blogger]

With regards to the state, marriage is, first and last, a civil contract. The proof of this is that when one seeks to dissolve a marriage, they don't go to their priest, minister or rabbi to get a divorce; they go to court.

The fundamental problem with marriage in the United States is that clergy are allowed to administer the civil contract of marriage. Yes, people have to obtain a marriage licence through the public sector, but practically any ordained "minister" can perform a legal marriage once that licence is obtained.

By giving the power of the state to the clergy to administer civil contracts, the United States has blurred the line between the Separation of Church and State and allowed religious bigotry to "define" what a marriage is.

If every citizen were required to stand in front of a judge to get legally married, the incoherent rants of religious bigots would be relegated to their proper, marginal place and this whole initiative to deny gay people the franchise of marriage would be a non-starter.

To that end, there should be a counter-initiative to deny the clergy the power to perform civil contracts. I'm sure such an initiative would lose at the ballot box, but it would highlight what is a fundamental flaw and inequity in the system and might make the religious think twice before denying others their civil rights.

[AnotherTry]

As long as atheists can marry, the institution has nothing whatsoever to do with religion.

Why do they get the word marriage and we don't?

[jmpurser]

Well now that the majority can vote to create sub-citizens out of any group they chose perhaps atheists will lose that right.

We'll see. This utterly puzzling court ruling seems to have left a number of doors open for exploration.

[Pleneras]

PR has 2nd class citizenship too. You must go to war, and they have for over 100 years, but they cannot vote for the presidency. Before you jump, PR just voting on a plebiscite for statehood means nothing. Look at the racist comments from suppose political leaders and religious nuts on our great Federal Judge Soto-Mayor? Do you think statehood will come easy with our vote if that were the case? 100 years of defending this country my cousins deserve the right to vote for the president of the united states.

Judge Sotomayor is a brilliant woman!

[SD Indy]

Ted Olson, the lawyer who represented Bush in Bush v Gore, just made the best analogy ever. Denying same-sex couple the right to marry is like allowing someone from another country to migrate to the United States, they go through all the proper channels, take the naturalization test and now they are allowed to vote, they are protected to worship whichever god they chose (if any), they have all the freedoms guaranteed under the constitution, but they wouldn't be allowed to claim to be a citizen.

[gaydm]

The California Supreme Court has given you several choices, either grant equal marriage to all, or call all unions by another name, or do away with all unions altogether. BUT all will be treated to the same legal standing. So, to take it from what my school teachers used to say, if your gonna bring candy to class, you will bring it for all or you will not bring any at all. You will not be selfish and bring some for only your best buds and no one else. ALL or NONE.

[gaydm]

The court ruled that 1) it was perfectly Legal to place a perfectly Illegal law in the constitution.

2) It did not rule on the legality of the amendment, just whether it was legal to place it in the constitution.

3) In it's ruling, the court said that all the 18,000 marriages before prop 8 passed, are still legal and valid. It also said that in it's prior ruling to grant the marriages in the first place, that all findings still hold, including EQUAL protection, Including the name MARRIAGE.

4) As of this moment forward, California has gay marriage, right now it is limited to 18,000 couples, but that is FAR more than the ZERO legal marriages I have in my unfortunate home state. You also moving forward have ALL the rights of a marriage but only not the name.

5) The court all but said, bring this back before us on EQUAL PROTECTION challenge to the law and they would overturn the law.

What happened with this court challenge to prop 8, was that it needed to be in the constitution before the court could rule on the validity of the amendment. Now that is is there, the court will strike it as unconstitutional under the equal protection ruling if, and when someone will bring it back before the court.

[ProudLiberalDemocrat]

I sorta' agree with your point, "[5)] The court all but said, bring this back before us on EQUAL PROTECTION challenge to the law and they would overturn the law."

The US Supreme Court may throw this back and ask the CA Court to address as Equal Protection matter. Or, the US Supremes will take up the matter and decide on the same claim. US Supremes may say, "If CA Supreme Court can recognize Same Sex Marriage (the 18,000 already sanctified), then all citizens must be offered same right (a/k/a Equal Protection­)." I believe that the passing of Prop 8 could be declared unconstitutional by the US Supremes (and not go back to CA). This is starting to smell like Brown v Board of Ed. - seperate can never be equal.

[ProudLiberalDemocrat]

I just read brief filed by Olsen & Boise, goes right to Equal Protection and second-class citizens..­...

I may be straight, but I am praying for my gay & lesbian brothers and sisters.

[gaydm]

It is not just that the California Supreme court ruled that the 18,000 gays already married are legally married. In the original ruling legalizing those 18,000 marriages they elevated the review of any laws in the state of California that pertain to gays, be reviewed using strict scrutiny review. That is a huge win for gays, that makes California the only state court to do that.
What just happened was a HUGE win for gays in California. They have become one of the few states that now allow for gay marriage. Yes gays from the passing of prop 8 untill now and into the foreseeable future are denied the word "marriage" BUT they do have every other right to the contract. EVERY other right. They MUST be accorded all of what straight people have in a marriage contract.
The only thing that was argued was whether the amendment was done properly, not whether or not what the amendment itself said was correct or lawful. What the court said was, come back now and say prop 8 was illegal under the equal protection clause. Not that how it was put in the constitution was illegal.