THE BLOG
12/12/2008 05:12 am ET | Updated May 25, 2011

There Is No "Unless You're Gay" Clause in the Constitution, Prop 8 Supporters

Moral objections aside, and there are many, the passage of Proposition 8 in California plus all the other states with same-sex marriage bans are all in direct conflict with the United States Constitution. I'm not sure if any of the "strict constitutionalists" noticed, but where, exactly, in the Constitution does it allow for states to pass or enforce laws abridging the privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws?

Nowhere. Actually, it says the opposite, right there in the Fourteenth Amendment:

Section 1. 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.

Did I miss the "unless you're gay" clause?

To say nothing of the religious implications of the bans, which are all based on Biblical writings, and are also unconstitutional, as far as lawmaking goes. Here's that pesky First Amendment, the one that says government should stay out of our spiritual lives:

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.

So many ways to interpret this, but what it was really created to do was make sure that our laws of the land were not giving preference to any one religious sect, as it had in England before we hightailed it out of there to establish our own country and escape state-imposed religion. Take this a bit further and this means we shouldn't and shan't use the Bible to run the government. However, the First Amendment does guarantee that you can read that Bible every single day you want, quote from it, live by it, tell others about it, smoke it, eat it, whatever you want! The government will not stand in your way! But this is a mutual agreement to stay the hell away from each other.

Freedom of religious expression does not obligate the government to adopt the language of religious scripture as part of its constitutions, especially if it means denying equal rights to those with whom some religious subscribers find fault. You'll find that darn Fourteenth Amendment I mentioned earlier says you can't do that.

I'm no lawyer. I merely have a bachelor's degree in political science. And I can also read.

But those who oppose same-sex marriage aren't stupid. They know it's against the Constitution. That's why they want to amend the Constitution to allow for it and make it constitutional. Bigotry and discrimination, constitutionalized. God bless America!

While there are so many legal precedents to cite concerning same-sex marriage and why it cannot be banned, I'm sticking strictly to the Constitutional argument here. (But read this article by Steve Sanders to see what I mean.) The purpose of the U.S. and all 50 state constitutions is to ensure equal rights for all, and Prop 8 is simply in direct conflict with that by trying to limit marriage to a union between a man and a woman. It's simple logic, really:

Man and Woman = Opposite-sex couple
Man and Man = Same-sex couple
Woman and Woman = Same-sex couple

If marriage is limited to opposite-sex couples (man and woman)
Then same-sex couples do not fall under that and are
Therefore denied marriage.

Um...

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.

Or, you can go by Article I of the California state constitution, the first sentence of the first section of which says:

All people are by nature free and independent and have inalienable rights.

And that blasted Fourteenth Amendment language again, right there in Article I, Section 3:

Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantee that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.

And for those of you sticklers, here's the first part of Section 7:

A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.

Guaranteed equal protection so nice, it's in there twice!

So, Prop 8 wants to add the "unless you're gay" clause to the state constitution, which is based on religious language, which violates the First Amendment of the U.S .Constitution, and denies equal protection under the laws, which violates the Fourteenth Amendment of the U.S. Constitution.

The ACLU's argument in its complaint filed with the California Supreme Court states that such a change to the state constitution cannot be an amendment but instead a revision, and something that takes the fundamental purpose of the constitution and turns it on its head should be considered a revision and not an amendment. An amendment is an improvement, a betterment - Prop 8's proposed "amendment" is a limit, a subtraction and a denial of rights, and that negates equal protection.

Yeah, this fight is nowhere near over.