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.
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Prop 8 will go the same route it did back in 2004. I thank the religious groups for putting it on the ballot and wasting money because it showed that the percentage of it's passage since the last attempt in 2004 was much slimmer. You can't vote to take away someone's civil rights. As for the person who stated that it would repeal all marriage laws this is correct. If written into the constitution wouldn't it then repeal the 1948 verdict that said blacks and whites could marry? I know people who are cousins that married and it would repeal that as well.
FROM A LIBERAL CHRISTIAN
Early Christians’ response to persecution was to crush internal dissent and aggressively pursue a policy of converting as many people as possible. Jesus Christ wasn’t a self-promoter, but later followers decided Christians should try to persuade others to their way of thinking.
This describes today’s gay political movement.
God save anyone who happens to no longer be gay, regardless of the personal circumstance; any hint of choice threatens gay activist political dogma at its core.
Efforts to get popular support of homosexuality are more widespread and aggressive than ever. The only reason to take SF 1st graders on a field trip to a gay wedding ceremony or to bring children's books like KING & KING into K-3 curriculums is to win kiddie hearts and minds.
It’s not conversion, but it's a serious boundary violation that steals parents’ rights to introduce their children to marriage and sexual orientation on their own family’s terms. It's also just the wrong educational priority to spend time and money on marriage of any sort at the K-5 level.
Again, why? Was there a case of gaybashing on the jungle gym by kindergarteners somewhere, which therefores requires such sensitivity training of 5-8 year olds? I remain for gay marriage and I know Prop 8 didn't include language about education.
But if Prop 8 had not passed; these efforts would have multiplied. Hopefully we can clearly grant the marriage equality without overreaching into public school curriculum here in CA.
Um.... NO! The gay rights movement is may be trying to hide any evidence of choice, because they recognize that bigots will use any hint of it to claim that they ALL chose to be gay (in spite of the evidence that a VAST majority of gay people did not choose to be gay!) and that therefore they deserve no rights!
All reality and science points to this spectrum that exists between nuture and nature and that some are at both extremes but most are somewhere along the path in between 100% conscious choice and 100% DNA.
But I hope you realize that early Christians were also, really persecuted, like Holocaust-by-mass-crucifixtions-type persecuted by the Romans. And so they rationalized eliminating things from their doctrine that their enemies might be able to use against them also....and we see how many people have suffered at the hands of rightheous Christian intolerance; so I'm hoping Gays can fight the good fight and learn to be Christ-like and not channel the defensive, persecuted early church.
Jesus never threw anyone under the bus so he or his movement could survive; His followers did and it always create lasting ill-will toward men, regardless of how real the provocation.
That's interesting since I live in the Bay area, outside of SF. My children attend public school here and never once has that issue been taught. That was a fraudulent manipulation by the prop 8 supporters and is evidenced by the superintendent of schools having to make a commercial about it. If this happened somewhere then it should be a public education issue and not a social issue. Not until children reach 9th grade here are they taught a class called "life skills" which includes curriculum on sex, drugs, disease and understanding of basic human life preparedness. Not once in that class did they touch on the subject of sexual orientation so I'm not sure where the proponents of Prop 8 were coming from on that issue except to harbor a false claim.
Here's an interesting story about a small bit of good that may have come out of Prop 8. It by no means, makes up for the tragedy of Prop 8, but it's something:
http://stonecipher.typepad.com/the_stonecipher_report/2008/11/the-folly-of-my-non-voting-ways.html
That is why my contention is that the state of CA is actually split on this issue. I think if people like this gentleman were to get off their as$es and vote it would have been even or closer than it was.
So, since the CA Constitution is now in violation of the FEDERAL Constitution, doesn't that mean that the equal protection clause takes precedence, and now NO marriages may be performed in CA????
Please point me to the Federal Case or Law that says a union between two persons of the same gender is allowable ... crickets ... crickets ... Like it or not, every person has the same rights under the constitution and US Federal Law, you have the ability to marry someone else of the opposite gender ... you may not agree that should be the US law, but it is, and until you change it, it will continue to be the US Law.
Ummm....
"you have the ability to marry someone else of the opposite gender ... you may not agree that should be the US law, but it is"
Where does it say that, exactly? I thought this bruhaha was all about defining marriage as between a man and a woman -- if it was already law, there would be no need for this proposition, would there?
If you impose the Biblical interpretation of marriage, the Mormons could go back to having multiple wives and the wall between church and state would be so compromised that even you might find yourself on the wrong side of the "law" more than likely -- so many prohibitions, so little time.
If you argue that civil law should just be tightened up to make this definition clear, then -- truly -- you are at serious risk of undermining equal protection under the law..
Loving v. Virginia...... Seem to recall it saying something along the lines of.....
"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival...."
sure seems to imply that marriage is a basic civil right, which means that in order for it to apply to ONE group of people it MUST apply to ALL groups of people!!
Furthermore, I was responding to the article, which stated clearly that it appeared that Prop 8 amendment to the CA Constitution was Unconstitutional....
The whole purpose of marriage in society is the declaration of a new breeding pair. I've never been anti-gayrights before but I don't see them as a hard done to minority this time, I just see them as being unreasonable. Stand together, protect the meaning of our ancient institutions, marriage is not a tax break or a ticket to citizenship.
Does that mean that the marriage of any couple that doesn't breed is invalid?
What about women who breed without being married?
They automatically become married to the father!
You are 100% correct, marriage should only be between two opposite sex couples that can breed. In fact the couple should prove that they can breed before marriage, and preferably a teen age couple.
Prior to marriage the couple should consent to a fertility test, if either person is infertile then marriage should be denied, and furthermore, the couple should sign a contract that they will procreate within 2 years, if they do not have a natural child within 2 years, they marriage should be annulled.
And as in ancient times, when a breeding couple gets married, the female job should be limited to getting pregnant and having children. The male should be able to dictate what the female can and can not do. In fact, just as in ancient marriages, the women should become the property of the man and lose all rights to property, voting, and other civil rights.
Great - let's make it a prerequisite then - if you want to be married, you have to have a child first. Let's just treat everyone equally then. Straight people who are sterile can't marry under your rules.
LISTEN CLOSELY NOW.
MARRIAGE IS A LEGAL ARRANGEMENT _ YOU DON"T NEED IT TO BREEED.
That's NOT the point of a marriage contract. The point of the marriage contract is to make a STABLE unit, which may OR MAY NOT be involving children!
So once opposite-sex couple breed, and their children have grown and moved out of the house, and the parents can no longer breed, should there be an admendment to the constitution which states married couples are required to dissolved their marriage, since they can no longer breed? (I'm not even going to go into the sterility issue since that arguement has already been made)
Why should gay tax dollars contribute to "married" couples, like paying for spouse's social security benefits? The breeder's children should support the "married" couple once they are no longer able to work...
What's wrong with opposite-sex couples getting a domestic partnership or a civil union if it seen as equal?
I am in total agreement with the author of the article. The government has no business in private matters. Either everyone is entitiled to "marriage" or no one is entitled to "marriage".
But how do we get the people who need to see this to actually read this sort of logic all the way through. When I mention these articles to people who were joyous at the passage of Prop 8, they figuratively stick their fingers in their ears and sing out, one-notedly (LA, LA, LA, LA, LA, LA, LA).
They are following their narrow-minded religious leaders, and anything I or others say that does not agree with their doctrine is drowned out by prejudice, and ignorance, and self-congratulation.
So, I am serious. How do we get through to them. I am willing to do my part, but so far might as well be beating my head against a brick wall.
I am straight, middle-aged, married for over 30 years, and have worked with some of these people for a long time. I used to think we were friends. But this election has brought out hatred and bigotry that I had no idea were present in these folks. When I expressed my opinion, they took it upon themselves to PRAY for me! So that I might see the light!
Unbelievable.
I don't live in CA and did not vote on prop 8. Had I lived there I would have voted for it, however. I support equal rights for any committed couple, gay or heterosexual. However, I also support religious freedoms.
Churches perform marriages. When the state gets in the business of defining marriage, it puts churches in a position of being sued for discrimination if they refuse to recognize the state's definition. Folks will say it has never happend, or that it never WILL happen. It can and it will. While it may not be the intention of those against prop 8 to do so, someone, somewhere, sooner than later, will challenge a church who discriminated against them.
It's just a train wreck waiting to happen. And it could all be avoided by simply getting the state out of the marriage business, calling every union between consenting adults as a civil union, and leaving marriage to the church.
The opponents of prop 8 never adequately addressed these perceived concerns. It seems to me that they are interested in redefining marriage and NOT in gaining equal rights. We need a new approach, because this one isn't working.
You know who ELSE performs marriages? Judges. Justices of the peace. Ship captains. How many of them would you like to stop from performing marriages????
The fact of the matter is that the marriage license doesn't require ANY religious leader to marry ANYONE!!! When I got married to my wife, the pastor who eventually married us REQUIRED us to go to pre-marriage counseling. There was no such requirement in the license, that was HIS rule!!
That argument's a total red herring. Priests, ministers, rabbis, etc. have never been compelled by law to perform wedding ceremonies for anyone whose marriage they could not in good conscience support. The Catholic who wants to marry a Lutheran? Well, they can ask their priest to marry them, but no law in the country is going to compel him to perform the ceremony. Similarly, the agnostic couple that wants a church wedding to please their devout grandparents may have to shop around for a member of the clergy willing to bless a marriage between non-believers. How could it possibly be any different if a gay couple is in search of someone to officiate at their wedding? And why would they want someone who sees their relationship as inherently sinful to do the honors anyway?
Your argument is one of the many misleading fearmongering assertions that helped convince ignorant people to vote yes on 8. It's that ignorance and fear that needs to be overcome as we work to ensure equal rights under the law for ALL Americans.
Then let's not apply this to just gay couples. I have been married for over 20 years and if this proposition is designated to church and not state then you can say I am not married. Marriage is for church and anything else is a civil union? Okay then, I'm not married since I did not marry my husband 20 years ago in a church. Can you imagine the nightmare of the bureaucracy of it? The tax papers and legal papers having to be refiled to define terms?
I live here and have family in Colorado who are faithful followers of Focus on the Family. They don't want to hear because it involves CHANGE. A change in their stubbornly held ideology. My brother in law and his partner have been together for over ten years and these relative accept them, but are so staunchly steeped in the comfort of biblical rhetoric that they too stick their fingers in their ears and go LA LA LA LA LA. You should just give up trying to make people sway to any opinion you have. They are entitled to their own, but it is the law and the way the country needs to interpret it that is at hand.
"Marriage" means different things to different people. For many, "marriage" is a legal contract between two consenting adults. For many others, "marriage" is a spiritual union between one man and one woman. To me, the only way to resolve this conflict is to use different words to describe the different states. Let "Civil Union License" be the only license that the state issues to any two consenting adults who wish to share their lives and fortunes and let the state confer equal rights to any two people holding such a license, opposite sex or same sex.
Let "Marriage" be a spirtual union performed in a church or other relgious places according to the beliefs of each religion.
Let's stop fighting over this. Give each side what it wants.
It won't work. Not at the singular state level.
The only concern the courts have over what "marriage" is what it is defined as in the legal system.
If you change all California marriages to "civil unions", then they directly conflict with common legal definitions of marriage in other states. And while many states might push legislation to say "ok - we'll recognize an opposite-sex civil union as a marriage in our state", others won't be so kind. You'll throw the entire standing of all California marriages into legal question depending on what part of the country you are in.
At that point, you'd literally force the Supreme Court to step in to untangle the inter-state mess created. Their job wouldn't be any easier since a civil union or its status as "used to be marriage" has no legal precedent in federal law. You could argue that no matter what the Supreme Court ruled, it would essentially be legislating from the bench.
Quite a can of worms you're asking for.
You're right. Not at the singular state level. It has to be national.
I was not married in a church so would this then convert my marriage to a civil union? What if I moved to another state? Wouldn't that be a conflict?
Aside from the fact that these props and/or amendments are federally unconstitutional, hasn't anyone at all stopped to consider that a simple majority shouldn't be enough to change any state's constitution? This should apply to any law, most certainly those which pertain to civil rights.
I thought our founding fathers had that figured out when they required a 2/3 majority to change the first constitution, but apparently way too many of our "citizens" need a refresher course in civics.
Perhaps you can use a refresher course yourself, my friend. :-) While your correct, or least close to being correct, in regards to the U.S. Constitution, each state has its own constitution and how THOSE constitutions are amended is up to each individual state.
Always with the semantics. I said "should" not "do."
And, IMO, those state constitutions should be the first on the list to require 2/3 rather than a simple majority because there are some states where you could easily get a majority to vote against "miscegenation" (there's an ugly word) or for slavery. Doesn't make it right. Might not happen if more people had to be persuaded to a position.
Actually, in the federal Constitution it's much harder than 2/3. In fact, it requires EITHER a 2/3 majority of Congress OR a 2/3 majority of state legislatures to PROPOSE the amendment. It then requires *3/4* of the states (either legislatures or direct public voting, state's choice) to APPROVE the amendment!
A civil marriage contract, despite popular rumor, is NOT a license to have sex. It does NOT in any way confer, require, or demand that sex be involved. NOWHERE in a civil marriage contract are children involved. You are neither required, or obligated to have children to fulfill the contract. So since the contract has absolutely NOTHING to do with the sex of the parties involved. Then none of you has ANY claim to deny that contract based on GENDERS of the parties involved.
None of which will stop your tax-exempt, non public funded, and constitutionally protected church, form preventing equal treatment from infecting your religious rite. You may still make whatever claims for who may be married in your church, and only marry them. That way ANY church may make whatever decision they wish,as to whom may marry. Since a church marriage is NOT mandatory to fulfilling the contract, then it is NONE of the churches business as to whom the state allows to marry.
This fight should be over if the proposition violates basic civil rights and it does. This proposition should have been struck from the ballots before it got there since it violates the very constitution of the state in which it was written.
You have the right to live with whoever you want to live with. You have the right to bone whoever you want to bone (>18). You have the right to live your life however you want to live it. You do NOT have the right to enter into a marriage contract with whomever you like. A marriage contract is a binding document issued by the state, it is not a "right". You may think that all people are entitled to marriage, and that if one group of people are entitled to it all should be, but it is not a "right."
You have the right to inalienable rights, but no where do I find the right to a marriage contract in the constitution. You can't just say "its something I want, and something I think is a right, therefore it is an "inalienable right." No, that just ain't how this country and the constitution works.
I ask gay marriage proponents this simple question: Is it a right that brother can marry sister, aunt marry nephew, mother marry son. What about man-woman-woman marriage? How about the situation out in TX where they raided the place, is that a right?
Or is gay marriage something that your moral compass tells you should be allowed, and therefore you think its a "right."
Yup, unethical != unconstitutional.
Bingo.
Jimbo,
Constitutional Law 101
Marriage is a basic civil right - Skinner v. Oklahoma 316 U.S. 535 (1942)
Marriage is a fundamental right granted by Constitution - Turner v. Safley 482 U.S. 78 (1987)
Polygamy as an expression of religious views is not protected under the Constitution - Reynolds v. U.S. 98 U.S. 145 (1878)
Also in California the courts ruled denial of a fundamental right to a protected class (gays and lesbians) required strict scrutiny - meaning the gov't had to provide a valid reason to deny gays and lesbians the right to marry. The side supporting the banning of gay marriage could not provide a valid reason as determined by the CA Supreme Court, most of the reasons where not based on solid facts, or were mostly based in religious reasons.
The Gov't does have a valid reason for denial of marriage to close family members (prevention of birth defects, and many other valid reasons), the courts have already addressed plural marriages, and marriage can only occur with consent, so that leaves out marriage between species.
Really, so it's not a "right" when states require you to register to own a handgun? Never mind that EVERYONE, INCLUDING THE SUPREME COURT OF THE UNITED STATES knows that it's a right to own a gun!!
Similarly, in Loving v Virginia, the Supreme Court of the United States stated:
"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."
The first amendment specifically supports the right to bring Prop 8 and other legislation like it.."Congress shall make no law respecting an establishment of religion , or prohibiting the free exercise there of ".. Nowhere in the Constitution or Bill of Rights is marriage given the status of right... Life ,liberty , the pursuit of happiness yes ..... Marriage has prerequisites as does practicing medicine, playing the piano or blogging... same sex unions do not fulfill those prerequisites..ALL human societies have laws that are based on morals ....African,Hispanic,Asian and Euro America voted by the same margin that they voted for Obama .
you cannot legislate morality - it does not work and is contrary to the fundamental reasons morality exists at all.
furthermore, these laws have nothing to do with religious establishment except for the lack of maintenance of the separation of church and state and everything to do with denying people equal protection and access under the law.
Okay, if you can't legislate morality why do we have laws in this country at all? Why do we have laws banning murder, theft, drugs, assault, public exposure, fraud, etc., etc. etc.
"Marriage has prerequisites as does practicing medicine, playing the piano or blogging... same sex unions do not fulfill those prerequisites."
So you've mentioned a skill (backed by a degree and certification), a skill backed by talent and practice, and an activity dependent on your access to a Internet-connected computer.
And then marriage -- a contract.
Contracts are legal constructs. Their requirements can be altered in numerous ways. They can also be subject to other laws that enforce fairness. The CA Supreme Court found that marriage contracts cannot discriminate on the basis of sex because there was no compelling reason to do so other than animus against people who would enter a same-sex marriage contract.
You're welcome to try again. But thanks for playing.
If Proposition 8 is ruled "unconstitutional" then so are all marriage laws. Period.
No laws against brother and sister. (that happened in Miss. in the 80s)
No laws against polyandry. (ask the Mormons and a few in NY & LA who want multiple partners)
No laws against anything.
It's not a slippery slope. These matters are a real part of recent history and in public discourse.
***
The 10th Amendment was conveniently forgotten. One thing made clear there is that rights not specifically iterated are left to the states, and that is not in contradiction to the 14th.
***
The presence of anything even remotely religious is no violation of the 1st. If the author really thinks that then perhaps we should repeal the Civil Right Act becaue of all the religious influence. I doubt she would take that position.
yes it is contradictory if they violate, which Prop h8 does, the US Constitution - no if's, and's or but's about it.
it will fall, the advertisers thank prop h8 supporters for wasting their money!
Excellent post Ms. Frevele!
Our constitution is an amazing document. An incredible amount of wisdom is contained in that "piece of paper".
But I think KO's recent special comment nailed it, apart from the obvious unconstitutional nature of Prop 8.
It comes down to a matter of the human heart. Fundamentalists have none.
Uh, there is now in California. Remember? Prop 8 passed. That means that all genitalia must be inspected by a member of the Mormon or Catholic chruch before the marriage ceremony. In public.
Of course Mormons will be allowed to inspect each couples genitalia in the privacy of their temples.
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