The California Supreme Court finds itself center stage this Thursday when it will hear oral arguments on whether it should uphold Proposition 8's ban on same-sex marriage.
The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?
The state faced a dilemma like this before. In 1964, 65 percent of California voters approved Proposition 14, which would have legalized racial discrimination in the selling or renting of housing. Both the California and U.S. Supreme Courts struck down this proposition, concluding that it amounted to an unconstitutional denial of rights.
As California's Attorney General, I believe the Court should strike down Proposition 8 for remarkably similar reasons -- because it unconstitutionally discriminates against same-sex couples and deprives them of the fundamental right to marry.
Some vigorously disagree. That's the position of Ken Starr and those who argue that a simple majority can eliminate the right to marry. But such a claim completely ignores California's history and the nature of our constitution.
Fundamental rights in California are recognized and protected by our constitution, which declares in Article I, Section 1 that "all people are by nature free and independent and have inalienable rights" and "among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
These fundamental premises of a free people were declared when the constitution was first adopted. The initiative process came much later in 1911, when the immediate concern was to give the people power over the railroads, which were seen as having a stranglehold over the legislature. In creating this initiative process, there was no discussion or any evidence of intent to permit a simple majority of voters to take away the pre-existing rights deemed inalienable by Article I.
In 2008, the California Supreme Court was faced with the question of how the values enshrined in Article I apply to same sex marriages. It concluded that the concept of "liberty" includes the right to form the enduring relationship called marriage and that no compelling interest justified denying this right to same sex couples. Just like the right to be free from discrimination in housing, citizens have the right to be free from discrimination in state-granted marriage licenses.
With this Supreme Court decision, same sex marriage has the protection of Article 1 and, like other inalienable rights, cannot be taken away by a popular vote -- whether it be 52% (as was the case in Proposition 8) or 65% (as it was for Proposition 14).
I believe, therefore, the Court must conclude as I have that Proposition 8 is unconstitutional and should be stricken.
Jerry Brown is California's Attorney General. Become a supporter of Jerry on Facebook here.
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Who has the right to say who can and can not marry? No one.
They are just asking to be with the one they love, its not a unreasonable request at all. It is a basic right. So let them have their right to be happy.
The fact that people have the option of involving religious entities does not make marriage a religious institution anymore than having the option of having a pet dog in one's home requires people to have pet dogs in order to own homes.
It is a straw man in service of false dilemma for religious entities to claim that legal recognition of same-sex marriage by courthouses threatens to undermine religious entities. Further, as involving those entities is completely optional and not part of the core legal functioning of marriage, they should watch out, lest their role be completely divested to avoid the "attack" they insist is imminent. It's certainly possible, in other words, for them to have an utterly ceremonial role in the process if they want to deny civil rights to minorities based on their exclusionary tenets. But, this is all a side-show, because marriage is a secular institution legally already. That mixed religion couple I mentioned does not have to involve Buddhism, Catholicism, or the Flying Spaghetti Monster in order to get a marriage license.
Marriage is, despite your assertions to the contrary, a secular legal institution in this country where an atheist can marry another atheist with no problem. Your "God" plays no role in that.
Also take a moment to read the 1st Amendment.
Otherwise, what you are stating is that *no* civil marriages--say, in a courthouse--are really marriages.
Also, if one religion can dictate terms, what's to stop another from doing the same? There's traditions of polygamy in both Islam and the Mormon church. Since they're religions, they have as much right as you to insist on *their* terms for what defines a marriage.
You may believe what you wish, and your church may have whatever rules it likes for the rites of marriage within your church, but that stops at the church door. That's the social trade made for your freedom of religion: your responsibility to respect a pluralist society.
1. Mainstream Christianity dictates the laws of the United States - not Islam, not Mormonism. Therefore, when a girl such as my friend (who is a devout Muslim) tried to get married 15, and claimed that in Islam it's admissible, she couldn't do it. Neither can Mormons legally marry 887 women.
The beliefs of the country are under Christianity. That being said, the Bible says many times that "men who lie with men" are not acceptable in the eyes of God. From a secular viewpoint, I personally see nothing wrong with homosexuality or gay marriage. However, to be realistic, we live in a land overflowing with religious overtones. Thus, as a religious person, I can understand why some people feel that gay marriage is not permissible.
I do also believe that America's idea of marriage is maintained off a religious, and in this case Christian ideal. In a land where it is written that there shall be a seperation of church and state, such a statute should not be established. However, there should be dictates set to who can marry so that ppl don't end up marrying animals or young children.
I know that the 14th Amendment was written to protect the former slaves but the genius of the Constitution is that it can be interpreted in new ways as our society advances.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
Since homosexuality has been proven by the scientific community to not be a disorder (starting with Dr. Hooker's 1956 study that was the first not to used a polluted sample and thus avoided the illusory correlation her predecessors had promulgated and ending with the APA's belated removal of homosexuality from its list of mental disorders in the 70s), there is no rational basis for denying homosexual tax-paying citizens their full citizenship, which includes all rights afforded to heterosexual citizens, which includes the right to have their marriages legally recognized.
The only thing left, since science is unequivocally not supportive of heterosexism, is religion. Since the 1st Amendment denies the government the ability to officially recognize religious belief in the form of legislation, religious attitudes concerning homosexuality are irrelevant to our law, as they must be. Maintaining a secular legal system is critical, not just for those who would be obviously negatively impacted by theocratic law, but for all religious people and entities, as theocracy offers only the most narrow support for a specific sect's members and impedes the collective speech/effort of the society.
In other words, science doesn't support making gay Americans partial citizens, and religion has no place in our law dictating that gay Americans are partial citizens.
- Louis D. Brandeis (1856 - 1941), (Supreme Court Justice) 1928
So take your 'well-meaning' elsewhere...
Domestic partnership legislation can address dependency between people who are not romantically involved, but marriage is a separate thing and should be kept separate legally.
It was also heavily discussed in pre-Nazi Germany, before the rise of Hitler. After the Nazi party came to power, it became illegal to be gay, punishable by prison time, a law that stood until the 1980's.
So, while I respect your arguments, I disagree on the basis of historical evidence.
YOU do not have an "inalienable right" to vote away MY civil and human rights. Nor do I have the right to vote to take away YOUR civil rights.
Courts didn't "discover" same-sex marriage; courts have simply acknowledged that denying marriage on the basis of sexual orientation violates the Constitution. Since it has been only over the past 20-30 years that gay and lesbian Americans have been able to live openly and honestly, your argument about a "recent innovation" doesn't hold water.
Should my personal or religious views be used as a basis upon which the rights of others should be restricted? If you are divorced, should my belief that divorce is immoral and divorced people who remarry are committing adultery trump your right to legally end your marriage?
Using the popular vote to deny a minority its rights and equality under the law is inherently unconstitutional and downright un-American. Such a precedent, should it stand, would mean that in future other minority groups could have their rights pulled out from under their feet. Just how popular are Mormons these days? Should their religious freedom be restricted because I think that Joseph Smith was a fraud and that the Book of Mormon is a poorly-written piece of crap? If 51% of the voters in any state feel the same as I do, should Mormons have to give up their religious freedom?
Gays aren't denied the rights of marriage. They can marry in the same way nongay people can. Sexual orientation isn't outlawed; it's unregulated by law. At least in most places. And even 20-30 years ago, this wasn't quite the issue it is now. Even then many understood marriage was something (heterosexual) and not something else.
No one is denying a minority group their rights. This isn't Jim Crow, 3/5 rule, separate but equal, or anti-miscegenation laws...this is constitutionalizing what has always been understood to be marriage. Nothing anywhere implies that marriage should have no restrictions whatsoever lest it be deemed unconstitutional or un-American. If people want that to include same-sex unions, that is a political question. It's not a judiciary question because the courts are there to do one thing -- to interpret the constitution. If marriage (much less gay marriage) isn't found anywhere in the Constitution...guess what? IT'S NOT A LITIGIOUS ISSUE.
I do not have to prove myself "worthy enough" for the SAME civil rights to protect MY family as others have to protect THEIR family. And I don't have to beg, either. Personally? I feel absolutely ZERO obligation and responsibility to the government; I revolt by refusing to file taxes or do jury duty. I will participate again in government as soon as I am INCLUDED in federal law. Period.
I'm glad to hear more and more are supporting an Equality Tax Revolt this year - then we end this legal insanity once and for all.
A rally in Washington D.C. needs to be organized to coincide with an Equality Tax Revolt..and we need an every gay man / every gay woman turnout.. (or at least as close as we can get to that goal)
We all need to let Washington know.. that we want equality recognized on a Federal level...
One state here and two states there recognizing gay marriage is great... but useless for people who have partners living abroad and also useless for federal tax benefits...
Federally Recognized Rights... Now......!
P.S. where can one obtain more info on an Equality Tax Revolt...??
Thanks.
I don't see how, either. But, then again, I am on the side of knowing that this is wrong and shameful.
Whatever the outcome, folks, NOW is the time to fight. If they uphold Prop 8, our enemies will THINK that they have beaten us down yet again, but, as always, they have failed to realize that they only strengthen our resolve. Let's take the news of their decision with dignity and integrity WHATEVER they decide. And if these Justcies don't happen to be the group that have the balls to stand up and do what is RIGHT, we will carry on. We will fight on.
In the end, we will win.
Ghandi said it far better than I ever could:
First they ignore you.
Then they laugh at you.
Then they fight you.
Then you win.
The good news is that even if Prop 8 is upheld, BUT the 18000 marriages (including mine) are upheld, it opens the door for everyone.
"Article I, section 7, (b) A citizen or class of citizen may not be granted privileges or immunities not granted on the same terms to all citizens."
CA constitution
In fact, I think it fits PERFECTLY.
My own view is that the Churches should frankly recognise the majority of the British people are not Christians and, therefore, cannot be expected to live Christian lives. There ought to be two distinct kinds of marriage: one governed by the state with rules enforced on all citizens, the other governed by the Church with rules enforced by her on her own members. The distinction ought to be quite sharp, so that a man knows which couples are married in a Christian sense and which are not."
Thoughts on marriage (and separation of church and state) from CS Lewis, "Mere Christianity"
Notice that he's fine with using the word "marriage" to describe unions officiated by the state
If a Buddhist woman goes with an atheist man to a courthouse, that couples can get a marriage license.
If that same couples goes to a Jewish temple, a Roman Catholic church, an Eastern Orthodox church, or an Islamic Mosque, they're going to be required to convert, right?
1. There is no such thing as a "special right". A civil right is not special. There is a thing called a special privilege, or more accurately -- a privilege, and that's precisely what heterosexual marriage is when homosexual marriage is illegal. It's a privilege and has no business being a privilege. Our constitution is not designed to give certain tax-paying citizens privileges above those of others. Read the 14th Amendment.
2. Preventing or destroying marriages does not "defend" marriage. The entire notion that allowing people to marry somehow ruins marriage for others is preposterous. Where are the people out fighting to no longer allow Vegas drive-through weddings? Why aren't people picketing people who have been married multiple times? Why aren't people going around demanding that people who cheated, like Senator Vitter, have their marriages be dissolved and be banned from marrying again? Why aren't people investigated thoroughly before they're deemed eligible to marry?
3. Marriage is not about procreation. No one has suggested not allowing sterile couples, including those with post-menopausal women, to get married. No one has suggested that marriages be dissolved if couples don't have children.
5. The same arguments made against legalization of interracial marriage are being made against the legalization of same-sex marriage.
6. The canard about "redefining marriage" is not a new one. Marriage has been redefined and continues to be. For instance, it was designed for the passing of property in Roman culture. Only women could officially own property, but women had almost no rights. Roman men of status were perfectly free to have sex with men and women other than their wives. The wedding ring is a direct copy of the roman slave ring, worn in exactly the same spot, made of metal, and shaped in the same narrow band. Arranged marriages were once the norm. It had nothing to do with love. It had nothing to do with chastity, for men. It had nothing to do with the Judeo-Christian God. Consider also that arranged marriages in European courts could have 13-14 year old girls marry men in their 30s or older.
9. Whether or not heterosexuality or homosexuality are choices or not is irrelevant. We do not allow discrimination on the basis of religion, and religious affiliation is a matter of choice. I happen to choose not to be religious because I believe morality is based on reason, not dictums. The scientific evidence suggests sexual orientation is not chosen, as does common sense. People are gay in countries like Iran and Saudi Arabia where they're publicly executed. There's also gay in states like Wyoming where Matthew Shepard was murdered. If being gay were a matter of choice, then why on Earth would someone choose to have to live in fear, be shunned or killed, and not be able to date?
I'm not sure what happened to my post with points 4, 5, and 6. :(
The Supreme Court recognized marriage as a fundamental right under that case. Under the ban all individuals had the right to marry, but the state limited their choice to partners of their own race. The court struck this, recognizing the right of individuals to marry the person of their choice.
There is no legitimate reason to limit people's marriage choices to the opposite sex. Religion seems to be the main reason for supporting the ban, and that is not a legitimate legal justification. No one would gain any benefit from such a ban, making it irrational, and thus unconstitutional since the Court requires justification for laws.
And this is not a slippery slope, by the way- polygamy still could be banned. The state may benefit from a ban on polygamy, because such a ban would allow more people to reproduce and maintain a more varied and stronger gene pool.
I am not bashing polygamy, but it coud cause problems by reducing the number of marriage partners to go around in society, which can lead to the problems I mentioned above. That may be a reason to ban it. Allowing gay marriage, however, would produce a great deal of happiness for many homosexuals who wish to be married. On the other hand, having other people not get married produces little benefit to anyone.
To act rationally, the state should make laws that do the most good. Banning polygamy may do good by preventing some harm. Banning gay marriage does very little good and does great harm to many people. That is why it is irrational to ban gay marriage, but maybe not polygamy.