Constitutional Relativism and Proposition 8

01/09/2009 05:12 am ET | Updated May 25, 2011

Let's start with this premise: Equal treatment under the law. That is what the U.S. Constitution guarantees, and that is what we, as Americans, agree to in accepting the Constitution as our democratic blueprint. That is our baseline. Every law, every judicial decision must support that notion, otherwise we are not acting in accordance with the Constitution. The passage of Proposition 8 in California may prove to be a boon to the supporters of gay marriage in its ability to galvanize those supporters. If we can use the struggles for women's suffrage and African-American's suffrage and equal access as a bell-weather, gays will likely succeed in getting a Constitutional mandate for rights in the form of an Amendment.

Yet an Amendment is something that gays should not have to have, nor should African-Americans and women have had to have an Amendment to secure their rights. Those rights are inherent in the intent and spirit, if not originally in the letter, of the Constitution. The battle over Proposition 8 brings again to the fore an issue that is larger than gay marriage -- a sinister aspect to U.S. culture that should put all Americans on the alert and make us reflect on what we may expect from the U.S. Constitution.

The intent of the Constitution has always been equal rights/equal treatment under the law for all citizens. At the time the Constitution was originally framed, citizens were White land-owning men. Women at that time did not have equal status, and certainly Blacks were nothing more than one man's property. However, already in the 19th century women developed an awareness of an inequity between them and men. Once slavery was abolished, when a Negro was not property any longer, he was a citizen. The social landscape of United States was changing, and we did not choose to replace the Constitution with a different document that would maintain the pre-eminence of White land-owning men. We chose to maintain the Constitution, and it perforce assured the equal treatment of all citizens, without qualification, including Blacks and women.

In fact, we added Amendments to make sure that equal treatment would be enjoyed by all. Gays should not have to be clamoring for the right to marry. That right is now, for sure, inherent in the Constitution (14th Amendment: " . . . nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws"). Because of the intent of the Constitution -- equal treatment under the law -- Blacks and women should not have had to wage a battle to secure their rights at the time they did; they certainly should not have had to get the Constitution amended. It was a cynical "interpretation" -- rather, a manipulation -- of the Constitution that enabled a frightened majority to flout our democratic blueprint and stand in the way of all citizens from being treated equally.

That is what went on in the fight for women's suffrage, for Black suffrage, for equal access for Blacks, and it is what is going on today in the struggle for equal rights for gays. By dint of their political, economic, and social power, the majority has been able to circumvent the Constitution to suit their own interests and simply run the show the way they want to, even if it flies in the face of the Constitution. There is no gray area: if there is a right enjoyed by one group, every group, every person, has the right to enjoy that same right. The dislike of how African-Americans, Jews, women, homosexuals, Hispanics, or Asians live their lives is nothing more than bigotry and intolerance, and Americans who disingenuously turn to the Constitution to defend denying people their rights because they are different should be deeply ashamed. Women's suffrage, equal access for Blacks, gay marriage -- these are not issues that test Constitutional law. To say that they are is Constitutional relativism.

Let's take a look at Plessy v. Ferguson of 1896, a landmark U.S. Supreme Court decision in which it was determined 7 to 1 that the Constitution did not require more than "separate but equal" facilities for Blacks and Whites. That decision stood for 55 years, until Brown v. Board of Education, which found that separate facilities were inherently unequal. So, which reading of the Constitution is accurate? Nothing had changed in the content of the Constitution during the years between those two judgments.

In Brown v. Board of Education, the Justices looked at Citizen X and decided he/she was not getting the same treatment under the law as Citizen Y. Why didn't the seven Justices in 1896 see it that way? Plessy v. Ferguson essentially said, "Some people don't exactly get the same treatment under the law as others" -- or, not all people get to have the same rights. That unquestionably contradicted the U.S. Constitution. Is it that the majority's discomfort with Black people at that time made it just too hard to believe in the Constitution and support it, a document of which they were so proud and which they claimed, throughout the world, made us the greatest nation in history?

It will be argued that we do rightfully discriminate against certain people, that we do not provide equal rights to people who are not "similarly situated." Felons, for example, may not vote. As people, they once had the right to vote. They gave up that right when they chose to break the law. We discriminate against children and cognitively impaired people, who may not, for example, be married.

But we do that to protect those people who might otherwise not be able to protect themselves and who would likely come to harm. Who needs protection in the case of gay marriage? Not gays, certainly. And not heterosexuals, whose enjoyment of the institution of marriage is not diminished by allowing gays to marry. Nor are heterosexuals in imminent physical danger by a gay couple marrying. No, the opponents of gay marriage simply don't like the idea of it, perhaps for many different reasons, and they feel that their belief system should supersede the Constitution and be imposed on the nation as a whole. Which leads us to Christians (and other religious groups) who base their attempts to ban gay marriage on religious teaching.

Some Christians believe gays marrying is an abomination against God. Some Christians believe that God's law is higher than the law of the land. Well, in the United States, God's law is not the one we have chosen to regulate the commonwealth. What the Constitution does do is say, "Right on, man, we support you in holding your beliefs, and we'll protect you from governmental retribution for holding them." The Constitution supports such people in living according to their beliefs, and would encourage them to marry only a member of the opposite sex.

What the Constitution does not support is the imposition of their religious beliefs on other people; nor does it support penalizing citizens who hold different beliefs by limiting or denying rights. The U.S. Constitution mandates a separation of Church and State precisely for that reason. Let's remember why the Mayflower made its way over here in the first place: people were being hindered and abused in England because of their religious beliefs. Listen, the Roman Catholic Church refuses to acknowledge divorce. Are we about to amend the Constitution to ban divorce throughout the land?

The U.S. Supreme Court defers to states' rights -- as long as they don't offend the U.S. Constitution. If the California Supreme Court went to the U.S. Supreme Court to uphold this year's decision to allow gay marriage, the U.S. court would likely find in favor of the California court because gay marriage does not offend the U.S. Constitution. In spite of its past decisions, the U.S. Supreme Court would be wrong to find in favor of "Yes on 8," because a ban on gay marriage does most definitely offend the U.S. Constitution. With "Equal treatment under the law" being a primary brick in the Constitutional foundation, expressly denying gays the right to marry would require explicit language in the U.S. Constitution stating that denial. Where does that document state, or even imply that gays do not have that right?

In fact, where is the language that states or implies that a person may marry someone only of the opposite sex? Loving v. Virginia (1967), by the way, invalidated the law against racial intermarriage, because, the U.S. Supreme Court believed, the freedom to marry the person of one's choice is "one of the vital personal rights essential to the orderly pursuit of happiness," a pursuit that is listed in the Declaration of Independence as an inalienable right. It seems that the people who strongly advocate a Constitutional Amendment banning gay marriage are doing so precisely because they know there is no language denying gays the same rights heterosexuals enjoy, and they want to cover their asses.

The question of whether or not to grant gays the right to marry is not one of Constitutional law. There is no question. The clerk at City Hall breaks the law when denying anyone a marriage license. No, this is a question of bigotry, and nothing else. But Hallelujah! You may be a bigot in the United States! You may hold whatever beliefs you like, and no harm will come to you. But don't confound your personal beliefs with what ought to be law, especially when those beliefs aim at diminishing a citizen's enjoyment of the rights and privileges afforded to all. Now, we could always amend the Constitution to make it reductive instead of expansive, limiting the rights of people, but is that a road we want to go down? If we ban gays from marrying, that is just the beginning, and there will be no end to it. Beware, adulterous women!

The Constitution states that no matter what happens, our base line is that all citizens share the same rights. If we choose to maintain the Constitution as our democratic blueprint, we may not ignore it or manipulate it to serve the interests of a particular group at a particular time, especially when that group's interests are based on their lack of readiness and willingness to grant the same rights to all their fellow Americans. It's fine that you struggle with gay marriage. That's OK! I bet there are still people who struggle with the integration of Blacks. Do we deny Blacks the right to integrate until everyone gets comfortable with the idea? When people decry prayer in school and Christmas crèches in front of City Hall, perhaps they're "making a mountain out of a molehill (as many believe they are) out of frustration, and they are simply exercising their rights where they can?

They are frustrated by all the more egregiously aberrant interpretations of the Constitution where they don't have the means to be heard and responded to. What they are saying each Christmas is, "Hello! We have a Constitution. Let's follow it in all cases, not just when we feel like it." The U.S. Supreme Court did not do that in Plessy v. Ferguson, and we had to live with that decision for 55 years! Let's state once again: every time a court renders a judgment that limits one group's rights, it is not acting in accordance with the Constitution. The one thing that every law, every judicial rendering, must satisfy and support is "Equal rights for all." That is the underpinning of the U.S. Constitution. You will never go wrong by coming down on the side of giving everyone the same fair shake. If you don't do that, you end up with Plessy v. Ferguson, where people suffer for 55 years, and we practically have to pull down the whole house of cards to make things right.