A Citizen of the Third Class

06/26/2009 05:12 am 05:12:01 | Updated May 25, 2011

The Declaration of Rights contained in the California Constitution defines two "inalienable rights":

SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

SECTION 28, 1) Right to Safe Schools. All students and staff of public primary, elementary, junior high, and senior high schools, and community colleges, colleges, and universities have the inalienable right to attend campuses which are safe, secure and peaceful.

The Merriam-Webster Online Dictionary defines the word "inalienable" as "incapable of being alienated, surrendered, or transferred" and defines the word "alienated" in the following ways:

1 : to make unfriendly, hostile, or indifferent especially where attachment formerly existed 2 : to convey or transfer (as property or a right) usually by a specific act rather than the due course of law 3 : to cause to be withdrawn or diverted

The California Supreme Court, in its "In re: Marriages Cases" opinion of May 15, 2008, affirmed marriage as an "inalienable right" of privacy and liberty and of a basic, substantive and integral nature:

(p6) ..."upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution)."

(p49) "...past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution. (See, e.g., Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161 (Valerie N.) ["These rights are aspects of the right of privacy which . . . is express in section 1 of article I of the California Constitution which includes among the inalienable rights possessed by all persons in this state, that of 'privacy' "] "

(p50) "With California's adoption in 1972 of a constitutional amendment explicitly adding "privacy" to the "inalienable rights" of all Californians protected by article I, section 1 of the California Constitution ... the state constitutional right to marry, while presumably still embodied as a component of the liberty protected by the state due process clause, now also clearly falls within the reach of the constitutional protection afforded to an individual's interest in personal autonomy by California's explicit state constitutional privacy clause."

(p69) "In light of this recognition, sections 1 and 7 of article I of the California Constitution cannot properly be interpreted to withhold from gay individuals the same basic civil right of personal autonomy and liberty (including the right to establish, with the person of one's choice, an officially recognized and sanctioned family) that the California Constitution affords to heterosexual individuals. The privacy and due process provisions of our state Constitution -- in declaring that "[a]ll people . . . have [the] inalienable right[] [of] privacy" (art. I, § 1) and that no person may be deprived of "liberty" without due process of law (art. I, § 7) -- do not purport to reserve to persons of a particular sexual orientation the substantive protection afforded by those provisions. In light of the evolution of our state's understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights."

It is inconceivable that the same Justices that specifically and definitively recognized that gay and lesbian Californians had an inalienable right to marry would now move in the opposite because, somehow, the circumstances have changed. But, even if one believes the situation has changed, the principle the Court so eloquently articulated last May remains the same:

(p6) "...we conclude that, under this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process."

By their own words, the right to marry cannot be stripped from an individual of a suspect class by the electorate through the initiative process precisely because that right, by its definition, is inalienable. A right is either inalienable or it is not; a right is either "basic," "substantive," "fundamental" and "integral" or it is not. It cannot be both. It neither depends upon who is doing the discriminating nor when the discrimination takes place; it matters not whether the discrimination takes place by statute or initiative. Discrimination is either permissible or it is not. One cannot have it both ways. It is a true dichotomy -- an "either/or" situation.

In ruling that the Proposition 8 cannot be applied retroactively, the Justices properly preserved the legality of the 18,000 same-sex marriages that had been performed from June 16 until November 4, 2008.

And therein lies the unstated problem.

California citizens who are heterosexual have the right to civil marriage. California citizens who are gay or lesbian and married during a specific time had the right to civil marriage. California citizens who are gay or lesbian and unmarried have no right to civil marriage.

That right is not available to me.

That makes me a citizen of the third class.

And so, to the Justices who feel I am not constitutionally entitled to the full rights enjoyed by other Californians -- and therefore, not a full citizen -- I must ask this question: what fraction of a citizen am I? 3/4ths...2/3rds...1/2...3/5ths?

When we compromise or stray from time-tested bedrock democratic principles -- that separate is never equal, that minorities must be protected against the tyranny of the majority -- we risk relegating citizens to less than a whole person. As a nation, we have traveled down that road far too many times before. We could have only hoped that the Justices would have not taken us down that road once again.