In California and many other states today there is a big contest going on which will no doubt continue for many years.

 

On one side, Group A, are Majority Males and Majority Females who believe that marriage should be between one man and one woman, with no exceptions.

 

On the other side, Group B, are Minority Males and Minority Females—homosexual men and women, also cross-gender people who were born with both male and female sex organs, as well as people who have always felt uncomfortable with the gender they were born into—joined by an ever increasing minority of the Majority Males and Majority Females who believe in Equal Rights for all people regardless of gender or other minority status.

 

Group A has voted for laws in many states—Proposition 8 in California, voted into law November 8, 2008, but still in hot debate, brought to the California State Supreme Court on March 5, 2009, decision still pending—which declare that marriage can be only between one man and one woman, attempting to establish this traditional definition of marriage as the only definition of marriage. Since most members of Group B usually love only within their own gender, this law excludes them from a loving marriage and leaves them—in some states only—with partnerships and unions that cannot be called marriage, restricting them from certain rights and benefits of marriage as well as a certain sanctity said to be inherent in traditional marriage.

 

Even though the term “matrimony” has never been necessarily the same as “Holy Matrimony”, members of Group A insist that marriage is interconnected with religion and that since many religions abhor the love of members of Group B, that love—“the love that dare not speak its name” as Oscar Wilde called it more than a century ago, the romantic love and/or physical attraction of a man for another man, or a woman for another woman—can never be entitled to use the words “marriage” or “matrimony” to describe such partnerships and unions.

 

What is in a word? Plenty, it seems, from both sides of this issue.

 

Although I began this webpage trying to provide neutral information on this complex subject and its history through the courts of our nation and through our 50 State Constitutions as well as the U.S. Constitution, I must confess to my own bias based upon my own logic. The arguments of Group A, supporting this discrimination against Group B, are difficult for me to accept at face value because they do not stand up to common-sense analysis. I believe I am an open-minded individual, and these arguments seem to me to be quite narrow-minded, based mostly upon prejudice and certain religious beliefs. Since I am an ardent proponent of the separation between Church and State, I object to religious beliefs being voted into law in our country, and I shall fight against that every time I see it threaten to rise up in our Democracy.

 

The bottom line for me is that I see no harm of any kind to Group A if same-gender marriage is allowed, whereas there is clear and palpable harm to Group B if same-gender marriage is not allowed.

 

I give the arguments of Group A along with my own analysis: here.

 

The arguments of Group B, attacking what they see as discrimination against a minority, seem to me far more substantive since they are most solidly based upon the 14^th Amendment to the U.S. Constitution and its Equal Protection Clause which states: “No state will deny … to any person in its jurisdiction the equal protection of the laws.”

 

I give the arguments of Group B, and the various agreements and disagreements among the judges who have so far weighed in on the matter, along with my own analysis: here.

 

THE CRUX

 

The issue of same-gender marriage carries our Democracy into a constitutional crisis. The crux is whether a majority may vote to deprive a minority of rights. So far, that has certainly happened in 42 of the 50 states, where new laws appear to be in direct contradiction to not only the U.S. Constitution but to many of the State Constitutions. The question to be worked out in the next several years is whether the Courts will allow those laws to stand, and whether more radical revisions to the various constitutions will be necessary to accommodate those new laws.

 

“Majority Rule” is not the only or perhaps even the primary facet of our Democracy. Nowhere is this more dramatically exemplified than in the bloody U.S. Civil War which was fought fundamentally over the issue of slavery. The question then was whether “States Rights” could go so far as to allow one person to own—to buy and sell and control the freedom of—another person. It was as a result of the U.S. Civil War and the Emancipation of the slaves that the 14^th Amendment to the Constitution came about in 1868.

 

Since the addition of the 14^th Amendment to our U.S. Constitution there have been many court cases and even Congressional Acts to resolve how far the new movement toward Equal Rights might extend. The same-gender marriage issue is the latest of these and surely the question is headed to the U.S. Supreme Court to resolve: in our nation can a simple majority of any given state, 50% plus one vote, determine the rights of a minority within that state?

 

Landmark federal cases on the way to this decision have been:

 

LOVING v. VIRGINIA—1967. http://supreme.justia.com/us/388/1/case.html

Mr. and Mrs. Loving were in bed asleep when police officers burst in upon them, hoping to find them in the act of sex, which was a crime in Virginia if committed between a white and a non-white. Mrs. Loving showed the police their marriage certificate, but interracial marriage, too, was a crime in that state. Mrs. Loving was of African-Indian descent and Mr. Loving was of white descent. The police arrested them and they were given a prison sentence and banishment from the state of Virginia. The trial judge in the original court case wrote:

 

“Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.”

 

Chief Justice Warren, writing the opinion for the U.S. Supreme Court, quoted this opinion by the trial judge no doubt to show clearly and for all time the prejudice of the trial judge.

 

Along the way to the U.S. Supreme Court, another judge upheld the lower court’s decision, declaring that since both Mr. Loving and Mrs. Loving were punished equally for the same crime of racial intermarriage, that therefore the 14^th Amendment had not been violated. The U.S. Supreme Court, however, did not accept this simplistic logic. Chief Justice Warren wrote, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” We can be sure that by 1967 “free women” were also included in this definition.

 

The U.S. Supreme Court not only struck down the Virginia law against interracial marriage—because it violated the Equal Protection Clause of the 14^th Amendment—but also struck down similar laws still in existence in 16 other states.

 

LAWRENCE v. TEXAS—2003. http://www.law.cornell.edu/supct/html/02-102.ZS.html

Plaintiffs were arrested when police broke into their home and found two men engaging in homosexual intimacy, a crime by Texas law. It was decided by a 6-3 vote of the U.S. Supreme Court: "The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons” and that homosexuals have rights equal to heterosexuals to “define one's concept of existence, of meaning, or the universe, and of the mystery of human life."

 

The U.S. Supreme Court not only struck down the Texas law against same-gender relations in private—because it contravened the Due Process Clause of the 14^th Amendment—but also struck down similar laws still in existence in twelve other states.

 

The first 10 Amendments to the U.S. Constitution were designed to protect individuals from intrusion by the federal government. But this did not give individuals protection from the state governments. That is why the 14^th Amendment repeated almost verbatim, in its Due Process Clause, the words of the 5^th Amendment:

 

5^th Amendment: “No person shall be ... deprived of life, liberty, or property, without due process of law ...”

 

14^th Amendment: “No State shall deprive any person of life, liberty, or property, without due process of law ...”

 

Through the years and many federal cases, the Courts have extended both these Amendments to include the right of Privacy. Many state constitutions have similar wording to that in the U.S. Constitution. Here you may read the text of the California Constitution which begins:

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.

The Equal Protection Clause of the California Constitution, Article 1 Sec. 7 begins:

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

DEFENSE OF MARRIAGE ACT—(1996):

This law passed by overwhelming numbers in the House and Senate and signed into law by Bill Clinton provides two things: 1) No state need acknowledge a marriage between same-gender people even though a different state has legalized it, and 2) the federal government may not treat same-gender relationships as marriage.

 

How these two statements “defend” marriage is debatable, and will be debated for years if not decades. Our new President, Barack Obama, has indicated that he will seek to repeal DOMA and allow for federal civil unions for same-gender people.

 

At http://www.change. gov/agenda/ civil_rights_ agenda/ we find the following agenda item for Civil Rights:

 

“Support Full Civil Unions and Federal Rights for LGBT Couples: Barack Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.”

 

This is a very different stance from the one expounded by our ex-President George W. Bush when he stood on the floor of the Senate in July, 2004, urging a federal ban against same-gender marriage. That move failed in a largely partisan vote because it attempted to make the new law a Constitutional Amendment. The majority of the Senators felt that it was best not to tamper in this way with the U.S. Constitution. Certainly it would have created a nationwide Constitutional crisis with this new amendment's wording in obvious contradiction to the long-standing 14^th Amendment.

 

There was a general nationwide consensus, too, that Bush made this move only in order to shore up support among the Religious Right before the November election of 2004. That strategy seems to have worked since many people in the exit polls said they came to the polls to vote in order to support “moral values”. The underlying premise there that same-gender people lack “moral values” is, of course, highly debatable if not downright ludicrous.

And this debate will go on and on and on. Many lawsuits began immediately after the passage of Proposition 8. The California Supreme Court heard some issues of the case on March 5, 2009, including whether or not passage of Proposition 8 amounts to a "revision" as opposed to an "amendment" to the California Constitution. All that is needed for an amendment is for any citizen to make a petition signed by 8% of the votes cast in the last gubernatorial election. After getting those signatures, an initiative is put before the people of the state, and a simple majority of 50% plus one vote is all that is needed to pass it into law. A revision cannot be enacted by a simple majority vote but must first be passed by a two-thirds vote of the legislature. We await the decision of that Court.

 

Whatever that decision, however, we can rest assured that this debate will continue. A comprehensive, continually updated article on Proposition 8 can be found at Wikipedia. It offers links to many other articles about this constitutional issue.

Arguments for Proposition 8

Arguments against Proposition 8.

Contact: Clayton Bess

Copyright © 2009 Robert Locke
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