Arguing the Case for Marriage Equality

On Nov. 4th, Proposition 8 was approved by California voters seeking to override the State Supreme Court determination that the law cannot deny full marriage rights to couples on the basis of sex. The full text of the ballot initiative appears below.

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PROPOSITION 8

This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8, of the California Constitution. This initiative measure expressly amends the California Constitution by adding a section thereto; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.

SECTION 1. Title: This measure shall be known and may be cited as the “California Marriage Protection Act.”

SECTION 2. Section 7.5 is added to Article I of the California Constitution, to read: SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

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In the public debate surrounding Proposition 8 - and over same-sex marriage rights in general - it has become fashionable among main stream (straight) liberals to support "civil unions" while demurring, at best, on whether those unions are entitled to recognition under the law on equal footing with heterosexual marriages. Big name libs continue to dance around the logical conclusion that not to go all the way and recognize gay marriages as legal violates the fundamental principle of separation between Church and State.

It is the liberal's Achilles heel: wanting to have it both ways. In trying to appease opposing ends of the political spectrum most of our prominent allies in the straight world come off as only half-hearted in their support. While they carefully avoid the explicit language freely used by avowed homophobes who regularly pontificate on the "sanctity" of marriage, they still show reticence on the issue for reasons that derive from nothing more than an undue deference to religious values held by the majority.

Often unacknowledged for its influence on the nonreligious, it is only religious doctrine - particularly interpreted - that gives extra points for the specific genders of marriage partners in any moral assessment of committed human relationships.

In our secular American legal system, reason holds that capitulation to the religious tenets of any ruling authority amounts to a betrayal of the values held by the framers of our Constitution. Former colonists and ex patriots, they fought against an oppressive government's imposition of religious doctrine to which they had been subject. We are taught this in grade school: the early settlers came to this land to escape religious persecution. The ruling authority they established derives from "We the People," generally determined by plurality votes and delegated representation.

Recently, Newsweek editor Jon Meacham - a professed supporter of same-sex marriage - responded to the assertion that the separation of church and state demands full equality for such marriages with all the finesse of a liberal politician in the middle of a run for national office. Appearing on Bill Maher's TV show last week Meacham asserted that "this is a very complicated issue." Backpedaling further, he went on to defend a liberal forbearance for the current American majority's religious motivations in their political actions, as if the freedom of religion guaranteed in the Constitution trumps everything else enumerated by the Bill of Rights. It doesn't.

Yes, the First Amendment states up front that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." But though this clause precedes even the mention of free speech it does not objectively supersede any other right to which we are entitled. In fact, putting this point first on the list of declared freedoms could just as well speak to the potential dangers the founders may have seen in the tendency of the masses to allow their majority beliefs to infringe on the right to religious and other freedoms equally guaranteed to those in the minority.

It is important to remember that the Constitution, including the Bill of Rights and all further amendments, is written in such a way that does not presume to grant rights to the people. Rather, the founders mindfully crafted it in order to define the extent to which We the People allow our government to impose on our freedom.

Amendment 9 spells this out quite clearly: " The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

But it is Amendment 10 that those who seek to deny equal marriage rights to same-sex couples mistakenly interpret as the basis of their authority to do so: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

I contend that these two clauses, while allowing states to expand their marriage laws to explicitly include same-sex couples, actually prohibit them from restricting the right to marry in any way. Though they get away with it until challenged, states are prohibited from contravening the Constitution's fundamental concepts regarding basic human liberty and equality.

The 9th Amendment generally bars states from enacting laws that are more restrictive of individual rights than what is contained in the Constitution, as determined by the U.S. Supreme Court. California's untested referendum system notwithstanding, it is the function of the courts - not the populace - to interpret how the law may be applied in all states.

Decisions such as that in the 2003 case of Lawrence vs Texas instantly invalidated the laws against sodomy in Texas as well as those still on the books in any other state. In 1963 the case of Loving vs Virginia struck down all state laws that banned interracial marriage. No Supreme Court challenge has yet been brought against any state's discriminatory laws that deny marriage to citizens based on a question of gender or sexual identities. But it is only a matter of time before it happens.

After the election on Proposition 8 three lawsuits were filed seeking to invalidate it. On November 19th, 2008 the California State Supreme Court announced that it will hear the arguments in those cases. If the outcome of this case upholds the result of the election this will very likely be the breakthrough that finally brings the issue before the U.S. Supreme Court where it may be settled once and for all.

I am looking forward to a very interesting read when the not-too-future Supreme Court issues its final decision. Cases of this nature, of which there have been few, tend to serve as a platform for justices to exercise their most high-falutin' oratorical muscles in either affirming the decision or dissenting from the majority (All except for Clarence Thomas who is known to keep pretty tight-lipped on most subjects). You know that right-wing ideologue Antonin Scalia - the most grandiloquent justice of the last century - will have a field day with his emotional dissent. He will likely decry the inevitable decision by his colleagues to legalize gay marriage everywhere in the US as the end of civilization as we know it.

The assenting Justices of the Court should see fit to have their majority decision rendered by Justice David Souter, as it would provide him with a grand occasion to make his debut as the highest ranking, finally out-of-the-closet gay man in American history. It will be his duty to recount for the ages the multitude of long-standing injustices that will be rectified thereafter when committed partnerships of the heart are equally recognized under the law of the land.

Going straight to the heart of the matter, the recorded decision must assert the right - too long denied - of all citizens to lives of liberty and happiness which can only be possible when there are no more gender-based legal barriers to our fulfillment as partners in pursuit of the American dream. The right and ability of responsible adults to marry as they choose is the one prerequisite for civil propagation of society itself. Finally, the doors will be thrown open to those untold legions of couples across this land who were previously routinely denied the very opportunity to participate in society whose basic unit is held to be the family.

Before it get all that deep though, I would very much like to hear the arguments before the Court to include a consideration what actually defines the legitimacy of a marriage. Even by religious standards this is generally dependent in large part on both marrying partners' capacity for physical consummation of their vows.

It has to be argued that exclusively heterosexual individuals, by definition, have little to no known capacity - much less will - for physical consummation of any relationship with a person of the same sex when people of the opposite sex are available. So heterosexuals have nothing to loose, nothing to give up in reversing the Court's original decision that extended marriage rights to homosexual couples. The original complainants who brought the matter to referendum in California - and anyone who would challenge an eventual positive ruling by the Court - should therefore be found to have no standing in the case. It clearly does not affect their access to marriage as it is.

To be clear, "standing" is defined as "the legal right to initiate a legal action or lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action." As the 9th and 10th Amendments only compel the People to surrender rights and protections that are theirs to begin with it follows that the only people with standing and Constitutional liberty to invalidate the legal rights of same-sex couples to marry are same-sex couples themselves.

Your honor, I rest my case.