Translation: Why on Earth do we need a federal court to tell us that denying two mature, consenting adults who are in a committed, monogamous relationship a marriage license is unconstitutional? Or, at the very least, against traditional American values such as liberty & justice for all (Pledge of Allegiance) and equality of opportunity.
Perry v. Schwarzeneggerbegan in federal court today, launching what is sure to be one of the most high-profile cases of the year, if not forever (okay, maybe that's an exaggeration. But still). No matter what, this is going to be a fascinating case, for several reasons.
First, neither of the defendants in the case actually wants to defend Proposition 8. Attorney General Jerry Brown is a vocal opposer of Prop 8. Even Republican governor Arnold Schwarzenegger supports the lawsuit! Which leaves the plaintiffs fighting against . . . the original proponents of Prop 8, Dennis Hollingsworth et al.
Second, even pro-gay-marriage groups are uncertain if this case is the best way to proceed. Many think it's too soon, that risking defeat now risks making defeat permanent. I disagree. I think there couldn't be a better time. This is such a prevalent issue in society right now, and especially after the recent defeats in New Jersey and New York, we need this case more than ever.
But on to the issue itself. Was prop 8 legal? Welllllllll legal in the sense that its supporters went about putting it on the ballot properly. Legal in the sense that it denies marriage to a segment of the population? I say no. Besides my own personal beliefs, I believe there's plenty of precedent to back me up here.
- The Constitution. The Holy Grail of American politics, written by the founders to protect everyone from the tyranny of the majority. Back then, "majority" meant "uneducated, rabble-rousing farmers", and "tyranny" was "acting like George III of England, or really just any dictator in general". 'Course, this is different. But I see a majority (the people who voted 'yes' on Prop 8) and I see tyranny (denying couples the right to marry). Am I missing something here? Or is Prop 8 very contrary to the spirit, if not the letter, of the Constitution?
- 14th Amendment, Part 1. I know that only a ridiculously small percentage of Americans have even a passing knowledge of the Constitution, so let us help you out here. The 14th Amendment states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". There's more, but this is the part I want to talk about here. Privileges and immunities is a very broad term. What these really are have not been specifically enumerated in the Constitution, however the Supreme Court can rule if a certain right or privilege falls under this clause. The Court has done this for the right to acquire and retain property, the right of assembly, and habeus corpus. So, why not marriage? And if marriage, why not gay marriage? The anti-Prop 8 lawyers might hesitate to use this clause to support their arguments, because they would first have to prove that it applied to marriage. But in my view, anyone with a grain of sense understands that marriage -- in any form -- is a fundamental right. Even if you want to get technical an say that a marriage licence, like, say, a driver's licence is a privilege and not a right . . . guess what! Privileges are still protected by this clause!
- 14th Amendment, Part 2. Moving on through section 1 of the 14th amendment, we find that "nor shall any state deprive any person of life, liberty, or property without due process of the law, nor deny to any person within its jurisdiction the equal protection of the laws". Well, the California Supreme Court has decided that Prop 8 had enough "due process" behind it to deny people liberty (freedom to marry). But I believe that what they did not take into account is that Prop 8 is denying equal protection to gay couples . . . and equal protection cannot be taken away, even by due process. Domestic partnerships are not the same as marriages, they are only "almost equivalent" to them (from wikipedia). Yet they are the only option available to gay couples in some states; in others, they are denied even that.
- Brown v. Board of Education of Topeka, Kansas. The historic Supreme Court ruling that contended that the "separate but equal" doctrine established by Plessy v. Ferguson was unconstitutional. Civil unions give same-sex couples some (or all) of the benefits that opposite-sex couples have. While that is progress . . . separate but equal is not equal. Remember those restrooms that said "whites only" and "blacks only"? Well, it's like marriage has a big sign hanging off it that says "opposite sex couples only" and civil unions have a big sign that says "same sex couples only". While thats not technically true, because some civil unions are open to heterosexual couples, I think you get my point.
- Separation of Church and State. The supporters of Prop 8 have made no secret that their religion is one of the main reasons they oppose gay marriage. News flash, guys: no one's trying to tell you you have to like gay marriage. No one's trying to tell you that gay marriage "must" be taught in schools. No one is trying to tell priests that they have to marry gay couples, if they don't want to. Marriage is a civil institution, as well as a religious one. Open your eyes, open your minds, stop spreading lies.
- The Futility of the "Tradition" Argument. Right, so this one isn't a strictly legal argument. But let me tell you some other things that have been justified by their being "tradition". Slavery. Denying women the right to vote. Heck, denying women any rights. The ban on interracial marriages. To some extent, the ban on abortions. And now, the ban on gay marriages. Tradition has been used to justify denying so many people civil rights that it shouldn't really come as a surprise that gay couples are next on the list. But look around you. Slavery is gone, women have equal rights, no one is allowed to deny a mixed-race couple a marriage licence, and abortion is legal. Precedent? I think so. I hope so.
- And in the end, shouldn't the full faith and credit clause of the Constitution have made gay marriage legal everywhere after Massachusetts legalized it in 2004? I admit that mine and Ashley's understanding of that particular clause is less than perfect, so if anyone has any better idea, please share!
Maybe I'm wishfully oversimplifying everything. Maybe I still have those stars in my eyes that I thought the 2008 election and the healthcare debate had cured me of. I vividly remember the day when I learned the California Supreme Court legalized gay marriage. I was swimming in my neighbor's pool, my mom was reading the newspaper. When she told me, my response was "well,
duh." But when I look at the history of our country, I just find it ridiculous, and totally counter to our most cherished ideals that something as fundamental as two people's right to get married is being put to a majority vote.
Ultimately, Jerry Brown has said it best:
"Proposition 8 violates constitutionally protected liberties. There are certain rights that are not to be subject to popular votes, otherwise they are not fundamental rights. If every fundamental liberty can be stripped away by a majority vote, then it's not a fundamental liberty."
Further reading:
And yes, I have (rather) shamelessly cribbed the title quote from Sinead O'Connor's song "What Doesn't Belong to Me". Credit where credit is due . . . it's a great song!
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