Proposition 8

Let me first say, everyone who reads this may write their opinion on this article but please keep it tasteful. Let us keep the argument as civilized as possible. Any foul language or statement voicing bigotry will be deleted at the author’s discretion. Let this be a civil but lively debate.

First let me come out forward and state for the record that I am neither for nor against same sex marriage. I could hardly care less on a moral stand point what people decide is moral or not. I am against Proposition 8 not for morality but rather for reasons of law. Why may you ask, as for reasons of law, am I against proposition 8? To understand the argument, we must first understand the history of one of the most controversial propositions to enter the American political scene in some time.

The history on the arguments for or against same sex marriage can be found in cases in the 1970s. Same sex marriage on a federal stand point has been complicated at best as traditionally the U.S. Government has not attempted to establish any sort of marriage laws or establish its own marriage definitions. Any marriage for that matter set by the state was also recognized by the federal government, even if one’s state laws conflicted another. Such cases existed in the 1960s and 70s with interracial marriages with many southern states banning interracial marriages while many northern states has accepted them. Things slightly changed however with the passage of The Defense of Marriage Act (1996) in which Congress officially recognized marriage as a union strictly between one man and one woman for the purposes of law (1 U.S.C. Sec. 7) yet still to this day, no single federal agency recognizes any definition of marriage. Conflict however begins with the fact that the act does not affect laws dealing with the everyday rights of ordinary citizens state to state in accordance to marriage nor does it impose how a single state may only recognize marriage as a matter of law. To make matters even more complicated, many citizens, myself included, agree that laws concerning marriage should only be dealt with as a matter of state law and not on the basis of federal law.

With arguments on the definition of marriage from a state to state basis, such cases can be found as early as 2003. The beginning of states recognizing same sex unions can be found in Massachusetts in Goodridge v. Dept. of Public Health (2003). In it, the state court’s opinion noted that the arguments for denying same sex unions had no legal basis as in accordance to state constitutional law. Chief Justice Margaret Marshall noted that the state constitution “{affirmed} the dignity and equality of all individuals” and that state constitutional law prevents the creation of “Second-class citizens.” This however was complicated with the fact that the court did not flat out state that same-sex marriage was to be recognized by the state as a matter of law, but rather that the state had no legal rationale to argue against it. The court gave the legislature a limited amount of time to rectify the situation and Governor Mitt Romney (Rep.) pushed for a state constitutional amendment to officially define marriage as a union between one man and one woman. This however failed to make its way through the legislature and thus failed to be put on the ballot for voters in 2006.

In California, the case for same-sex unions was brought before the State Supreme Court with In re Marriage Cases (2008). The case was brought before the court with the passage of Proposition 22 (2000) which redefined California Civil Code (Sec. 4100) that “Only marriage between a man and a woman {was} valid or recognized in California. (Prop 22, Sec. 308) Matters were made worse when Mayor Gavin Newsom (City of San Francisco) in 2004 started issuing marriage licenses in protest to the 2000 proposition and for support of the 2003 ruling in Massachusetts. Proponents of Proposition 22 then filed a lawsuit barring the mayor from filing any more licenses to same-sex couples to the Superior Court of California. This court denied any injunction or stay on the City of San Francisco’s action allowing the mayor to continue issuing licenses. Legal battles continued with Lockyer v. City and County of San Francisco. The State Attorney General issued a mandate ordering that the mayor’s actions were unlawful in accordance with state law and that he was to end same-sex marriages immediately. The Superior Court agreed stating that Newsom violated state law but that he was free to challenge the ruling in the State Supreme Court on the basis that the current laws and rulings violated state constitutional law. Six cases all in all were formed and organized into In re Marriage Cases (2008) before the court.

On June 4th 2008 the State Supreme Court, in a 4-3 ruling, stated that Proposition 22 violated constitutional law. In writing for the majority, Chief Justice Ronald George cited precedent with Perez V. Sharp (1948) which found bans on interracial marriage in the State of California was unconstitutional. George cited in the case that marriage was a basic civil right for all and that right should not be held against even same-sex couples. The court also stated that “Gays and Lesbians” were subject to more biased treatments with no basis on their contributions to society as a whole. Their sexual orientation therefore was a protected class much like race or religion under California’s Equal Protection Clause (Cal. Const. Sections 1 & 7) As such; any classification would have to be held to the strictest of scrutiny under the law. They cited that because of Proposition 22’s wording, the law violated such sections of the California constitution and therefore was invalid.

Proponents of the proposition fought back filing a another proposition; Proposition 8, which would in turn would amend the constitution stating that marriage would be recognized by the state only as a union between a man and a woman, thus overturning the State Supreme Court’s ruling. The initiative was listed on the November 2008 ballot and passed at 53% for the amendment to the 48% that said no to any such law.

Now that we understand to some extent the history on the legal battles concerning same-sex marriage, we can look that the argument against the noted proposition. I will try to be brief and as simple as possible.

1. The amendment to the state constitution violates the “full faith and credit clause” to the United States Constitution (Article IV Sec. I). The clause addresses the duties of individual states to recognized and public act, record or contract as if it were their own. In other words, say between California and Massachusetts, a contract, is a contract, is a contract and must be recognized as both. Marriage in its simplest form is nothing more than a binding resolution or contract to between to parties that have decided to form a union i.e. a man and a woman. The conflict occurs when such states such as Massachusetts marry same-sex couples and thus issue a contract between the to parties. If California’s amendment only recognizes such a contract between a man and a woman only, it cannot then fully recognize the State of Massachusetts marriage licenses thus setting a dangerous precedent. Other such states have issued same amendments to their constitution creating a conflict on interest between other such states. If the full faith and credit clause is to stand, such states like California cannot uphold such amendments to there constitution. In Lawrence v. Texas (2003) which found sodomy laws to be unconstitutional as they were a violation of one’s privacy rights, the dissenting Antonin Scalia stated that such a case could “destroy the structure... that has permitted a distinction to be made between heterosexual and homosexual unions." If this is such the case, than the majority opinion may have already forced precedent requiring all states to recognized same-sex marriage.

2. Proposition 8, much like Proposition 22 violates the Equal Protection Clause under both the California Constitution (Cal. Const. Sections 1 & 7) and the United States Constitution (14th Amendment Sec. 1). Such wording of the proposition sets same-sex couples as another class of people and thus denying them such rights provided to other people. Let us not forget, the official title for Proposition 8 was “Eliminates Right of Same-Sex Couples to Marry” If the 1948 State Supreme Court stated that marriage was a fundamental right for all, such an amendment would contradict such other articles of the constitution both federally and state wise. Much like it was stated earlier, Chief Justice Ronald George stated that because such a class of people was subject to more bias, such laws would need to be examined with more scrutiny to make sure that no single class of peoples rights were denied. Even the 14th amendment to the U.S. Constitution protects such people. The amendment the constitution states “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Therefore, a state constitutional law would violate the stated amendment, denying people of such basic rights like the right to marry.

3. While a definitive majority voted in favor of the said proposition, 53% does not make a super majority. Many if not most propositions in the State of California require not only a vote between both house of the state legislature both a two-thirds majority of voters to enact such a law. Why was this one so different? The legislature never voted on the proposition and only 53% of the state approved of the measure. If any amendment is to be passed it should be required that all amendments need a 60% vote before being ratified. Also, such amendments should have their moment in the state legislature before being brought before the people. The general population often becomes very confused with law and is often not educated enough to understand the fine print. This is why we have elected officials. If all else fails through the system, then such an amendment may be brought before the people, but only as a last resort. If U.S. constitutional law requires any amendment to be approved by both two-thirds of Congress and/or two-thirds of the state legislatures in the union through a national convention and then after being proposed, three-thirds of states must accept, why should such amendments not follow the same order of law with concern to state constitutions? Proposition 8 should have passed only with two-thirds of the legislature and at least 60% of the people approving. 53% to 48% does not leave much room thus when really looking at it, is essentially a tie.

4. While most assuredly a moral issue, religion should not play any part in ratification in any law. Under the United States Constitution (Amend. I) church and state are to remain separate. Nowhere in recent court cases did any law require any religion to accept any and all marriages whether heterosexual or homosexual, nor may the state issue such laws. Nor should churches start issuing doctrine into civil law. The case of same-sex marriage is strictly one of civil law, not religious law. Churches such as the Catholics, Mormons, Baptist, or even the Jews or Muslims should not force people to follow their set of morals nor should any state do the same. Even if Proposition 8 failed, no church would have been forced to marry a same-sex couple. Much like recent privacy laws, what you do in your own church is your own decision. Nothing should be forced upon you. If such a church does not accept same-sex couples, one can easily go to any court house and be issued a marriage license by a judge.

5. Marriage whether heterosexual or homosexual was never required teaching in public schools. The State Supreme Court simply stated that marriage by law was and still is a fundamental right of the people whether gay or straight. Schools are in no way required to teach children on the basics of marriage and relationships and any teaching therefore is strictly up to the teacher’s discretion. If such cases arise, it is not the government’s role to issue what is moral or not. Morality is to be decided at home with family and friends. A child may learn from school about same-sex marriage but it’s in the parents hands to tell his or her children on there ideology of marriage. Children learn more about relationships at home with their family than in any school.

Proposition 8 fails to work with the fundamental rights that all men are created equal. Such a proposition fails to protect those who need it most. America is a classless society and proposition 8 puts same-sex couples in such a class much like African Americans, Hispanics or even women and men. Proposition 8 is not about morality, it is about equality. Approving such a measure simply removes ones rights simply because he or she behaves in a different way. It has already been proven that being gay or straight is not a choice. It is genetic and no such person can decide on whether he or she doesn’t want to be gay such as one person cannot suddenly decided not to be of African decent or of another sex. Incest or other such things are a choice and therefore fall under such issues of legality. On the basis of law, this is why I oppose the ratification of such a measure.

On a more personal note, I am some what saddened and dishearten that the Church of Jesus Christ of Latter Day Saints has involved itself in the battle. I have respect of the church and have many friends that are members of the organization. The church has done a lot in recent history to better society. They are out helping the poor and the sick, many members involve themselves in charitable works, and the church does provide a good sense of morals. I however disagree with the recent decisions made by the church on Proposition 8. Any individual member may agree or disagree with Proposition 8 and may support it or not support it in any way they see fit. While the church in itself may not have donated any specific amount of money to the cause for Proposition 8, the fact that the president of the church asked its members to fight for the proposition is hypocritical. This is a church that vowed to stay out of politics and yet this year has involved itself strongly in this latest cause. Proposition 8 is a civil or rather legal battle and has no place in religious law. The law does not affect any way the church sets morals or performs marriages. The president and higher ups should have stayed out of the arguments and let its followers decide what is proper and/or moral.