The right gets burned by that pesky Constitution again: Why gay marriage is Constitutional

source http://www.chicagonow.com/blogs/your-doubting-thomas/2010/08/the-right-gets-burned-by-that-pesky-constitution-again-why-gay-marriage-is-constitutional.html

Those frisky Republicans are making me go to the Constitution again. The right is in an uproar after a federal judge overturned California's gay marriage ban. In his ruling overturning California's gay marriage ban, Chief District Judge Vaughn Walker declared "Proposition 8 [California's gay marriage ban passed in November 2008] fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples." Judge Walker concluded: "Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment."

Now the right is up in arms. This activist judge- nominated to the federal bench by George H.W. Bush- from San Francisco has denied the will of the people, a majority of whom voted for the ban on gay marriage in California.

So if Mississippi's citizens decide by referendum to prohibit blacks from voting, is that constitutional? Of course not. The will of the people does not mean that will is constitutional. That's exactly why we have the Constitution, to prevent the tyranny of the majority.

right wing nonsensical rhetoric

What makes me scratch my head about these frisky Republicans is just how hypocritical they are. The drumbeat coming from the right since President Obama was elected is that they want their liberty! The right has screamed about wanting the government out of their lives! Obama is a socialist with creating a government takeover. Ahem, but we need government to keep those damned gay people in their place.

The right doesn't want government in their lives, but we need the government in Adam and Steve's lives. It doesn't make sense to me. If my neighbors Adam and Steve want to get married, it does not effect me. Adam and Steve getting married does not effect my marriage. (That's not completely true. Adam and Steve's house is very well decorated, which leads to fights with my wife about why our house isn't as well decorated as Adam and Steve's home).

What does effect my marriage is the ease in which heterosexual couples can get divorced. You want to protect marriage and family? Make it much more difficult to get a divorce. Children in two parent homes generally have a more stable and secure environment. What a better way is there to protect the family than outlawing divorce?

Plus, marriage is hard work. I've been married five years and it's not always fun and games. Considering the divorce rate hovers near 50%, if Adam and Steve want to get married, I say be careful what you wish for- and good luck!

Constitutionally (there's that damned Constitution again getting in the way of the right wing) Judge Walker made the right call. Section 1 of the Fourteenth Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

 

I think the last sentence is pretty self-explanatory. The state cannot make a law that abridges the privileges of being a citizen and the state cannot deny equal protection under the law. One of those privileges is marriage. Denying marriage to gays denies gays the privileges of being a citizen.

Although the right can make the argument that the State is not saying Adam can't get married. Adam is welcome to marry Eve. The State is only prohibiting Adam from marrying Steve.

But constitutionally, the State has to provide at least a rational basis to explain why Adam and Steve's marriage protects some state interest. Defenders of Proposition 8 argued that tradition and fear of harm to heterosexual unions were the basis for the law. Those interests, the judge ruled, were not enough to allow the state to prohibit gays from marrying.

I am from a union that was illegal in some states as late as 1967. In 1967, Loving v. Virginia, the United States Supreme Court had to decide whether the Virginia statute prohibiting interracial marriage violated the Equal Protection Clause of the 14^th Amendment.  Prior to Loving being heard by the Supreme Court it was illegal for people of different races to marry in Virginia. Having a black father and white mother, I find that offensive. I bet that in another 40 years, people will find Proposition 8 equally offensive. But why should Adam and Steve have to wait 40 more years?