Gay Marriage Dilemma

by John M. Curtis
(310) 204-8700

Copyright March 7, 2009
All Rights Reserved.                    

           Hearing oral arguments pro and con, Calfiornia’s Prop. 8—the Nov. 4 ballot initiative that amended the state constitution to accept marriage only between a man and woman—opened up a nasty can of worms.  Justices have 90 days to rule, giving the impression during oral arguments they leaned away from overturning voters.  They didn’t have any problem striking down May 15, 2008 eight-year-old Prop 22 defining marriage as a contract between a man and woman. Prop. 22 passed March 7, 2000 with 61% of the vote, an overwhelming victory for Christian groups claiming a monopoly on heterosexual marriage.  When the California High Court struck down Prop 22, it opened the door for gay marriage in the Golden State.  On May 15, 2008 justices ruled that Prop. 22 violated—as Massachusetts’ High Judicial Court ruled Nov. 18, 2003—the 14th Amendment’s Equal Protection Clause.

            It’s beyond ironic that conservative Mass. Gov. Mitt Romney ordered May 17, 2004 clerks of Massachusetts courts to issue wedding licenses to gay couples.  While running for president in 2008 Romney repudiated his past actions, vowing his enduring loyalty to the sanctity of heterosexual marriage.  Massachusetts High Judicial Court got it right that gender applied as much as race, sex or age to deciding the separate-but-equal clause worked out in the 1954 U.S. Supreme Court ruling Brown v. Board of Education.   “You would have us chose between two rights:  the inalienable to marry and the right of the people to change their constitution,” said Justice Joyce L. Kennard, one of the two key justices that struck down Prop. 22.  “You ask us to willy-nilly disregard the right of the people to change the constitution of the state of California.  But all power is inherent in the people of California,” concluded Kennard.

            Kennard’s reasoning in Friday’s oral arguments showed a murky inconsistency, after forcefully disregarding the people’s will striking down Prop. 22.  California’s majority voters have no special right to tyrannize a minority, in this case gay people seeking marriage.  Marriage by the state is not a religious institution bound by bible-toting true believers.  Marriage is only a contract between the state and two consenting adults.  Whatever rights or privileges stem from that contract can’t be abridged because of age, race, ethnic group, religion, socioeconomic status and, yes, gender.  Massachusetts was the first High Court to get it right:  Prohibiting separate-but-equal treatment as defined by Brown v. Board of education, applying to homosexuals seeking marriage.  Kennard apparently forgot that California residents can’t vote to erase U.S. constitutional rights.

            No plebiscite or state ballot initiative—no matter how guaranteed by state laws—supersede the U.S. Constitution.  Republican Chief Justice Ronald George, who wrote the majority opinion striking down Prop. 22, seemed reluctant to intervene again, placing  blame on the initiative process requiring only 50%-plus-one vote to pass.  He noted that Californians had amended the state constitution 500 times since 1911, showing reluctance this time to reverse the will of voters.  Arguing for opponents to gay marriage, Pepperdine University Law School Dean Ken Starr, the special counsel that prosecuted President Bill Clinton in the Monica Lewinsky affair, insisted that the only inalienable right was the power of voters to amend their constitution.  “The issue before this iconic court has to do with the sovereignty of the people of California,” said Starr, refuting  Atty. Gen Jerry Brown’s arguments.

            Atty. Gen Brown, soon to be a candidate for governor, argued before the court that marriage is an inalienable right, whether straight or gay.  Starr countered that with the inalienable right of voters to change their constitution.  Starr acknowledged that it’s possible for a simple majority in California to ban interracial marriage or free speech, something protected by the U.S. Constitution.  Starr’s logic doesn’t take into account responsibility to rule on the constitutionality of ballot propositions.  There’s no mechanism in place, other than collecting signatures, to prevent unconstitutional initiatives from reaching voters.  Californians for gay marriage argued an obscure technicality that Prop. 8 revises the state constitution, something requiring a two-thirds vote of the legislature.  Justices seemed satisfied that there were ample precedents for the ballot initiative process.

            During the next 90 days, the California Supreme Court needs to rule on whether Prop. 8 violates the Equal Protection clause of the 14th amendment, specifically assigning gays to a separate-but-equal class, prohibited under Brown v. Board of Education.  If they apply the same logic as the Massachusetts High Judicial Court they will overturn Prop. 8.  Despite apparently expressing trouble with the Atty. Gen. Brown and opponents’ arguments, the High Court must rule on the constitutionality.  When they revoked Prop. 22.May 15, 2008, opening the door for gay marriage, they did so because it discriminated against gays.  They reasoned then that the state’s marriage contract was gender-blind, simply an agreement between consenting adults.  Nothing has changed since then.  Given the same facts, it only makes sense for the same High Court to show consistency and rule against Prop. 8.

John M. Curtis writes politically neutral commentary analysing spin in national and global news.  He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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