California's Gay Marriage Ban Tossed Out

by John M. Curtis
(310) 204-8700

Copyright August 5, 2010
All Rights Reserved.                                

            When California voters went to the polls Nov. 5, 2008 and passed Prop 8 [52%-48%]—the so-called gay marriage ban—serious questions were raised about its constitutionality.  California’s initiative process enables anyone who can collect 750,000 signatures to place anything—no matter how bigoted—on the ballot.  Outside-the-state proponents of the ban poured in over $40 million, largely from James Dobson’s Colorado Springs evangelical Christian church called “Focus on the Family” and the Salt Lake City-based Mormon church.  California State Atty. Gen. Jerry Brown (D-Calif.) promised to challenge the initiative in federal court, citing serious flaws with the Equal Protection and Due Process clauses of the 14th Amendment.  Today’s 138-page ruling by U.S. District Court Judge Vaughn Walker makes it official, tossing out the controversial majority-rule ballot initiative.

              Most church groups and religious organizations don’t quite get the state’s restriction on violating the U.S. constitution.  Arizona just found out the hard way with SB 1070 that made it a crime to not have legal citizenship papers.  A District Court Judge in Phoenix tossed out July 29 key provisions of the controversial law.  Whether enacted by initiative or an act of state legislature, laws must meet a federal constitutional test.  While federalism respects states’ rights, it also must take into account constitutional protections.  Like the lawsuit filed in Arizona District Court, the suit against Prop 8 dealt with the Constitution of banning gay marriage.  High Courts in Massachusetts and elsewhere have viewed the gay marriage issue as civil rights.  Once it was taken out of gender discrimination and placed into the context of civil rights, gay rights groups began winning their cases.

            When the Massachusetts’ High Judicial Court ruled May 17, 2004 that it was unconstitutional to only allow heterosexual couples to marry, it paved the way for today’s landmark ruling.  Massachusetts’ High Court was the first court in the U.S. to determine that gay marriage was protected under U.S. civil rights laws, especially the 14th Amendment’s guarantees of equal protection and due process.  Prior to May 17, 2004, states dealt with the gay marriage ban by offering same-sex partners “civil unions” or “domestic partnerships,”  Massachusetts’ High Court banned that practice under the 1954 landmark ruling Brown v. Board of Education, where it struck down the practice of “separate but equal” education.  Now U.S. District Court Judge Walker got it right in California, telling voters they can’t, by initiative, violate the U.S. Constitution, regardless of personal preferences.

            Supporting the ban on gay marriages, proponents frequently cite the bible or obscure sociological ideas not based on credible science.  No reputable scientific study indicates that gay marriage would have any negative impact on society.  Same-sex relationships don’t vary according to social modeling or environment but rather as a product of genetic and biological selection.  Gay relationships represent less than 10% of the general population, whether or not children are raised by same-sex partners.  Church or private groups can discriminate against same-sex partners just not local, state or federal government.  When the state defines marriage under the U.S. Constitution it must not discriminate against anyone because of gender, race, religion or socioeconomic status.  Prop 8 expressly forbade the state from protecting the civil rights of same-sex couples seeking civil marriage.

          Tossing out Prop 8, the federal government reaffirms the U.S. Constitution, not religion, local customs or values, as the final judge of civil rights.  Church groups can spend lavishly to ban gay marriage but they can’t undermine the U.S. Constitution.  They can ban gay marriages within their tax-exempt institutions but they can’t, as they did with Prop 8, ban the state from following federal law.  Tossing out Prop 8 opens up a can of worms for state officials, who must restart performing civil gay marriages.  When Prop 8 went into effect Nov. 5, 2008, California stopped gay marriages, vowing to honor those consummated before the ban.  Prop 8 supporters must appeal to the liberal 9th District Court of Appeals looking for injunctive relief.  If they can’t get satisfaction, Prop 8 supporters promise to go to the conservative-leaning Supreme Court, where they think they’ll eventually prevail.

           U.S. District Court Judge Vaughn Walker got it right tossing out California’s Prop 8.  No state agency can implement laws that violate the U.S. Constitution.  Preventing gays and lesbians from marriage violates same-sex couples’ rights of due process and equal protection under the law.  Church or religious groups can’t expect states to discriminate against one group simply because it doesn’t fit their religious or local customs.  California’s gubernatorial candidates should take as stand and set the record straight where they stand on legalizing gay marriage.  Neither GOP candidate Meg Whitman nor Democratic candidate Jerry Brown has taken a stand on gay marriage or California’s or Prop 19, California’s marijuana legalization initiative.  Neither is willing to go out on a limb.  Both Brown and Whitman need to let voters know where they both stand on the big issues.

About the Author    

John M. Curtis writes politically neutral commentary analyzing 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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