What Is The Answer For Gay Marriage?

August 9, 2010

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Last week a federal judge determined that proposition 8 was unconstitutional.  Proposition 8 is an amendment to the constitution of the state of Californian which forbids gay marriage by inserting the definition of marriage as one man and one woman.  This proposition and the judge’s ruling have created a firestorm of news articles.  Now I am a not a social conservative, therefore I do not really have a strong opinion as to whether a gay couple’s relationship should be labeled as a marriage, a union or any other term.  My concern is with the unintended consequences of this argument.

First, let’s look at the amendment.  It is rather simple and is focused on the definition; one man and one woman.  It was passed by a super majority of the people of California.  I am not a lawyer, but from what I can tell, this amendment only pertained to marriage in California and did not block the recognition of gay marriages from other states such as Massachusetts.  This presents a problem for the state at least at the tax level, as California does have separated tax tables for married couples just like the federal government.  How do your recognize something that could not have happened in the state?  That is just one of many ramifications.

Now let’s look at the Judge’s decision.  The judge stated that the amendment was discriminatory and therefore violated the United States Constitution.  This is interesting in that the United States Constitution has very specific things that are protected from discrimination, and gay marriage is not one of them.  I am not debating whether this is discrimination or not, I am just looking at the consequences.  IF we eliminate the definition, which was apparently not needed in the past, we have to consider what we do for other forms of marriage.  Does this decision mean that polygamy lays are unconstitutional?  Again, this is just one example.

In the past, we have had laws and constitutional amendments that now seem rather silly.  Until the 1960’s there were still laws forbidding interracial marriage.  Does this latest round of legal intrigue fall into this category?  If we look further into our history, we can see other laws and institutions that have been supported by majorities of the people and even upheld by the supreme court, later to be changed or thrown out.  I cannot predict the future, but these arguments which are so important today will at some future date seem rather odd to school children, if it is even mentioned at all.  I can predict that this issue will continue to be the source of many spiteful comments as each group believes that they are on the moral high ground.

The full text of the proposal is copied below from http://voterguide.sos.ca.gov/past/2008/general/text-proposed-laws/text-of-proposed-laws.pdf.


This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8, of the California Constitution.  This initiative measure expressly amends the California Constitution byadding a section thereto; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.

SECTION 1. Title

This measure shall be known and may be cited as the “California Marriage Protection Act.”

SECTION 2. Section 7.5 is added to Article I of the California Constitution, to read:

SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

The full text of the Judge’s decision can be found at http://media.scpr.org/documents/2010/08/04/Perry_Trial_Decision.pdf.

5 Comments (+add yours?)

  1. kosmo
    Aug 09, 2010 @ 08:16:34

    Since I’ve written a number of articles in support of gay marriage, I doubt you’ll be surprised to see me weigh in 🙂

    I’m going to disagree when you say that that a ban on gay marriage does not violate the consitition. It’s true that the consistition doesn’t specifically protect this right – but it does provide this protection on a broader level.

    Let’s take a look at the 14th amendment:
    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.

    What is proposition 8 aiming to do? I would say that it aims to:
    1) Abridge the priveleges of certain citizens of the United States and
    2) Deny to persons within its jurisdiction equal protection under the law

    When I mention “equal protection under the law”, I’m referring the the vast array of rights afforded to a spouse that are not available to domestic partners. For example, no estate taxes are owed when a surviving spouse inherits assets (yes, I know that at this moment, the estate tax has been repealed – but it will be active in 2011, and I fully expect congress to reinstate it for 2010, retroactive to 1/1/2010). That’s the tip opf the iceberg.

    You do raise a good point about polygamy. The once difference I see is that there is a strong possibility that sexual orientation is biological and preferences for multiple spouses is a choice. In spite of that, though, in recent years, I have come to the point where I really don’t strongly object to polygamy if all parties are consenting adults. In some (but not all) cases of polygamy, this is not the case.


  2. Evan @ 40Tech
    Aug 09, 2010 @ 10:27:30

    Regardless of what the answer is, I think we are in for a long journey until this issue is decided once and for all. I didn’t read the opinion, but didn’t the judge also issue of a stay of his decision, pending appeal (i.e. the law stats intact until this is hashed out on appeal)?


  3. kosmo
    Aug 09, 2010 @ 10:43:57

    The judge issued a stay, but the governor has asked judges to recognize gay marriage. Yes, the Republican governor. I’m not sure how valid (legally) those marriages would, considering the presence of the stay. You probably have a better idea than me 🙂

    It seems logical that this issue will head to the US Supreme Court at some point.


  4. Martin Kelly
    Aug 10, 2010 @ 07:37:52

    Kosmo, I was trying not to set my opinion of what is right and what is wrong. I am primarily worried about the consequences of this debate, or more specifically the legal precedents that will be set. In the end, the United States is drifting away from being a country of laws and becoming a country of precedents. This is not a condemnation, it is just a recognition of a country in middle age.

    If you do read through the whole opinion, it is quite literally an opinion. The judge does not put together the concise arguments that you have stated. Instead he goes off on the financial cost to the state of California, which is odd since he is a federal judge. I fully expect the circuit court and supreme court to uphold his decision in the end, which may or may not be a good thing. Again, I am worried about the ramifications. I might be worrying about nothing. I certainly hope so.


  5. kosmo
    Aug 10, 2010 @ 08:01:50

    Yeah, I get what you’re saying. I simply think that the 14th DOES intend to prevent laws similar to what prop 8 is attempting to enact, just as I believe it was properly used as the basis for the ruling in Brown vs. Board of Education.


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