Is marriage a right?

On November 4, 2008, the voter initiative known as Proposition 8 passed by 52.3% to 47.7% and amended the California Constitution to read: Only marriage between a man and a woman is valid or recognized in California. It is a long and complex history:

(1) A successful 2000 voter initiative law in CA declared marriage to be only between a man and a woman.

(2) In 2005 the CA Legislature passed a bill allowing same-sex marriage. It was vetoed by Gov. Schwarzenegger, citing the will of the people in the 2000 vote.

(3) A similar bill passed the Legislature in 2007 and again was vetoed.

(4) In May 2008 the CA Supreme Court ruled that the 2000 law limiting marriage to same-sex couples was unconstitutional.

(5) From May to November, approximately 40,000 same-sex couples got married.

(6) In Nov. 2008, the voters adopted Prop8, which purported to amend the Constitution, thus superceding the Legislature and the Courts.

Now only another constitutional amendment could overturn it -- unless the CA Supreme Court declared that the amendment itself was unconstitutional because it violated other constitutional rights. Thus, the question: is there a right to marry?

So we have the CA Legislature and the CA Supreme Court having declared same-sex marriage legal, and voters twice rejecting that view and trying to write it into their Constitution. Prop8 is now being challenged in the CA Supreme Court. What they ruled unconstitutional before were laws; now they are asked to say whether this constitutional amendment is itself constitutional.

There are two arguments for overturning Prop8. One is procedural, the other concerns rights.

(1) The first argument is that this type of voter initiative, which can be placed on the ballot by voter petition and then requires only a simple majority vote, is not intended to alter the Constitution in such a basic way. In California, there is a distinction between "amending," which is for relatively minor changes, and "altering," which is a more basic change and requires the added step of a prior vote of the Legislature to be placed on the ballot. Thus, the argument is that Prop8 is not legal, because depriving a group of people of their right to marry is an "altering" of the Constitution and should have first been approved by the Legislature. This, of course, would likely kill the measure since the Legislature has twice taken the opposite position.

(2) The other argument has to do with whether there is a "right" to marry that cannot be denied on the basis of the gender of the two people. Arguments cite the 1967 U. S. Supreme Court case, Loving vs Virginia, which overturned the laws prohibiting marriage between people of different races. In the majority opinion handed down with that decision, the Justices stated: "Marriage is one of the basic civil rights of man, fundamental to our very existence and survival..."

What keeps this from being a simple and obvious refutation of Prop8 is that the opinion clearly ties this decision to the 14th Amendment and its prohibition of racial discrimination. Whether the same argument can be made for discrimination based on sexual orientation is the nub of the question. Loving vs Virginia does not say that the right is limited to heterosexuals; on the other hand the decision could be seen as narrowly relating only to race and therefore not germane to sexual orientation.

These are the legal arguments. There are, of course, arguments based on religious grounds. But in as much as this is a matter before the Court, it cannot rely on religion but only on law.

Many legal scholars believe that the Court will overturn Proposition 8. It's conceivable they could say that the same arguments that were pursuasive against simple laws do not hold against a constitutional amendment. But then, of course, they would be affirming the legality of making such basic changes in the Constitution with only a simple majority vote.

State Attorney General Jerry Brown initially said it would be his duty to defend Prop8 to the Supreme Court, even though he personally opposed it. After more study of the legal issues, however, he has declared that his legal opinion is that it is unconstitutional and he will not enter an argument on behalf of the State to uphold it.

Polls as late as September had suggested that Prop8 would be easily defeated, and gay activists were blindsided when millions of dollars began pouring into the state from outside religious groups to fund a last minute campaign blanketing the state with misleading ads and outright lies about what would happen if Prop8 was defeated. There were claims that it would damage society, force teachers to promote same-sex ideas in school, and threaten freedom of religion. It was too late to salvage the "No on Prop8" campaign, but robust protest and educational counter-initiatives since the election are beginning to turn public opinion back around. Recent polls suggest that, if the vote were held today, Prop8 would be defeated.

I think it should be overturned by the Supreme Court both on the procedural and the rights arguments. Whether you frame it as a right to marry, or as a right to equal protection under the law, I see only religious arguments against it. Ideally, the government should simply issue civil union licenses for everyone, gay and straight, and let marriage be a religious institution. Some religious groups would decide to permit same-sex marraige, others would not; but none would have the power to control what others do.

That is not likely to happen for a long time. The religious argument that this would "destroy the institution of marriage" has a powerful hold in our society. I will probably write more about that in the future.

Ralph