Author`s name David R. Hoffman

California’s constitutional ban on same-sex marriage is unconstitutional

When I was a teacher, I would often tell my students this hypothetical: “Our classroom has decided to form a new country and create a new government to run it. Now imagine that everyone in this class practices the same religion, except for two students.

History has shown that many nations have been involved in violent conflicts because of religious differences, and some are still engaged in such conflicts today. To eliminate this problem in our new nation, we are going to hold an election to decide what religion our citizens, and those who reside within our borders, can practice. Once we have a winner, all other religions will be banned.

Assuming that everyone will vote in accordance with their faith, it is obvious that two of your classmates will no longer be allowed to practice their religion. So my question is this: Since America is a democracy, why has such a vote never taken place?”

Usually, to my dismay, I would hear responses trumpeting the virtues of diversity and tolerance. But rarely did I hear the correct answer: Such a vote has never occurred in the United States because it is prohibited by the Bill of Rights.

What I wanted my students to understand is that America was created as a “democratic-republic,” where the “majority rules” in many instances, but not all. The nation’s founders determined that there are certain rights and liberties so fundamental to the individual that neither the government nor the majority can take them away. One of these, of course, is the right to “freedom of religion.”

The results of this freedom are evident. According to the book How the Great Religions Began, over two hundred denominations of Christianity exist in the United States. Clearly the outcry would be deafening if the followers of the most popular form of Christianity possessed the power to ban all others.

Yet today many of the minority sects of Christianity—that might not even exist if America had been created as a pure democracy—are hypocritically promoting the idea of “majority rule” when it comes to another fundamental right—the right to marry. This was in evidence during the November 2008 election, when many religious organizations in California successfully campaigned for the passage of “Proposition Eight.”

“Proposition Eight” banned same-sex marriages, which had been legal in California, via a constitutional amendment. But, in a paradox that is nonetheless true, this constitutional ban on same-sex marriages is unconstitutional.

Just as the federal government has the United States Constitution, every American state has its own constitution. State Constitutions can provide more legal protection for the fundamental rights of their residents than the Federal Constitution requires, but they cannot provide less.

An example of how a State Constitution provides greater protection was shown in the case of a convicted drug dealer who, under state law, was sentenced to a long-term prison sentence. This individual challenged the law in federal court, arguing that its harsh penalties violated the Federal Constitution’s Eighth Amendment prohibition against “cruel and unusual punishment.”

The United States Supreme Court disagreed, ruling that while the punishment this law demanded was either “cruel,” or “unusual,” it was not both, and to be declared unconstitutional a law has to offend both prongs of the Eighth Amendment.

Fortunately for the defendant the Constitution of the State where he was convicted banned “cruel or unusual” punishment; therefore the challenged law only needed to offend one of these prongs to be declared unconstitutional. Since it had already been held to do so, the defendant’s sentence was overturned.

An example of how the Federal Constitution can provide more protection than State Constitutions occurred in the 2003 case of Lawrence vs. Texas, when the United States Supreme Court ruled that the “liberty” prong of the due process clause voided state sodomy laws that prohibited consenting adults from engaging in certain types of sexual activity.

The Lawrence decision was an anomaly for two reasons: first, it occurred within the confines of a legal system that has historically been loath to protect the liberty interests of gays and lesbians; second, it overturned Bowers vs. Hardwick, a case this same Court had decided just seventeen years earlier. Bowers had held that laws prohibiting certain types of sexual activity between consenting adults did not offend the Federal Constitution. When one considers that it took over half-a-century to overturn Plessy vs. Ferguson, the case that once made racial segregation the law of the land, the Court moved with remarkable speed.

Still, despite this progress, America remains a nation where gays and lesbians appear to be the last minorities who can be openly hated, ridiculed and maligned, even by those in power. Vice-presidential candidates Joseph Biden and Sarah Palin, in a debate conducted prior to the November 2008 election, did not hesitate to condemn gay marriage in front of a national television audience.

But would Biden and Palin have been equally at ease condemning interracial marriages, or marriages betweenpeople of different faiths? It is doubtful, because such condemnations would not be politically profitable in today’s environment. But just a few decades ago politicians were perfectly comfortable condemning interracial marriages as “abnormal” and “immoral.”

This changed in 1967, in the case of Loving v. Virginia, when the United States Supreme Court ruled that laws banning interracial marriages violated the Federal Constitution. In its opinion the Court confirmed that marriage was “one of the ‘basic civil rights of man,’” and that denial of this right can “deprive all the State’s citizens of liberty without due process of law.”

This recognition of marriage as a fundamental right means that neither the government nor the majority can take it away, unless there is a “compelling reason” for doing so.

In the Lawrence decision, Justice Kennedy writes, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.” Denying “equality of treatment” in these areas is “an invitation to subject homosexual persons to discrimination both in the public and private sectors.”

Yet gays and lesbians in California, and numerous other states, only enjoy three of the four freedoms that “liberty presumes.” They are conspicuously denied equality of treatment in the area of expression—the right to express love and commitment through the institution of marriage.

In overturning the Bowers decision, Kennedy noted that the Court committed a fundamental error when it confined its analysis strictly to the “sexual conduct” involved: “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.... To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”

This right to an enduring personal bond, and this acknowledgment that the motivations of gays and lesbians seeking to marry are not significantly different from heterosexuals seeking to marry, establishes that there is no legal basis, compelling, rational or otherwise, for the government to ban same-sex marriages. In fact, as reported by USA TODAY, heterosexual couples are increasingly choosing to cohabit rather than marry; thus it should be refreshing to learn that same-sex couples still place a great deal of importance on the institution of marriage.

The courts, when dealing with cases involving religious discrimination, never question the sincerity of one’s faith, nor does society question whether a man and woman are marrying for the “right” reasons. Why then should such litmus tests be required for same-sex marriages? Why is it not presumed that two people in love sincerely wish to spend the rest of their lives together?

The tragedy of American society, and indeed of all societies, is it is so easy to blame scapegoats for all social ills. Throughout American history people of different races, religions and ethnic backgrounds were often looked upon by the majority with fear and loathing, and thus had to struggle to gain the rights that others took for granted. Sadly, when it comes to the rights of gays and lesbians, the descendants of many of these people are now chanting “majority rules.” Perhaps a constitutional amendment should be passed decreeing that those who seek to deny fundamental rights to others must sacrifice those same rights themselves. After all, as Abraham Lincoln said, “Those who deny freedom to others deserve it not for themselves.”

David R. Hoffman
Legal Editor of Pravda.Ru

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