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Federal Precedent Provides Logic to Nix Prop 8

Proposition 8

Proposition 8

Brian E. Gray, writing for the Los Angeles Times, sees something cool: The long history of the battle for equality for all in this country includes many court fights — some that pro-justice forces have won. A particular early-1990s fight in Colorado, Gray says, may offer another avenue for challenging California's unjust same-sex marriage ban.

In 1992, by a 53%-47% split, Coloradans passed an amendment to their state Constitution that repealed laws in Aspen, Boulder, and Denver that prohibited discrimination against gays. The amendment barred the state and its political subdivisions from adopting or enforcing any law "whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships" are the basis of a claim of discrimination. Does this sound familiar?

As the proponents of same-sex marriage rights determine the proper response to Proposition 8, it is illuminating to compare Colorado's rejection of "gay rights" with California's repudiation of "gay marriage."

The day after the November 4 election, a coalition of civil rights groups asked the California Supreme Court to declare that Proposition 8 was unlawfully enacted. The essence of their claim is that a constitutional change that rescinds individual rights must first be passed by a supermajority in the Legislature before being submitted to voters. This process-based claim may well have merit, but there exists a more direct means of challenging Proposition 8 based on the U.S. Constitution.

Following the enactment of Colorado's Amendment 2, its opponents filed suit claiming that it unlawfully singled out gays and lesbians as a class to deny them rights that other citizens not only possess but take for granted. These rights include access to housing, government services, public accommodations and public and private employment opportunities without regard to an individual's race, sex, religion, age, ancestry, political belief, or other characteristic that defines each of us as a unique human being. Amendment 2, the opponents argued, therefore denied gays and lesbians the equal protection of the laws, which is a guarantee of the 14th Amendment to the U.S. Constitution.

To the surprise of many, the U.S. Supreme Court agreed.

Writing for a 6-3 majority in Romer vs. Evans (1996), Justice Anthony M. Kennedy explained that it "is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." Laws such as Amendment 2 "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected," Kennedy wrote, adding a reference to another 1973 ruling. "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

What is Proposition 8 if not the product of a desire to harm a politically unpopular group? Denying legal marriage to GLBT couples diminishes them in the eyes of the law and the greater society. The stigma keeps these families -- many of whom have children -- from enjoying the same protections given to hetersoexual couples and forces them to spend untold amounts of money to try and cobble together alternative protections that aren't anywhere near as comprehensive. This is serious harm being done to certain citizens on the basis of certain other citizens' religious beliefs.

Given that the matter under debate is civil marriage -- not religious rites, which are protected, allowing churches, as private groups, to discrimnate at will within their faith communities -- it is quite clear that the only notion behind measures to exclude GLBT citizens from civil marriage is bigotry. Their only goal is to keep gays and lesbians separate and stigmatized. Not only is this morally wrong, it flies in the face of American tradition. The purpose of the courts is to interpret the law and to protect minorities from the tyranny of the majority. Thanks to a vocally religious majority that wishes to punish GLBT Americans, gays and lesbian couples and families are under siege and in desperate, long-overdue need of judicial protection.

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Those opposing equality for all tend to be highly religious people. The same holds true for reproductive rights — those who oppose them generally are religionists trying to imposing their moral beliefs on the rest of our pluralistic society. Yet there are many religious people who label themselves as "anti-abortion yet pro-choice." These people understand that their religious beliefs, which they hold dear, aren't always appropriate as a guide for those who aren't members of their faith. Telling an atheist that under penalty of law she must define "life" the same way that a Catholic or evangelical Christian does is simply untenable and offensive in our very diverse population. Hence, we have Rowe v. Wade to defend the minority from the controlling religious majority.

When it comes to secular marriage laws, there are some very religious people who understand that what they believe about family, while meaningful to them and to those who think like them, may be inappropriate and unfair to impose on those with different beliefs. They see the tangible difference between religious marriage — which God-believers have every right to protect — and civil marriage, which should be available to all couples under secular law. They know that "holy matrimony" is a concept that applies only to religious marriages, not to civil ones. They understand that under American values, if gay and lesbians people wish to marry, they should be able to do so civilly or in churches that specifically allow same-sex ceremonies.

Giving all adult citizens the right to civil marriage has and would have no effect on the religious institution of marriage or in public schools, where parents have to the right to veto family-education topics with which they disagree. A quick look at present-day life in Massachusetts, Connecticut, and Canada prove the case. Why most religious folk have such difficulty with these notions escapes me…

The fact is that if the equality of pigmentational minorities and women were put up for a popular vote, in some places, equality would lose. For this reason, courts are crucial guardians that make sure the law treats all of us — popular or not — the same. And not with different words: The Supreme Court has already ruled that separate but equal is not equal. Every day without true equality is another day when the US is lying to its citizenry — and another day when many of its betrayed citizens suffer unjustly.

This is reason for hope: A number of cases are being presented before the courts covering a number of problems with Proposition 8 (and the logic should be applied to fighting the discriminatory federal Defense of Marriage Act as well). Meanwhile, justifiably outraged and betrayed Americans are protesting throughout the country and boycotting those who want their bigotry enshrined into law. In one way or another, marriage equality is coming — and hopefully sooner rather than later. It's the right thing to do if America wants to be what it claims — a land of liberty and equality for all.


Natalie Davis

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