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Overturning Prop 8: No Matter how You Feel About Gay Marriage, The Gay Marriage Ban Was Always a Constitutional Question

Anthony Samad: Regardless of what you feel about the politics of sex-same marriage, the reality is that the gay marriage ban was always a constitutional question. We just never had a constitutional answer for gay marriage, before now.

The federal court ruling to overturn the California voter supported same-sex marriage ban initiative, Proposition 8, has set the stage for a major shift in American culture. The case of Perry v. Schwarzenegger challenging California’s definition of marriage as between a man and a woman will be appealed all the way to the U.S. Supreme Court, but the die has been set.

gay marriage

Prop 8 and the definition of marriage will both take a legal hit. No matter what one thinks marriage should be, what marriage is can’t be applied to one segment of the population and not to all. American culturists and marriage traditionalists rooted their definition in religious and dominant culture practice of heterosexual relationships. Dominant societal views have managed to turn a blind eye to homosexually and ignored its emerging presence in American culture.

Unlike other discriminations impacting race, gender, and disability that were irrefutably evidence based, same-sex marriage was viewed in a different context convoluted in discussions as to whether “gay-ness” was a biological or voluntary engagement and a practice centered in countercultural rejection of religion-based morality. The popular culture conversation of “what is gay” and “who is gay” put the same-sex marriage issue in the middle of the American political and legal discourse, but the legal reality of “what marriage is” was what really was at issue.

Federal 9th District Judge Vaughn Walker may have kicked in the door to one of America’s deepest closets in the nation’s relative conversation on the politics of sexual morality, a conversation that moves along the same sliding scale as greed, race, and religion. Regardless of what you feel about the politics of sex-same marriage, the reality is that the gay marriage ban was always a constitutional question. We just never had a constitutional answer for gay marriage, before now.

The practice of trying to legislate gay marriage was, in most instances, an engagement in futility, as traditional religious values and popular culture mores dominated any effort to modify the institution of marriage. We study history to understand that the nature of man (and woman) doesn’t change and to learn the lessons of the past, so they won’t be repeated in the future.

Gay activists have tried to use history to empower their cause, though inaccurately at times, in trying to highlight discrimination against gays as being the same as discrimination against blacks in the civil rights era. That was very troublesome analogy because it always failed to address “the moral question” that many had (have) about homosexuality, in the way Martin Luther King, Jr. forced the moral imperative of the wrongs of segregation on “men of goodwill and moral conscience (the church).”

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Gay marriage activists run from the church politic, undermining the biggest hurdle in their equality struggle’s moral argument. It’s a question they (gays) still can’t get around, but the lesson they should have learned from the 20th Century African American equality struggle is that you can’t legislate social change. Marriage is a social institution affirmed by religion. They have to litigate it.

Only six states out of 50 states have legalized gay marriage (mostly in the Northeast). Same-sex marriage couples are restricted to those six states if they want their marriages recognized by the state. The other 44 states refused to go that far, and voiced majority favor of tradition marriage, as vulnerable as it is.

Gay marriage bans were analogous to the dreaded “Tyranny of the majority” that the framers of our Constitution feared would occur if a statistical majority ever turned on a statistical minority and tried to impose their will on that minority in a way that inured or compromised the rights of that minority. By the way, votes on ending slavery and segregation would have turned out the same way. The popular consensus would have never ended either, and would have never ended popular marriage as being between a man and a woman (or several women, as a major theologian pointed out to me last time I wrote of sex-same marriage—according to him, there is no such thing as a “traditional” definition of marriage, only a “popular” definitions).

Gay marriage couples were (are) fighting an uphill battle in gaining acceptance from society. Their constitutional rights were violated on several fronts, including their “Full Faith and Credit Clause” and “Privileges and Immunities Clause” of Article 4 of the Constitution, as well as the Fourteenth Amendment’s “equal protection” clause. As proven in the 1967 inter-racial marriage ban challenge of Loving v. Virginia , marriage between two individuals cannot be infringed upon by society. Simple as that. Judge Walker stated it better in his opinion on Perry stating “the fundamental rights of citizens cannot be put up to a vote.” So unless homosexuality is made illegal (a moral referendum too subjective to even try), gay couples are entitled to the same rights and privileges as everybody else.

It’s gonna be an ugly and protracted fight to the U.S. Supreme Court, as America tries to deal with its latest culture clash, a conflict over “what marriage is” and who can do it. Regardless how you feel about it, the constitutional answer to whether gay marriage is legal has been rendered. Sex-same marriage was a constitutional question all along.

Anthony Samad

Anthony Asadullah Samad

Anthony Asadullah Samad, Ph.D., is a national columnist, managing director of the Urban Issues Forum and author of the upcoming book, REAL EYEZ: Race, Reality and Politics in 21 Century Politics. He can be reached at