Last Tuesday, California's voters passed a constitutional amendment stripping the ability of gay persons to enter into a marriage contract. The final ballots have been tallied, but the heated debate over gay marriage is far from over. There is an important underlying issue related to this proposition, and it concerns the right for two persons to enter into a voluntary contract. This is an argument California courts will have to face with regard to Proposition 8's constitutional implications.
Per Article 4, Section 3 of California's Constitution, the United State Constitution is the supreme law of the land. Looking first to the United States Constitution, consider the effect Proposition 8 will have on gay marriages that have already been recognized by the state. Pursuant to Article 1, Section 10, No State shall...pass any...ex post facto Law, or Law impairing the Obligation of Contracts. And, under California's Constitution in Article 1, Section 9, a bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.
Is there really room for interpretation here? Over 18,000 gay marriages have been officially recognized as legal contracts between two consenting persons. Besides, the state would face strong opposition if it attempted to nullify pre-recognized marriage contracts and open the door for a major class-action lawsuit.
But what about future contracts?
The First Amendment was established to further prevent the passage of laws that would limit the establishment of religion or prohibit the free exercise thereof. Yet, if the government establishes a universal definition of marriage, while some religions accept gay marriage under their definition, it is establishing a law prohibiting the free exercise of religion.
Proponents of Proposition 8 will argue that the government is not banning religious unions, and thus does not restrict the free exercise of religion; it just does not recognize such unions as legal contracts. Therefore, the proponents argue, that the government is not restricting the free exercise of religion. Then, purely in terms of contractual rights, on what basis does the state accept some marriage contracts and refuse those between gay couples? If it is based on the gender of the persons getting married, it is restricting such contracts based on sex. Thus, should we uphold the constitutionality of Proposition 8, our legal system will set a precedent for the state to not recognize voluntary contracts based on the gender of the parties of a contract.
Based on the aforementioned precedent, what would stop an initiative from changing our constitution by restricting a woman from purchasing a car from a man? Or a man from selling a house to another man? As ridiculous as such initiatives sound, Proposition 8 paths the way for the validity of a contract to be determined by the gender of the persons entering the contract. All voters would have to do is pass another initiative.
That brings us to the validity of the initiative process itself. Should a majority vote be sufficient to amend the most precious and important law of the state?
If segregation were left to the vote of the majority, blacks would have had to wait a lot longer to receive equal protection under the law. It was the courts that extended such rights, not the voting majority. Yet, if Proposition 8 is written into our constitution, the initiative process supposes that, given 51% of the people support it, the government can restrict any voluntary contract based on gender, regardless of the court's opinion. What if the South, not content with the court's decisions a few decades ago, simply passed an initiative over-ruling the court's rulings on segregation?
In fact, California repudiated a ban on interracial marriage on the basis of racial discrimination in 1959 as did the United State's Supreme Court in 1967. How would the same state and country claim a ban on same-sex marriage does not constitute the same kind of discrimination, this time on the basis of sexual orientation?
Our founders, as stated in Article 4, Section 4 of the Constitution, warned against exactly the form of majority governance we are now recognizing as a legitimate legislative process, when they guaranteed every state a republican form of government; one that respected the checks and balances of the judicial, executive, and legislative branches over pure democracy. The founders may have had conflicting opinions about gay marriage, but they would agree that something as sacred as a constitution should not be amended by simply passing an initiative.
Supporters of Proposition 8 may really believe they are protecting the sanctity of marriage, but is California willing to sacrifice the sanctity of our US and State Constitution to uphold their will?
Per Article 4, Section 3 of California's Constitution, the United State Constitution is the supreme law of the land. Looking first to the United States Constitution, consider the effect Proposition 8 will have on gay marriages that have already been recognized by the state. Pursuant to Article 1, Section 10, No State shall...pass any...ex post facto Law, or Law impairing the Obligation of Contracts. And, under California's Constitution in Article 1, Section 9, a bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.
Is there really room for interpretation here? Over 18,000 gay marriages have been officially recognized as legal contracts between two consenting persons. Besides, the state would face strong opposition if it attempted to nullify pre-recognized marriage contracts and open the door for a major class-action lawsuit.
But what about future contracts?
The First Amendment was established to further prevent the passage of laws that would limit the establishment of religion or prohibit the free exercise thereof. Yet, if the government establishes a universal definition of marriage, while some religions accept gay marriage under their definition, it is establishing a law prohibiting the free exercise of religion.
Proponents of Proposition 8 will argue that the government is not banning religious unions, and thus does not restrict the free exercise of religion; it just does not recognize such unions as legal contracts. Therefore, the proponents argue, that the government is not restricting the free exercise of religion. Then, purely in terms of contractual rights, on what basis does the state accept some marriage contracts and refuse those between gay couples? If it is based on the gender of the persons getting married, it is restricting such contracts based on sex. Thus, should we uphold the constitutionality of Proposition 8, our legal system will set a precedent for the state to not recognize voluntary contracts based on the gender of the parties of a contract.
Based on the aforementioned precedent, what would stop an initiative from changing our constitution by restricting a woman from purchasing a car from a man? Or a man from selling a house to another man? As ridiculous as such initiatives sound, Proposition 8 paths the way for the validity of a contract to be determined by the gender of the persons entering the contract. All voters would have to do is pass another initiative.
That brings us to the validity of the initiative process itself. Should a majority vote be sufficient to amend the most precious and important law of the state?
If segregation were left to the vote of the majority, blacks would have had to wait a lot longer to receive equal protection under the law. It was the courts that extended such rights, not the voting majority. Yet, if Proposition 8 is written into our constitution, the initiative process supposes that, given 51% of the people support it, the government can restrict any voluntary contract based on gender, regardless of the court's opinion. What if the South, not content with the court's decisions a few decades ago, simply passed an initiative over-ruling the court's rulings on segregation?
In fact, California repudiated a ban on interracial marriage on the basis of racial discrimination in 1959 as did the United State's Supreme Court in 1967. How would the same state and country claim a ban on same-sex marriage does not constitute the same kind of discrimination, this time on the basis of sexual orientation?
Our founders, as stated in Article 4, Section 4 of the Constitution, warned against exactly the form of majority governance we are now recognizing as a legitimate legislative process, when they guaranteed every state a republican form of government; one that respected the checks and balances of the judicial, executive, and legislative branches over pure democracy. The founders may have had conflicting opinions about gay marriage, but they would agree that something as sacred as a constitution should not be amended by simply passing an initiative.
Supporters of Proposition 8 may really believe they are protecting the sanctity of marriage, but is California willing to sacrifice the sanctity of our US and State Constitution to uphold their will?
1 comment:
I appreciate your thoughts on the subject, but your argument doesn't allow the pendulum to swing both ways. You say that the passage of the marriage ban might lead to instances where women might be prohibited from buying cars from men (or some other absurdity), which might hold some validity if you had not previously argued that the ban infringed upon the rights of gay citizens to freely practice their gay-marriage-allowing religions. If this interpretation of the First Amendment stands, then it can be expanded to include almost any action using the same rudimentary slippery-slope argument that you used to keep women out of cars sold by men and so forth.
I hate to waste time coming up with slippery-slope arguments of my own, but I will grace you with just one: what if the religion of an Alaskan tribe called for the sacrifice of an endangered species of snow wolf? Would the people of Alaska be bound to protect the freedom of religion of these savages who want to kill the wolves to bathe new-born children in wolf blood to ward off evil Canadian spirits? If the people of a given state are barred from determining their own laws, then the state has no effective manner of putting any law into action that prohibits free will, which is what your interpretation of the First Amendment amounts to.
I hope that was as painful for you as it was for me. The truth is that the will of the people of a state has to be taken into consideration in that state’s law. If the people of a state are barred from making any decision that might offend other members or break contracts signed by a state against the will of the populous, then there really isn’t a reason to have a representative democracy. You asked how conservativism can lead to majority rule, which shows a very provincial grasp of what limited-government conservatism is. I believe that on moral issues such as homosexual marriage, the population of a given area should have their own say as to what laws govern outside the grasp of a limited federal government. I believe homosexuals should be allowed to marry in the state of California, but that the choice should not be up the Californians, not an absurd form of minority-rule.
As for trying to equate sexual orientation and race, I fail to recognize that a state has the obligation to recognize a change in the definition of a word, a change not present in interracial marriages. Break down the argument into smaller pieces: Black men should have been able to marry white women in 1967 ( call this clause A). Black men were not allowed to do so, which was wrong (B), White man can’t marry black or white man (C) , so white man should be able to marry black and white women and men (D?). Likewise, white men are offered by California the chance to enter a union with white or black men, which is what the whole controversy is about anyway. Your people want to make sure that the legal side of the argument is covered, and it is… now explain to me again how you can justify changing the definition of a word with thousands of years of cultural and sociological connotation and denotations because of the Freedom of Religion.
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