Proposition 8: Who Needs Civil Rights Anyway?

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Do these people have any sense of irony?

Those ungrateful black people! After all white liberals have done for them, and they won't play along! Anyone would think they had minds of their own.
Never mind. Maybe white liberals will have better luck with other groups, like Muslims for example. Right?

The literature classes that would have taught them such irony in school were cut due to a massive lack of funding.

I'm really tired of people saying gay marriage is a civil right. "Civil right" indicates that something is guaranteed by operation of law. You'll find nothing regarding marriage in the U.S. Constitution.

Marriage has always been an institution of society and the church, NOT THE STATE.

Even kings and nobility of old had to comply with the rules of the church to marry and divorce.

In early American history, you were married by priest or minister/pastor. For those who did not go to church there were "common law" marriages (if you promoted yourself as such, society regarded you as such). In time, "justices of the peace" were created to perform weddings for those who were not religious.

The problem largely develops when there was a push to abolish common law in favor of statutory law. The evil of statutory law is that it can ignore customs and practices of society and say the law is whatever the legislature says it is. In fact, there are many laws people are held accountable to that a man of common sense would never suspect would exist. The law itself has become so unwieldy that there really is no man who can claim to know all of it.

The Constitution does not define marriage as falling under the authority of government. Even the "pursuit of happiness" is in the Declaration of Independence, not the U.S. Constitution.

The complication is that marriage is a state rights issue. You also have issues with the 14th Amendment.

The 14th Amendment DOES NOT make all state laws equal. The 14th Amendments "Equal Protection" clause establishes that no state can deny protections of law guaranteed by the U.S. Government or U.S. law. In short order, states can grant MORE protection that the federal government, but they can not grant LESS. The 14th Amendment DOES NOT require that one state recognize something granted by another state. This has been upheld already under many issues. A gay marriage does not have to be recognized in any state in which gay marriage is not legal. The right to concealed carry for firearms is not universal. Unless there is a reciprocal agreement between two states, your concealed carry permit from one state does not give you the right to concealed carry in every state.

Proposition 8 was a constitutional amendment in the state of California to define marriage as between one man and one woman. It was passed into law by legal methods and is now law. To run to the federal courts and say it is unconstitutional means you have to show where the U.S. Constitution creates a right to marry. It does not. The Constitution defines the limits of government power by expressly defining what IS the government's role. Marriage is not listed there.

As such, the 14th Amendment can not uphold any "right" to marry based on federal standards.

That's nice and all but the contract and all the legal rights held therein are a state/federal function, not a church function. The church has no say in legal matters. If you can't separate the two then don't bother voting because you'll only serve to corrupt the system.

Marriage has NOT "always" been a matter of "society and the church". In fact, the early Christian church felt that marriage was a worldly matter, one in which they should not be involved (pursuant to Paul's admonition that it was preferable not to marry, as the Second Coming was due Any Day Now). The closest they got to dealing with the matter was forbidding anyone who had married from divorcing, as the Gospels did address that (Jesus was against). It wasn't until about the 14th Century that a French nobleman insisted on having the local bishop consecrate his wedding, and the Church realized what a cash cow was slipping by them. Even then, they only dealt with weddings among the upper classes, where there were matters of inheritance at stake.

As for the Constitution, 14th Amendment: "1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Note that does not say "all straight persons", or "citizens of the United States who are approved of by their neighbors" - no, it's all-inclusive. If one of the "privileges or immunities" granted to citizens is the right to marry whomever they wish (who is capable of signing a contract - it is a contract, after all), then under the terms of the 14th Amendment, it cannot be denied just because the citizens involved happen to be of the same gender.

If your argument is religious, it's even simpler - 1st Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." The Supreme Court, the final arbiters of what the Constitution actually means (as provided for in Article III), have decided that this applies to state legislatures as well - no state religions are permitted, nor are states permitted to pass laws solely because they're in accordance with one or another version of Holy Writ. (And be happy that's there, else you might be faced with laws forcing you to take Communion, or have a bris, or fast during Ramadan, or...)

As for the "irony" referenced above, it wasn't so very long ago that people were using tradition and religion as excuses to keep blacks in their own neighborhoods, in their own schools, away from positions of responsibility, and of course away from marriage to us honkies. (Until Loving v. Virginia 1967, seventeen states had laws prohibiting "miscegenation"; the last holdout, South Carolina, didn't actually remove the laws from their books until 2000.)

Over the millennia, almost every marriage pattern imaginable has been used somewhere (although incestuous marriage was only common amongst the Pharaonic families of ancient Egypt, and polyandric marriage was only common in parts of Tibet and Nepal). Appeals to "tradition" to justify any marriage pattern at all are on shaky ground, at best...

Proposition 8. I just can't figure out the winning scenario for any side.

I think that your definition is too restrictive. I see a civil right as a right possessed by a citizen that the citizen is entitled to enforce against the operation of public law. To suggest that civil rights only exist when the law acts to confer them is to make them subordinate to, rather than superior to the operation of public law.



There are many things that you will not find in the U.S. Constitution. Tort law and the law of negligence are nowhere established in the Constitution--but they are part of the law in every state except Louisiana.



That is patently false in the Common Law (which are the source of customary law in all jurisdictions except Louisiana) and in Roman Law. The Law of England and Wales clearly made the Church subordinate to the State no later than 1533 when Henry VIII, by Act of Parliament, severed the English constitution from the Church.

In fact, the Roman Catholic Church did not get its hands on marriage until the Council of Trent in the mid-16th century. It is only at this point that the Church determined that a marriage must be celebrated in the presence of a priest.

In England and Wales, Parliament established the requirement for religious marriage only in 1753, in legislation that did not apply to colonies.



The salient fact that you are leaving out here is that "common law marriages" required no solemnization. The Common Law recognized that a marriage existed if the parties to the marriage declared that one existed and represeted themselves to be spouses. To this day, the Common Law presumption is in favour of marriage. If two persons claim to be spouses, they are presumed so to be unless a third party with standing can prove, on the balance of probabilities, that they are not.

The development of non-religious weddings performed by a positive act of a civil official is not a common law marriage at all. This is a civil marriage.



Well, one fallacy is that statute seeks to abolish common law. The Common Law is never abolished. When the Common Law and statute are in conflict statute prevails. But if there is a lacuna in statutory law, then it is the Common Law that will govern. The U.S. Supreme Court was very clear in Meister v. Moore (1877) 96 U.S. 76 (S.C.) that a state's establishment of a statutory marriage scheme did not invalidate common law marriage unless the statute expressly invalidated it.

Your second point is an amusing one. Are you suggesting that there should be a restriction on the ability of the legislature to make new law? It seems to me that the Constitution confers jurisdiction upon the legislature, and so it is only the Constitution that can restrict the legislatures power to make law.



The Constitution doesn't have to. All states and the federal jurisdiction received either the Common Law of England and Wales or the French Code Napoléon as their basic law. By the time that English or French colonies existed in North America, it was abundantly clear in both legal systems that the Courts had jursdiction over marriage.



I fail to see the relevance, but the statement does stand for itself.



The requirement of a state to recognize a marriage celebrated in another state is not a 14th Amendment question. It is a "full faith and credit" issue arising from Article IV, Section 1. Given that the Courts have required a state to recognize an adoption created by another state in favour a same sex couple where that first state does not permit same-sex couples to adopt, I think it is a fairly short trip down the jurisprudential road.



For the moment, it is incorrect to assert that Proposition 8 was "passed into law by legal methods and is now law." The Courts have explicitly said that Proposition 8 was not legal and is not good law. You might well believe your statement, but the binding authority on the question (until the Court of Appeal speaks) is precisely the opposite.

To show that Proposition 8 is unconstitutional it is not necessary to show that the Constitution authorizes marriage. It is only necessary to show that Proposition 8 violates a provision of the constitution that takes precedence over it.

Since the law clearly spoke to marriage before the Constitution was ratified, and nothing in the Constitution deprived the law of that authority, then the law continues to speak on the subject of marriage. If so, then the equal protection clause of the 14th Amendment is relevant, because otherwise you have created two classes of law, those which are subject to the US Constitution and those which are not.

Sorry, but "full faith and credit" also fails.

It forces a state to acknowledge the existence of a legal record, but it does not automatically enforce that record.

Get a judgment in your favor in one state and try and enforce it in another state. It's not automatic, and that state could make you go through a whole new proceeding to have it enforced. The courts do not dispute that you have a judgment that is valid in another state, but they do not have to regard it or enforce it.

This holds true for many things including gun rights (concealed carry), child support enforcement, etc.

The courts have already held that a gay marriage does not have to be recognized in a state that does not allow gay marriage. That state won't dispute that you are considered married in a given state, but as far as their laws are concerned, your marriage violates state law and is not recognized.

Full faith and credit was created at a time when states might vary on the specifics of how something was done, but overall the general practice was identical. Hence, traditional marriage and adoptions aren't an issue because any differences in law from state to state are mere technicalities.

Let's hear it for the Napoleonic code!!

I would be interested in reading this judgement, as I was unaware that the the subject had yet been tested.



I disagree with you on adoption. Many states have specific prohibitions against same-sex couples adopting, and these have now been overridden. I suppose the distinction may lie in the fact that adoption is, generally, given effect by court order which is accorded significantly higher deference than legislation.

The civil right being referred to is the Equal Protection Clause of the 14th Amendment.

The United States is a secular society with a separation between church and state. What kings and nobles had to do in Medieval Europe is irrelevant. As a legal institution, laws on marriage cannot discriminate on purely religious notions.

So let's take a look at it:

So it sounds like you're right so far. The states cannot deny individuals citizenship rights guaranteed under federal law. But wait, there's more!

The part I bolded is the Equal Protection Clause. It sounds to me like a state cannot pass laws that give some groups more privileges than others (such as restricting land ownership to white males), particularly according to ascribed status. I would agree that with opponents of Proposition 8 that denying gay couples the right to marry falls under this clause.

The federal Constitution always trumps state constitutions as a matter of federal supremacy.

This is my favorite video on the topic:
[youtube]http://www.youtube.com/watch?v=eytGQXWD05M[/youtube]

You are in error. That "equal protection" means you can not treat someone from California as a second class citizen when dealing with matters of law as compared to a domestic citizen. The rule of law (state level) is unaffected. In simpler terms, you can't be biased in finding a Californian guilty of a crime because they are from California or deny them rights available to any other domestic citizen under state law. It does not mean the laws of California becomes effective in your domestic state just because that person is from California.


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Again, PROVE that the Constitution grants the power to create marriage to the federal government. It does not, and saying it's a product of the 14th Amendment is a massive stretch of the imagination.

Frankly, the federal district court ruling is irrelevant. First, the judge was a homosexual male, and his hearing the case was criticized as being biased. It's easy for any judge with a bias to come up with a legal defense for their decision. If a heterosexual judge had ruled against gay marriage, the same accusations would have been made by the other side. This matter was going to be appealed by whichever side lost.

The appeals court is also largely irrelevant. Any decision it makes will be appealed to the US Supreme Court (if only because the 9th Circuit is notoriously liberal and comes up with many decisions that get overturned by the Supreme Court). They might reject hearing the case, but the issue won't go away. Another case will go up through the system.

Equal Protection originally was established to prevent the Federal government from discriminating against ex-slave on account of race. Later on the Courts held that the equal protection clause of the U.S. Constitution applied to State law as well as Federal law.

ruveyn

You have the test wrong. Nothing in the rejection of Proposition 8 sets out a federal competence over marriage. Rather the test is whether the exercise of Constitutional jurisdiction by the California electorate was compliant with the US constitution.

The issue isn't whether the federal bench can affirmatively create state marriage law (it can't) but whether the US Constitution can invalidate a provision of a state constitution (which it can).