On November 4 California voters adopted Proposition 8, an amendment to their state constitution which simply states, "Only marriage between a man and a woman is valid or recognized in California." Opponents of the measure contend that it was adopted in an unconstitutional manner because the California Constitution provides that while "amendments" to the constitution may be adopted by a majority of the people, "revisions" must also be approved by two-thirds of each house of the state legislature. It is not clear, however, whether Proposition 8 constitutes a revision or an amendment to the California constitution. Furthermore, insofar as it refuses to recognize same-sex marriages performed in other states, Proposition 8 could be challenged on the ground that it violates the "Full Faith and Credit Clause" of the Constitution which requires the States to give "full faith and credit" to the laws and judicial proceedings of other states, or it could be challenged on the ground that by denying the same marriage rights to gays and lesbians as it does to hetersexual couples the amendment violates the Equal Protection Clause of the Constitution of the United States. However, constitutional scholar Larry Tribe has expressed the opinion that neither of these challenges is likely to be successful at the present time. But there is one other constitutional argument that opponents of the measure might raise – and it is one that I think would be likely to work, in light of the current makeup of the United States Supreme Court – and that is a First Amendment challenge to Proposition 8.
I do not mean to suggest that Proposition 8 directly affects Freedom of Expression or Freedom of Religion. Instead, I would argue that Proposition 8 takes away the equal rights of gays and lesbians to participate in the political process in order to gain the right to marry. Heterosexual couples are free to petition the legislature to recognize their marriages as valid. After the adoption of Proposition 8, gays and lesbians may not. Propostion 8 deprives gays and lesbians of the opportunity to persuade the California legislature to allow them to enter into the institution of marriage.
There is precedent that supports the argument that the people of a state may not enact a state constitutional amendment that denies gays and lesbians the right to seek the same rights from the state legislature that other people have. In Romer v. Evans (1996) the Supreme Court ruled that an amendment to the Colorado Constitutional was unconstitutional because it denied gays and lesbians certain political rights. The Colorado measure was adopted after several cities and state agencies adopted measures prohibiting discrimination against gays and lesbians in employment, housing, education, and health care. In reaction to these reforms, the people of the State of Colorado adopted Amendment 2, a state constitutional amendment which prohibited cities, state agencies, and even the state legislature from enacting nondiscrimination legislation. The United States Supreme Court struck down Amendment 2 on the ground that a state constitution may not make it more difficult for one group of people to obtain from the legislature the same rights as another group of people. In the course of his opinion for the 6-3 majority, Justice Anthony Kennedy wrote:
The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.
Justice Kennedy explained how gays and lesbians were being treated differently:
Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution ….
Justice Kennedy articulated the following general principle in defense of the equal right to seek protection under the political process:
A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
The foregoing argument does not contend that gays and lesbians have a constitutional right to marry. It simply states that they have the equal First Amendment right to gain the right to marry through the political process. If they can persuade a majority of the state legislature to grant them the same privilege as other people have to enter into marriage, then they must be permitted to marry, and the people of the state may not prevent this through the adoption of a state constitutional amendment.
The use of state constitutional amendments to prohibit state legislatures from granting equal rights is an old one. After the Virginia legislature debated abolishing slavery in January and February of 1832, the southern states adopted amendments to their state constitutions making it impossible for their state legislatures to enact laws abolishing slavery or even allowing voluntary emancipation or manumission of slaves. The purpose and effect of these state constitutional amendments was to make it impossible for the southern states to resolve the question of slavery through the political process. In reaction to these state constitutional amendments, Abraham Lincoln delivered his famous "Hundred Keys" speech of June 26, 1857. Contrasting the generation of the Revolution, who had considered slavery to be a moral wrong and a social evil, to the contemporary generation which had enacted state constitutional amendments protecting the institution of slavery, Lincoln stated:
In those days, as I understand, masters could, at their own pleasure, emancipate their slaves; but since then, such legal restraints have been made upon emancipation, as to amount almost to prohibition. In those days, Legislatures held the unquestioned power to abolish slavery in their respective States; but now it is becoming quite fashionable for State Constitutions to withhold that power from the Legislatures. In those days, by common consent, the spread of the black man's bondage to new countries was prohibited; but now, Congress decides that it will not continue the prohibition, and the Supreme Court decides that it could not if it would. In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it. All the powers of earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.
The institution of slavery that Lincoln fought is not comparable to the denial of marriage to gays and lesbians by our society, but the principle that Lincoln and Justice Kennedy so eloquently articulated is the same. State constitutional amendments should not be used to prevent any group of people from seeking the same rights as other people through the political process.
{ 10 comments… read them below or add one }
Proposition 8 is definitional. It reads: "Only a marriage between a man and a woman is valid or recognized in California". A "marriage" that does not meet this definition is not a valid in, nor recognized by, the state of California.
Thus, Proposition 8 does not prohibit homosexuals from entering into a valid marriage. It limits their partners, as it does those of heterosexuals, to individuals of the opposite sex.
Although I believe Romer was wrongly decided, it would not even appear to apply in this case. Homosexuals have the same rights, and are subject to the same restrictions, as heterosexuals under California law. They also have the same rights as heterosexuals to attempt to repeal Proposition 8.
In Loving v. Virginia the State of Virginia argued that the state law prohibiting interracial marriage treated everyone the same because whites and blacks had the same rights under Virginia law to marry anyone so long as it was someone of the same race.
If they're going to go about defining marriage, they should define "Man" as male with a stable, livable income, no criminal convictions during a rolling 7 year period and a credit score of at least 620. Maybe a stipulation for owning $30,000 worth of assets would help too. If you're going to bar gays, you might as well bar losers too.
Professor:
As you know, Loving was decided on equal Protection and Due Process grounds, not the First Amendment as you proposed in your original post. Are you now claiming that Proposition 8 violates the Fourteenth Amendment? Are you now conceding your proposed First Amendement argument and asserting instead that "gay" is the new black?
The oft-invoked analogy of Loving does not apply to Proposition 8 for several reasons. First, classifications based on race, an immutable characteristic, are inherently suspect. Classifications based on actions freely chosen ("Gay" is as "gay"does) are not.
Second, California has a civil union statute which provides that same-sex couples have the benefits of hetersexual marriage.
Third, Loving reached the Supreme Court on an appeal from a criminal conviction. Proposition 8 does not purport to criminalize any behavior. It simply defines what arrangments are recognized as valid marriages by the State.
Proposition 8 does not prevent same-sex couples from entering into a union that they characterize as "marriage". Nor does Proposition 8 prevent private actors from recognizing such a union as a "marriage". Employers, insurance companies, churches, friends and family all have the freedom of recognizing such a same-sex union as a "marriage" in every sense of that term. Or not.
Thus, Proposition 8 represents the truly liberal and tolerant position. Sadly, those who do not accept the vote in California have adopted an intolerant and anti-democratic position. They would insist that everyone recognize same-sex unions as marriage. And they are willing to resort to violence to impose their will on the people of California, and perhaps the rest of us.
Quidpro is correct in noting the distinction between the Loving case (involving race) and Proposition 8. It is certainly arguable that that distinction is determinative. Lawrence can be properly distinguished on one of the other reasons cited by Quidpro – it involved the constitutionality of a criminal statute, which Proposition 8 is not. Yet another distinction that can be raised is that Romer involved nondiscrimination (preventing a harm) while Proposition 8 merely withholds a benefit (marriage). These objections do not, however, address the arguements I raised: (a) the First Amendment argument that anytime distinctions such as race, gender, or sexual orientation are placed into a state constitution as opposed to a statute it removes the possibility of addressing the issue through the normal democratic process. If you truly believe that this is a matter to be decided through democratic means then it should be submitted to the normal democratic process (involving either referendum or legislative action by state, county, or administrative entities) without having to comply with the extra or unitary requirements of amending the constitution; and (b) the Equal Protection argument raised in response to another comment to the effect that it is insufficient to say that gays and lesbians are free to marry people of the opposite gender. That is not equality. You may legitimately argue that gays and lesbians are not entitled to the equal right to marry whom they love, and cite reasons in support of that judgment, but to say that they already have equality is neither fair nor accurate.
I have a couple of observations, without delving into the First Amendment analysis:
1. I am with Prof. Huhn in the fact that it is disingenuous to say that homosexuals enjoy the same rights because they can still marry people of the opposite sex. As Prof. Huhn correctly points out, that is no right at all, the right involved is a freedom to marry, which is denied homosexuals the right to marry. Further, this seems to be a coy argument in which you say "its not aimed at homosexuals, its aimed at everyone" (much like the Arkansas adoption/foster parent amendment), but this is a red herring, of course it is aimed at one particular group, I think any reasonable person would agree that this will have a disparate impact on homosexuals (read: they are the only ones affected). Additionally, to claim that Prop 8 is tolerant, is almost too absurd to comment upon, it is a denial of rights to a minority group, I don't think that qualifies as tolerance. In regards to the democracy argument, just because the people have adopted it, does not make it correct or legal. I think allowing the majority to deny rights to a minority group is a dangerous path to follow.
2. I think Quidpro gets to one of the key points of contentions. Quidpro states, quite matter-of-factly, that homosexuality is not immutable. It appears that Quidpro believes this is irrefutable fact, but I, with many others, would vehemently disagree. I think unless and until the debate as to immutability is conclusively resolved, civil rights/homosexual rights activists will have to look outside of the 14th Amendment for help.
Professor:
Thanks for the stimulating exchange. In returning to your First Amendment argument, however, you seem to have forgotten that opponents of homosexual marriage in California previously did that which you now recommend they do. California voters passed Proposition 22 in March 2000 which added a new provision to the California Civil Code to the effect that only opposite-sex marriage was valid in, or recognized by, the State. It was this provision that was struck down by the California Supreme Court earlier this year in its decision allowing same-sex marriage.
Thus, opponents of homosexual marriage have already tried to enact their preference via the statutory route. Indeed they succeded. But only until the California Supreme Court issued its recent decision. Given, the Court's decision, proponents of traditional marriage used the only democratic means availble to them to change the law.
Your second point, echoed by Nathan, points as much to philosophy as to law. Certainly you are not claiming that even if Proposition 8 had been defeated, the law would not still "discrimnate" as to who can marry whom. I love my daughter, but the law rightly holds I may not marry her.
Proposition 8 defines "marriage" in a certain manner which is consistent with the traditional understanding of that term. Homosexuals are free to marry provided their union fits the definition adopted by the state. (No doubt thoughout history, many did.) To argue otherwise is to argue for married batchelors or to insist that the state discriminates against my cat by refusing to issue her a dog license.
Finally, Nathan states that my claim that Proposition 8 represents the tolerant position is "too absurd to comment upon". Too bad. I would have enjoyed his efforts to persuade me that my position is mistaken. Proposition 8 does not restrict anyone's behavior. It does not prevent two people of the same sex from joining together in a union and calling it "marriage". It does not require that I, or anyone else, recognize such a union as a marriage. Should we not celebrate such tolerance? Is this not the paramount virtue proclaimed by Liberals?
Quidpro,
You and I are free, as individuals, to recognize or not recognize another person's marriage. The question is whether the State may elect to recognize some marriages and not others. I certainly agree that there are good reasons, aside from religious teaching or pure opinion, for the state not to recognize incestuous marriages, polygamous marriages, sham marriages, and coerced marriages. I now believe, however, that there is no reason other than traditional moral beliefs to justify preventing gay and lesbian couples from marrying. So the question comes to this – are traditional notions of morality sufficient, under the Constitution, to justify treating people differently in this respect? The Court, like the Nation, is closely divided on this jurisprudential question. I am strongly in the camp of those who say that the government must have a concrete, realistic justification for denying marriage rights (or other rights relating to personal and intimate choices involving family or living arrangements) to any group of people. Opinions and attitudes, however firmly entrenched in history, are simply not enough. Tolerance involves letting other people live their lives in freedom – not in allowing the majority to legislate as it wishes in regard to other people's personal lives.
But I appreciate our discussion so very much!
Your point as to Proposition 22 is well taken. And if all that Proposition 8 had done was to return this matter to the people or to the legislature I would have to agree with you that my proposed First Amendment claim would have to fail. But Prop 8 went further – it said that the people by way of referendum or the legislature by way of statute are forbidden from granting gays and lesbians the right to marry. In my opinion that violates the First Amendment because it closes the door to gays and lesbians to seek redress through the legislative process.
Be careful in this terrible weather!
Professor:
The debate over same-sex marriage raises two separate questions. The substantive question focuses on whether such a union should be recognized in law. The procedural question focuses on who should decide. Your latest post addresses both of these questions.
Let me address your second point first. The California Supreme Court, by finding that the State constitution mandated the recognition of same-sex marriage, prevented the people from redressing this issue by way of referendum or statute. To change this ruling the people had no choice but to amend the Constitution. Having originally succeded in amending the constitution judicially, homosexuals should not now be heard to complain that their only form of redress is to amend the constitution through a new proposition.
Your first point, concerning the substance of the issue is one that we have not really addressed in this exchange (perhaps, because as lawyers, we love to debate procedure). Taking a cue from Romer, you assert: (1) that there are no reasons "other than traditional moral beliefs" for opposing same-sex marriage; and (2) such reasons are insufficient to withhold "marriage rights" to same-sex couples. Although I believe your premise is debatable, let us focus on the conclusion.
Are you taking the position that the state has no legitimate interest in promoting traditional moral beliefs? Many studies have found that an active homosexual lifestyle (especially for males) is no conducive to good health. Active homosexual males have a significantly shorter life span than their heterosexual counterparts. Thus, one could argue that promoting traditional moral values also promotes the health of society and the individuals that compose it.
You also admit that the state has a legitimate interest in prohibiting certain marriages including those that are polygamous. If you abandon the traditional moral beliefs surrounding marriage, by what standard do you prohibit polygamous unions but allow homosexual unions? What if three people of the same-sex wish to "marry"?
You also invoke "tolerance". But why does your tolerance not extend to those that hold to traditional moral beliefs? Why do you not tolerate those who seek to stop, or at least slow, the coarsening and decline of public morality? Given the violent protests following the passage of Proposition 8 by homosexual hoodlums against Mormons and Blacks in California
Let me pick up where I left off before I inadvertnetly submitted my comment prematurely.
… the invocation of "tolerance" by advocates of same-sex marriage is more than ironic. It is a sham cover for their attempt to force their beliefs on the rest of society. Proponents of same-sex marriage should demonstrate their commitment to tolerance by accepting the vote on Proposition 8 rather than resorting to violence against the political opponents.