Prop 8 Overturned on 14th Amendment

Proposition 8 was overturned, which I think is a good thing as I believe being gay is something central to someone’s identity, much in the same way someone’s race is central to someones identity, and therefor cannot be legislated. If you read the link to the ruling above, you can see that Prop 8 was overturned with the 14th Amendment. The 14th amendment I generally feel is a gross violation of the spirit of the constitution and I feel it’s a great example of backwards thinking. The spirit was probably in the right place when it was originally written – the authors were seeking to prevent discrimination. What it led to – affirmative action, no child left behind, fair housing act and our hilarious current mortgage problem – were unforseen consequences and a problem with the application of what amounts to a socialist law in a capitolist environment. When you try to legislate away poverty by claiming discrimination against poor people and thus a violation of the 14th amendment, banks end up making loans they wouldn’t even consider.

The wording of the ruling is absolutely bizarre. The challenge says “The Due Process Clause provides that no ‘State [shall] deprive any person of life, liberty, or property, without due process of law.'” Except that Proposition 8 is the due process of the law. (The spirit of this is that you must have a trial). Unfortunately this is a great example of working within someone elses framework. The state (in a general sense) treats marriage as something the state is party to, but treats it as something divine which the state does not regulate. Therefor it would seem to me, being the worst of the armchair lawyers, that a challenge to the regulation of marriage should call into question the state’s ability to regulate marriage prima facie. The answer is no, you can get a “quaker marriage” license and perform any such ceremony you wish and the license only serves as the regulation of paperwork. This should have been carried on through the ruling and in fact it seems like the judge was aware and sympathetic to this argument but looking for something to crouch the argument in. The state does not regulate being gay, or being a gun owner, or a racecar driver. The state regulates sodomy, murder and speeding. The entire body of laws is crouched in the idea that who you are doesn’t matter as much as what you do. This is both Just and Correct, and this is why the 14th amendment seems like such a miss. A church-and-state challenge is where I really wanted this to go and I would be interested in seeing someone challenge a similar law on that basis.

The 14th Amendment allows protected peoples to basically put their rule over the common agreements of society. The argument within the context of the 14th amendment therefor is an argument of entitlement. We could not argue that sodomy is legal between two consenting adults, because of their consent. The covenant of their consent would therefor be a marriage license, but we’ve fallen so far as a society that we’ve made womens rights such that consent can be withdrawn after the fact. Instead of strengthening the institution of marriage by making it inclusive of all, we’ve chosen to make gays a protected class (like the handicapped and the elderly) via the 14th amendment and therefor say a law is discriminatory by furthering legal discrimination. The problem here is that laws are based on the common good of society, and this was the original spirit of the sodomy laws in the first place. That being said, the problem with Proposition 8 was that it was poorly worded from the get-to and barely literate, so a challenge to it is roughly the same. This is why I believe the wording of the ruling is so strange.

2 thoughts on “Prop 8 Overturned on 14th Amendment

  1. The ruling is not really strange, it is just that “due process” has a more complicated meaning than just “passing a law” or referendum.
    14th amendment due process cases generally argue that a right can not be taken away from a group unless the state can show a compelling public need to take it away.

    For example: If NY passed a law that says “Boston Red Sox fans can not be married in NY” it would be thrown out because incorporated rights can not be taken with out a compelling reason. Bosox fans use to be able to marry, so unless NY can show a novel and new compelling reason that those rights must be taken away at this time, it does not pass the “due process” test.

    That is what the Fed Court said about Prop 8. Gay marriage was a right in CA, then they pass a law taking it away- but they could not show a compelling public need to do it. “Majority wants it” is not enough for due process.

    Other incorporated rights can not be taken by majorities either- a majority Protestant state can not outlaw Catholic Practices just because they can pass a law, or a state can not pass a law that says this or that group can not vote. They may have the majority, but our constitution also protects the minority from the majority in many cases. This is one of them.

    Examples of rights being limited by showing due process: preventing firearms in sensitive locations like schools or courthouses. Taking voting rights away from felons, or taking privacy/housing rights away from sex offenders with Megan’s Law and other similar laws.

    Interestingly enough the Sodomy laws in states were overturned for the same reason in Lawrence v ?

  2. I am also not sure how this protects gays as a class. What the court said was that the state could not take away a right based on the class the state described- homosexual. The court did not rule that gays have rights as a class, it ruled that CA could not take away rights based on that class.

    It did not elevate gay rights, it kept the rights of gays the same as the rights of many other classes of people such as red haired, fans of the Beatles, people who work in retail, people who are tall- they like wise would probably be supported if CA attempted to prevent them from marrying.

    Lastly, freedom of religion is also an interesting angle. I do not think you will see that lawsuit though because it cuts both ways. Episcopal churches in many places welcome gay marriage. If you pass a law that prevents them from performing them, haven’t you trampled their rights? From that perspective you get back to where we started- letting churches perform ceremonies for who they see fit, and the state recognizing them all.

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