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.