ADL Wrong on "Gay Marriage"
" Only marriage between a man and a woman is valid or recognized in California."
Prop. 8, approved by California voters November 4, 2008
"Proposition 8 seeks to repudiate a fundamental civil right of gays and lesbians. We believe that it is unconstitutional, intrusive....and is wrong. We look forward to working to vindicate their right to marry in court."
Anti-Defamation League (ADL).
California already has a Domestic Partnership Law, which guarantees the partners "the same rights, protections, and benefits accorded to spouses." In March of 2000 California voters approved Prop. 22, which limited marriage to one man and one woman, but did not affect the rights of domestic partners at all. The California Supreme Court ruled in May of this year that Prop. 22 violated the California Constitution's "equal protection" clause, and was therefore unconstitutional. The court ruled specifically that same-sex couples had the right to marry in California, and since then thousands have done so. Since Proposition 8 amended the California Constitution (unlike Prop. 22 in 2000, which merely changed a statute), it in effect amended the equal protection clause to preclude same-sex marriage.
But since the Domestic Partnership Law extends the rights of married couples to domestic partners (such as same-sex couples), what is the fuss really about? Prop. 8 does not take away any rights, and affects only the symbolic status of marriage for same-sex couples.
The symbolism is really the heart of the dispute, in other states as well as California. (1) As noted in our Glazerbeam posting of March 16, 2006, civil unions are already legal everywhere, and can be created by a simple legal document. Since civil unions (unlike marriage) do not condone sex , a man may establish one with his brother, his sister, or even his mother.
The US Supreme Court has ruled that every law must have a secular purpose. What, then, is the secular purpose of our marriage laws? Certainly not to confer the state's blessing upon a couple, or legally certify their love for one another, or the like. No, the secular purpose is to establish a presumptive paternity (2) for children born to the wife during the marriage. This provision is the basis for requiring the husband to support these children until they reach the age of majority. Since children born out of wedlock frequently wind up on the welfare rolls, it is in the public interest to establish paternity.
But since same-sex couples cannot produce children , the secular justification for state marriage law does not pertain to them. Issuing a state marriage license for such a union is really nothing more than offiical legitimization of homosexual activity, which is exactly what the gay community wants!
This brings us to the ADL claim that Prop. 8 is "unconstitutional". Since it amended the California Constitution, ADL apparently claims that it violates the US Constitution. This is a stretch, since the neither the original US Constitution nor any of the Amendments even mentions marriage. But then the Constitution does not mention abortion, either, and the Supreme Court held in Roe v Wade that states could not prohibit the practice in the first trimester of pregnancy. Laws prohibiting interracial marriage have also been declared unconstitutional. So, will the Court overturn Prop. 8 someday?
My answer is that the Court will find that there is no Constitutional right to marry. Rather, a marriage license (like a driver's license or hunting license) represents the legal status conferred by the state for a relationship that serves the legitimate interests of the public in establishing stable families and providing for the support of children. State laws cannot bar people from obtaining the license on the basis of their race or nationality, but can establish a definition of marriage based upon compelling secular state interests. For this reason, laws prohibiting marriage of minors, brothers and sisters, fathers and daughters, and polygamy will also be held valid.
The concept of same-sex marriage goes back at least to Roman Emperor Nero, who married another man. But the laws of all American states have defined marriage exactly as Prop. 8 does since the inception of this nation, and I do not agree with ADL that all such laws are unconstitutional.
Maybe the idea that a state constitution can be amended by initiative and referendum is not wise, (3) but California adopted that system long ago, and on two separate occasions the people of that state have voted to keep the traditional definition of marriage. Those who believe in democracy should accept their decision.
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(1) Wisconsin ratified an constitutional amendment in November, 2006, that banned both same-sex marriage and civil unions. This went too far, in my opinion.
(2) This presumption can be rebutted by a paternity test.
(3) Wisconsin requires that constitutional amendments be approved by two sessions of the legislature and a statewide referendum. In California, a petition can place a proposed amendment on the ballot, and if it passes, it amends the state constitution.
Prop. 8, approved by California voters November 4, 2008
"Proposition 8 seeks to repudiate a fundamental civil right of gays and lesbians. We believe that it is unconstitutional, intrusive....and is wrong. We look forward to working to vindicate their right to marry in court."
Anti-Defamation League (ADL).
California already has a Domestic Partnership Law, which guarantees the partners "the same rights, protections, and benefits accorded to spouses." In March of 2000 California voters approved Prop. 22, which limited marriage to one man and one woman, but did not affect the rights of domestic partners at all. The California Supreme Court ruled in May of this year that Prop. 22 violated the California Constitution's "equal protection" clause, and was therefore unconstitutional. The court ruled specifically that same-sex couples had the right to marry in California, and since then thousands have done so. Since Proposition 8 amended the California Constitution (unlike Prop. 22 in 2000, which merely changed a statute), it in effect amended the equal protection clause to preclude same-sex marriage.
But since the Domestic Partnership Law extends the rights of married couples to domestic partners (such as same-sex couples), what is the fuss really about? Prop. 8 does not take away any rights, and affects only the symbolic status of marriage for same-sex couples.
The symbolism is really the heart of the dispute, in other states as well as California. (1) As noted in our Glazerbeam posting of March 16, 2006, civil unions are already legal everywhere, and can be created by a simple legal document. Since civil unions (unlike marriage) do not condone sex , a man may establish one with his brother, his sister, or even his mother.
The US Supreme Court has ruled that every law must have a secular purpose. What, then, is the secular purpose of our marriage laws? Certainly not to confer the state's blessing upon a couple, or legally certify their love for one another, or the like. No, the secular purpose is to establish a presumptive paternity (2) for children born to the wife during the marriage. This provision is the basis for requiring the husband to support these children until they reach the age of majority. Since children born out of wedlock frequently wind up on the welfare rolls, it is in the public interest to establish paternity.
But since same-sex couples cannot produce children , the secular justification for state marriage law does not pertain to them. Issuing a state marriage license for such a union is really nothing more than offiical legitimization of homosexual activity, which is exactly what the gay community wants!
This brings us to the ADL claim that Prop. 8 is "unconstitutional". Since it amended the California Constitution, ADL apparently claims that it violates the US Constitution. This is a stretch, since the neither the original US Constitution nor any of the Amendments even mentions marriage. But then the Constitution does not mention abortion, either, and the Supreme Court held in Roe v Wade that states could not prohibit the practice in the first trimester of pregnancy. Laws prohibiting interracial marriage have also been declared unconstitutional. So, will the Court overturn Prop. 8 someday?
My answer is that the Court will find that there is no Constitutional right to marry. Rather, a marriage license (like a driver's license or hunting license) represents the legal status conferred by the state for a relationship that serves the legitimate interests of the public in establishing stable families and providing for the support of children. State laws cannot bar people from obtaining the license on the basis of their race or nationality, but can establish a definition of marriage based upon compelling secular state interests. For this reason, laws prohibiting marriage of minors, brothers and sisters, fathers and daughters, and polygamy will also be held valid.
The concept of same-sex marriage goes back at least to Roman Emperor Nero, who married another man. But the laws of all American states have defined marriage exactly as Prop. 8 does since the inception of this nation, and I do not agree with ADL that all such laws are unconstitutional.
Maybe the idea that a state constitution can be amended by initiative and referendum is not wise, (3) but California adopted that system long ago, and on two separate occasions the people of that state have voted to keep the traditional definition of marriage. Those who believe in democracy should accept their decision.
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(1) Wisconsin ratified an constitutional amendment in November, 2006, that banned both same-sex marriage and civil unions. This went too far, in my opinion.
(2) This presumption can be rebutted by a paternity test.
(3) Wisconsin requires that constitutional amendments be approved by two sessions of the legislature and a statewide referendum. In California, a petition can place a proposed amendment on the ballot, and if it passes, it amends the state constitution.
Labels: ADL, California, marriage
posted by Gerald S Glazer at 10:05 AM
1 comments
