In my last article, “Why Prop 8 and anti-gay sentiment have to go”, I discussed a number of reasons why gays were entitled to marriage rights under the constitution. I hastily erupted as to why the 14th amendment and equal protection automatically guaranteed those rights. Here I will attempt to take a more specific and legal position.

The Supreme Court of the United States has more than once acknowledged  that homosexuals are entitled to certain rights under the constitution–most notably in the Romer V Evans and Lawrence V Texas decisions.

In Romer V Evans, the Supreme court ruled in a 6-3 decision that Amendment 2 that passed by initiative in Colorado was unconstitutional. Amendment 2 banned anti-discrimination laws for gays in Colorado.  In  rejecting this preposterous notion, Justice Anthony Kennedy wrote: “The amendment imposes a special disability upon those persons alone. [through this amendment,] homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.” Justice Kennedy argued that because the anti-discrimination laws did not give preferential treatment, but only ensured that the liberties all citizens enjoy were not denied to gays.

In Lawrence V Texas, the supreme court overturned a sodomy law in a 6-3 decision finding that the statute unfairly targeted not only the rights of gays, but also their privacy. While the majority of the supreme court still did not recognize what the plaintiff argued  was a “fundamental right,” they did acknowledge that Lawrence’s rights, and for that matter gay rights had been violated under the Texas sodomy laws.

Although the court did maintain that both of these decisions did not give homosexuals the right to marry, the simple question is: why not? If the supreme court declared with these decisions that homosexual rights and anti-discriminatory protections were civically violated in Lawrence V Texas and Romer V Evans, and that such civil rights are protected by the equal protection clause, how can it not be rational that a civil legal marriage is not also constitutional. The response of the conservative court is that gay marriage is a social issue and not a place for courts to take a stance. Needless to say it is difficult to understand how equal rights are a social issue but then I guess the same arguments were made by proponents of slavery.  How can anything that provides legal and civic benefits be social and not civil? If marriage is indeed a civil issue and a civil right, how does the 14th amendment not encompass and protect that right. How can you insist that some rights of gays are protected, but not all? It’s baffling. I am not abusing the 14th amendment or even making claims for laws that haven’t already been made; I am merely stating that it is inconceivable for the supreme court to declare that gays are equally protected as a minority under specific laws but then deny them the same equal rights under all laws.

Conservative critics will probably argue with me about how the constitution says nothing about homosexuality and that’s true. But it also says nothing about a government’s right  to purchase land as Jefferson did in 1803. It also says nothing about John Marshall’s proclaimed judicial review. Moreover it says nothing about  the rights of privacy. Yet, I don’t see conservatives complaining about those implied powers.

The previous supreme court decisions that have guaranteed certain rights under the constitution and lay the very foundation for the argument of gay marriage. How can anyone possibly make the argument  that only some laws provide the guarantee of equal protection  and not all of them? How can the supreme court strike down sodomy and a ban on anti-discrimination laws possibly not symbolize a judicial understanding that gays are entitled to equal protection as a minority group. By Justice Kennedy recognizing gays as a minority, he also recognizes their natural rights as citizens. I am not manipulating anything for the sake of a cause; I am only reading the 14th amendment and taking those words to mean the simple things they purport to say.

The Next Great Civil RIghts Movement?

Max Godnick

In the wake of Prop 8, many have begun to speculate over whether or not we are currently witnessing the next great Civil Rights movement. Women and African Americans had their eras of civil rights reform, so it seems likely that homosexuals would be the next minority group to aggressively push for all natural rights. The current political and social atmospheres seem like a perfect environment for a new movement to arise in. With gays and lesbians becoming an almost regular presence in movies and television shows, a new liberal mood for the country, and the passage of Proposition Eight in California (as well as a number of similar cases around the country) the country seems to be warming up to the ideas of wide spread social revolution. Movies like Milk are gaining widespread notoriety, and many film critics think that the current social atmosphere might bring Oscar gold to Sean Penn and the rest of the cast of Milk in February.

During the civil rights movements of the 1920’s and 1960’s, blacks and women were able to get significant amounts of legislation passed through congress primarily because they had a significant connection in congress that rallied for their causes. For black’s it was President Lyndon Johnson and his crusade for the Civil Rights Act and for women it was President Wilson’s public support of the eighteenth amendment. However, gays have not yet received the public support of a president, a sufficient amount of members of congress, or an overwhelming amount of the public. Even in the new “change obsessed” environment of the present day, Obama probably could have not been elected if he had publicly declared his support of gay marriage. In order for gays to begin a civil rights movement of the same size and scope of the ones seen in the sixties or twenties, they must be able to gain the support of powerful public officials who will make it their sole duty to have justice shown. Unfortunately, with the current state of the economy and America’s involvement in two wars, it seems as if it might be a couple of years before social issues become the dominant debate in Washington and on the Hill. Still, America is clearly restless, and the passage of Prop 8 has ignited an important debate that must be resolved in order for America to truly claim that “All men are created equal”.

Why I say no to prop 8 

With many of the great triumphs that occurred on election day, a pathetic embarrassment transpired as well. In California, Proposition 8, which bans gay marriage, was passed by significant margins and has caused much social tension. For those of you who say you are against gay marriage to protect the sanctity of marriage, I will say to you that I am for gay marriage to protect my constitution. The 14th amendment states:

 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.

Gay people are citizens of the United States and can never be denied the rights that every other american enjoys. 

 Staunch conservatives and evangelists will tell you that they are against gay marriage to protect the sanctity of marriage as defined in the bible between a man and a woman. They say that if gays marry, then there is nothing to prevent a man from asking to marry let’s say a chicken or his pet dog, Morty. It’s hard to even acknowledge the other argument on a logical, let alone constitutional level without wanting to simply vomit. 

Now aside from the equal protection of rights that all citizens, including gays, are guaranteed under the 14th amendment, there is a fundamental reason why the those who are against gay marriage are wrong on a constitutional level. The establishment clause, as interpreted under the 1st amendment states: 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first line of our first amendment of the constitution says very clearly that no law can be made with any influence of religion. Now, if this is written into law, doesn’t that completely destroy the anti-gay argument of sanctity of marriage? How can anyone possibly argue on a constitutional level that gays don’t deserve the right to marry because the bible says so? Now, onto the argument of gay marriage leading to bestiality. I am not gay, but I know many people who are; and for those of you who think gay people are somehow sexual deviants or perverts let me just say that that is a bigoted theory and a horribly inaccurate one. Gay people are the same as straight people except for the fact that they happen to be attracted to the same sex. Giving them the right to marry won’t give a free pass to bestiality and it’s hard for me to simply not accost people who make this argument. 

The fact that no court can make a clear ruling on this out of fear of conservative ideology pays homage to the notion that our judicial system is in deep trouble. I am not a constitutional scholar, although I have taken college courses on it, but I don’t think it’s hard for anyone to analyze such clear cut texts such as the establishment clause and equal protection clause.  

While I understand why Obama could not support gay marriage in the election out of fear that it would become this election’s wedge issue, I hope he changes tone now that he has been elected to office. 

If I am missing something from the opposing argument, feel free to let me know.