The moral basis of the law was articulated in the Declaration of Independence.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...”
Marriage is a civil-legal right extended to all citizens with certain qualifiers.
One of the qualifiers has been a historial assumption that only different-sex couples would seek to marry. Times change.
Gays demand the same legal-civil rights under the law to achieve their pursuit of happiness and to exercise their liberty in selecting a partner for civil marriage. The California Supreme Court had already ruled on this, which is why PropHate8 came to be.
The Kabuki theater of the hearings with loaded language and arguments about precedent in law such as the death penalty which was used as an example of how the people and the State may take away an inalienable right, in this instance the right of life, or as they evocatively used the phrase, “the right to life,” seems a clever red herring.
“That right endures. What really happens is that the court decides that the state has sufficient justification -- because of some overriding interest -- to infringe upon the prisoner's inalienable right. - Nichomanus”
Yes, that’s pretty much the logic with capital punishment.
However, capital punishment is a very extreme example, emotionally loaded and not a good analogy to marriage equality. No wonder opponents harped on it.
Other examples of civil rights being extended are more appropriate such as: Loving v. Virginia.
Loving v. Virginia, 388 U.S. 1 (1967)<1>, was a landmark civil rights case in which the United States Supreme Court declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on marriage in the United States.
Decision
The U.S. Supreme Court overturned the convictions in a unanimous decision, dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:
“ Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
http://en.wikipedia.org/wiki/Loving_v._VirginiaAlso, there is precedent in the 14th Amendment:
...1868 when the Fourteenth Amendment was passed, which stated, in part, that:
“ 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. ” -wikipedia
Then there is stare decisis and the Court’s own legal precedent in 2008:
http://en.wikipedia.org/wiki/Same-sex_marriage_in_California On May 15, 2008, the Supreme Court struck down California's existing statutes limiting marriage to opposite-sex couples in a 4-3 ruling.<37> The judicial ruling overturned the one-man, one-woman marriage law which the California Legislature had passed in 1977 and Proposition 22. After the ruling, Governor Arnold Schwarzenegger issued a statement repeating his pledge to oppose Proposition 8, the ballot initiative that would override the ruling.
The opinion, written by Chief Justice Ronald M. George, cited the Court's 1948 decision in Perez v. Sharp where the state's interracial marriage ban was held unconstitutional. It found that "equal respect and dignity" of marriage is a "basic civil right" that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution. Associate Justices Joyce L. Kennard, Kathryn Werdegar, and Carlos R. Moreno concurred.<3> It is the first state high court in the country to do so.<38> The Massachusetts State Supreme Court, by contrast, did not find sexual orientation to be a protected class, and instead voided its gay-marriage ban on rational basis review.<39>
If the CSSC has the courage to stand up for their previous ruling then they must remain consistent. This issue has been tried in Court before and marriage equality rights won.
Nothing has changed, it seems to me, Ken Starr not with standing.
Thanks for taking the time to help us understand some of the basics, nichomachus.
Good discussion.
Interesting handle:
http://en.wikipedia.org/wiki/Nicomachus
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