Gay Marriage and the U. S. Constitution

I have long thought that under the Equal Protection clause and the freedom of religion protections of the U. S. Constitution bans on gay marriage - which in the final analysis are based on religious discrimination - are unconstitutional. It's one thing when individual bigots discriminate based on religious belief. It is something entirely different when the federal and state governments enact that discrimination into anti-gay laws. Now, David Boies, one part of the legal team challenging Proposition 8 in federal court, has an op-ed piece in the Wall Street Journal that lays out precisely why Proposition 8 and other anti-gay laws need to be struck down as unconstitutional. Here are some highlights from Boies' editorial piece:

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Recently, Ted Olson and I brought a lawsuit asking the courts to now declare unconstitutional California's Proposition 8 limitation of marriage to people of the opposite sex. We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens.

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The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it. . . . there is no legitimate state policy underlying Proposition 8. The occasional suggestion that marriages between people of different sexes may somehow be threatened by marriages of people of the same sex does not withstand discussion.

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Moreover, there is no longer any credible contention that depriving gays and lesbians of basic rights will cause them to change their sexual orientation. Even if there was, the attempt would be constitutionally defective. But, in fact, the sexual orientation of gays and lesbians is as much a God-given characteristic as the color of their skin or the sexual orientation of their straight brothers and sisters. It is also a condition that, like race, has historically been subject to abusive and often violent discrimination. It is precisely where a minority's basic human rights are abridged that our Constitution's promise of due process and equal protection is most vital.

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[B]asic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution. The ban on same-sex marriages written into the California Constitution by a 52% vote in favor of Proposition 8 is the residue of centuries of figurative and literal gay-bashing.

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There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.

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It is time, indeed past time, that our Constitution fulfill its promise of equal protection and due process for all citizens by now eliminating the last remnant of centuries of misguided state discrimination against gays and lesbians.

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Again, religious based discrimination does not justify writing the CIVIL laws in a way that deprives other citizens of equal civil rights.