Thoughts on Proposition 8

The times they are a-changin’.

This post seems to be older than 12 years—a long time on the internet. It might be outdated.

The following is a short response for an in-class quiz we had today in Introduction to Law. Lately, I’ve been thinking about the constitutionality of California’s Proposition 8 and so I was pretty excited to be able to take a stab at determining its validity. Since the following was an in-class quiz, it should not be considered as a thorough argument. I picked a response format similar to a Supreme Court Majority Opinion.

The facts being evaluated are two fold: A) Is Ms. Sykes sill married? and B) Is California’s Proposition 8 allowed under the United States Constitution.

In the matter of Ms. Sykes current marital status, several facts must first be established. We will assume that Ms. Sykes was legally married to another person of the same sex under California State law and such marriage was valid and recognized. Second, we shall assume that Proposition 8 is now a part of the California State Constitution and in full effect. Finally we shall assume that, for the purposes of this question only, Proposition 8 is constitutional.

Article 1, Section 10 of the United States Constitution states, in part, that “No state shall…pass any…ex post factor law, or law impairing the obligation of contracts.” The rule prohibiting ex post fact law is not applicable in this instance because the issue does not deal with anything criminal. That is to say, Proposition 8 does not make same sex relationships illegal, it just does not deem a marriage between people of the same sex as valid or recognized.

The second part of the quited Article 1, Section 10 address the obligation of contracts. Marriage is the joining of two people to become one. Taxes are filled jointly, property is owned jointly, and certain legals privileges exist between spouses because of their joint operation. In fact, for a marriage to be legal, both parties must sign documents that, for all intents and purposes, is a legally binding contract. To allow for the passing of a law which impairs the obligation of that contact is thus unconstitutional. Held: Under Article 1, Section 10 of the United States Constitution, Wanda Sykes is still married and her marriage is valid and recognized in the State of California.

In the matter of the constitutionality of Proposition 8, it would seem that the afore argued point would be significant cause to declare the proposition as unconstitutional as it is written. However, we shall endeavor to further prove this point. The 14th Amendment to the United States Constitution states, in part, that “No state shall…deny to any person within its jurisdiction the equal protect of the laws.” This amendment and the subsequent Brown v. Board of Education (347 US 483, 1954) ruling lay the groundwork. It would seem self-evident that denying the marriage of two people because of their sex would be denying them equal protection under the law. It was not that long ago that a black person was not legally allowed to marry a white person or that black children and white children were to be educated in separate but “equal” schools. We fine this law to be no different in its meaning or intent: to disenfranchise a particular class of individual because one thinks lesser of them.


3 thoughts on “Thoughts on Proposition 8”

  1. So, AJ, where does/will the law draw the line in referencing “…a particular class of individual..”? Are individuals who like to have sex with those under the age of 18 included? What about those who like to have sex with little children? animals? rapists? … and this list goes on from there. One could say, “these are all against the law”. Yes, they are, but why I ask? Homosexual sex (ok, sodomy) was/is still against the law in many states. If we are to make one exception shouldn’t we make exceptions for all? (This is the “slippery slope” that is so often mentioned) What is the answer that doesn’t “discriminate”? Do laws in general discriminate? One could easily make a case for this…. and then, where does this leave society as whole? Then you can go further into it… What becomes the definition of “society”? Do the rights of the few outweigh the rights of the many? Does this change the definition of what a “democracy” is? …and so it goes

    Good discussion topic!

  2. @U.Kit:

    The line between enjoying sex with a samesex partner and someone under the age of 18 is in place, legally speaking at least. And the Constitional rights that allow homosexuality do not and would not apply to someone who likes to engage in sex with minors. Why? Compelling State Interest:

    In the case of sex with minors, the state has a compelling interest to protect them. Thus, it is illegal to have sex with those under the age of adulthood.

    As for sodomy in particular, there may be a law on the books that says it is illegal. However, such laws are unconstitutional under Lawrence v. Texas (539 US 558, 2003) ( It’s worth nothing a couple of things. First, this case was decided 6-3, which means that while it was somewhat controversial, it wasn’t that controversial. Second, Lawrence v. Texas essentially reveresed Bowers v. Hardwick (478 US 186, 1986), which ruled that there was no constitutionally protected right to engage in homosexual sex.

    So what changed in Lawrence v. Texas? I’m going to quote the Court at length, so bear with me:
    “The Bowers Court’s initial substantive statement–“The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy … ,” 478 U. S., at 190–discloses the Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Pp. 3-6.”

    I think that is the crux of the argument. However, I would urge you to continue reading the Lawrence decision as the facts do not end there. Of particular interest may be Justice Scalia’s Dissenting Opinion.

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