California's Prop. 8 - a Simple Constitutional Issue Impacted by Complex Emotions

Some people view the law as a cold profession or institution, but the reality is, the prevailing legal documents in this country are its Constitution (and Bill of Rights) and the individual Constitutions of each state, which are warm and fluid. The Constitution is like daylight, which envelopes and enlightens all and which at times folllows on the heels of a cold and oppressing darkness. At the heart of the Constitution, are basic rights and privileges under the law, not the punishments and arbitrary loopholes with which we so frequently characterize what is 'wrong' with our justice system.

The formation of a representative Democracy was not entered into lightly nor has it been preserved lightly. People came to America from all over the world, even in its very early days, from countries in which,in many cases they enjoyed very few rights. As states were formed, each developed a specific constitution suited to the needs of its citizens, but each state's constitution had to be consistent with the Constitution of the United States. Among laws enacted and upheld in some states that were eventually found to be unconstitutional were two cornerstone laws that boiled down to property rights, the right to own slaves and anti-miscegenation laws prohibiting interracial marriage.

State Laws and the Constitution:
The right to own slaves unconstitutionally conflicted with the status of the US Constitution by the mid and late 1800s, as it rendered human beings as property, and simultaneously denied those human beings the right to own and hold property of their own. As is patently obvious today, all human beings are equal and our country recognizes and upholds this equality. If all are equal, none can be the property of the other and none can be foreclosed from owning and holding property if that right is available to any, from voting, from moving from state to state while retaining the same basic freedoms.

Anti-miscegenation laws were both discriminatory and unconstitutional in the states in which they were enacted and upheld, according to our Supreme Court, but were also unconstitutional in that a marriage validly entered into in one state might not be viewed as valid in another. Imagine marrying in Wisconsin and living there happily for years and then travelling to Virginia, for example (since that is where the Lovings did move in the pivotal case), and being arrested for violating decency laws for 'living together' or co-habiting in a hotel room, or attempting to hold property together in violation of state law. You see, if you cannot marry under the law, you cannot jointly hold property as husband and wife. So, the miscegenation laws didn't just impact you if you lived in a state where they prevailed, but wherever you lived, as they impeded your ability to travel as a full citizen from state to state in your current status. I Wisconsin you could marry and buy a home, share health benefits, and if yuu died without having written a will, then your spouse and any children of your marriage would be your de facto beneficiaries. In their era, anti-miscegenation laws impeded your basic rights to life, liberty and the pursuit of happiness. And, make no mistake, just as there were people who felt it was immoral for people of different races to marry when those laws were enacted and throughout their duration, there are people who feel that way today.

To say there was overwhelming support for anti-miscegenation laws among voters in Virginia and elsewhere at the inception of these laws, or in support of cases upholding them subsequently, would not be an understatement. Sometimes voter sentiment and the Constitution of the United States are in conflict, and that is why we have a Judicial Branch of Government, to ensure that we remain beholding and faithful to overriding rules of equality and freedom for all. And, the idea of outlawed interracial marriage is not some antiquated, frontier notion cast off with the age of enlightenment or post-Civil war reparations or the dawn of the 20th century. The last anti-miscegenation laws in the US (upheld in 16 states at the time) were struck down in 1967, as a result of Loving v. Virginia (which ruled a 1924 Virginia statute, "The Racial Integrity Act of 1924) violated the due process and equal protections clauses of the constitution. (388 US1). 1967. Our discriminatory and unconstitutional laws discriminating against who could marry based upon race actually survived Nazi era German laws by more than 20 years, but failed to outlast similar laws under Apartheid in South Africa that were not repealed until 1985.

Of particular interest in looking at those two laws (slavery and anti-miscegenation) is the reality that they were eventually overturned not based upon public opinion, though certainly one would like to think there was overwhelming public opinion adverse to such laws, but based upon the reality that they were unconstitutional. Far from being a cold analysis of old writings, Supreme Court reviews of individual laws or cases in light of the Constitution are about that daylight process. The Constitution is the robe that warms and protects all Americans equally from tyranny, for any law unequally applied is indeed tyrannous. As the Court wrote in Loving v. Virginia in striking down all remaining anti-miscegenation laws, "Marriage is one of the basic civil rights of man....Under our constitution, the freedom to marry, or not marry, a person...resides with the individual and cannot be infringed by the State."

California and Civil Marriage Today
In California, as in many other states, the institution of civil marriage has been looked at closely for any signs that it is unconstitutionally narrow in its application. Under the constitution you do not have to convey identical titles to all citizens for certain institutions, as long as you do convey equal rights under those institutions. For example, in California as in most states, there are domestic partnership laws that were designed to approximate some of the rights conveyed under a civil marriage contract. Later, California voters put a law on the books stating that marriage oculd only be between a man and a woman. This made it even more important to determine that domestic partnerships were indeed 'equal' to marriage, because the question was now open for interpretation that absent this equality, the lack of access to marriage now presented by the new law (similar in scope to the Racial Integrity Act of 1924) might be vilating the civil rights of some couples seeking marriage in California based on gender.

However, the rights conveyed by the domestic partnership laws, which often failed to obtain expansion in scope in the state legislature in California, were viewed to be unequal, so California sought to equalize the property rights conveyed with the recognition of a civil marriage by authorizing the issuance of civil marriage certificates to adults in the state regardless of the gender of the two applicants as long as all other qualifications were met. This was met immediately with a lawsuit and it swas in response to that lawsuit that the California Supreme Court eventually took up review of the issue in light of the state and US Constitution.

Again, this is the institution of civil marriage. In California, people can obtain marriage certificates through a civil authority but may choose to have the rite of matrimony conveyed in a religious ceremony. No church nor chaplain is mandated to perform a religious ceremony for a couple just because they have a civil marriage license, and that has always been the case in California. Under our separation of Church and state in the US, churches are free to recognize or not recognize civil marriages, and states may not recognize a church ceremony that is not accompanied by a valid marriage license. For example, I am a Catholic, and if I marry in a civil ceremony I am not married in the eyes of the Church but am 'living in sin' unless and until I solemnize the marriage in a sacramental ceremony. My Church also does not recognize civil divorce, so if a Catholic couple marries in the church and then divorces, they remain married in the eyes of the Church unless they also obtain a Church annulment. In the United States the state allows dissolution and ignores the Church on this issue, and the Church does likewise. Thus I am free to seek or not seek Church recognition of my civil marriage under separate requirements and obligations, but as a right of citizenship I am entitled to equal protections to enter into the institution of civil marriage as long as I am free to marry. And, the Catholic Church, as it always has, remains free to choose according to Church doctrine and other criteria whether or not to allow me to marry in the Church.

Church and State, In a Democracy State Trumps Church but Church Enjoys Freedom:
There is nothing 'unconstitutional' about the Catholic Church's stance on marriage and divorce. While people who are not Catholic might consider such strict rules tyrannous, indeed no less than King Henry VIII of England had to assert royal tyranny and create a schism forming the Church of England in order to divorce and remarry outside of what he viewed as the tyrannous rules of the Church. It's good to be the king, as they say. But, in our Democracy, I can co-exist with the plurality of American society that is not Catholic and that does acknowledge civil marriage and civil divorce while retaining my right to marry within the Church and as I see fit. I have to comply with laws that require me to obtain a marriage license, and indeed without those laws the home purchased within a marriage might not be owned by me as a wife at all, nor might I have a right to share financial, medical and other benefits with my husband, or to seek to convey those rights to our children. Indeed, should I marry a man who already had children, I would not be related to those children in the eyes of civil authority if my marriage was not civilly recognized as well as recognized in my Church.

The quality of my married and family life, the sanctity of my marriage, are not conveyed to me along with a civil marriage license. All that is conveyed to me with that license, once signed by a legally recognized clerk, pastor, priest, ship captain, judge, etc., is a status of community property rights and obligations. Our fortunes (monetary and aesthetic) are commingled at that point and from that point forward.

Less than Equal:
Oddly, if one looks back, slaves could marry, though not in a civil ceremony. They did marry, of course, being people and falling in love as people are wont to do. They had children. One could argue that they had everything 'free men' enjoyed with regard to family life. Except of course that they could not own property but were in fact viewed AS property. Husband could be sold out from under wife and children could be sold out from under parents. A more nefarious handling of human affairs one cannot imagine. Immoral? Absoutely. Illegal? Not for quite some time. Unconstitutional? Always. Until we declare something unconstitutional, 'convention; often prevails and is accepted as 'legal'. For example, many US Presidents owned slaves. Thomas Jefferson had a longtime relationship (but not legal marriage) with slave Sally Hemmings and fathered a number of children by her, freeing them only after his death. Even for very great men the tension between convention and just action could be severe.

From the day there was a constitution and as it grew of a guiding document of equal justice, equal rights, equal freedom and equal protections for all, laws that denied human rights, laws that discriminated for no just purpose, were unequivocally unconstitutional. And, as "Loving" later pointed out, when it comes to marriage, the freedom to marry or not marry rests not with the state but with the individual. It is a basic human right. So, anti-miscegenation laws were similarly unequivocally unconstitutional. Yet, one notes that there are decades worth of precedents upholding unconstitutional laws on both the issue of slavery and on anti-miscegenation laws, and in all of these cases leading up to the seminal findings of ultimate unconstitutionality, courts were willing to slant or limit reading of the freedoms afforded under the constitution and the rights afforded by the equal protections clauses, to forestall the progress of a free and equal society. When one talks of 'activist' judges, one is talking of those who ignore the constitution, who act out of the heat of the moment, the fire of hatred or the darkness of ignorance. Daylight under the law is examination and re-examination of the equitable application of the Constitution. There is no daylight when some are less equal than others.

What Proposition 8 Does:

Proposition 8 substantively does what the Racial Integrity Act of 1924 did to the principles of adherence to the constitution by ignoring rulings of the Court on the equal rights of all to marry (in 1924 interracial marriage was legal in the United States and was certainly constitutional absent a state prohibition). For 43 years the pre-emptive strike by the Commonwealth of Virginia was not successfully challenged. Absent proof of unconstitutionality or the existence of a law banning such action, prior to the 1924 Act, two people of different races could be married in Virginia and Tha Act took that right away. A similar construct and situation exists in California today. The state decided civil marriage, a freedom afforded to all citizens, must be equally applied and formally opened the state process to all not just without regard to race, creed, or religion, but also without regard to gender, deciding that the prior proclamation that marriage was 'between a man and a woman' under a vote of the people violated the Constitution. The state did not challenge the law in court (It was Proposition 22, enacted in 2000), it simply allowed itself to be guided by the Constitution of the US. It was the adherents to the earlier concept of denial of rights of all to marry who actually brought the case to court, where the right of all to marry was upheld by the California Supreme Court on May 15, 2008. The Court ruled that Prop. 22 violated the Equal Protections clause of the US Constitution, and that under the California Constitution as well people of the same sex had an equal right to civil marriage with people of opposite sexes.

Proposition 8, which will be up before the people of California for a vote on November 4, 2008, would 'eliminate the right of same sex couple to marry' (Prop. 8, California voter handbook, November 2008 General election). Oddly enough intially Prop. * was titled "Marriage Protection Act", but that title was ultimately viewed to be misleading as the proposition actually seeks to eliminate an existing constitutional right to marry. One wonders had the 1924 Act in Virginia similarly titled the "Marriage Integrity Act" instead of the Racial Integrity Act, would that have been equally as misleading since what was sought to be preserved was not the integrity of any given marriage of marriages going forward, but the 'integrity' of the white race. Discrimination is discrimination under the constitution. After all, in California some people obtain many marriage licenses over the course of a lifetime (and not just in Hollywood). There is no limit on how many times a person can many consecutively in California, only a law limiting each person to one marriage at a time. That construct prevents fraud and multiple claims on property and other rights. You can break the law, marry more than one person, but the only person who actually shares community property with you in California is the one to whom you are validly married under the law of the state. And, you can parcel out your property over the course of two or four or six marriages if you choose, dissipating the 'property value' of each individual civil marriage without changing the provenance under property law that when two people marry it is a 50-50 community property proposition with rights and obligations split down the middle absent a separate contract nullifying the operative law by creating a specific term for your marriage.

I am not aware of major pushes for Constitutional amendments in California to limit marriage to between one man and one woman, for life, or limiting the number of total lifetime marriages someone may legally enter into under civil law, or precluding any potential husband and wife or partners from seeking a 'pre-nuptial' arrangement. In 2008 civil marriage is a contract. It is difficult to even define it as an 'institution' except as a matter of convention and except as a legal process implemented by man and the State. More than half of all civil marriages end in divorce (which takes into account many repeat offenders who tend to skew the statistic more toward failure than success). In some states you can literally drive through a facility and say you vows from your car in the same manner you would order Happy Meals. It's America, people are free to marry as they choose, and who they choose. Life, liberty and the pursuit of happiness.

Writing Discrimination into the Constitution:

Proposition 8 is one of those white hot issues that come up at times. People have strong beliefs and they are dismayed with what they see as a 'decaying of society'. There is a will to impose one's worldview that sometimes takes hold in these situations and certainly it has taken hold in California at this point. Some people will never recognize the basic human rights of other people, nor will they ever accept the rights of people to live as they choose if they are uncomfortable with some of those choices. But, some things we do not choose. We do not choose the race, gender, nationality, or orientation with which we are born. In America people of all races, creed, colors, religions, sexual orientations, genders, etc., all live together and all live free. We worship or we don't worship. We marry or we don't marry. We become educated or we don't become educated. We work or we don't work. Some of these things we choose, some are chosen for us. It is when any of these things are denied to us that the law prevails, that the freedoms, rights, privileges and protections of our Constitution are there as our individual and collective back up.

In California the court ruled and it ruled according to the law. It was not a cold and calculating ruling nor was it a white hot reaction to public opinion. It was the process of analyzing the circumstances in light of the law and applying daylight. The judges did not 'side' with one group or the other with regard to public opinion or personal belief, but they found what was right and just for everyone under the principles of equality and within the guiding light of the Equal Protections Clause. Just as with The Racial Integrity Act of 1924, prior to the examination of the issue of same-sex or gender neutral marriage in California, gender neutral marriage was legal and was marriage was even defined in a gender neutral manner in the California Civil Code ("Marriage is a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary", Civil Code Section 4001, prior to 1977). 'Convention' had dictated that civil marriage licenses and the civil marriage contract were only entered into by people of opposite sexes up to that point, but when it became questioned, the law was re-written to no longer be gender neutral. Convention had dicated until 1924 that 'civil marriage' in Virginia was between a white man and a white woman or a black man and a blakc woman, or an Asian man and an Asian woman, etc. In each case the state began to step in to ensure 'convention' became law.

The law is the law though and it cannot be bent to the will of the people when that will is unjust or tyrannous. It may not be a well-received observation to make that limiting access to civil contracts to people of the same race or of opposite sexes is tyrannous under our Constitution, but the reality, as upheld not only by a majority of California's Supreme Court (in re: Marriage Cases, 2008) and of the US Supreme Court (in Loving v. Virginia, 1967) is that by definition it is. It is 'oppressive, unjustly severe', and 'arbitrary', and conflicts with the freedoms for which this nation has always stood. It is akin to Catholics seeking a law in California outlawing civil marriage and civil divorce and imposing our very strict canon laws and doctrinal conventions as to the acceptable circumstances for sacramental marriage and for nullification of the same. I freely choose to be a Catholic and to adhere to the laws of the Church. I also freely choose to remain a citizen of the United States, place of my birth, and to adhere to its laws and honor its Constitution. Many things are legal, accessible to me in this country full of diverse people and I am grateful for the freedoms that make them legal and accessible even when I do not condone them or avail myself of them. But I cannot act tyrannously in this country and impose my views, my beliefs and my conventions upon others if it impedes their rights, privileges, freedoms or protections as citizens, nor can the public act in such a manner toward me.

Today it is the right of people to enter into civil marriage based upon gender and sexual orientation that is being challenged. The attempt is to 'shadow' the Constitution' to obscure and minimize the rights of some versus the rights of others. But, human rights are human rights and the state has no business, as the Court asserted in Loving v. Virginia eliminating the right of any person to marry or not to marry the adult of their choosing. In California, the State has recognized this after carefully examining the legal history in light of the Constitution. Proposition 8 seeks to take that clear right away. It isn't preserving marriage or its integrity, it is eliminating a basic civil right of some people to enter into a civil contract, a provenance of property law. Tomorrow the good people may take issue with me and my beliefs or my lifestyle or my race or gender or ethnicity. In fact, had I been born only 20 years earlier and attempted to marry my husband in Virginia, I would have felt the full force of an oppressive lack of equal protections and basic civil and human rights. Where the rights of one are denied the rights of all are endangered. Either we stand for equality and freedom for all or we stand opposed to those principles. The choice actually posed by Proposition 8 in California is nothing less than that. How each of us feels about marriage is not the important issue, it is really about how we feel about the principles of freedom and equality.