Gay Marriage and the Equal Protection Clause

Proposition 8, The Equal Protection Clause, and the Coming Wave of Lawsuits

I guess Proposition 8, the State Constitutional Amendment in California defining marriage as being between a man and a woman, angered a few people. Lawsuits against the choice of the people are emerging.

The opponents of the amendment claim that it violates the “Equal Protection Clause” of the U.S. Constitution, as set out in the fourteenth amendment. Since rights apply to individuals, the Equal Protection clause applies to potential state violations of the rights of an individual, based on the individual’s status. A law or Constitutional Amendment defining marriage as being between a man and a woman means “any” man and “any” woman. This applies to any man or woman who wish to marry, and are of legal age or have parental consent. So, the law does not prohibit the rights of gays to marry. A homosexual male and a homosexual female are free to marry one another if they so desire.

The right to marry has not been eliminated from anybody. However, marriage is not necessarily a “right” anyways. If I wanted to marry a supermodel, I don’t have a “right” to that marriage. Nor would I have a “right” to marry my car, dog, or neighbor’s horse.

Not allowing people to marry someone of the same sex is not a violation of the Equal Protection clause. Besides, a state constitution is designed to address “state issues” and cannot be considered in contradiction with the U.S. Constitution if the federal constitution does not address those particular issues in the first place.

The opponents of Prop. 8 claim the Equal Protection Clause was designed for exactly that – to stop the states from violating someones rights based on . . .

Based on what? A behavior? The Equal Protection Clause was a direct result of the abolition of slavery in the United States. The 14th amendment was designed to protect blacks, or any racial group, against unfair treatment. The Equal Protection Clause was written to protect ethnicity and race – not behavior! Since behavior, such as homosexuality, is not specifically addressed in the U.S. Constitution, that means it is not a federal issue, and it is up to the individual states to address the issue – and if a state wishes to ban gay marriage in its state constitution, it is entitled to do so. The federal government cannot (though it has unlawfully in the past) overturn state law or amendments. It is unlawful for the federal government to do so according to the U.S. Constitution!

This very application, in turn, makes the Roe v. Wade decision unconstitutional (Roe v. Wade overturned a Texas State Law). It also makes the practice of the federal government shutting down medical marijuana facilities in California (as long as the drug does not cross state lines the issue remains a state issue) illegal as well. I don’t agree with the legalization of medical marijuana, but from a legal and Constitutional point of view, the state has a right to make such law without federal interference.

In reality, like Roe v. Wade did for abortion, the courts legalizing gay marriage with a court decision (and overturning state law) was unconstitutional in the first place. It is not for the courts to “make” law. Making law is the responsibility of the legislature. The courts were tasked by our founding fathers to provide an “opinion,” and then it is up to the legislature to act upon that opinion by the courts “if” they choose to.

The U.S. Constitution was written to limit the federal government from dictating law to the states, and the branches were set up as they were to limit the judiciary from having too much power. “States Rights” and “The People” are the central themes of the founding documents. Contrary to the lawsuits coming against Proposition 8, the voters have a right to interpret the Constitution, and change it, with their vote.

The Constitution belongs to “The People.” The U.S. Constitution was written for the people, of the people, and by the people. Besides, one does not have to have a law degree to recognize the original intent. However, if the U.S. Supreme Court gets involved, and decides to overturn California’s Proposition 8, there is going to be some serious issues rising from it regarding federal intrusion into state issues.


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One CommentLeave a comment

  1. Absolutely on track. I would like to share my views with you….look at my blog at and I thanyou

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