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Gay Marriage to the Supreme

Gay Marriage to the Supreme

David A.W. Hittle

March 26, 2013

This week the Supreme Court heard arguments on Gay Marriage in the form of “Proposition 8” a California passed Constitutional Amendment and the “Defense of Marriage Act” (DOMA) a federal law passed by the House of Representatives, the Senate and signed into law by the President of the United States.

However, ever since “Proposition 8” was challenged the challenge has become not just part about marriage; but has become about whether the citizens of a state have the right to amend their constitutions.

The “Defense of Marriage Act” on the other hand, was passed after the Hawaii Supreme Court indicated that gay marriage could be allowed by law. While Hawaii has not joined states allowing gay marriage, the Congress of the United States decided to pass a federal law, indicating that the Federal Government felt that marriage was between a man and a woman, but that it would allow the states to decide what marriage was in each state, but that one state legalizing gay marriage couldn’t impose their views on another state.

My idea when it comes to any kind of marriage is that the government should not be involved in marriage at all. Marriage from the dawn of civilizations was a religious ceremony and that is the way it should have remained. The day the government stepped into marriage, was the day the government violated the first amendment by infringing upon religion, and a religious ceremony. My idea as a Conservative would be to strip all rights afforded to anyone about marriage, and that it should be a religious idea.

However, the government never removes itself from anything that it gets involved in, so that I believe that if a government is going to be involved in marriage for whatever reason, it should be the states. In that effect “Proposition 8” should be upheld by the Supreme Court, as an exercise of state power. In that effect a state could allow Gay Marriage, or disallow Gay Marriage, could provide “special” benefits to people who are married, or not allow “special” benefits to those who are married. Of course “benefits” are not what marriage is about as we know; but that is what we have become accustomed to in this country.

I believe that California has the right to decide what is going to happen within its borders. California has allowed the smoking of marijuana, but that legalized allowance doesn’t extend to another state. California has decided by a vote of the people that gay marriage should be illegal, and that doesn’t extend to another state either. Either a state has the right to decide for itself, especially when it comes to votes of the people, or it doesn’t have that right, and it must conform to what a group of 9 people have to say.

I believe this issue, should be left to the states to decide, from what I understand 9 states are allowing gay marriage, while 30 states prohibit gay marriage. If the Supreme Court is going to rule on this issue, which I believe is entirely possible; the Supreme Court can rule based upon public opinion. If they do it this way, 30 states out weights 9 states and the Supreme Court should uphold the law established in 30 states over the law established in 9 states. If the Supreme Court looks at the recent polls they may see a different trend all together. The latest Gallup Poll of Nov. 26-29 of 2012 indicated that 53% thought gay marriage should be valid, while 46% found it invalid; which is completely different than the 30/9 split. Which public opinion, will the Supreme Court take into effect in this case (if any)?

Of course the Supreme Court has been moving more and more toward the allowance of homosexual activity. In 2002, the Supreme Court ruled in Lawrence v. Texas found that laws criminalizing sexual behavior were found to be unconstitutional. In this case, today’s swing-vote on the Court: Anthony Kennedy wrote the opinion for the majority, finding the criminalization of sexual behavior to be unconstitutional. But Kennedy reiterated that what people do in their private lives is their own business. Will Kennedy, have the same respect for a public establishment of marriage for gay couples?

One issue that seems to have been a sticking point for the Court today was the issue of “standing.” That is, whether the individuals defending the law in the stead of the state of California have standing to argue the case at all. Chief Justice Roberts asked the attorney in support of “Proposition 8” to start with its explanation of why they thought they had standing. Justice Ginsburg’s first question was: “Have we ever granted standing to proponents of ballot initiatives?” the answer to that was no… However, it wasn’t just Justice Ginsburg and Chief Justice Roberts’ who were concerned about the standing issue; Justice Scalia, Justice Kagan, Justice Kennedy, Justice Breyer, as well as Justice Sotomayor also had strong reservations about the issue of standing; meaning they may not really want to decide this case. However, while it is entirely possible that this case fails because of standing, it may actually be decided.

Justice Scalia, brought up the fact that “140 days after the California Supreme Court ruled that a ban on Gay Marriage violated the equal protection clause of California’s Constitution, the citizens of California passed a Constitutional Amendment banning gay marriage.” If we take it from this view, the Supreme Court of California cannot rule that “Proposition 8” violates the Constitution of California, because “Proposition 8” is not a law, it is a Constitutional amendment, and therefore is part of the Constitution, and therefore cannot be unconstitutional.

 Taking into great account what Justice Scalia brought up, turns this case into what I have seen it as all along. It is no longer a question of marriage, but a question of whether the people of California have the right to change their constitution. With all certainty I believe that they do, through the process of propositions and initiatives. I find that since, the Constitution of California was amended by this proposition, the equal protection clause found in California’s Constitution, which California’s Supreme Court indicated supported gay marriage, is super-seeded by the amendment made to the Constitution, indicating that gay marriage was not constitutional. In that very instance, the California Supreme Court, who interprets the law in a very similar manner as the U.S. Supreme Court, had to decide that based upon the U.S. Constitution’s equal protection clause, that gay marriage was constitutionally protected as a federal right. The U.S. Supreme Court however has never determined that, and therefore the California Supreme Court, should have decided this case based solely upon the constitution of California, which was amended to prohibit gay marriage.

1.      The possible conclusion by the Supreme Court is this… California citizens have the right to amendment their constitution, and in so doing, have barred the state from enacting laws establishing gay marriage.

A.    In this instance, the Court would protect the citizen’s rights to amend their Constitution, while California has allowed gay couples to adopt children, to raise-children and the like, the citizens using their right to amend the Constitution, wanted to prohibit the increasing move towards gay rights, and therefore barred the marriage aspect. If it understandable that the citizens could also bar the adoption and child-rearing aspects as well, as part of their right to amend their constitution.

2.      The Supreme Court could rule that this case was improperly given cert, if that is the case the previous courts’ decision would be final, therefore making “Proposition 8” unconstitutional.

A.    In this instance, the Court would fail to protect the citizen’s rights to amend their Constitution, due to the fact that the constitution of California was amended the “law of the land” in California bars gay marriage; while the courts have been deciding this based on the U.S. constitution rather than California’s constitution.

3.      The Supreme Court could rule that “Proposition 8” is constitutional, if that is the case the 30 states which currently ban gay marriage would be upheld and gay marriage would be allowed to be banned. This would also however, allow states to prohibit as well as allow for gay marriages.

A.    In this instance, the Court would uphold the right of the people of California to amend their constitution, and would also allow other states to decide the decision themselves.

4.      The Court could also rule that “Proposition 8” is unconstitutional, if that is the case, the 30 states which currently ban gay marriage, would be struck down, they would be forced to change their laws and allow for gay marriages. The 9 states that currently allow gay marriage would be reinforced and allow to continue; to perform gay marriages.


            I believe that the Supreme Court should uphold “Proposition 8.” This to me is the fairest way to proceed in our currently climate. This would allow states to make their own decision on gay marriage. I believe that in our current political and social climate this would be the best way of solving this. Since the “Defense of Marriage Act” is a separate case, the federal government’s activity in this area will be decided based upon this case, or irrespective to this case at all.

            But I believe that citizens have a right to amend their constitution, and in doing so they have the ability to override their elected officials decisions and bar their elected officials from progressing further than the citizens want them to go.

            This is my conclusion, and my speculation of the outcome, and I hope I’m correct in it.

 David A.W. Hittle