Gay Marriage on Trial

The California Supreme Court is hearing arguments from people hoping to strike down last year’s Proposition 8 referendum, which created an amendment to the state constitution banning gay marriage. Basically, the arguments have boiled down to whether a person’s right to marry trumps the rights of California’s citizens to change their constitution. Since the state’s attorney general, Jerry Brown, opposed the gay marriage ban, attorney Kenneth Starr, who famously went after Bill Clinton during the Whitewater investigation, was brought in to argue Prop. 8’s case. He said that Californians have the right to change their constitution in any way they see fit, unless those changes conflict with U.S. Constitution protections. But California’s threshold for passing constitutional amendments is comically low. Because they require only a simple majority, the state constitution has been altered five hundred times since 1911, as opposed to the U.S. Constitution, which has only twenty-seven amendments. So far, the consensus of the court seems to be that while the threshold is too low, it’s up to California’s voters to change that—most likely via another amendment. In addition to being an amateur scientist, I’m also an amateur lawyer, so here’s my completely illegal and most likely misguided advice. Supporters of gay marriage (i.e. humans with a trace of basic decency) should pursue their efforts to overturn Prop. 8 on a federal level. It’s much slower going, and a positive outcome isn’t very likely right now, but the only way to put this issue to rest is to force the federal courts to face up to the fact that gay marriage bans are a violation of the U.S. Constitution’s equal protection guarantee. This would necessarily overturn gay marriage bans in every state, which is why it has little chance of making it through the court. But the times they are a-changing, so you never know. The Supreme Court fairly recently guaranteed federal protection to people who want to practice sodomy in the comfort of their own homes/dungeons, so it doesn’t seem like too much of a stretch that they’d offer the same protection to people who want to be bound in holy matrimony first. More details here.