Prop 8: You’re So Two Thousand and Late

Title inspired by recent events plus Daniel Tosh. Who stole it from the Black Eyed Peas, obviously.

If you haven’t heard, a U.S. District Court recently overturned California’s Proposition 8 (a ballot initiative that defined marriage in California as being between a man and a woman.) I, for one, think it was a terrible law. Like various left-wing economic programs, the law was an unjust violation of individual rights based on flawed notions of majoritarianism. As a libertarian, I’m quite glad to see it go.

However, I’m not totally sure that this was the correct way to go about it. In other words, while I dislike the law, I’m not sure it was unconstitutional. I’ve decided to read Judge Walker’s opinion (what I’ve selected – I think fairly – as the important part, anyway.) From what I’ve read so far, he reaches the conclusion that:

1. Marriage is a fundamental right, covered by the Ninth Amendment (and applied to the states by Section 1 of the 14th.)

2. (Long story short) Marriage has moved beyond being a gendered institution, due to changes in society; however, the fundamental nature of marriage (two parties freely consenting to form a household, support each other & their dependents) has remained unchanged.

3. Thus, gay couples are not asking for a new right, but a fundamental one protected by the Constitution.

4. Same-sex unions are qualitatively inferior to marriages; thus, offering them to gay couples does not satisfy those couples’ right to marriage.

5. The state lacks a compelling interest in violating this fundamental right.

For #1, I have no idea. Walker doesn’t cite primary documents, instead simply referring to precedent (which is completely legitimate for him to do.) The precedent he cited that I might check out is Griswold v. Connecticut: because it was important in furthering the argument for a constitutional right to privacy. But mainly because it’s the one I was most familiar with.

I don’t necessarily agree with four (I disagree, in fact) and in general I’m unconvinced by the idea of a “compelling interest” somehow being sufficient to circumvent rights, so I don’t need #5 to convince me. These, however, aren’t key. What strikes me as flawed is #2 (and therefore, #3.)

This is where the heart of the disagreement in the case lay (the defendants agreed on #1 and #3.) According to Walker, the essence of marriage has nothing to do with gender. He briefly cites a history of revisions that eliminate the influence of gender roles in marriage (namely, changing California marriage law so that the wife’s property was not subsumed by the husband.) He connects this to other things (allowing interracial marriage) to show that while the practice of what is allowed as marriage has changed, the fundamental concept has not (in fact, making these changes allows the concept – in particular, its element of choice – to be more fully realized.)

It’s on that point that I’m tempted to disagree. I’m going to give my reasons why in a second post (in which I’ll also discuss Walker’s argument that Prop. 8 violates the Equal Protection clause of the 14th Amendment.)

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Filed under: Jake Anderson, Constitution, Proposition 8, rights