Getting back in the habit...

Once again, I have put off writing that which I feel needs expressing.  I tell myself that my time is too valuable to waste writing meaningless words on a meaningless page to be view by only a handful of people.  And to those people, their time is too valuable to waste reading my meaningless ramblings.  Well, in an effort to make this more meaningful, perhaps I'll tackle a topic that is of some import and rather close to my heart.  And perhaps that will make this more meaningful to others as well.  Or maybe I should just write and let those who read be the judges of what is meaningful and what is gibberish.  You all decide...

These are 9 of the most intelligent legal minds in the
United states.  Let's hope they get this one right.

So, a few weeks ago there was a case before the Supreme Court involving California's same sex marriage law. This law, which was actually an amendment to California's state constitution (known as Proposition 8), barred same sex couples from being married in the eyes of the state, but that didn't stop same sex couples from forming a domestic partnership/civil union (depending on your terminology).  A domestic partnership gives same sex couples almost all of the rights associated with marriage, yet not quite everything.  So, this law effectively states that it's illegal for a man to "marry" another man or a woman to "marry" another woman.   It keeps the term marriage solely in the realm of between a man and a woman.  So let's look at why they would want to do this.

Before this guy, it was the
norm of nature to do whatever
you wanted in bed.

I'm not a big student of this topic, so I'm going to give out the first thoughts that come to my mind on the subject.  Marriage is a religious extension of what was already a common practice.  The development of Christianity was especially important in this development.  Prior to Christianity, most religions allowed for and in fact urged for polygamy.  In nature, having more than one partner is often advantageous for the species.  Passing on your genes to multiple partners allows for a greater opportunity for your genetic line to live on in future generations.  Indeed true monogamy in nature is exceedingly rare.  So, for humans to go from being polygamous to monogamous, was a creation of our own, because we were above all that and it was proper for us to only have one wife and to be faithful to that wife (or husband if you are female). So it seems to me that people that want marriage to only be between a man and a woman are doing it for religious reasons.

That brings us to the separation of church and state. This concept (in the United States) was created with the Constitution, but also specifically from the Bill of Rights.  The founding fathers, Thomas Jefferson key amongst them, derived the separation as being vital to the growth of the United States as a place for all people, free from tyranny.  Jefferson is credited with coining the phrase in a letter he wrote in 1802.  So, why  now, after 200+ years are we back to allowing our government to dictate what is essentially a religious matter?  If marriage is a religious matter, as my argument states, then there should only be marriage in a church, with a priest or pastor or other high religious official presiding over the ceremony.  Marriages by Justices of the Peace or other court/civil official shouldn't be allowed either.  At that point, it is the right of the church to decide who can or cannot be married based on that religion's beliefs.

If we allow marriage outside of the purview of the church and make it a governmental entity, as it currently is, then the government cannot enforce religious ideology upon the title.  Therefore, if we allow marriages to exist in the eyes of the government, the government has to follow their own rules (including the separation of church and state and other Constitutional rights afforded everyone).  If the government dictates that they allow married couples to have certain rights (i.e. tax breaks, social security benefits, etc.) that unmarried individuals or couples, then it certainly appears that the government is allowing the term "marriage" to be under their purview.  So, what rules does the government need to follow?

Thurgood Marshall, who would later become
the first black Supreme Court Justice, successfully
argued the Brown v Board of Education case for
the plaintiffs. Chalk one up in the win column
for common sense and intelligence! 

Well, lets start where the Supreme Court has to start with, the Constitution.  The first amendment guarantees the rights to free speech and religion. So, they can't stop same sex couples (that what this is all about again, in case you lost the point of my ramblings) from saying they want to get married or from practicing a religion where it's ok to be married.  The 9th amendment grants the people rights not explicitly stated in the Constitution.  There is nothing in the Constitution about limiting who can or cannot get married.  So it's up to the people to decide that, and therefore they can marry whomever they want to (ok, that one's a stretch). The 14th amendment, specifically the Equal Protection Clause, guarantees everyone the rights of the Constitution, and that those rights may not be abridged by state or the federal governments. This clause has been repeatedly attacked.  The most famous of these cases were Plessy v. Ferguson and Brown v. the Board of Education, Kansas.  Plessy intimated that it was ok to have separate but equal facitilites for blacks, while Brown reversed that ruling stating that separate is inherently unequal.  That's how it was applied for Civil Rights fights.  For this argument, the decision of Brown also had the benefit of determining that the Equal Protection Clause established that everyone had equal rights regardless of the color of their skin, race, or gender (further codified by the 19th amendment granting women the right to vote, proving that gender should not be an issue when it comes to rights people have).  If state or federal governments state by law that "married" couples have rights that unmarried couples have, then they cannot dictate who can or cannot be married, if they do, they are discriminating against a certain set of people based on their gender.

You'll notice that for that last paragraph I removed the word "sex" and replaced it with "gender."  This was on purpose to further my argument.  Same sex couples are couples composed of two men or two women, as opposed to a couple composed of one man and one woman.  So, California, by stating that replacing one of the partners (a male or a female, genders) with a partner of a different gender, that couple can no longer become married and receive benefits and rights associated with being married, has violated the Equal Protection Clause of the 14th amendment by discriminating based on gender.

Shades of segregation popping up again in California's
Proposition 8 battle.

So, what have we learned here?  That California is infringing on the separation of church and state by bringing religious ideology into the debate about same sex marriages.  California is violating the 14th amendment to the Constitution of the United States of America by discriminating against same sex couples based on gender differences.  They might as well be saying that a white man and a black woman can't get married.  Hopefully, the Supreme Court knows their own laws well enough to understand what is before them; the lower courts did by overturning the law. The Supreme Court doesn't always get it right (see Plessy), but I have no doubt that eventually, they'll get this one right.