Friend of and valuable contributor to this blog, A.I., posted a comment on the Prop. 8 case before the California Supreme Court. It seemed to me that with all the attention I reproduce it in whole here:
Ken. It appears one of us will eventually have gloating rights over our arguments regarding laws against same sex marriage being discriminatory. I refer to the Ted Olsen/Davide Boies (unlikely duo extraordinaire) case being brought in federal court in California to strike down Prop. 8.
In part, they will argue what has been more-or-less my point all along, that: "Prop. 8 violates the Equal Protection Clause of the Fourteenth Amendment because it singles out gays and lesbians for a disfavored legal status, thereby creating a category of second-class citizens." Of course, that is only part of the case.
So will you or will you not gloat if your opinion prevails in this case. I should be a big enough person to say I will not gloat should my side prevail--I should be, but...
A.I.: I am not sure I earn any gloating rights here, and I am in no mood to gloat. The CA Court by a 6 to 1 vote did indeed uphold Proposition 8, which restricted marriage in California to a union of a man and a woman. As I understand the decision, it turned entirely on a procedural question concerning what kind of amendment is valid under the state constitution. . The Court ruled that Prop. 8 "was a limited constitutional amendment, not a wholesale revision that would have required a two-thirds vote of the Legislature to be placed before voters." That hardly validates my position, nor does it contradict yours.
I continue to say that your argument is wrong for the simple reason that it is logically incoherent. The other sex marriage restriction applies in exactly the same way to all citizens of California. For that reason it cannot be said to "single out gays and lesbians." Singling out is logically exclusive of equal applicability.
Consider an example: Marriage is sometimes used for other purposes than a loving union. Sometimes immigrants marry only in order to gain legal residence in the United States. What if two women wished to marry not because they were a homosexual couples, but only so one partner could extend her public insurance benefits to the other? They would be barred from marriage under the law even though they are neither gay nor lesbian. Therefore: no singling out.
This is a matter of simple logic. If no A is B, then all A are not B. If A stands for any person, and B stands for persons legally allowed to marry someone of the same sex, then under Prop. 8., all A are not B. There is no way that "all A" singles out "some A".
The people of California, including 70% of Blacks and 53% of Hispanics, admire traditional, i.e., opposite sex marriage and want to keep it at that. You admire same sex marriage just as much, and wants it to be legal, but I do not see you arguing for other possible forms of marriage, such as polygynous or polyandrous marriage. Those who believe in such forms, for religious or other reasons, probably see you as singling them out for disfavored status. What you want is for the Courts to bless your sentiments and not those of California's Black and Hispanic (excuse me, Latino) populations. There are no constitutional grounds on which to do so.
But if the passing and sustaining of Proposition 8 was good in terms of constitutional law, it was not good, I think, for the institution of marriage. The Court made it rather clear that all the tangible benefits of marriage have to be available to same sex couples (in effect singling out radical Mormons and polygynous Islamists). That means the creation of an institution parallel to marriage with all of the same legal consequences. I think that dilutes marriage and renders it less meaningful. That is one of the reasons I am in favor of same sex marriage. I think it would support rather than diminish the importance of this very important institution.
So as I said, A.I., I am not in any mood to gloat.