Last Tuesday, California's voters passed a constitutional amendment stripping the ability of gay persons to enter into a marriage contract. The final ballots have been tallied, but the heated debate over gay marriage is far from over. There is an important underlying issue related to this proposition, and it concerns the right for two persons to enter into a voluntary contract. This is an argument California courts will have to face with regard to Proposition 8's constitutional implications.
Per Article 4, Section 3 of California's Constitution, the United State Constitution is the supreme law of the land. Looking first to the United States Constitution, consider the effect Proposition 8 will have on gay marriages that have already been recognized by the state. Pursuant to Article 1, Section 10, No State shall...pass any...ex post facto Law, or Law impairing the Obligation of Contracts. And, under California's Constitution in Article 1, Section 9, a bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.
Is there really room for interpretation here? Over 18,000 gay marriages have been officially recognized as legal contracts between two consenting persons. Besides, the state would face strong opposition if it attempted to nullify pre-recognized marriage contracts and open the door for a major class-action lawsuit.
But what about future contracts?
The First Amendment was established to further prevent the passage of laws that would limit the establishment of religion or prohibit the free exercise thereof. Yet, if the government establishes a universal definition of marriage, while some religions accept gay marriage under their definition, it is establishing a law prohibiting the free exercise of religion.
Proponents of Proposition 8 will argue that the government is not banning religious unions, and thus does not restrict the free exercise of religion; it just does not recognize such unions as legal contracts. Therefore, the proponents argue, that the government is not restricting the free exercise of religion. Then, purely in terms of contractual rights, on what basis does the state accept some marriage contracts and refuse those between gay couples? If it is based on the gender of the persons getting married, it is restricting such contracts based on sex. Thus, should we uphold the constitutionality of Proposition 8, our legal system will set a precedent for the state to not recognize voluntary contracts based on the gender of the parties of a contract.
Based on the aforementioned precedent, what would stop an initiative from changing our constitution by restricting a woman from purchasing a car from a man? Or a man from selling a house to another man? As ridiculous as such initiatives sound, Proposition 8 paths the way for the validity of a contract to be determined by the gender of the persons entering the contract. All voters would have to do is pass another initiative.
That brings us to the validity of the initiative process itself. Should a majority vote be sufficient to amend the most precious and important law of the state?
If segregation were left to the vote of the majority, blacks would have had to wait a lot longer to receive equal protection under the law. It was the courts that extended such rights, not the voting majority. Yet, if Proposition 8 is written into our constitution, the initiative process supposes that, given 51% of the people support it, the government can restrict any voluntary contract based on gender, regardless of the court's opinion. What if the South, not content with the court's decisions a few decades ago, simply passed an initiative over-ruling the court's rulings on segregation?
In fact, California repudiated a ban on interracial marriage on the basis of racial discrimination in 1959 as did the United State's Supreme Court in 1967. How would the same state and country claim a ban on same-sex marriage does not constitute the same kind of discrimination, this time on the basis of sexual orientation?
Our founders, as stated in Article 4, Section 4 of the Constitution, warned against exactly the form of majority governance we are now recognizing as a legitimate legislative process, when they guaranteed every state a republican form of government; one that respected the checks and balances of the judicial, executive, and legislative branches over pure democracy. The founders may have had conflicting opinions about gay marriage, but they would agree that something as sacred as a constitution should not be amended by simply passing an initiative.
Supporters of Proposition 8 may really believe they are protecting the sanctity of marriage, but is California willing to sacrifice the sanctity of our US and State Constitution to uphold their will?