Virginia Slims - We have come a long way, Baby. But we have a long way yet to go.
The United States Constitution, as the "supreme law of the land," is either supreme, all encompassing, or it is vacuous, meaningless, and without legitimate moment for anyone. This argument begins with the premise that in fact the Constitution is as it was intended from the outset to forever be: "The supreme law of the land," with jurisdiction over all within the United States and a protector of the rights of all within those same geographic bounds.
Section One of the Fourteen Amendment reads as follows: [Clause 1.] All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. [Clause 2.] No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; [Clause 3.] nor shall any State deprive any person of life, liberty, or property, without due process of law; [Clause 4.] nor deny to any person within its jurisdiction the equal protection of the laws.
The Constitution has two, and only two, purposes. The first is to establish a workable and enduring governing framework for the country. The second was to protect those within the jurisdiction of the government from trespasses against their rights by the government. The simple fact that a majority of citizens in a given State might hold a particular opinion, then pass legislation or amendments to their individual State constitutions, to enforce those opinions, is merit less and unenforceable should that legislation or amendment to their constitution conflict with the US Constitution.
Over the years, the US Supreme Court has repeatedly held there are three requisites for a 14th Amendment, "equal protection" claim: As Clause 2 makes manifestly clear, the first requirement is some form of "State" action. Such "State" action can be by legislation or an amendment to that State's constitution, or by a selective application of that State's (or, a subset government of the State; county, city, district, etc) laws makes no difference. By any of these composes prima facie "State" action.
The next requirement is for such action to be directed at an "identifiable" group. Initially, the Amendment's direction drew from fear that the just defeated South would take legislative vengeance against the newly freed slaves. However, as there was no specificity in the Amendment that the freed, black slaves were to be the only ones protected, and as Clauses 3 and 4 do specify that the protections are to "any person," members of other "identifiable groups" sought and obtained just protection against discrimination as well. Women and others who had suffered discrimination because of physical and mental disabilities soon thereafter won redress in the courts against laws and employers that sought to keep them "in their place."
Of course, before anyone can secure a court victory, they must have suffered some injustice that the courts can provide some remedy for. That's the third requirement. You may be able to assert some membership in a group because of ugliness, or not being especially athletically coordinated, or born to bad or ignorant or not well-connected parents. But no court can provide the equity to make you so to speak attractive or dexterous or blest with the most ideal mom and dad. Life's just not fair. Nothing any court can do to rectify those whims of fate.
Perhaps some can recall the old Virginia Slims television commercial, before all cigarette television ads were made illegal. "You've come a long way, Baby," was directed to women, following the women's movement and court victories that rendered discrimination against them unconstitutional. The November 4 election provoked me to recall that old ad, for indeed, as a country, we had "come a long way." California's passage of its Proposition 8 State constitutional amendment banning gay marriage, however, left me angry and disappointed to have to muse that clearly we've got one hellova much longer way to go than I could ever have imagined, especially for a state known for its generally progressive orientation.
The proposition was funded primarily by the Mormon Church and Blackwater's Erik Prince, and was heavily backed by the Catholic Church.
Comment concerning anything that Erik might do or say is superfluous; evil is just that, and can never be either explained or adequately condemned.
The churches are something else again. For starters, any expression by either or both that their endeavors distilled from some notion that the supposition that gay or lesbian wedlock composed an abrogation of their religious tenets would doom the amendment to being overturned. Any such claim would obviously crash against the Constitutional wall of separation of church and state. That's why no such claim was ever issued.
That none was promulgated does not mean that both institutions did not draw upon their orthodoxy to rationalize the legitimacy of their positions. Whether it was stated or unstated is irrelevant to the fact.
Tragically, the truth is that the real push came from ignorance and bigotry and hatred; not at all the kinds of emotions that institutions that are presumably founded on the sort of love and acceptance and teachings conveyed by the teachings of Jesus of Nazareth (I'm thinking here of the mote in the neighbor's eye and the beam in one's own lecture, and of the Parable of the Good Samaritan) should be endorsing. And if there's a harkening to Old Testament sanctions against homosexual behavior, the books of Deuteronomy and Leviticus there are numerous other behaviors that require stoning to death of the transgressors of those laws. A son who acts belligerently to his parents, and a daughter who is not a virgin on her wedding day come immediately to mind.
They claimed it was in defense of "marriage." Tell that to the flock, but please don't think everyone else is so stupid to buy that, any more than others will buy some bridge over the Hudson that the respective churches may claim to own. The divorce rate in the US can be attributed to any number of reasons, legit and illegitimate. But trying to say that even a one can be traced to a cohabiting gay or lesbian couple down the block, or even next door, just is not among them.
Nope. This was ignorance and bigotry and hatred, unalloyed by anything valid. But that raises an intriguing side issue relative to the institutions that were most involved. That's because both have been the victims of some of the most outrageous discrimination ever perpetrated. A reasonable person would be inclined to suppose that neither of them would engage the sort of divisive hatred both had suffered from in their past. That being so, both institutions, and every one of their parishioners, should be deeply ashamed. What they perpetrated was in fact . . . shameful.
Should the courts, federal and state, overturn the amendment? Rhetorically, where's the question worth pondering? We have the necessary "State action." So, too, do we have an "identifiable group." But will there exist damages susceptible to court amelioration? Many employer funded health plans are extendable only to spouses and their children, as are most employee pensions and the rights of surviving spouses to all or some portion of the benefits. There are also several other social benefits that accrue only to married couples. Thus, the damages requirement is present.