I'm not sure whether to call on the ghost of Hugo Black, or look to one of Antonin Scalia's better days, when I read the New York Times's pathetic editorial on the lawsuit in federal district court challenging California's Proposition 8. I use pathetic in the most clinical sense of the word: the editorial is all pathos, without a shred of rigorous constitutional analysis. It manifests the common American malady of reducing "constitutional rights" to a mere wish list.
The Times's basic premise is "The testimony made abundantly clear that excluding same-sex couples from marriage exacts a grievous toll on gay people and their families. Domestic partnerships are a woefully inadequate substitute." As far as constitutional law is concerned, the obvious question is "So what?"
Constitutional law is not about "grievous tolls" or the "adequacy" of a legislative remedy. Nor is it about "how does this make me feel?" Constitutional law is primarily about jurisdiction, delegating powers, and limiting powers. If a law is judicially found to violate the constitution, that should mean that the legislature has exceeded its duly constituted authority. "Every act of a delegated authority, contary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid" - Federalist Papers, No. 78.
The federal constitution does contain some restrictions on the exercise of state authority -- all of them ratified by three fourths or more of the state legislatures at the time the constitution itself, or an amendment, was ratified.
Article I, Section 10, bars state from entering into treaties, coining money, passing any bill of attainder or ex post facto law, levying duties on imports, keep troops or ships of war, or engaging in war. It says nothing about licensing marriage.
Article VI provides that the federal constitution, and all laws and treaties made under its authority, shall be the supreme law of the land. The federal government has been delegated no authority to legislate about marriage; that was left to the states.
Amendment XIII made a substantial change in constitutional law -- it prohibited slavery and involuntary servitude, except as a punishment for crime. Again, nothing about the definition of marriage.
Amendment XIV restrained states from making or enforcing any law which abridges the privileges and immunities of citizens of the United States, depriving any person of life, liberty or property without due process of law, or denying to any person the equal protection of the laws.
There is a huge difference between denying "equal protection of the laws" and "denying me what I want, when I want it, the way I want it." I would like to park my car on a city street without having to get a night permit, but since everyone in the city where I live has to get a night permit, I do also. Equal protection of the laws is something the state owes to each person - in many cases, each person similarly situated. Five year olds are denied the right to vote, but this has never been deemed to violate equal protection of the laws. ALL persons under eighteen are barred from voting.
Marriage has always been a relationship between a man and a woman. The proper constitutional question is, has any man, or any woman (who, added together, make up all persons) been denied the equal protection of the marriage laws? No. Any man, and any woman, are equally free to enter into marriage. Some men, and some women, don't wish to, but legally, they may. Further, some men, and some women, would like some other relationship, which they find more attractive, to be acknowledged by their neighbors, celebrated by their community, and licensed by their state. Well, that's possible, but its not a constitutional right. It is certainly a very different question than Virginia trying to discriminate about which men could marry which women. New York's Court of Appeals understood that better than the Supreme Courts of Massachusetts or California.
When my state voted on a "defense of marriage" amendment to the state constitution, I exercised my right to vote no. A majority of my fellow citizens voted yes. If I lived in California, I might have voted for Proposition 8, on the narrow grounds that the Supreme Court of that state had exceeded its authority under the state and federal constitutions -- there was no basis to rule as a matter of constitutional right that the state should amend its definition of marriage.
It appears that both sides of the Proposition 8 debate have degenerated into arguing potential or actual harms to gay couples, gay individuals, heterosexual marriage, public morality... none of which rise to the level of constitutional questions. Turning once again to Federalist Papers No. 78, "where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former." On that basis, judicial review of California's Proposition 8 would result in summary judgement for the State of California; on no set of facts is there any legal foundation to rule in favor of the plaintiffs.
