Why Proving Discrimination Isn’t Good Enough for Gay Marriage Supporters in Prop 8 Trial
Some people ask how it could be constitutional to ban gay marriage when its clearly discriminatory. The answer is that whether a law is constitutional or not doesn’t depend on whether or not it discriminates. Instead, it’s all about whether the government has a good enough reason for making the law.
For example, often times courts say that affirmative action laws (such as public school policies) are constitutional even though they discriminate. In those cases, courts say that the government has a good enough reason (correcting effects of past discrimination) to discriminate. Certainly, affirmative action negatively affects those races not benefited by the rules, but the laws are nevertheless legal.
That’s why in the California Proposition 8 trial, the fight isn’t about whether the the law discriminates or even whether the law hurts gay couples wanting to get married. Instead, it’s about whether California has a good enough reason to have the law.
I get pretty lost in the legal intricacies, but it would seem to me that there’s also a difference in whether you’re arguing about giving rights or taking them away. In the specific case of Prop 8, a right previously given was actually taken away. In states where there is some kind of ban on same-sex marriage, a right has been taken away, but was it ever really given in the first place?
I’d like to know when in (American) history was opposite-sex marriage actually codified. At what point in history did we actually give straight people the right to marry? (I’m sure it’s been pretty much since the country came to be.)
