How can there be an equal protection clause AND an amendment that says a group of people are unequal

[BattyDem]

I was just thinking about this. I'm not a lawyer and I hope that DUers with knowledge of the law will chime in and explain this to me because I'm confused.

Here's the way I understand it ...

The California constitution has an equal protection clause that clearly states, "... a person may not be deprived of life, liberty, or property without due
process of law, or denied equal protection of the laws ..."

Prop. 8 is an amendment that creates an exception to the equal protection clause ... but doesn't that exception undermine the right of equal protection? Wouldn't you have to eliminate the equal protection clause completely before you could begin denying rights to certain groups of people? The amendment contradicts an established right.

I know the original US Constitution did not include rights for African-Americans, but those rights were eventually added and I would think that in the 21st century, legal precedent would make it obvious that the current situation is unconstitutional. Why was Prop. 8 allowed on the ballot on the first place? Shouldn't the initiative itself have been declared unconstitutional before it was even added to the ballot?

What am I missing? :shrug:

[Burma Jones]

1. There is no universal acknowledgement that there are more than two Genders

or that Sexual Orientation is a group.......

[frankenforpres]

2. i support gay marriage, but maybe not this argument

if the courts agree with this argument, believe me, im fine with it. but i think the point is that no man can marry a man, no woman can marry a woman. any man can marry any woman. we are all equal that way. im not a lawyer, maybe they can chime in

[BattyDem]

4. But that's like saying ...

"White people are perfectly free to marry white people and black people are perfectly free to marry black people, but whites and blacks can not marry each other." If you're only allowed to marry a person of your own race, that does not mean you have equal rights.

If a taxpaying adult can't choose the person he/she wants to marry, then their rights are being denied. We don't allow the government to choose the race, religion or nationality of the person we marry, so why should they choose the gender?


edited for clarity

[TexasObserver]

8. Only Christians can be married. Only white people can be married.

Under the logic you stated, that would be equality under the law, because it would treat equally all Christians, all white people.

You cannot define an action or policy "equal" under the law if it deprives citizens of their life, liberty and pursuit of happiness. The ban on gay marriage violates at least two of those. It also makes gay couples second class citizens, and it renders their children second class citizens by proxy.

If one wants to understand whether something is EQUAL, ask not the oppressor, but ask instead the oppressed. Marriage is a right, not a privilege, and its denial is abhorrent to a free society.

[CAVU]

3. There's no restriction on introducing unconstitutional legislation

(or suing anyone for any reason!)...prohibiting that would be prior restraint which is a (usually) good principle of American jurisprudence.
It's one of those things we would love to be able to do but wouldn't want the other side to.

[BattyDem]

5. That makes sense

Thanks for the info. Welcome to DU! :hi:

[TexasObserver]

6. I agree. It's a violation of Equal Protection, both the California & US constitutions.

[whoneedstickets]

7. Amendment XV

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.



Pursuant to the 15th Amendment, the equal protection clause was extended to issues of race. NO such extension has been made for gender (The ERA failed to pass) NOR has any extension been made for sexual orientation. The equal protection clause may be read as not applying to this category of discrimination.

[BattyDem]

9. So unless people are specifically included, they're excluded.

:-(

[HiFructosePronSyrup]

10. It's going to be one for the courts to decide.

Personally, I'd argue that if prop. 8 doesn't specifically repeal equal protections, in the same way the 21st amendment specifically repealed the 18th, it'd be invalid. And even if it did there'd still be a good case to make.

[thereismore]

11. I think one might argue that gay people are free to marry even now to someone of the opposite sex...

So there is no marriage discrimination. :eyes: