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Is Marriage a Constitutional Right?
One of our most fundamental rights as citizens of the United States of America is the right to marry the person of our choice. Courts in this country have determined that the right to marry is, in some cases, more fundamental than the right to vote. The right to marry cannot be denied:
- on the basis of an individual’s race;
- to those who have shown themselves to be delinquent on child welfare payments; or
- to inmates.
Every day, however, tax-paying, law-abiding gays and lesbians who love and cherish each other and their children are denied the ability to protect their families with a marriage license.
The 14th Amendment to the U.S. Constitution extends “equal protection of the laws” to all citizens. The California Constitution also has an “equal protection” clause, and specifically prohibits gender-based discrimination. The intent of both the U.S. and California Constitutions is violated when we discriminate on the basis of gender in the issuance of marriage licenses and treat some families differently than others. As California Superior Court Judge Richard A. Kramer explained:
“If a person, male or female, wishes to marry, then he or she may do so as long as the intended spouse is of a different gender. It is the gender of the intended spouse that is the sole determining factor. To say that all men and all women are treated the same in that each may not marry someone of the same gender misses the point. The marriage laws establish classifications (same gender vs. opposite gender) and discriminate based on those gender-based classifications. As such, for the purpose of an equal protection analysis, the legislative scheme creates a gender-based classification.”
Courts in Hawaii, Alaska, Oregon, Washington, California, Vermont, New York and Massachusetts have found that excluding same-sex couples from the right to marry or the protections of marriage is unconstitutional. Those who are seeking to write LGBT people out of the California Constitution are recognizing that the ability to marry someone of the same-gender is likely a constitutionally protected right in California – a right they would like to take away.
Amending California’s Constitution to ban marriage for same-sex couples would undermine everyone’s freedom.
Reverend Al Sharpton
“Whatever my personal feelings may be about gay and lesbian marriages, unless you are prepared to say gays and lesbians are not human beings, they should have the same constitutional right of any other human being.”
We must reject the attempt to use our Constitution to establish discriminatory policies. It is our history as African Americans that dictates this consciousness:
Dangers of a Constitutional Amendment.
· Passage of the constitutional amendment would deny access to the judicial branch of government to a diverse group of citizens. It says to gay, lesbian, bisexual and transgender citizens of California – and their children – that they must accept the government’s judgment of them as second-class citizens.
· We must not send the message that one group can simply change the Constitution to bar another group from their rights because of ideological differences. This would undermine the very purpose of having a Constitution.
· No group of citizens’ rights should ever be up for a popular vote. It was wrong after the 1948 California decision, and it is wrong today.
Black legislators and community leaders have recognized the crucial importance of protecting our Constitution from the assault that is the proposed ban on marriage between same-sex couples:
- In Georgia, Black members of the State House of Representatives provided 39 of the 50 votes that were needed to defeat a state constitutional amendment to ban same-sex marriages.
- In Mississippi, Black legislators cast the only 17 votes against a similar measure.
“In a place like California, you can not possibly work for rights if you don't work for gay rights,” said Alice A. Huffman, NAACP California Conference President, announcing support for a marriage equality bill for same-sex couples. “You either believe in the rights of everyone or you are in the wrong business.”
Every major civil rights organization in the country recognizes the importance of protecting our Constitutional freedoms by opposing these amendments. Among them are:
Alliance of Baptists
American Bar Association
American Civil Liberties Union
American Federation of State, County, and Municipal Workers, AFL-CIO
American Federation of Teachers, AFL-CIO
American Friends Service Committee (Quaker)
American Jewish Committee
Anti-Defamation League
Central Conference of American Rabbis
Disciplines of Christ Church
Episcopal Church, USA
Friends Committee on National Legislation (Quaker)
Guru Gobind Singh Foundation (Sikh)
Japanese American Citizens League
Leadership Conference on Civil Rights
League of United Latin American Citizens
League of Women Voters of the United States
Lutheran Office for Governmental Affairs of the Evangelical Lutheran Church in America
NAACP
NAACP Legal Defense and Education Fund
National Conference for Community and Justice
Presbyterian Church (USA), Washington Office
United Church of Christ
United Farm Workers Union
Women of Color Resource Center
The NAACP vigorously opposes President George W. Bush’s attempt to pass a federal constitutional amendment banning same-sex marriage. We also oppose state-level attempts to do the same thing…There is no such thing as a moderate or ‘compromise’ amendment that in any way enshrines treating one group of people differently than others.” (Julian Bond, Chairman of the NAACP, letter to Massachusetts State Senate March 8, 2004)
