Now, if it is defeated in court, I think it would be incumbent upon the anti-Prop 8 folks to work to get something on the ballot confirming the court's decision. Crafting it will be tricky, but I think they need to "set the standard" before the opponents do. Something along the lines of "no civil rights currently granted by law may be abrogated by less than a super majority of the electorate." That could cement the right and make it highly unlikely to be overturned by a proposition.
But, if it is worded so that it can be rescinded by vote, then it is not a right, but rather a mere civil
privilege subject to abrogation at the whim of the populus. There should be something more foundational on which to rest a claim to a right if it is to be "secured" by law, and in my opinion that foundation is whether "marriage" is an inherent, and thus, unalienable right.
Earlier, when it was being bandied about as a federal issue, I viewed same sex marriage from several perspectives before coming to my own conclusion. I will simply repeat here what I posted then.
"1. The US Constitution does not grant the Federal Government authority over marriage therefore it is not a federal matter.
2. Is marriage a right or a privilege? If marriage is defined as a contractual lifetime commitment between two consenting people, and the exercising of this action does not require active provision by non-involved persons, and the exercising of this action does not infringe upon the rights of others, then I would have to conclude that it is an inherent right not dependent upon the state or other authorities.
3. If engaging in a contractual lifetime commitment by two consenting individuals is a right, then the question becomes, is such a right restricted to heterosexual contractual commitment, or is a same-sex contractual commitment also an inherent right?
4. All natural or inherent rights are morally self-restricting in that each person's liberty to exercise such a right ceases just prior to infringing on the inherent rights of another. In addition, society (usually through the power of the state) may place additional limitations on an inherent right. The reason for doing so is to ensure as best it can, social harmony (I mean by this, respect for the rights of all individuals).
So, when it comes to determining if same-sex consensual 'marriage' is also included in the general right to consensual marriage, the question is, "Does its prohibition protect other individuals from a threat great enough to infringe on what is otherwise an inherent right"? If so, what is that threat?
My personal opinion is that 'marriage', same or hetero, is not a matter for state involvement. I also do not accept altering constitutions -- state or federal -- to restrict individual freedom that does not infringe on the rights of others or severely and negatively impact others in society. This leaves the question of whether the individual states should pass laws that would restrict such freedoms. In the case of consenting contractual commitment (a.k.a. marriage), I do not see why they should.
I do personally consider marriage, in the traditional meaning of the word, to refer only to the consensual contractual commitment between a male and a female (whether through a church ceremony or legal documents drawn up in a lawyer's office). However, I cannot see any threat from the same documents being drawn up for a same-sex couple. There may be threats that I am not aware of, and -- like Perot said -- I am all ears.:-)
In pondering this issue, I think principle compels me to not support the "yes for man and woman only marriage" thingie."
I have seen nothing nor thought of any reason since writing the above to change my position on this issue.
Yours,
Issodhos
