Ultimate battle for gay marriage supporters: their fellow Americans

The public reaction to a federal judge’s decision declaring California’s prohibition of same-sex marriages unconstitutional has again demonstrated that Americans have deeply held and divergent views about gay marriage. The closely reasoned and factually robust opinion of US District Court Judge Vaughn Walker may well be the vehicle that compels the United States Supreme Court to determine what is meant by the “right to marry.” It is a question state supreme courts have grappled with for nearly two decades. But it is not a question for judges only.

The most intriguing aspect of Judge Walker’s thorough and cogent 135 page opinion is his assertion that the support of California voters for Proposition 8 limiting marriage to opposite-sex couples is “irrelevant, as fundamental rights may not be submitted to a vote; they depend on the outcome of no election.”

Judge Walker’s statement is absolutely correct in the constitutional context in which it was used. Neither California voters nor the voters of any state can amend their respective constitutions to deny rights guaranteed by the United States Constitution. If Walker’s decision is ultimately affirmed by the US Supreme Court, state constitutional provisions in some 30 states restricting marriage to opposite-sex couples would be null and void.

A potential federal constitutional amendment

There is, however, a constitutional context in which the views of California citizens (and citizens of every state) may be very relevant to the right to marry. It is a circumstance in which a right declared fundamental by the United States Supreme Court may be submitted to a vote. Although most observers (myself included) believe it unlikely that the Supreme Court as currently comprised would embrace Walker’s legal analysis, it is a virtual certainty that if the Court did so, there would be an attempt to “overturn” its decision by constitutional amendment.

For another view, read "Gay marriage: Why Judge Walker got Proposition 8 ruling wrong"

Proposals to limit the right to marry by amending the federal Constitution to incorporate a “traditional” definition of marriage have been considered by Congress, but the impetus would be far greater in the face of a United States Supreme Court decision recognizing a right to gay marriage. Two-thirds of both Houses of Congress, or the legislatures of two-thirds of the States, may propose such an amendment, three-fourths of the States (either by legislative vote or constitutional convention) being necessary for ratification.

In fact, Walker determined that a judicially mandated right to same-sex marriage is vulnerable to limitation by constitutional amendment. His ruling found that the “legal disadvantage for gays and lesbians” arising from stereotypes is significant. Indeed, as one of the trial’s expert witnesses noted, between 1998 and 2008, voters in 30 states passed amendments limiting marriage to a man and a woman – usually by a large margin.

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