The First Amendment Will Smite Prop 8

California Proposition 8 and the others like it in other states stink. That is because large religious institutions, which are like any large institution mostly into getting their own way while hiding behind God, are pushing around gays and lesbians. Decades ago, "God arguments" were used hypocritically to justify messing over black folks and outlawing interracial marriage. They were garbage then and are garbage now. Still, saying that will not fuel a successful legal battle.

Surprisingly, the best approach to defeating Prop and its siblings may the First Amendment.

When Prop 8 passed on 11/4/08, people were talking about some razor-sharp lawyerly distinction between "amending" and "modifying" the California Constitution. That argument has got juice like a laptop after a coast-to-coast trip with no place to plug it in. But is the argument the opponents used, strangely in the recent Supreme Court of California argument.

Another argument is that not allowing same sex marriage denies Equal Protection since heterosexuals can marry. It persuades me, but I am not a supreme court. Courts treat Equal Protection as something much less than absolute. Yes, when the distinction is racial, where the 14^th Amendment was born, they require the discrimination to be justified by a compelling governmental interest to protect, and no possible better way to fulfill the interest. A similar standard operates in gender cases. However, legislatures discriminate between classes all the time. Those laws have merely to support a rational government interest, with a method to fulfill it that is related rationally. So, a legislature, or here an electorate, that is not flat out of its gourd will be upheld. Sorry, folks.

It's time trot out the heavy legal gun. First some history—war history. Everyone knows religious difference can cause civil war. See, for example, Shia v. Sunni in Iraq. Also, religious fear causes extreme repression. As in the Spanish Inquisition, which promoted Catholicism at the expense of Jews and Protestants. Later, Protestants (Huguenots) were hounded from France, and settled in many parts of the U.S., including Manhattan, Central Pennsylvania and Louisiana ("Cajuns" or "Arcadians"). Catholics escaping repressive Anglican England in large part settled Maryland. Pilgrims, who were separatists from the Church of England and thus repressed, founded Massachusetts.

With all this history fresh in mind, In 1791 Congress and the states passed the First Amendment, among other things banning religious intolerance on the part of the government, saying it could not interfere with religious expression or establish one or more state religions. (By the way, The 14^th Amendment applied the same rules to the states.) That was even if the majority people said, as they often do, "But we really want to, really, really, really."

Of course, individuals may express intolerance individually. Often Christian fundamentalists express that it is God's will expressed in the Bible that marriage is solely for procreation. Thus, they hold, those who try to marry while being queer are violators of God's design and are to be thwarted. Members of other faiths have expressed similar intolerant ideas.

However, many quite religious people read sacred texts as allowing such marriages, allowing their officiants to perform them, and inviting the marriage participants into their faiths. Actually several protestant denominations in the U.S. are today fighting internally over same-sex marriages and whether to bless them or ban them.

Most challenges of public religious activity, such as Ten Commandments cases and nativity scene cases, focus on "establishing religion." The same-sex marriage prohibitions establish religion. They use the government's power over the process of marriage—such as certificates, listing who may officiate, and the benefits of marriage (inheritance, decision making in serious illness, social security, marital rights to alimony, etc.)—to impose orthodox views of "God's Will." Nothing could more clearly entangle the state in implementing religious doctrine.

However, there is more. By interfering with those congregations who want to do same sex marriages, these laws also interfere with their free expression, another Constitutional no-no. That supposedly the 'people have spoken' is no counter. The First Amendment (and several others) are there specifically to protect people from majorities or well funded and agitated minorities.

While done without physical violence, these laws are every bit as harmful as the pressure governments working hand in hand with religious bodies put on what they called heretics centuries ago. Today's victims are loving couples who wish to live their lives as couples, and have the multiple benefits of marriage, but who vocal religious orthodox who insist on having their way prevent them. This causes untold misery supposedly in the name of God. As it would have shielded the innocent from the pain and harm of the Inquisition, the First Amendment will today powerfully shield the innocent from these vicious laws against same-sex marriage.

Philip L. Marcus is a Maryland attorney of about 35 years experience, primarily in private practice. Currently he specializes in First Amendment matters, intellectual property and business transactions. Besides a law degree, JD, from the University of Maryland Law School, he hold SB and SM degrees in engineering from the Massachusetts Institute of Technology.

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