The Straightaway

Politics Without Pundits

Proposition 102: Useless, Unconstitutional

with one comment

I know this isn’t presidential politics, but I just had to comment.

Arizona Proposition 102 aims to define marriage as “one man and one woman” in the Arizona Constitution, despite the fact that the Arizona Constitution already bans same-sex marriage (Arizona Revised Statute 25-101(C): “Marriage between persons of the same sex is void and prohibited.”). A very similar bill, Proposition 107, was already rejected by Arizona voters two years ago. The Arizona Legislature also voted “no” on this bill twice, according to Paula Aboud of the Tucson Citizen. This bill holds no actual relevance to upholding the law – it’s merely an exercise of religiousity at the polls.

Prop. 102 brings up the bigger problem – the unconstitutionality of ARS 25-101(C). When looking at such a ban through objective eyes, putting moral values aside and concentrating on the correct interpretation of law, it is clearly illegal. In the words of the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health, which recently struck down a law banning gay marriage in Connecticut – “our conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection.”

Banning gay marriage is a violation of the inherent rights given by the 14th Amendment of the United States Constitution: “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” By holding heterosexual and homosexual marriages to different standards, the Arizona Constitution violates this inviolable tenet of the Constitution. It can even be argued that banning same-sex marriage but allowing civil unions is still unconstitutional, for it creates a separate, but equal institution, for different people, which was deemed unconstitutional by Brown v. The Board of Education.

Conservative religious groups can attempt to assail this logic all they want, but they will fail. The California Supreme Court struck down a same-sex marriage ban in its state by a majority of conservative judges appointed by Republican governors. Despite what personal views they might hold concerning the sanctity of marriage, they realized that the aforementioned law was fundamentally against the laws of the land they were sworn to uphold. These actions are not “activist,” but rather an adherence to strict constitutional interpretation.

Prediction: the question of same-sex marriage will go to the United States Supreme Court within the next 5 years.

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One Response

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  1. aureli!
    nice blog; well written!
    -your favorite free spirit

    kyle rogers

    October 28, 2008 at 2:12 pm


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