The Constitutionality of Prop. 22 - City on a Hill Press

The Constitutionality of Prop. 22 - City on a Hill Press

By Marie Haka
Next week, a heated battle will unfold in California’s highest court. On March 4, the California Supreme Court will hear arguments regarding the constitutionality of the state’s same-sex marriage ban. Petitioners challenging the ban include several same-sex couples seeking marriage licenses as well as citizens of the City and County of San Francisco. Respondents defending the ban include the State of California, Gov. Schwarzenegger, the Proposition 22 Legal Defense and Education Fund and the Campaign for California Families.

Both the proponents and the opponents of the ban have emotional and well-developed arguments.

Matthew Staver is the founder and chairman of Liberty Counsel, an organization geared towards “advancing religious freedom, the sanctity of human life, and the traditional family,” according to the Liberty Counsel website. Staver will be arguing in front of the California Supreme Court that the same-sex marriage ban is constitutional. He cites the history of marriage in California and the will of Californian voters in upholding same-sex marriage bans as reasons for maintaining the restriction.

“One hundred and fifty years ago, the California Supreme Court said that one of the interests it has in marriage is the interest in procreation and childrearing, providing the optimal environment in which the child can have exposure to both genders, male and female,” Staver said. “The people passed Proposition 22 by 61 to 62 percent of the vote in 2000, and that didn’t create marriage as one man and one woman. What that did was it solidified the people’s interest in preserving heterosexual marriage.”

Second-year Ian Sentelik sees the opposition to same-sex marriage as a use of personal beliefs to justify the bans.

“It’s just the fact that they don’t like it and thus it shouldn’t happen,” said Sentelik, who is gay. “And that’s just ridiculous.”

Molly McKay is the media director of Marriage Equality USA, an organization whose purpose is to fight for equal marriage rights for same-sex couples. McKay believes that same-sex marriage bans are unconstitutional because they deny same-sex couples federal rights.

“Right now in California, domestic partnerships have most of the same rights that married couples have under state law, but the problem is that we don’t have access to any of the 1,138 federal rights that come with the civil marriage license,” McKay said. “There’s a constitutional right to marry the person that you choose.”

Historically, groups have been refused personal freedoms because of the possibility of physical and emotional harm or an intrusion in others’ individual rights. McKay denies that any sort of harm would befall opposite-sex marriage, and that no personal or religious freedoms would be interfered with if same-sex marriage were made legal.

“What possible harm could come from ensuring that same-sex couples and their kids are equally protected and treated as full U.S. citizens under the law?” McKay asked. “People need to recognize that we all have civil rights. ”

Staver argues that research proves there are differences in the development of children raised by opposite-sex couples and same-sex couples, and that allowing same-sex couples to marry would damage the traditional family. He cites the studies of two University of Southern California professors, Judith Stacey and Timothy Biblarz, as well as his own work.

“There is a significant amount of research that suggests that children do best when they are exposed to both genders,” he said. “I’ve written a book called ‘Same-Sex Marriage: Putting Every Household At Risk,’ and I cite a lot of research there.”

Conversely, McKay believes that all families should be respected uniformly regardless of their composition.

“We want to support the notion that all families should be treated equally,” McKay said. “Family is family wherever there’s love, and we just need to ensure that we’re all being treated equally under the law.”

She also points to documented research that suggests children of same-sex couples are raised and develop just like the children of opposite-sex couples.

“There have been numerous studies that show that gay parents raise just as well-adjusted children as heterosexual couples do, such as the American Psychological Association’s ‘Lesbian and Gay Parenting’ report,” McKay said. “There’s no difference in the parenting, but there is a slight bit of discrimination that those kids face that could be rectified by the state allowing their parents to be married.”

McKay sees the ban on same-sex marriage as unfounded, unconstitutional and a form of state-sanctioned intolerance.

“California has eliminated every discriminatory barrier, except for this one,” McKay said. “This is just another form of gender discrimination that needs to go.”