Is same sex marriage unconstitutional?

Same sex marriage is in the news again!

A federal appeals court panel ruled on Tuesday that a voter-approved ban on same-sex marriage in California violated the Constitution, all but ensuring that the case will proceed to the United States Supreme Court.*

What's the ruling? Judge Stephen Reinhardt wrote:

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different people differently.

There was no such reason that Proposition 8 could have been enacted. All that Proposition 8 accomplished was to take away from same sex-couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage,'the judge wrote, adding: "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California."

Bill O'Reilly thinks the ruling is "judicial activism" (i.e., unconstitutional)**

Let's take a closer look:

1. By majority vote, Prop 8 restricts marriage to the union of a man and a woman. 
2. But an individual has the right to marry the person of his or her choice.

So, there is a clash between peoples' rights and individual rights here.

Who wins? Well, inalienable rights seem to have priority (over majority rights) and should not be removed by any agency or government (including majority vote). Mind you, this is a libertarian view point (what I mean, closer to the right than you may think). Unless you're a moral conservative and think that the rights of the people in this case overturn the rights of the individual.

Philosophically speaking this is a fight between Locke on one side and Rousseau (and Burke) on the other. But same sex marriage is more contentious because of its religious connotation.     

The truth is that the majority of Americans seem to view homosexuality as morally wrong.  A  recent study of 25 years of the General Social Survey indicates shifting attitudes about the perceived immorality of homosexuality, with growing negativity in the early 1990s and increasing liberalism more recently.** Despite this liberalization in attitudes about some civil rights, only one third of the American public feel gay marriages should be recognized by law. Thus, we are at an unique moment of public ambivalence about attitudes toward the rights of gay men and lesbians to marry.

Yet, same-sex couples enjoy legal recognition in many countries outside the United States. They can marry in Belgium, Canada, the Netherlands, Spain, and South Africa. They can register as partners in at least fourteen other countries, achieving many, most, or all of the benefits and obligations accorded married couples. Among Western countries, the United States stands largely alone in maintaining an inflexible line between married couples and everyone else. 

Some sociologists suggest a growing ambivalence in attitudes, with Americans demonstrating relatively high hostility, negativity, and disapproval about gay marriage, but more positive attitudes toward other gay civil liberties, arises from some basic conflicts over core values. People are conflicted over their core values surrounding the perceived sanctity of family and marriage and their own rising individualism and efforts to tailor their life experiences to their personal choice.

Those who feel more threatened by the perceived "cultural weakening of heterosexual marriage" are more likely to oppose gay marriage. Those who have a greater personal stake in the institution of marriage perhaps feel a greater need to "protect" marriage from "the threat" of gay marriage.

It's a very complex issue depending on ideology, religion, prejudice and plain ignorance.

What are your thought on the subject?
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* There is precedent, in 1996, a Hawaii court held the state's same-sex marriage ban unconstitutional. The Hawaii Supreme Court was expected to affirm that decision until the state constitution was amended by referendum in November, 1998. Such a decision would have forced the rest of the states to confront a variety of issues, not the least of which would have been whether their own prohibitions violate state or federal constitutional guarantees. In order for a same-sex marriage ban to be constitutional, there must be legitimate reasons supporting such a statute rather than, for example, a mere desire to disadvantage a disfavored group. **Under this presumption, courts supply any conceivable facts necessary to satisfy judicially created constitutional tests. The Supreme Court has given three reasons for this presumption: to show due respect to legislative conclusions that their enactments are constitutional, to promote republican principles by preventing courts from interfering with legislative decisions, and to recognize the legislature's institutional superiority over the courts at making factual determinations. *** Courts and commentators who discuss why same-sex couples should not be allowed to marry suggest that the interest of the state in the creation and care of the next generation can only be served if the children are produced "through the union" of the couple. But that is not the state's interest, as is clear from the state's policies on adoption, foster care, etc.

I am closing this post next Monday & 11pm.