With the recent passage of Amendment 8 in California, it should come as no surprise that the gay and lesbian community is rallying behind a suit brought before the California Supreme Court to have the constitutional amendment overturned. Now, on a national scale, supporters should hope that the plaintiffs are successful in their trial and allow couples in California to be wed. Why? Because the successes of this lawsuit will delay the inevitable. How? Well there is this funny little thing called federalism that could have the potential to make gay marriage legal nation wide.

As I am sure you are all aware, any case can go from small claims court to the Supreme Court. What you may not know is that the Supreme Court can pick and choose the cases it hears, and the Court tends to not care much about you not being paid by Mr. Smith after doing some lawn work. They do, however, care very much about answering questions regarding the constitutionality of law that, say, denies rights to certain individuals – lets say gay people.

We must also not forget that the Constitution is the supreme law of the land. No law supersedes the Constitution and all laws should, in theory, be written and implemented to be in harmony with the Constitution.

There are two basic schools of thought when it comes to the Constitution. One claims that the Constitution is a living document that adapts and evolves over time to create what are known as “penumbra rights -” rights such as privacy and the separation of church and state are a good example; nowhere are these rights actually written into the Constitution. These penumbra arguments tend to be use by more liberal members of the Court. Others, however, view the Constitution as a historic document that should be read with a literal meaning – if it is not on paper, it is not a Constitutionally recognized right. This view is popular among more conservative judges.

Now let us go back to my main point – why gay marriage and equal rights are inevitable for homosexuals. If the plaintiffs are successful the story is over in California; gay rights advocates can not appeal a decision that is in their favor. Assuming this scenario, however, sets legal president in other states with similar laws (like Utah which banned gay marriage four years ago) and allows plaintiffs to file similar suit in other states. Eventually one of these cases will not favor the plaintiff and the suit will move into the federal system. Eventually one of these cases will not favor the plaintiff in federal court and the lawsuit will move to the Supreme Court.

It is at this point that I encourage you to open your civics books to page four, you know, that section that actually has the Constitution printed on it. Everyone flip through until you find the 14th Amendment. Billy, could you read that aloud please? Section one please.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person with its jurisdiction the equal protection of the laws.

Thank you Billy. This first section is known as the “Equal Protection Clause” of the Constitution. It, in no uncertain terms, states that States must provide equal protection under the law. If one person is afforded legal rights – all sections of the populous are afforded those same rights. This rights can not be taken away without legal intervention.

“Ah, but Curtis,” you exclaim, “homosexuality is against the law.” I now encourage you to fast-forward you educational setting ten years. Billy is now a nerdy political science major who is taking a Constitutional Law class to get his degree. William, has to give a brief summary of Lawrence v. Texas (2003).

Lawrence v. Texas was presented before the court after Houston officers legally entered the residence of John Geddes Lawrence after a person reported that someone was “going crazy” inside. Officers found that Lawrence was engaged in homosexual intercourse with Tyron Garner. Both were arrested under Texas’ sodomy law. The court decreed that laws that specifically target homosexual laws, such as sodomy, were in violation of the Equal Protection Clause because they were written to target a specific group of people where the state has no interest in passing such a law. The court, in essence, banned any laws where two consenting adults were having sex. Extrapolate out from this, and the court says that laws can not be written that claim that homosexuality is a crime.

So why is gay marriage still not allowed? Well Justice O’Connor, writing in concurrence with the judgement mind you, stated that “Unlike the moral disapproval of same-sex relations – the asserted state interest in the case – other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.” In other words, the state does have an interest in encouraging the traditional idea of marriage. What Justice O’Connor (I suspect intentionally) forgot to mention was what that interest is.

The “traditional” institution of marriage is a relatively new concept, arising out of the modern Middle Class crated after World War II. As we are all aware this concept is all to fleeting. I am one of the few people I know that grew up with a mother and father who were not divorced and remarried, in the process of divorce, living with another relative, et cetera.

So now we come full circle. It is not a matter of if, but when, a lawsuit regarding gay marriage comes before the court. Any con-law lawyer worth their weight in anything would mention these various points and explain to the court that a) homosexuals are protected by the 14th Amendment; b) the State’s statement that it has other reasons to promote heterosexual, traditional, marriage are false due to the continuing function of society despite many well adjusted citizens not growing up in this situation; and c) the passage of this law would simply require the State, not religious institutions, to comply with the ruling.