Mailbag: Same-sex marriage, 'til death us do part

First of all, to the LA Times, my name is Benkof, with one f. Please correct your error.

Apparently Susan Hathaway does not understand what a "wedge issue" is. As explained in the LA Times by Democratic politico extraordinaire Garry South, it's a measure designed to bring out voters to support presidential candidates, usually Republicans. Some Democrats think that there's a wedge-issue link between the prominent ballot initiatives on marriage in 2004 and 2008 and the presidential elections that year. But 2004 and 2008 are the years when Massachusetts and California, respectively, implemented gay marriage. Of course those were years when people who prefer the traditional definition of marriage reacted politically. When in 1998 there were marriage lawsuits in Hawaii and Alaska, those states passed initiaves barring gay marriage. They didn't wait until the next presidential election - 2000 - to use gay marriage as a "wedge."

My point is not that adulterous public officials cannot have a position on marriage consistent with their consciences. My point is that when people like Gavin Newsom and David Paterson get preachy and pushy about how two men or two women can "marry," it is legitimate to point out that they have no idea what marriage is. I think Republicans would be dumb to let Newt Gingrich or David Vitter be our spokesmen for marriage. If the gay community were smart, it would pick someone who believes in monogamy and fidelity and has never been known to harm her own marriage as the main heterosexual spokesman for gay marriage among politicians. But if they want to keep spotlighting Antonio Villaraigosa's support for redefining marriage, I think it's great. It only helps my side.

Susan doesn't clarify if she thinks the California Marriage Protection Act is unconsitutional on the state or federal level. I hope she doesn't mean state, because that is a truly idiotic position. A constitutional amendment is by definition constitutional. If she means the federal constitution, I am willing to commit to support a federal lawsuit after the intitiative passes to force the United States Supreme Court to decide once and for all whether there is a constitutional right to same-sex marriage. Susan, will you join me in supporting such a lawsuit? Because all the major gay groups have fought same-sex couples who have sued using their own money tooth and nail, because (and they state this openly) they think if such a case goes to the Supreme Court, they will lose. The Supreme Court is the body that decides what is or is not constitutional. Susan cannot fairly claim the man-woman marriage definition is unconstitutional but oppose letting the Supreme Court make that decision. That's no different than my claiming I have a constitutional right to murder my children, but I refuse to let the courts indicate whether my absurd constitutional theory is in fact correct.

I have written extensively about exactly why marriage needs protection from the current attacks on the traditional definition on my Web site, GaysDefendMarriage.com.

Thanks, David. Sorry about that.

David: You may remember me as we corresponded a few weeks ago on various issues. I just wanted to point out that what you wrote in your comment here was not correct. A constitutional amendment is only constitutional if it is adopted in accordance with the constitutions procedure for amendment. The California Constitution makes a distinction between constitutional "amendment" and constitutional "revision." An amendment clarifies something or changes small things in the constitution. A revision changes basic constitutional doctrines or structures. Since the California Supreme Court has ruled that marriage is a fundamental right that cannot be denied to gay couples and that the equal protection clause is also implicated, outlawing same-sex marriage will now contravene the equal protection clause. Furthermore, we now know that there will be thousands of same-sex marriages performed in California while it is legal between now and November since anti-gay groups were unsuccessful in getting the Supreme Court to stay its ruling. That means that if the amendment were to pass, it would throw all of those marriages into legal limbo and it would make drastic changes to a fundamental constitutional right. It will almost certainly be considered a revision as opposed to an amendment.

The California Constitution provides that the people may "amend" the constitution by initiative. It neglects to put the word "revise" in that section. Amendments or revisions, however, can be referred to the people by the legislature. That means, since this proposal is by initiative petition and it is a revision as opposed to an amendment, it is likely unconstitutional. See McFadden v. Jordan (1948) 32 Cal.2d 330, 333: “The initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, s 1) applies only to the proposing and the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision.” Also, see Raven v. Deukmejian (1990) 52 Cal.3d 336.