Surely, most people visiting the Daily Kos website are aware that the Supreme Court heard oral arguments in Hollngsworth V. Perry, the case concerning California's Proposition 8, which amended the state's constitution to ban same sex marriage. The ban has been ruled unconstitutional at the Federal district and appellate court levels. Upholding the ruling would legalize same sex marriage in California.
For me, there was one particularly telling exchange. It was between Theodore Olson, arguing to uphold these rulings, and Justice Antonin Scalia, trying to justify ruling against them. Justice Scalia asked Olson when banning same sex marriage became unconstitutional. The question seemed to flummox Olson. Scalia pressed him asking if it was always unconstitutional, or if it had become unconstitutional after the passage of the 14th Amendment with it's equal protection clause, or some other date. Olson tried to deflect the questions. He missed an opportunity.
The short answer is, "Yes. Banning same sex marriage has always been unconstitutional." Now, I am neither a Constitutional scholar, nor an expert on the Supreme Court. However, I do not believe the court had ever considered the question before. If they had, certainly the cases involved would have been cited today. It is true that the Supreme Court had previously ruled that it was Constitutional to pass laws making same sex sexual conduct illegal, but they have since corrected that error.
I submit that the Constitution was written specifically with the intent to create a government capable of protecting the unalienable rights of its citizens. We do not vote on rights, nor do we decide who is entitled to them. That is why they are called rights. When courts in California, Iowa, and Massachusetts ruled in favor of same sex marriage, they were not creating a new right. They were simply affirming that the right to marry applied to couples where both parties were the same gender.
We are a nation of laws, not of men. As a matter of law, marriage is merely a contract between to people who can legally enter into one. Specifically, a the marriage contract legally creates an immediate family relationship where one did not exist. There are benefits and obligations that result in entering into this contract. If two people wish to enter into it, and they are consensual age to do so, then the state has no right to choose the gender of either party.
I thought it was telling last week when Senator Saxby Chambliss (R-GA) said he wasn't gay so he wasn't going to marry one. Good news, Senator, you don't have to. I don't recall anyone asking if you were planning on it.
Another statement comes to mind. It was what Vice President Biden said during the debate when he was asked about abortion. He said that as a Catholic he believed in his Church's teaching that life begins at conception. However, he went on, he does not believe that he has the right to make that determination for someone else. Is this not the very definition of freedom? What could be a more American value than that?
P.S. Senator Santorum, check it out, the Democrats have a man of faith in public office, don't choke on the puke.