by Currie Jean

Created on: May 30, 2008   Last Updated: June 09, 2008

While many of those protesting California's legalization of gay marriage do so only using unconstitutional and irrelevant religious arguments, some also claim to be up in arms based on constitutional concerns alone.

It's hard to tell whether these people are merely veiling religiously-supported bigotry with the constitutionally-based arguments they put forward, but they may as well be given the benefit of the doubt: the California Supreme Court (CSC) not only legalized gay marriage in accordance with morality, they did it in accordance with, and with the support of, pre-established law.

Some myths about the Court's decision, no doubt aided by the Fox News Network, have already begun to spread. It's important to dispel these myths when engaging in a discussion of the morality and legality of the new gay-friendly marriage law.

Myth #1: "The California Supreme Court fabricated a brand new 'fundamental right,' right out of thin air." While it is unconstitutional to make up new fundamental rights on a whim, as doing so would totally erode the value of the notion of fundamental rights altogether and make them meaningless, this is not what the CSC did. The fundamental right referred to in the documentation is this: "the right to join in marriage with the person of one's choice."

Myth #2: "The supposed 'fundamental right' created by the CSC is this: 'the right for one gay or lesbian person to marry another gay or lesbian person.'" It is true that a right, fabricated and documented in such a way, would be unconstitutional. Fortunately, the CSC did not create this right, but rather, referred to a right already deemed fundamental.

Myth #3: "The supposed 'fundamental right' created by the CSC is this: 'the right for a person of one sex to marry another person of the same sex.'" This myth is similar to myth #2, and can be explained by referencing the critique of myths 1 and 2.

So, how did the CSC come to their decision? They did so in reference to a sixty-year-old constitutional document which discussed, and finally granted, expanded marriage rights to the people of California: the 1948 case which brought the legalization of interracial marriage. The ban on interracial marriage was overturned based on "the importance to an individual of the freedom 'to join in marriage with the person of one's choice.'"

The California constitution also grants people - all people - the right to "equal protection of the laws." Marriage is, of course, a legal issue. Can any state simultaneously grant

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