Monday, October 27, 2008

Two cheers for Tom Campbell.

Two cheers for Tom Campbell. Campbell is the former Congresscritter for Silicon Valley. He got more issues right than most his compatriots. He sought the Senate but a far less sane politician, Diane Feinstein, was elected instead.

Recently Campbell wrote a piece at Reason on Proposition 8. His said: “It was really quite a stretch for the California Supreme Court to say that the Constitution of California already contains a right for same-sex marriage, when the Constitution doesn’t say a word about it.” I’ll get back to this in a second but I first want to say why I’m given Campbell two cheers.

He says that “the Court got it wrong” and “It’s for us to decide, Now, let’s make the right decision. And that right decision, in my view, is to allow same-sex marriage in California.” Considering he’s a Republican that is quite a step. He’s sure light years ahead of Ron Paul on the issue. He’s even ahead of Bob Barr, of the (formerly) Libertarian Party.

But Campbell didn’t get three cheers because he got something very fundamental wrong. The California Supreme Court didn’t find a right to marry in the Constitution. (By the way I think there is a right to marry covered in the 9th Amendment of the US Constitution and that this would apply to the states under the 14th Amendment).

What the Court found was that the California Constitution guarantees quite explicitly equal protection before the law. The state must have a compelling reason to deny equality before the law. The Court said that when California created a legal contract called marriage it was obligated to provide it equally because such equality is guaranteed -- not that marriage is guaranteed.

There is no Constitutional right to state education, it is nowhere mentioned in the Constitution. But, if the state provides education, then it ought to do so equally unless there is some clear, compelling reason not to do so. A government school wouldn’t have the right to exclude Jews, Mormons, Blacks, etc.

If the State exclude Catholic students the Supreme Court would be compelled to rule that this exclusion was unconstitutional and that Catholics must be admitted. But in so doing it would not discover the heretofore unknown right to state education -- it is nowhere near that neck of the woods. It would do so based on the equality of rights. When the State created government schools it created the civil right to a state education and the equality clause of the state constitution would obligate it to admit Catholic students.

California could legally end gay marriage tomorrow by ending all marriage. That would comply with the Supreme Court’s ruling because the Court ruled on the basis of equality not on the basis of a newly minted right to marry. So, I think, Mr. Campbell has his premise wrong. He got his conclusion right however. And it politics that is a rare feat.

PS: My apologies for the delay in posting new material. I've been traveling and unable to access the internet.

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