Originally Posted by jazzguru
It's important to note that this judge put a stay on his own ruling, so Prop 8 is still in effect and gay marriages are still not being performed, pending the final outcome of the litigation.
This is obviously a complex constitutional issue that the SCOTUS will ultimately decide.
My feelings on the matter are that marriage is not an enumerated power specifically delegated to the Federal Government by the Constitution.
Therefore, the 10th Amendment applies:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
This is an issue that must be decided by each state, which California has done by amending their state constitution. How can you declare a constitutional amendment unconstitutional? You can't. You can repeal the amendment, but that is a different process entirely.
Neither the judge nor the plaintiffs in this case made the claim that marriage was a Federal right.
You seem to be ignorant of the fact that whatever right is given by States, no matter what that right might be, can only be given in that it is not discriminatory.
A State can't, for instance, put it in their Constitution that all blacks have the right to free dental care, but the whites do not. That would be discriminatory under the Equal Protection Clause of the Federal Constitution, even if dental service is not a right granted by the Federal Government.
So the State of California granted its citizens the right to a marriage that is recognized by the state. The court found that although California can grant this right, they can't grant it to "only opposite sex couples" and deny it to same sex couples (or transgender, or interracial, or interfaith couples). It is a right that has to be given to everyone equally, or to no one.
And you can't say, "the right is to marry someone of the opposite sex, and gays have the right to marry someone of the opposite sex" because then it shows that in fact it is YOU who are redefining the definition of marriage, which is a union of love. Gays can't marry someone of the opposite sex because they can't love someone of the opposite sex.
Let me put it another way.
The judge in this case is not giving anyone any new rights. He is just clarifying that the right to a state recognized marriage, which has already been given by the State of California, and privileges connected to that right, cannot be granted to some people and not to others, for to do so would violate the EPC.