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I keep thinking about this, then keep forgetting to post it.
Almost all of the arguments presented for allowing gay marriage, and against bans on same, focus on it from the angle of discrimination and equal protection under the law. The next thing that happens is you have a bunch of people mincing weasel-words and arguing that it isn't really discrimination, etc, etc, etc, ad nauseam.
It seems to me this argument misses a key point. Barring those who just want to argue about the terminology, the people seriously objecting to allowing gay couples to marry, virtually without exception, do so on religious grounds, and more to the point, specifically on capital-C Christian religious grounds. They say it's an abomination in the sight of their god, or some such verbiage.
So, if the law allows a religion to define what marriage is, and the religious definition of marriage allows hetero couples to marry, because that's what the religion in question says they should do, but bars gay couples from marrying because the religion says that's wrong, then the law is being subjugated to that specific religion. Any legal ban on gay marriage dictated by some religion's principles thus becomes a law respecting an establishment of that religion. Bam, direct Establishment Clause violation, clearly unconstitutional, game over. Open-and-shut case.
... Or am I missing something?
Yes, I know that technically the First Amendment constrains only Congress from passing a law "respecting an extablishment of religion, or prohibiting the free expression thereof". And many States feel they don't have to be bound by the Constitution when they don't feel like it — like California, for example, which "does not consider the Second Amendment to be incorporated into the California State Constitution." I have never had the slightest respect for this argument. It amounts to saying, "Yes, we agreed to abide by the Constitution when we joined the Union, but we had our fingers crossed." You want to be a US state? You obey and respect the Constitution. ALL of it. Period. You want to pick and choose which parts of it apply to you? Maybe you think your state should allow slavery, or deny women the vote? Go the hell away and form your own nation.
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The First Amendment is the only one of the original Bill of Rights that specifically mentions Congress. Based on the plain text, the first limits only Congress. This means that, technically, a state could have an official religion. Fortunately, the constitutions of all, or nearly all states (haven't examined each of them at this time) contain similar language.
Since the Second Amendment, and indeed all the others in the Bill of Rights that in effect say "this is not allowed," do not specify any particular target of the restriction, it applies to everyone everywhere in the US.
The Constitution is the Supreme Law of the Land in the Unites States. California's assertion that the Second Amendment is not incorporated into the California State Constitution is a fallacy. "Incorporation" of the Bill of Rights, and subsequent amendments that enumerate rights of the people, under Section 1 of the Fourteenth Amendment is redundant. Section 1 is not technically necessary, but they put it in there to underscore the point.
Now, to focus on the discussion of gay marriage, there are arguments supporting a state's right to define marriage as being between one man and one woman that are not based at all on any religious belief or argument, and at least some of the points they make are valid. I'm not saying that they are sufficient nor that they are entirely correct, just that they exist.
If legislation defining marriage in that way refers to any religious principle in its text, it would violate the language of the state's constitution prohibiting an establishment of religion (assuming it was present). Whether or not it violated the First Amendment to the US Constitution depends on the interpretation of "Congress shall make no law...." If the legislation makes no such reference, I don't see that it is unconstitutional on those grounds.
If the legislation in question is an amendment to the state constitution, as it is in California, and it refers to religious principles in its text, then you run into the interesting situation where the constitution may be internally contradictory. It seems to me that any such contradiction should be resolved in favor of the previously existing text, and thus the new amendment would be null and void.
Of course, the battle over Proposition 8 is not over. There is now the question of whether it constitutes an amendment or a revision. Although the California State Constitution does not define the difference, existing case law does. If it's a revision, it will be nullified because the requirements for a revision include being passed by the legislature first, and Prop 8 was not so passed.
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Unfortunately, that era died: Justice Harlan drove the stake in its heart with Griswold v. Connecticut, wherein he derived a Constitutional right to privacy not from the language of the Fourth, but from the language of the Fourteenth. (Go ahead, I'll wait while you go off to read the Fourteenth Amendment and have your head explode from the migraine caused by your attempting to discern a right to privacy as existing within it.)
It was a good idea while it lasted, though.
Not even close. The Constitution establishes a federal charter of government. Up until the passage of the Fourteenth Amendment, it had nothing to say about what the charters of state governments must contain. The Fourteenth Amendment has been used to apply many, but not all, of the Bill of Rights to the states: at present, only the Second and Third have not been subjected to the necessary legal scrutiny.
Not according to SCOTUS. SCOTUS has never subscribed to this view of things. At present, California's interpretation is legally sound. Whether it will continue to be in light of Heller, which has some astonishingly strong language indicating SCOTUS would opt to incorporate it should such a lawsuit be brought, is an open question.
I am certainly not trying to dissuade you from reading the Constitution for yourself. However, we have two and a quarter centuries of SCOTUS decisions which clarify the emerging understanding of Constitutional rights, and a great many source texts (the Federalist and Anti-Federalist Papers, to name two greats) that can also give a better understanding of the Framers’ intent.
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I'd think the newer text would apply, otherwise how would amendments ever work? By their very nature, they conflict, and the newer text is always the one that matters.
Obviously it's important for anyone drafting an amendment to use clear language, but we all know the quality of our legislature has gone downhill a bit.