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Prop 8 is simply unconstitutional

By Lisa Bloom, Special to CNN
  • Lisa Bloom: Heterosexuals may marry in jail, after one-night stands, many times over
  • Yet, Bloom says, longtime same-sex couples with children can't marry
  • Bloom writes that the Constitution demands end to discriminatory Proposition 8
  • She says Prop 8 violates the Constitution's guarantee of equal protection under the law

Editor's note: Lisa Bloom is a CNN legal analyst and is the managing partner of The Bloom Firm, where she practices civil and criminal law.

(CNN) -- A pop star could have a quickie Vegas wedding tomorrow, to a man she meets tonight, if she so chooses. Scott Peterson, convicted of the murder of his pregnant wife and on death row, has an inalienable right to a prison wedding with a female pen pal if the mood strikes him.

Indiana grandmother Linda Wolfe holds the Guinness World Records title for most marriages: 23. One lasted just 36 hours. She's on the lookout for No. 24, and when she finds him, no law can stop her from marrying him.

The U.S. Supreme Court has held unanimously that "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the basic civil rights of man."

So basic, so important, so fundamental, in constitutional parlance, that no state can interfere with even the most reckless heterosexual nuptials.

Yet in most states, my friends Wilbert and Carlos, "free men" together 16 years and lovingly raising a son, are shut out of the 1,100 federal and hundreds of state legal benefits that come with marriage. These include the right to visit a spouse in a hospital and make medical decisions; employer sick and bereavement leave; inheritance rights; the right to give unlimited gifts to a spouse without gift tax; disability, pension, and Social Security benefits; the right to bring a wrongful death case; the right to refuse to testify against a spouse; or the right to prevent the deportation of a foreign-born partner by marriage, among others.

Perhaps most poignant, and often lost in this debate, are children in same-sex families: kids like my friends' son Dorian, growing up with the sting of knowing that his parents are second-class citizens in their own country.

Study after study finds that something about marriage makes us live longer, healthier lives. Married folks have significantly better mental health, engage in fewer risky behaviors, eat healthier, have less illness and are just plain happier.

And don't tell me that civil unions are exactly the same as marriage. If that's true, then let's let gays and lesbians pick first. If they pick marriage, and heterosexuals are relegated to civil unions, no problem, right, since they are exactly the same?

The trial challenging Proposition 8, the law that bans same-sex marriage in California, started Monday in San Francisco.

This will be the first federal trial in U.S. history in which testimony will be heard and recorded about the harm to gay and lesbian citizens caused by laws like Prop 8.

iReport: Is Prop 8 constitutional? Share your view

As a civil rights lawyer for 23 years, there is no question at all in my mind that as a matter of constitutional law, the federal court must strike down any law that creates a subclass of Americans, shutting them out of legal privileges and protections available to others, merely because they are gay.

Demeaning and disrespecting gay people is a constitutional affront.

Seven years ago, the U.S. Supreme Court handed down Lawrence v. Texas, the gay community's Brown v. Board of Education, striking down state laws that criminalized private, consensual gay sex, saying: "The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

When all the testimony about legal rights, benefits and protections in the Prop 8 trial is said and done, Perry v. Schwarzenegger is ultimately about just that.

Our gay and lesbian friends and neighbors are entitled to respect for their private lives, and the state cannot demean their existence, even by majority vote. Seven out of 10 Americans supported laws banning interracial marriage at the time our president's black father and white mother married.

But the Supreme Court knew that our federal Constitution's guarantee of equal protection of the law was a bedrock American principle that sometimes requires the courts to lead, and so lead they did, striking down antimiscegenation laws in 1967. Now, only lunatic-fringe bigots would support those laws.

My favorite anti-Prop 8 placard read: "When do I get to vote on your marriage?" Same-sex marriage may be a politically volatile and complex issue, but as a matter of federal constitutional law, it's simple: Fundamental rights must be granted equally across the board to all American citizens. Equal means equal. The rest, constitutionally speaking, is just noise.

The opinions expressed in this commentary are solely those of Lisa Bloom.