What follows is my interpretation, based on the actual text of the Constitution and its amendments. I am not a constitutional scholar nor other expert. But, then, the Constitution was intended to be simple enough to understand that one wouldn't have to be an expert.
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.
no subject
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.