Gay Marriage OK in California
The California Supreme Court’s 4-3 decision in favor of allowing same-sex couples to marry is an unfortunate rejection of Christian morality. Glen Greenwald points out that it’s hardly unexpected given the state’s precedents before going on to say that the democratic process in California legitimizes the ruling, a claim of dubious accuracy, as demonstrated by his source material. All that said, I think it’s the correct ruling for the same reason as John McCain as does.
McCain opposed the Federal Marriage Amendment (FMA) because he believes states should set their own marriage laws
While I don’t support equating gay marriage to that of a traditional couple, the California Supreme Court has made its decision and, for better or worse, it’s the state’s decision to make and to the extent that California’s citizens support it, so do I.
That said, given that only a minority of Californians currently say that gay marriage is acceptable, it’s a big jump to say that democracy made this ruling happen.
the latest survey, conducted by Field in February of 2006, shows 43% in favor and 50% opposed
Interestingly, these numbers actually show a decline in support for same-sex marriage from a 2004 poll conducted by the same organization.
What’s really irritating is that, in Glen’s view of the world, even questioning the decision is unthinkable.
anyone who criticizes the Court’s decision without reference to California constitutional law is engaged in rank sophistry or, to use a more familiar term, pure “judicial activism” (i.e., judging a constitutional question based on one’s preferred outcome rather than the requirements of binding constitutional law).
Somehow I think that Mr. Greenwald agrees with the ruling. Even so, I’m confident that his evaluation of precedent is accurate.
What’s more interesting is that in considering the 2006 Field poll, Frank Russo wrote:
the shift in support has been dramatic over the years and there are increases of support amongst all age groups. Most significantly, a majority of those born after 1970 now support same sex marriage.
As Russo said last year, it was only a matter of time before California went the way it did.
Why fight it? As far as California goes, I’m fine with the decision they made for themselves. While I do not support a national ban on gay marriage, the effect the ruling will have on other states that is concerning because, activism being what it is, it’s also only a matter of time before the battle spreads elsewhere.
Are conservatives supposed to surrender the right to define local norms? Hardly. And yet history is against us, what with the federal courts’ habit of actively expanding their powers and demanding homogeneity between states on social issues.
Jason says that social conservatives should “get over it”, but I don’t think they will. Nor should they. If Texas, for example, wishes to chart its own course by refusing to recognize gay partnerships, that should be left up to Texans to decide. Yet the pressure for other states to fall in line with California will only increase as time goes by, perhaps ultimately leading to a U.S. Supreme Court case.
Perhaps Jason is right as a matter of pragmatism, but there are such things as principles. One of the foremost social constructs is that of the natural union of man and woman. Arguing that traditional marriage is not demeaned by the new definition simply isn’t so, regardless of how easy it is to agree with the coming redefinition or how inclusive one feels while doing so.
I disagree with your assesment Marc (I know, you’re shocked) because it bases the appropriateness of the decision on popular opinion, a standard that does not hold in this case.
Think of it this way (and it’s a very appropriate analogy) decades ago, an ample majority of voters were against mixed marriages (between whites and blacks) and many laws of the land prohibited them. Did the fact of it’s popular appeal make it right? No, I’d say not.
The Constitution was put in place precisely to protect the individual and the minority opinion from a dictatorship of the majority opinion. Of course with an ample enough majority a Constitution can be ammended (and that’s what Gay marriage opponents intend to do in California, but you need two thirds, not a bare majority). Personally if California changed it’s Constitution to ban gay marriage I still think it would be violating the United States Constitution, but that would be up to the Supreme Court to decide.
Having known many long-term gay couples I hope it doesn’t come to that. Here’s hoping that a 20 year long relationship with children between two people who happen to be of the same gender is given the same status as two drunks who go through a drive-in chapel in Vegas on one crazy night.
Just to amplify what Claudia said, the analogy to interracial marriage is very, very close. In fact, Perez v Sharpe (where the California Supreme Court struck down California’s ban on interracial marriage) was cited in yesterday’s decision – the reasoning, not to mention the wording, were almost identical.
Not to mention that the majority of Californians were opposed to interracial marriage thru the 1960s, i.e. two decades after the original ruling was issued. It would appear that gay marriage has more support today (close to, if perhaps not quite, 50%) than interracial marriage did even a decade after Perez. Which suggests that the chances of an overturn at the ballot box in November is not all that likely.
Marc is doubtless correct that social conservatives won’t "get over it". Just as many people, even today, do not consider interracial marriage acceptable. But the legal reality isn’t going to go back on either issue.
Not to take sides here one way or another, but doesn’t citing Perez v Sharpe, present a problem here. Biologically speaking (and morally, but thats not where I’m going with this), Perez v Sharpe was the correct decision. I don’t see how it can be applied to gay marriage. Shoot, I want to be a jockey, but my biology won’t allow it.
And just to be clear, gay couples deserve the same rights as married couples. All this fighting over a word. When I was a kid and we came across a couple that was not married in a church, my mom would say (cueing Louie Andersons mother in voice and look) "civil marriage". Why don’t we just go to that, for all couples not married in the church.
Perez is not relevant to gay marriage only if you assume that homosexuality is strictly a matter of choice by the individuals involved. On the evidence, it generally is not. (Granted, there are some apparently bisexual individuals, who can make a choice. But that is a smaller, and separate, minority.) At which point, biology is indeed the point.
tonto, personally I don’t think the word "marriage" belongs to the church. Certainly it would be unconstitutional to say that. At the most you could possibly say that marriage is a religious concept but have to admit that it can also mean one man with four wives (the Islamic concept) or one man with 50 wives (the FLDS concept). I still wouldn’t agree that religion owns the word marriage, and even THEN, certain religious denominations DO allow for same-sex marriage, so calling a same sex marriage exactly that doesn’t interfere with all religious intepretations. Catholics don’t accept the marriage of a divorcee as valid, and yet we still call it marriage.
In any event, though personally I would just as well call them all marriage and let religious institutions call marriage what they like (this is already the case) if the whole mess were to be fixed (and it wouldn’t) by just calling EVERY marriage, homosexual and heterosexual something entirely different, civil union, civil marriage, union contract, beezlebeeb ducky, whatever, I’d sign on.
Regardless of the fact that their demand for substantive equality under law is on very strong ground, I have long maintained that gay rights advocates made a very serious error in insisting that the word "marriage" be used and rejecting the alternative of civil unions with absolutely equal legal standing under law to marriage. By insisting on the word "marriage", gay rights advocates increased resistance and significantly delayed what I think is a necessary victory for the general cause of civil rights.
Right or wrong is beside the point when we are talking about effective political tactics and by remaining fixated on the word "marriage", gay rights advocates often find themselves facing more opposition that was necessary to face and for no gain other than a purely emotional one.
I think gay rights advocates would be well-advised to keep their eye on the ball. The issue is obtaining equal legal standing and equal privileges. What we call it is unimportant and if avoiding the word "marriage" gives a sop that mollifies people who would otherwise be opposed, the only people who care are those who want to "win" more than they want to really win. As Shakespere said, a rose by any other name smells just as sweet.
I think the discussion of whether the word ‘marriage’ or ‘civil union’ ought to be used brings home the fact that social conservatives long ago gave up the right to claim that the state should only sanction ‘marriage’ based on the concept of man-woman relationships being good for society because of the stabilizing influence of family. And that’s because many of the churches signed on to a more liberal view of marriage which allows for no-fault divorce- which certainly doesn’t lead to the kind of stabilizing commited relationship that gives children a more reliable two parent home. Having ceded that part of the argument (though as Claudia pointed out, the Catholic Church hasn’t done so), the religious right can no longer say that the state should only sanction certain kinds of unions. On the other hand though, keeping the terminology straight would help- all civil marriages which allow for no fault divorce, whether heterosexual or homosexual, should more properly be termed civil unions while the covenental lifelong commitment of marriage should be a construct reserved for either religious organizations or secular ones who opt for that kind of commitment. Either way, the civil implications would be the same but the churches could attempt to persuade people that continuing the tradition of a more sacred and lasting union is a good thing for couples, for children, and for society in general.
Jason, I can’t really second-guess the people who tried for marriage, but I can guess about it, based on the same thing that happened during the same debate in Spain (that has full marriage equality now). The issue about "civil unions" (or as they are called here: "Pareja de hecho", approximately "established relationship") in Spain was that if you allowed gays to be given a special name for their union two things would happen. First and most importantly, legislation would be separate, which means that though you could legislate it as equal the first day, every additional right granted to marriage would end up being fought for in the case of civil unions, since the fate of gay and heterosexual relationships in the law wouldn’t be bound. You could reduce rights to gay couples, but you would never dare do so if you knew you’d also have to deal with all the straight couples. The other issue was recognition, giving a separate name implies that it’s a different sort of relationship, not really equal to straights. It would be like giving mixed race marriages the special name "hybrid couple".
Of course the immediate question arises, then why not eliminate the word marriage entirely from the law? The answer is simple, straights don’t want that. The opposition would paint gays as not only trying to get hitched, but trying to tell straights that their marriages weren’t real marriages! Also some people say that the sheer number of places that mention "marriage" or "married" in the law is so big that it makes eliminating the term unmanageable. This argument doesn’t convince me much though. In Spain when gay marriage was legalized all they did was add one phrase to the central marriage law stating "The term marriage will apply equally no matter the gender of the members".
Just to amplify what Claudia said, the analogy to interracial marriage is very, very close.
No, it’s not. Neither Loving nor Perez are really applicable. Both assume the ancient established legal definition of marriage, that of a man to a woman, and say that race cannot be a discriminating factor. No state that I am aware of prohibits a gay person from marrying someone of the opposite sex because they’re gay. There is no discrimination there on the grounds of sexual orientation. Gays have the very same "right of marriage" as everyone else does–to someone of the opposite sex–it’s just not all that useful to them. That’s not discrimination preventing the enjoyment of an existing right.
Loving and Perez did not re-write the definition of marriage to include a new right to marry someone of the same sex, a right never before recognized in Western law.
And before any pro-gay-marriage people descend to beat on me, I’m just saying why that particular legal argument is inherently flawed. I worked for over a decade to keep a DOMA amendment OFF my state’s ballot–and we finally failed. It’s been my belief for quite a while that society would eventually come to accept committed gay partnerships as deserving of that legal status, if only militant gays would quit provoking massive backlash with offensive in-your-face tactics. That within a another generation it would be a de facto victory.
And legislation–the proper avenue–was indeed trending that way. But the militancy provoked the backlash, and that backlash is consistently resulting in state constitutional barriers in the form of DOMA amendments. Those are much higher legal hurdles than any simple legislative fight can ever be.
I don’t know what is best, the happiness of those who have had to wait for this or the misery and disappointment of those that feared this wonderful, enlightened and uncriticizable decision.
It seems a simple matter to establish either by judicial decision or my statute that "marriage" and "civil unions" shall be interpreted as synonyms in all past and future statutes. I seriously doubt they go back into all past statutes to edit them, they simply interpret them in light of the new principle.
The implication that all people of a given orientation (i.e. "straights") all want one thing on the issue of gay rights is a slander. There are, in point of fact, many "straights" who believe in and work for equal treatment for homosexuals.
When referring to people who oppose gay rights, you should refer to them that way, as "people who oppose gay rights" or "anti-gay rights" or by a term specific to the issue, "anti-gay marriage". You might notice that I have never said “the gays” want anything. I have instead referred to “gay rights proponents” or “pro-gay rights” or something similar.
Anyway, you missed my point. My point was not to endorse the push back on the word "marriage", it was to point out that obsessing on that term instead of the "civil unions" sop was bad strategy because it set the overall cause back years and, in some areas, decades. I think if they had stuck to the core issue — equality — and resisted the urge to demand the purely emotional victory of “marriage”, we would already have legally equal civil unions in the majority of states instead of just in 3.
Why should marriage (before the state) only be between a man and a woman?
If men and women are equal, then a women should be allowed to marry a woman, just like a man is allowed to marry a woman, and a man should be allowed to marry a man just like a woman is allowed to marry a man.
The claim that marriage should be between one man and one woman is a religious one, and if church and state are seperate, it should be left to the individual whether he wants to follow it.