First, the I'm-not-a-lawyer-and-don't-really-know-much-about-the-law disclaimer: I'm not a lawyer, and don't really know much about the law.
Now, tactically and politically, this has got to be chalked up as a desirable result for those--like me (and Andrew Sullivan)--who are pro-gay-marriage. The reason is simply because an overturning of the popular vote would have caused an enormous backlash, divided supporters of equal rights, and in the eyes of many people would have reduced the moral and democratic legitimacy of the California Supreme Court. Moreover, it would have retroactively made the anti-Prop-8 movement an exercise in bad faith: it is unfair to engage in a public debate over an issue only to go ahead and nullify the result if it doesn't suit you. That is perhaps an unfair reading of the situation, but it is a reading that I'm sure many Californians would have subscribed to.
If and when California can reinstate gay marriage (and if demographic trends continue, it should be any year now), it will be a victory all the more powerful and convincing, because the law will have been changed by the people, and not by some imagined elitist liberal cabal. Opponents of gay marriage will have no retort.
Now--all that's the strictly political side. But what about the legal, and, indeed, moral side? Well, in this respect--and on the face of it (I haven't read the opinion)--I couldn't disagree more with the decision.
The thing I don't understand is: what's a right in California? Certainly, any right that can be overturned by a simple majority vote is hardly a right at all. My understanding was that in a previous decision, the Court agreed that equal rights guaranteed by the California constitution mandated that there could not be "separate but equal" institutions of marriage; that gay couples were entitled to all the rights and privileges of marriage, including the legal title of the arrangement--"marriage". It would seem that this decision makes a hash out of all that.
Well--I've gone and committed the sin of having an opinion about something without properly researching it first, but I just couldn't help myself. Consider this an "initial reaction".
I will read the court's opinion and report back what I find.
(Photo by Jamison)
3 comments:
I'm glad you posted on this, and I'll be interested to hear your thoughts after reading the ruling. I also haven't read it, but what I've heard so far leaves me a bit bemused as to why the decision has supporters of gay marriage (like myself) so up in arms.
As you say, "any right that can be overturned by a simple majority vote is hardly a right at all", but the only thing that was voted down by Prop 8 (according to the court) is the right to have the word "marriage" applied to same-sex couples; the ruling noted that all of the legal benefits entailed by marriage are still available to same-sex couples through civil unions (at least according to the NY Times). There is understandably an instinctive reaction against having "'separate but equal' institutions of marriage", in part due to the history of that phrase, but it really seems that here they are separate and equal. From what I understand, a major problem with separate-but-equal in the pre-Brown v. Board of Education days was that, for example, education in black schools was demonstrably inferior to that in white schools; that is to say, they were separate and unequal. Here though, if we measure the difference between civil unions and marriages in terms of the legal ramifications (which seems proper to me), they are, practically and by definition, equal.
If, instead, we measure the difference in terms of social connotations, civil unions and marriages are most definitely unequal. Still, I don't see this argument as being strong enough to block a majority consensus. If I, as an atheist (more or less), want to marry another atheist, I imagine that a fundamentalist would also argue against my use of the word, since the marriage would not be "recognized in the eyes of God" or some such thing -- but that's not going to stop me from calling it a marriage. My personal opinion is that "marriage" is such a loaded word that the best solution would be to modify the legal system to simply consider all unions "civil unions" (or some other innocuous phrase), regardless of the sexuality and gender of the individuals, leaving people free to refer to their partnerships using whatever language they like.
Anyway, this was a long-winded attempt to hopefully get you to address the following question: what's the big deal here?
Eric, I've heard this sort of point before, and I think it's pretty inconsistent.
You basically say the following: marriage is a fundamentally religious institution, which has no place in our government. We should get rid of it for civil unions, but since that's not gonna happen, let's just let it stick around, in a form *determined* by religion.
Well that doesn't seem right. It seems like you should say to people "Do you want government-issued marriage or not? If not, okay. If so, then it must not be a religious institution, since we don't have those so intertwined with our government, so marriage must be a generalized version of what you think of as marriage, the rules of which are not guided by religion."
It seems perfectly reasonable to say this, and in fact, the only thing that's fair to everyone. As David says in his follow-up post, the very existence of government-mandated separation can itself create destructive social dynamics.
Alex, I think you misunderstand what I'm saying. I'm definitely not saying that I support Prop 8, and the two-name system it created. What I am saying is that if a majority of people get together and say "anyone can enter into a partnership and have the same exact benefits, but it will be called 'marriage' for a man and a woman and 'civil union' for a same-sex couple", it's not immediately clear to me that this is something the court has a right or responsibility to prevent.
(I realize that this is not what Prop 8 supporters were saying, but it is what the court's ruling effected, as far as I understand.)
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