Needless to say, I was very pleased with the ruling last week by US District Court judge Vaughn Walker in California overturning the ban on same sex marriage. The case arose because of a challenge to Proposition 8 that was passed by referendum in November 2008 and required the state constitution to add a clause that stated, “Only marriage between a man and a woman is valid or recognized in California.”
The judge said that Proposition 8 violated the ‘due process’ and ‘equal protection’ clauses of the 14th amendment to the federal constitution. The due process clause states that no state shall “deprive any person of life, liberty, or property, without due process of law” while the equal protection clause states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” (The 14th amendment is getting quite a workout these days, with some talking about amending it to prevent children born in the US of illegal immigrants from getting automatic citizenship under the opening sentence that states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”)
Ted Olson, appointed by George W. Bush to be his first Solicitor General, offers the clearest articulation I have yet heard of the case against bans on same sex marriage. He was one of the lawyers that successfully argued the case.
Of course, opponents of same sex marriage are furious and are angrily denouncing the judge as going against the ‘will of the people’. The idea propounded by same sex marriage opponents that courts should always acquiesce to the result of any plebiscite or the actions of legislatures is a curious argument to make, especially in the US, which is firmly based on the principle that the legislature, judiciary, and executive are co-equal branches of government, that none of them is required to give deference or preference to any other. Of course, it is ideal when there is a national consensus on issues and all three branches agree. But one of them has to take the lead on any issue and when it comes to protecting fundamental rights it is the courts that have traditionally done so, because the rights of minorities can be threatened by majorities acting on the passions of the moment.
(A curious side argument by opponents of the verdict is that Judge Walker is openly gay and that this somehow brings his impartiality into question. I fail to see the relevance of his personal sexuality. After all, everyone has some sexual preference. Why would we assume that an openly heterosexual judge would be more impartial on this issue than an openly homosexual one? Are they arguing that the case should have been tried by a hermaphrodite or bisexual or neutered judge? Adding to the irony, Walker was first nominated to the federal bench in 1987 by Ronald Reagan but his nomination was stalled because he was perceived as being insensitive to gays and poor people. He was re-nominated in 1989 by George H. W. Bush and confirmed.)
It is important to realize that the judge’s verdict did not create a new right. The judge pointed out that the right to marriage has always existed and is considered a bedrock principle of society. What Proposition 8 did was deny that existing right to a particular group. The judge said is that you cannot deny a right to selected individuals or groups without showing that actual harm would ensue if that right were not denied.
And this is where supporters of Proposition 8 and opponents of same sex marriage in general have failed miserably. They have been unable to provide any evidence of any actual harm that might ensue except for vague and even ridiculous fear mongering that allowing same sex marriage was some kind of slippery slope that would eventually result in people marrying their farm animals. (Tom Tomorrow’s cartoon from 2004 addressing this issue is still relevant.) As the judge concluded, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”
The idea that one group of people can, under the guise of protecting marriage in what they claim is its most wholesome form, introduce conditions to deny the right of marriage to another group is neatly skewered in this Onion parody.
It seems pretty obvious that opposition to same sex springs entirely from religious beliefs (because some ‘holy books’ condemn homosexuality) or from some vague moral principles that can usually be traced back to those religious beliefs or because opponents think that gay sex is somehow icky. But it is not the role of the courts to adjudicate moral or religious issues or to pander to the prejudices of people, even if they are in the majority. As the judge said in his ruling, “A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.”
What puzzles me are those people who are willing to devote so much time and energy to opposing same sex marriage. What kind of person tries to deny other people rights that they themselves enjoy? People on either side of the gun control debate (for example) are campaigning for results that apply to everyone equally, including themselves. Same sex marriage opponents have no such redeeming quality. They want all the secular and material benefits that marriage provides them while denying them to others.
While I have generally been gloomy about the direction that the US is heading in political and economic matters and in civil liberties, providing equal rights to gay people is one area where I am very optimistic. The country is definitely moving in the right direction, not least because of demographic changes. Young people simply do not see the point in discriminating against gay people.
The opponents of equal rights for gays are well and truly losing this war, even if they win some minor skirmishes here and there. My advice to them is to concede defeat gracefully. For the times, they are a’changing.
POST SCRIPT: The Daily Show on the verdict
|The Daily Show With Jon Stewart||Mon – Thurs 11p / 10c|