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Aug 11 2010

The same sex marriage verdict

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.

New Law Would Ban Marriages Between People Who Don’t Love Each Other

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

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21 comments

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  1. 1
    Laser Liposuction Los Angeles

    Your question about why people waste so much time and energy just to deny another human being rights that they themselves enjoy is an interesting one and really made me think.

    I think this is something innately human.

    The fact is, their (those who don’t support same-sex marriage) beliefs are being exposed as antiquated; and they’re being asked to be tolerant to something they’ve vehemently opposed during the course of their lives (for various reasons no doubt).

    If someone is telling you you’re wrong, even more so–society is telling you your beliefs are wrong, You have EVERYTHING to prove as a human. And these people feel that they have EVERYTHING to prove, because to lose–and to let the Gay’s marry, would be not only something they disagree with; but an act against god, and his “rules” for humanity’s conduct.

  2. 2
    Tom

    It’s an interesting scenario where Federal overrides state. I wonder too what exactly is “the will of the people”

  3. 3
    Virtual Girl

    Interesting article. I am not sure there is the will of people, but every State or Country is different… :)

  4. 4
    The How To Save Your Marriage Guy

    In all the emotionalism surrounding this it is pretty easy to lose sight of the fact that the real issue here is not whether people should be allowed to marry someone of the same sex. The bigger issue at stake is whether the federal government, and especially one judge, has the right to usurp both state law and the demonstrated will of the people in that state. It is the same issue at stake in Arizona concerning immigration.

  5. 5
    Mano

    The How To…Guy,

    Yes, of course the judge has the right. The constitution gives the federal judiciary not only that right but the responsibility to enforce the US constitution. The rights in the US constitution cannot be overridden by state laws and referenda.

  6. 6
    Acoustimass 5

    Latest news as off Aug 17 2010 – “The Ninth US Circuit Court of Appeals has added another twist in the saga of gay marriages, on Monday by granting a stay order in the Proposition 8 case, prohibiting same-sex wedding from taking place in California at least until December, overruling last Thursday’s ruling by a federal judge, which said that it would be allowed to resume by August 18, this year.”

  7. 7
    Andrew Gay DVD

    It’s a great thing but we still have a long way to go. I’m from Australia and we haven’t even started to debate this issue yet as we are still living with a very conservative government and they are too afraid to rock the boat. maybe one say things will change here as well and hopefully in my lifetime. :-)

  8. 8
    Steve Sanchez

    Why can’t people just leave the same sex marriage alone? If gays and lesbians choose to be married, why not let them. Are they causing any heartaches or pain if the law allows same sex marriage? It is almost like the racial discrimination of the early 1900s. People have their own rights, and as long as they don’t violate our rights, we should let people do what they want.

  9. 9
    Steve Sanchez

    I don’t understand why all these people and government needs to get involved? If gays and lesbians wants to be married, let them be. Why do we need to set certain restrictions? Who is to say that a marriage between the man and the woman is the only way that is legitimate in the eyes of God or man for that matter. Let’s just all get along…

  10. 10
    lingerie

    We are still living with a very conservative government and they are too afraid to rock the boat. maybe one say things will change here as well and hopefully in my lifetime. :-)

  11. 11
    Sexual Health Store

    Well, something is definitely not right. Let’s say that the final purpose of dating/getting married/having sex is reproduction. Two men and two women are unable to reproduce and therefore their relationship is “unnatural”.

    That is the way of nature – the way of all living things that require two genders to reproduce. Just some food for thought! :)

  12. 12
    Primo V.

    As the father of a gay child I’ve had to reassess my feelings toward homosexuality. Growing up in the bible belt during the sixties I was taught that same sex relationships were a sin in Gods eyes and If you were to partake in such activities you were dammed to hell. With whats occurred in my family, and knowing who my child is and what he’s about I can’t believe that would be the case. I believe my God is benevolent and cares for ALL his children. If it’s good enough for God, it should be good enough for our government. Stay out of peoples bedrooms.

  13. 13
    Jerome Tatler

    Same sex or not, as long as 2 people are in love with each, it is a personal matter, not a government matter.

  14. 14
    Thong

    I am not a gay, but I don’t have any issue with people who chose to be one or have same sex marriage. It is none of my business anyway.

  15. 15
    Marcus @ Arginmax

    I think this needs to be handled at the State level of government.

  16. 16
    Steve

    I believe in freedom for all just because I don’t live a certain life style doesn’t mean that everybody has to do what I do. I think those of us who are religious should clean out our own house before entering another house hold. Our leaders do the same dirt that they condemn and we ignore, why?

  17. 17
    Immigration Solicitors

    Interesting blog. Marriage between same sex are sin in God eye and Society.

  18. 18
    Compensation Lawyers

    Same sex marriage is controversial and everyone has their opinions. Religion being the main source due to the bible and other significant writings about this topic is just one opinion and the oldest. Times change and people change. I think in our modern age that we must accept same sex marriage as we have created a world where people can speak about these issues. We can’t have freedom of speech and then not listen. What’s the point? The world is the way it is because of the way the majority has made it. There are far more serious matters that we can debate about and need the attention compared to people sharing a love for one another. For the population out there that is against same sex marriage, how does it affect your day to day lives? How does another’s personal life affect you? It doesn’t really…does it? We make a choice to let another’s personal life and personal preference effect our own, so if the debate of same sex marriage does not personally affect us then we have our answer.

  19. 19
    California Injury Lawyer

    In the eyes of God its immoral and its not good.
    God created only male and female. We should follow the rules of God for us to be with him.

  20. 20
    Marriage Counsellors Advisory

    I just don’t understand why people spend so much effort and time trying to stop something that don’t affect them. What do they get if marriage is reserved exclusively for heterosexual couples? And what loss would it cause them if marriage is legalized for everyone regardless of sexual orientation?

    As long as two people are in love, it’s their matter whether to get married or not and they should be accorded the rights to do so should they want to. Hey, we’re living in a planet with population of 7 billion people, and there is not enough food to go around. These good people are doing us a favor for not having kids.

    People who support don’t ask don’t tell please put your get your priorities right. Visit the hospital to see patients with a missing limb, mother carrying her baby who’s just had a brain surgery. The world has better purpose for you to focus on.

  21. 21
    Nick

    We have just gone throught something similar here in Australia. Most Austraklia seem quite happy with same sex marriage, yet the government had a lot of trouble deal with the issue. Oddly, there are rumors that our Prime Minister is a lesbian.

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