Thursday, August 05, 2010

Prop 8 yet again...

First the obvious disclaimer. I was against Prop 8. I think it reflects poor law, poor sociology, and poor theology. I think it should not have passed and it should have been overturned. Still, I think my understanding of theology (or anyone else's) is irrelevant to the question. I shouldn't have a say in the issue.

31 states have had popular votes regarding same sex marriage and in all 31 cases, same sex marriage was outlawed. In the case of my state, I have often heard, "The people have spoken. They passed Prop 8. The courts should not be involved. Don't we live in a democracy?" That argument is specious. Rights are not legislated by popular vote. Indeed, the majority has often worked to repress the rights of the minority, often violently. US history is ripe with examples of that taking place. It was so visible a problem that the 14th Amendment to the Constitution specifically addresses it: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" Indeed, it is the proper role of the courts to step in and stand against popular opinion or states' rights when the majority abridges the rights of any minority.

The lawyers working to overturn Prop 8 sought to show three things:
1. that marriage is a fundamental right
2. that depriving gay and lesbian citizens to that right harms them and harms their children
3. and that depriving gays and lesbians of the right to marry does not help heterosexual marriages at all.
The judge ruled that all three propositions were right and that even the witnesses for keeping Prop 8 as law had admitted all three propositions in testimony.

As for the folk who are afraid that this ruling will force them to act in ways contrary to their beliefs... again, the argument is silly. As a pastor, I am not forced to perform a wedding for anyone or to recognize any particular couple as married. The Roman Catholic Church does not recognize a second marriage as a marriage and will not perform one. Still, as a civil matter we allow legally divorced people to marry. Some churches will not recognize marriages between people of different races or different religions. Such couples are free to find a clergy person or a justice of the peace who will preside over their ceremony. It is irrelevant whether or not a religious group recognizes or doesn't recognize the union, it is legal. On the other side of the coin, I have presided over weddings of gay or lesbian folk in states where such marriages were not legally recognized. It didn't matter what I did or said, the union was not legally recognized. The religious act and the legal reality were separate issues. The bottom line is that a religious group can remain true to its beliefs regardless of what the law says regarding same sex marriage. The legal issue is a separate one and in this case, if marriage is a right, the Constitution is clear that gay and lesbian folk cannot be denied that right.

I'm sure this ruling will be appealed and will make its way to the supreme court. I am hopeful that they will see their way clear and stand for the rights of the minority and for the Constitution, ruling that all people are free to marry and enjoy the legal protections and obligations of marriage in all states.


Michael Mahoney said...

Your basic argument has a couple of flaws. The biggest one is your claim that rights are not given in a democratic process. Of course they are. How do you think the 14th Amendment was passed? By a majority of Congress and two-thirds of the states. By vote. It was not - not by the courts.

Regardless of where one stands on the issue of gay marriage, it's very easy to see that the district court is overstepping here. The opponents of this law may find a different climate when the get to the Ninth Circuit, although I doubt it. The 9th is notoriously liberal; there are, however, quite a few conservative judges on it, and a random three-judge panel can really have any makeup at all.

The district court did leave the ruling vulnerable. It ruled that the Calif. law barred people from a fundamental right. However, the law does not bar "some people" from getting married. It bars all people from marrying someone of the same sex. There's a difference. It may be a technicality, but this law does not prevent a gay person from marrying someone of the opposite sex, and that may be enough to satisfy the legal requirement, as illogical as that sounds.

The 9th, or the Supreme Court, may not agree that specifically marrying someone of the same sex is a fundamental right, and would thus overturn the district court.

Of course, none of that effects states outside of California right now, until and if the Supreme Court rules.

I'm glad that this is getting hashed out this way, though. This needs a definitive answer, although we still may not get one in our lifetime.

roy said...

I think you may be right... that the argument will hinge on the fact that a gay person is not barred from marriage, only from marrying the person they love. I think the argument will go the same way it did for mixed race couples, that telling someone they cannot marry the person of their choice is the same as telling them they cannot marry, but time and the courts will tell.