It was amusing to listen to the talking heads scream about how one judge overruled the decision of millions of voters. Do they (the talking heads) not realize this is how our system of government is supposed to work? Under our system of government, the wolves and a lone sheep sit down to dinner together and decide what's for dinner. And it won't be the sheep. If majority ruled every time, the rights and privileges of the few would be trampled upon every time. This is not a principle upon which our Country was founded. There will be, no there has be, that one person who stands up for the minority when they are being over run by the majority. In other words, there must be a balance between what the majority wants and the rights of the minority. As long as what the majority wants does not infringe on the rights of the minority, then what the majority wants they'll get. Only when the rights of the minority are infringed will the majority's will get pushed back. This is the reason for judicial review. As I've stated before, even when we don't agree with the ruling, we must support the ruling; to do otherwise would be to fail the principles of our Country.
The ruling is an interesting read. The judge was very thorough in his ruling and at the same time, he was very strategic and very intelligent in the manner in which he rules Prop 8 unconstitutional. The issue before the court was whether a proposition which defined marriage as between a man and a woman infringed upon a same-sex couple's right to marriage under the 14th Amendment's Due Process and Equal Protection clauses.
When confronted with a constitutional right question, the court must first decide if the right is a fundamental right. In this case, the court ruled that it is. His ruling, though, is not a stand-alone ruling. This right has been decided by several past court cases. One of the cases not cited by the judge in Perry v. Schwarzenegger (I do not know if this is how the case will be known, but, by convention, this is the most likely name) is Skinner v. Oklahoma, a 1942 case I've written about in a previous blog.
In Skinner, Justice Douglas said, "Marriage and procreation are fundamental to the very existence and survival of the race." Unfortunately, he did not explain his reasoning for the marriage portion. Procreation, logically, can be seen as a fundamental right. If we were to limit the procreation of a race or group of people, the limitation could spell the end of said group or race. Marriage on the other hand is not necessarily a fundamental right. Unfortunately, the Supreme Court has not ruled this way.
Once a right falls into the "fundamental" category, it must satisfy strict scrutiny. As stated in an earlier blog, to pass strict scrutiny, a law or regulation must fulfill a compelling State interest and must be narrowly drawn to satisfy that interest. In this case, Judge Walker did not review Prop 8 under strict scrutiny. This is his strategic and intelligent ploy used in his decision. Instead, he used the rational basis test.
Under the rational basis test, a law or regulation only has to fulfill a legitimate state interest and be rationally based to do so. Judge Walker failed Prop 8 under this test, the lower of the two tests. Thus, on appeal, a higher court will be less likely to overrule his decision because he utilized a lesser test to fail a law aimed at a right the Supreme Court has ruled fundamental. Brilliant!
So the question now is how is marriage not a legitimate state interest? Marriage is a legitimate state interest. The advocacy of stable families and households aids in the promotion of stable societies. Thus the real question is how is preventing gay marriage related to a legitimate state interest? Unfortunately, it is not. And this is where the defendants (Prop 8 supporters) fell awry of the law.
The defendants' arguments in every aspect of the case were weak and ill-formed premises and conclusions. The plaintiffs' arguments were far superior. For example, the defendants argued that studies show children raised by a mother and a father are more apt to be productive members of society than children not raised in that situation. The flaw in the defendants argument is that the studies they relied on compared families to single-parent households. If you compare a child raised in a same-sex family to a child raised in an opposite-sex family, the results are very similar. Thus, the defendants' argument fails. I'd like to point out, that a child raised by a couple not married is apt to follow the trend of the children of two parent households also. So what does that do to the defendants' argument?
Another argument utilized by the defendants was that marriage is supposed to promote procreation which obviously a same-sex couple cannot do together. This is another severely flawed argument. If you say that marriage is for procreation thus we will not allow same-sex marriages because they cannot procreate, then you MUST ALSO force those opposite-sex couples to DIVORCE (if married) or NOT TO MARRY when one of the pair is found to be sterile. Additionally, you would not be able to allow the marriage of the elderly as their child production days are either numbered or finished. Be careful of the unintended consequences of decisions!
So just what is marriage? To answer this question, you have to look to history. When communities first formed, a man took a woman and they lived together to form a family. The fact that the couple was together was enough to satisfy the marriage aspect. In other words, the basic right of everyone is a right to co-habitate with a person of their choosing. This is the fundamental right. Marriage is only a societal recognition of the basic right of co-habitation. (At the end of my blog will be links to three websites on the history of marriage. It is highly recommended to review this websites. Marriage rituals have changed over the years based on the interjection of religion into the customs of society and also on the changing of the customs of a society.)
The defendants in the Prop 8 debate contend that they cannot tell homosexuals not to co-habitate. The State of California went so far as to allow "domestic partnerships" which recognize the same legal rights as a marriage. The only exception is the use of the word marriage. So, if the Prop 8 defendants acknowledge that homosexuals can life together, and that the same may have the legal rights that a married couple possess, why are they so opposed to the word marriage for same-sex couples? (This was the essence of Prop 8: a fight over the use of a word!)
Many of the opponents of same-sex marriages are religions. The religious people point to the religious doctrine which governs their religion. For example, in the Bible, Leviticus 18:13 states "No man is to have sexual relations with another man; God hates that." Additionally, in Leviticus 20:13, "If a man has sexual relations with another man, they have done a disgusting thing, and both shall be put to death." This is the basis behind the shunning of homosexual couples. I would like to point out that both of those passages relate to MAN and not to WOMAN. In the book of Romans, which is a letter by Paul, there is a reference to female homosexuality but it is not as strong as the passages from the old testament. Thus, the Bible is against male homosexuality and not necessarily female homosexuality. (The Qur'an a similar passage exists, 7:81 "Indeed, you approach men with desire, instead of women. Rather you are a transgressing people.")
The pro-religion people will argue that the passage in the New Testament is an extension or acknowledgment of sin to female homosexuality. They will say that all homosexuality is a sin. To which I retort: 1 Corinthians 5:9-11, "In the letter that I wrote you I told you not to associate with immoral people. Now I did not mean pagans who are immoral or greedy or are thieves, or who worship idols. To avoid them you would have to get out of the world completely. What I meant was that you should not associate with a person who calls himself a brother but is immoral or greedy or worships idols or is a slanderer or a drunkard or a thief. Don't even sit down to eat with a person." This is another letter by Paul, except this time to the Corinthians. Look closely at that passage. God is acknowledging the existence of homosexual people along with other nefarious people and is also acknowledging you CANNOT ESCAPE THEM. Paul is also saying that as long as they don't purport themselves to believe in God the Christian way you can associate with them. Just don't associate with homosexuals who say they believe what is in the Bible.
The right of association is a fundamental right. The First Amendment gives us this right, "Congress shall make no law...abridging..the right of the people peaceably to assemble." This right is explicit in the Constitution. Thus religions do not have to admit homosexuals or assemble with homosexuals. It is their right. So, homosexuality is a sin in most religions. Granted. However, most religions are tolerant of the sins of others. If you are religious and you don't like homosexuality, don't associate with homosexuals. This does not give you any power to tell the rest of society who they can associate with!
Another argument by the religious groups is that by acknowledging marriage can be between same-sex couples means that in public schools this will be taught as an alternative to opposite-sex marriage. To which I retort, so what? Even if that happens, you cannot teach homosexuality into a heterosexual person. I, for one, have known I like girls (I'm a boy) since puberty. This was not taught to me. This attraction I feel for females I have no control over. It's instinctual. Thus, you cannot say that by teaching an alternative lifestyle as normal will turn a heterosexual into a homosexual. I'm sure there is a small probability that it could happen but the percentage will be so small as to be inconsequential to the argument. I can acknowledge that some homosexuals are instinctively heterosexual but choose to be homosexual but I cannot support the argument that ALL homosexuals choose to be homosexuals. That argument fails logic.
History shows us that marriage is nothing more than the recognition of a couple's commitment to one another. Is that such a bad thing, even if you find homosexuality repulsive, to acknowledge that two people want to be committed to each other when they are of the same sex? If society is willing to allow same-sex couples to co-habitate, why not extend the word marriage to that relationship?
I was against using marriage for homosexual couples. As a matter of fact, my proposition was to only use the word marriage for couples joined together in a church and to use "civil unions" for couples, including same-sex couples, joined together by a Justice-of-the-Peace or court. After researching marriage and reading the ruling in the Prop 8 case, I changed my mind. In our Country, at one time, some States refused to acknowledge interracial marriages because of the same faulty logic used to not acknowledge same-sex marriages. To not extend the recognition of marriages to all couples who are devoted to each other violates logic. If we are to do that (not recognize a devoted same-sex couple), why don't we all become like the Sneetches in the Dr. Seuss book?
Marriage is not a fundamental right, but maybe to protect a class of people from unwanted vilification by State power, it should be. Which is what the Supreme Court has ruled......
Mike
(Note: I spent four days researching and contemplating this subject. I do not intend to insult anyone so if I did, that was not my intention. For those against same-sex marriages, I hope to show you a line of thinking you might not have thought about.)
References not linked:
The Good News Bible: Today's English version. (1976). NY: American Bible Society
The Qur'an: Arabic text with corresponding English meanings. (1997). Saudia Arabia: Abulqasim Publishing House
Google answers: http://answers.google.com/answers/threadview?id=468306 (Homosexuality and the Bible)
http://skepticsannotatedbible.com/quran/gay/long.html (Homosexuality and the Qur'an)
History of Marriage:
about.com: http://marriage.about.com/cs/generalhistory/a/marriagehistory.htm
psychologytoday.com: http://www.psychologytoday.com/articles/200505/marriage-history
essortment.com: http://www.essortment.com/all/historyofmarri_rimr.htm
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