Previously, I talked about how my experience as a classroom teacher and my commitment to examining scientific evidence led me to reconsider my opposition to same-sex marriage. Now, I want to talk about another line of reasoning whose roots are in law and in history.
The opponents of same-sex marriage (which, in this state, means the backers of Proposition 8) made essentially three arguments in the public square as to why it was necessary to add a new provision to the California Constitution's Declaration of Rights. It is worth considering these related and distinct arguments separately.
Proponents of Prop. 8 argued that:
1) Exclusively heterosexual marriage was "an essential societal institution", so in order to preserve this institution, it would be prudent to formally redefine marriage in the the state constitution.
2) If marriage in California was not explicitly defined as a heterosexual institution, children in the public schools would be taught that "gay marriage is OK", contrary to what their parents, community organizations or houses of worship might be affirming.
3) Gay residents of California did not have the right to "redefine marriage for everyone else."
So the backers clearly believed that the way to get people to vote for the ballot measure was to convince them that the institution of marriage was threatened if it was not restricted to heterosexual couples. Formal redefinition of marriage as an exclusively heterosexual arrangment in the state constitution was needed to restore what had never been explicitly stated, but always assumed as normative by the common culture. The institution of marriage had to be protected from homosexuals, who would otherwise destroy it.
Now, there can be no denying that the backers of Prop. 8 had history on their side in at least one respect, which is the fact that the Judeo-Christian understanding of marriage was widely assumed for most of this country's history to not differ significantly from the state in terms of sexual orientation. The expression "heterosexual marriage" would've been foreign to the thinking of virtually all Californians in much of the state's history, because marriage was impliticly understood to be a union of one man and one woman. Supporters of marriage equality have to acknowledge that the diversity they celebrate today was not acknowledged in the past, and that the notion of "gay pride" is actually a recent, albeit proactive movement that was prompted by near-universal rejection of homosexuals in the popular culture.
But that is not the same thing as arguing that the laws of California in and of themselves inherently privilege any particular sectarian understanding of marriage, either today or in the past!
In fact, until 1977 there was no mention of gender or orientation in California statutes regarding marriage, which was defined as "a personal relation arising out of a civil contract, to which consent of the parties making that contract is necessary." In that year, a nervous legistlative committee realized that there was nothing specific in the language prohibiting same-sex marriage, and so added the phrase "between a man and a woman" to the statute. The first attempt to redefine marriage in California was not prompted by those arguing for marriage equality, but for those who wished to prevent anything but heterosexual unions being recognized as valid in that state! To put it another way, prior to 1977 no particular understanding of marriage was privileged in California law, and the first attempts to privilege any particular understanding was taken by those opposed to marriage equality.
As it so happene, at no time after 1977 did those Californians who spoke of "gay pride" and (eventually) "marriage equality" ever attempt to redefine marriage in California law. Rather, advocates of marriage equality used the courts to attempt to obtain the same legal protections and benefits accrued opposite-sex couples, by invoking long-established California statutes. Eventually, the California State Supreme Court ruled that, in fact, it was the opponents of marriage equality who had attempted to redefine marriage in California law, beginning in 1977 with an act by the legistlature and continuing with a ballot measure (Proposition 22) which was the state's attempt to emulate DOMA. The state would go on to rule that those attempts to redefine marriage as such were unconstitutional, because such redefinitions inherently deprived same-sex couples of a fundamental right.
Now, this brief of the state's legal history is filled with technicalities that a lot of people find impossible to discuss objectively. As with DOMA, which explicitly condemns homosexuality on moral grounds, the ballot inititiaves proscribing same-sex marriage in this state was largely an exercise in privileging the attitudes of beliefs of many (but not all) heterosexuals at the time they were placed on the ballot. Supporters of Prop. 22 and, later, Prop. 8 might have made the specific arguments I listed above, but the heart of their "argument" is that their traditional understanding has always, by tradition, been privileged in that state, and in order to protect their understanding, its position of privilege must be formally affirmed by the laws of the state. How to privilege that understanding? By-----redefining it!
What an irony! Defenders of traditional marraige claimed that laws are needed, because "gays don't have the right to redefine marriage for everyone else", yet it was not gay-rights folk who actually attempted to redefine the civil compact of marriage, but their opponents. If gay residents of the state didn't have that right, why did non-gay residents of the state have that right? How could defenders of traditional marriage make that argument with a straight face? The answer, of course, is that they couldn't, and lawyers for the backers of Prop. 8 have never attempted to make such an argument in court.
The truth is, the majority of voters does have the right to redefine marriage in California's state Constitution if they so choose, because if such a right didn't exist, no one would've attempted to pass a ballot proposition to do exactly that. That's why, ultimately, Prop. 8 is doomed whether or not SCOTUS affirms all, part or none of it this summer: as the voters move on this issue, it will no longer be possible for a minority to impose their privileged definition of marriage on the majority.
I have more to say on this subject in the future. Let me just conclude by emphasizing that the real motivation for Prop. 22, Prop. 8 and DOMA are the same: to privilege a traditional understanding of marriage, and thereby deny same-sex couples the social, psychological and legal benefits of marriage. You can't sugar-coat it: there is an entire class of persons who feel that their morals and traditions are under assault, who feel that honor and duty requires them to use the apparatus of the state to privilege their views, even if the consequence of that action is deprive gay men and women (and their children) of certain benefits. There are not content to let the same constitutional guarantees of religious liberty protect both themselves and homosexuals equally. Rather, they believe that the very existence of gay people and their families pose a threat to their conception of the moral and social order, and that the laws of the state must be leveraged in favor of their beliefs and against both the beliefs and the welface of same-sex couples and their families.
If I have said anything that is inaccurate or unfair with respect to such persons, I encourage comments.
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