Your blogger’s inner cynicism rears its ugly head, I’m afraid. I haven’t had time to read the decision or anything else, so I’m operating on what I know from the news, which is that a California District Court ruled Prop 8 unconstitutional on Due Process and Equal Protection grounds and that a stay has been issued, though it’s not a very long one and so it’ll expire before an appeal and another stay will have to be issued.
Assuming that’s correct, this is definitely something of a victory, but it doesn’t mean people can get married again, and it doesn’t mean that Prop 8 was really “overturned,” at least, in the sense I use the word. I sort of feel like you can’t overturn something if the next guy can turn it right back. But despite that, I’ll feel some cautious sense of victory, and eagerly anticipate the result of the appeals process.
I’ve been writing a seminar paper on the democracy deficit in international law and arguing that the system can be legitimate without democracy because constitutionalism (and some other things) fill the void. I was thinking about the whole California issue last night and it occurred to me that it raises similar questions. Of course, we’re all raised to think that democracy is great and wonderful and special, but it does have its problems. One of those is that internationally, we tend to not accept democracy if it doesn’t get us the “right” leader. We don’t have that problem so much at home, but democracy doesn’t always work so well nonetheless. There’s a tension between “tyranny of the majority” and “tyranny of the minority.” Those of us who are gay or lesbian don’t feel so hot about the majority ruling on our rights, after all. We want to say that no matter what the majority of Californians think, it’s just not right. On the other hand, Californians in favor of the Proposition don’t like the idea of a minority of gay people, and the justices in kahootz with them, deciding what marriage is. As biased as I am, there are points on both sides.
A constitution is supposed to be a document that reflects a society’s fundamental principles. Of course, at the start, it was a democratic instrument, and it can be altered, but we have to sacrifice a teeny bit of the democratic element to protect vulnerable minorities and ensure that certain basic principles aren’t just vetoed. That’s why constitutions are so difficult to amend. There’s an argument coming out now, which I think is a good one, that Prop 8 is invalid because California has two different types of amendment processes and the ballot initiative one isn’t supposed to be used for amendments that fundamentally alter the existing nature of the constitution. I think this is a good idea, because the whole point of a constitution is to protect against temporary political surges. The amendment process is supposed to say “hey, are you sure you want to do this?” A simple majority vote doesn’t quite achieve that.
I understand the whole “judges legislating” argument, but let’s remember one of the key purposes of judges – to uphold individual freedoms. The thing about equality is, it benefits everyone. And this may bug some of us, some of the time. But on the whole, it’s a good principle. It protects straight people, too. Despite what some may think, it wouldn’t be constitutional for schools, for example, to promote gay marriage over straight marriage, or homosexuality over heterosexuality.
Sometimes I’m uncomfortable with my anti-democratic ideas, because a constitution could of course enshrine principles that are oppressive. But I don’t think this is an issue when it comes to equal protection. I think equal protection on the whole, works well, and the discrimination Californians are trying to enshrine in their constitution is based on bare animus towards a politically unpopular group – something the Supreme Court has rejected, and I think most Americans would reject (even Californians, if you put it in general terms). The problem is the cultural moment, and we’ve had many cultural moments in our history like this one, which we’ve eventually gotten past. As one blogger said recently, in 20 years we’re going to be embarrassed about this.
I already highlighted some reasons that even people who are sort of in the middle on gay marriage should vote No on 8 in this post. I showed you some powerful ads against the proposition in this one. But now I have another reason to vote no. This post is specifically for Write to Marry Day, an event hosted by Mombian to put the spotlight on Proposition 8. I’ve been thrilled to see how many bloggers are coming out against 8, including the awesome visual of the No on 8 quilt by Riese (I’m down there on the bottom). But even if you wouldn’t consider yourself a supporter, or are feeling a little uncomfortable or unenthusiastic about same-sex marriage, you need to vote no.
This isn’t just about gay marriage. People keep saying that this is about discrimination, hate, and equality, but one example really hits home for me why Californians need to get to the polls and defeat this proposition. You may have heard about how the Yes on 8 folks have been sending letters to small business owners who donated to No on 8, warning that if they do not donate the same amount to the Yes campaign they will be publicized as opposed to traditional marriage. That’s not just dirty politics, it’s terrifying. Because you know what this sounds like? It sounds like a time in our nation’s history where people were hunted down, blackmailed, beat up, and even killed because of the color of their skin or their sexuality. This isn’t just about gay marriage. If you’re thinking of voting yes on this proposition, please think long and hard about whether you want people who resort to these tactics to win. It won’t stop here. Marriage is just one step, and even if you can’t stand the idea of gay people getting married, think carefully about whether their ability to marry will hurt your life or your family. Remind yourself that you’re the one your children look up to, and that you can teach them whatever the heck you want. Yes, I’d personally prefer that children grow up to believe that it’s not who you love, but how you love them. But I’m willing to concede some ground here because the important thing is that whether or not you want gay people married, I don’t think you want them threatened, fired, or killed. These types of human rights violations are real. They happen in many parts of the world. Private citizens in this country commit serious hate crimes against gays and lesbians even as we speak. If you’re religious, I think you can agree that whatever God considers a sin, he isn’t asking you to beat up or kill the sinner. We aren’t so far away from turning the clock back to a time when gays and lesbians constantly had to fear for their lives and reputations. Don’t be responsible for turning that clock back. Vote no on Proposition 8.
I had intended to write separately about each of the marriage initiatives on various ballots, but since what I’ve already written about for Proposition 8 applies pretty much across the board, today I’m going to share some particularly effective campaign videos with you. Don’t forget to vote!
(No on Proposition 102, a constitutional amendment to ban same sex marriage)
(No on Act 1, a measure that would ban cohabiting couples from fostering or adopting children)
(No on Prop 8, constitutional amendment defining marriage as between a man and woman)
(No on Question 1, which would mean a constitutional convention and possibly overturning of gay marriage)
(No on Proposition 2, a marriage amendment that would also make heterosexual domestic partnerships illegal)
Everyone should see this video. But don’t watch when you’re somewhere where crying is inappropriate. (Happy tears, I promise.)
Why hello there.
First, apologies for getting behind on comments, both approving and replying. I know being super-busy isn’t really an excuse, because we’re all in the same boat. I’ll try to do better – I love getting comments and I really appreciate everyone who reads, whether or not you comment.
Second, hey, this liveblogging thing is pretty cool! I’m back home from South Dakota on an actual computer, but it’s nice to know that one-fingered typing can keep you updated when I’m at exciting related events (hopefully there will be more of those after I graduate and am employed). I am glad, though, that I’m not going to have to watch the debate on a three-inch screen! Speaking of South Dakota, I’ve decided to do a little spotlight on ballot initiatives feature this month, to keep y’all informed about gender and sexuality related issues that are up for a vote in your state. As promised, I’ll let you know about Measure 11, as well as my own experience fighting it and the interesting perspectives that South Dakotans bring to the table on the issue. Tonight, I’d like to talk about Prop 8 in California, and gay marriage in general.
I know most of you reading are in favour of gay marriage, and against Prop 8, but I’ve also noticed some anti-gay comments on the blog, and I’d like to make a rational appeal just in case there are any undecided California voters hanging around. The language itself is pretty simple. It would add a section stating that, “only marriage between a man and a woman is valid or recognized in California.” There isn’t much to debate about that language, but I’d like to give a few reasons why gay marriage should be valid and recognized, however you personally feel about gay people and whether or not you think that gays should marry as a religious or social matter.
- Disallowing gay marriage doesn’t get rid of gay relationships. Gay people will still love each other, make commitments to each other, say vows to each other, live together, and raise children together in California if the proposition passes. They will still marry each other in churches. The only thing at issue here is whether gay marriage is legally recognised by the state.
- Allowing gay marriage doesn’t threaten heterosexual marriage. The divorce rate has been going up for years without any recognition of gay marriage in this country. People marry for many, many, many reasons and they divorce for just as many reasons. Perhaps the culture of a whole is changing to de-emphasise marriage, but if this is what bothers you, gay marriage should be a good thing. It encourages people who are already in stable, loving relationships to marry, and means more children will be raised in the context of a marriage. Again, the idea is not that the state is creating more gay relationships to lure straight people away from marriage. The relationships are already here. Straight people are not lured away by the prospect of a gay marriage. Closeted gay people in heterosexual marriages were already gay in the first place.
- Gay marriage protects children. However you feel about gay people adopting kids together, or about second-parent adoptions or other family structures involving gay parents, they do exist. There are children being raised by gay people, and if Proposition 8 passes they will be threatened. The rights and benefits that extend to married people include many rights, financial and otherwise, designed to protect children. Even if children have rights by virtue of the parent-child relationship, whether the parents’ partnership is recognised or not, there is a stigma that goes along with having a law on the books suggesting that a child’s family is unnatural. This stigma is harmful to children.
- The idea that this is a slippery slope and soon all sorts of sexual conduct will be recognised, from bestiality to incest to polygamy, is a little silly. This isn’t about sex, it is about a legal relationship between two people. Sodomy laws are already unconstitutional in this country. The gays and lesbians who want to marry are often more conservative than their peers and in some cases more like heterosexual married couples than unmarried LGBT ones. Many of them have children, and often are already in long-term, committed relationships and would have married earlier if it had been a legal option. Many LGBT people for whom marriage is significant are religious. The gay marriage movement is actually quite moderate, and isn’t asking for wild, promiscuous sex. It is asking for recognition in a context to which many married heterosexual people can relate.
I should note that these aren’t the reasons why I personally support the gay marriage movement (those have more to do with equality and rights), but if I learned anything this weekend it’s that two people can vote the same way on a given ballot initiative for entirely different reasons. So, I think that both progressive LGBT folks and allies, and more conservative heterosexual people who don’t give a hoot about gay people but do care about children and families, should vote no on this proposition.