NO on Prop 8: because it’s unequal

This is the second in a five-part series on the “California Marriage Protection Act,” Proposition 8 on the November 2008 ballot.

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California’s Proposition 8 seeks to amend the state Constitution by adding a section which would read: Only marriage between a man and a woman is valid or recognized in California.

Currently, same-sex marriages are legal in the State of California. They were made legal after the organized and individual struggles of many people found some resolution in the courts. On May 15, 2008, in a decision relating to a number of cases consolidated before the State Supreme Court, the justices decided by a 4-3 decision that the Constitution of California required people to be treated equally with regard to the “right to marriage.” The majority decision reflected the widespread rejection of the premise “that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.”

Even before this court decision, California had made same-sex unions legal via the designation “domestic partnership.” While this legal designation provided same-sex couples numerous benefits and responsibilities associated with legally-defined “marriage,” it did not do so fully. There remained a legal difference (as well as a social difference) between “marriage” and “domestic partnership.” This difference, this lack of equality, proved the deciding factor for the court. It should provide the same for us as a society.

To oppose the decision of the court, and seek to reverse it via the method of a voter initiative, is to stand against the principle of equality as embedded in the laws and culture of the United States. Furthermore, it is an opposition that can not, in the long run, succeed.

As a historian, I’ve always been kind of irked by the ubiquitous tactic of the radical right labeling all court decisions they disagree with as the product of an “activist court.” This is convenient, to be sure, but it is also so hypocritical. The political system in which we live and enjoy our rights is one reliant upon the principle of judicial review. We trust the courts to be the arbiter of what is and is not in line with the constitutions of our states and our nation. This role has been played by the courts for almost as long as there has been a United States, and certainly for as long as there has been a State of California. A consequence of it is a periodic change in the law that is expansive. To object to the court’s processes by labeling a some changes as “activist” is to really object to the role they play fundamentally. It assumes the court should do nothing because they can never make a decision with an impact on the law or society, or that they can make no decision that is not popular or driven by the consensus of the people

Of course, courts are not infallible. Segregation and other forms of systemic inequality were legally protected by the same judicial system now upholding same-sex couple’s right to marry. I am not arguing that since the California courts decided in favor of same-sex marriage we must support the issue. I am far more concerned with the ways a court makes its decisions, the principles it applies and uses to frame it decisions. In this case, the overwhelming force in the court’s decision was the principle of “equality” and non-discrimination. That principle–when protected by the courts and reflected in its decisions–should also serve as a suggestion to us that they succeeded in their Constitutionally-dictated role.

Equality is fundamental to our society. We are a culture which firmly believes in the obligation of the state to treat each of us the same way as the other. Our legal history has been, in part, one of an expansion of the notion of equality. Most notably in the realm of race, our judicial system has played a primary role in communicating an evolving sense of what equality means in our nation, of who is deserving of it, and how it can go from an idea to a lived reality.

Equality has also occupied a fundamental place in the history of struggles for social justice. In almost every way, movements of people seeking a more just world have been the pretext of any court decision expanding our notion of equality. Perhaps this nurtures the “activist court” critique, but it also speaks volumes about the court system being something of a follower more than a leader in the crusade for justice and equality. As a cornerstone of movements for justice, equality has also been expansive and interconnected. The struggle for legal equality of Blacks and Whites is directly connected to later struggles for educational equality for Asians and Latinos, to marriage equality for all races, to gender equality in voting, and so on.

This interconnection makes the struggle for gay, lesbian, and transgender equality intimately part of all struggles for equality. With respect to rights, a society can not thrive for some as it flounders for others. Much like a fire, which must be fully contained if it is to cease posing a threat, injustice must be defeated everywhere if it can exist anywhere. We are all diminished in a context of inequality, as we would be with the passage of Prop. 8, whether we are within or without the LGBT community

The thirst for freedom from discrimination and for real equality is something that can not be denied, historically speaking. As Martin Luther King said in his Nobel Peace Prize address in 1964, “Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself.” The condition of the denial of freedom and equality helps to nurture that thirst, as it demands mass struggle to quench it.

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4 thoughts on “NO on Prop 8: because it’s unequal

  1. First of all, the constitution, state or federal, did not just float down from heaven. It was created by The People as an overarching set of rules we agree to live by. California’s state constitution never granted same-sex couples the right to marriage — it was unheard of back when California became a state. Traditional marriage remained the will of The People of California, even as little as eight years ago.

    Four activist judges twisted the state constitution to find a right where none had previously existed. It’s happened before; just look at Roe v. Wade.

    Yes, same-sex couples currently have the right to marry. However, the right does not come from the state constitution; it comes from the judges’ interpretation of the constitution. The People of California now have the opportunity to change their constitution … or not.

    You cannot commend one part of our system of checks and balances while decrying another — the right of the people of California to amend their constitution to properly reflect their voice.

    “Even before this court decision, California had made same-sex unions legal via the designation “domestic partnership.” While this legal designation provided same-sex couples numerous benefits and responsibilities associated with legally-defined “marriage,” it did not do so fully. There remained a legal difference (as well as a social difference) between “marriage” and “domestic partnership.”

    I have asked on several other blogs, but I have yet to receive an answer — What is the legal difference between “marriage” and “domestic partnership”? You claim there is one, but offer no proof. I cannot find a difference other than the name change. If it really exists, wouldn’t that be a powerful argument in your favor?

    I have often heard the gay community compare their activism to the black civil rights movement of the 60’s. Now, as far as comparing gay rights to the black civil rights movement — I have a problem with that. For years, we have been told that homosexuality is inborn, and there is nothing one can do about it. However, there is another element in the gay community that encourages sexual exploration and advocates homosexuality as an acceptable alternative lifestyle. So which is it? Is it inborn, or is it a choice? Either you can’t help it, and you are a group that needs the same protections blacks received, or you are simply choosing that lifestyle and therefore shouldn’t get special status just because of your preferences. You can’t have it both ways.

    Until the gay community itself comes to terms with that dichotomy, it is unrealistic to expect everyone — especially those with different moral values — to embrace your efforts.

  2. I agree with your interpretation of a constitution. But: 1) the conservative groups allied with this cause are largely people who frame their arguments in terms of the constitution. It is this hypocrisy that I take issue with. In all kindness, your second paragraph in conjunction with your first is the perfect example of this. 2) While the document and its “rules” may not be granted from on high, there is something different in the vales embedded in them. While I won;t be as simplistic as to say they are -God-given, there is a fundamental need for us as a society to believe that the values of, say, equality and equity are far more transcendent than words on a page.

    As for the legal difference between the two: DP is not equally defined across states and has a host of differences with respect to federal rights and responsibilities. It also requires an increased level of legal maintenance (to guard against loophole and as yet interpreted consequences) that married couples do not have to engage.

    If you read the decision of the court, much like in the decision of Brown v. Board, they were moved far more by the “social inequality” of the difference. Again, you provide us ample proof of that.

    As for your final point, you miss the point of the comparison entirely, but that’s okay. Whether or not it is or isn’t is irrelevant. Race (like sexuality) is not about any innate qualities but they way difference is draw and institutionalized in our system. That is the point. That is how it is the same. Our system currently defines gay or lesbian as requiring diminished rights, the same way it defined being black a generation ago. What being “black” meant biologically was (and is) irrelevant. It was always about how the political and economic system defined it.

    And I would reframe your final words to respectfully disagree. The burden of removing inequality and discrimination is not on the gay and lesbian community alone. It is on us all. The only moral stance one need take is to support equality.

  3. “As for the legal difference between the two: DP is not equally defined across states and has a host of differences with respect to federal rights and responsibilities.”

    Yes, there are differences between states with respect to FEDERAL rights and responsibilities. That is because 1. The US constitution grants the states all authority regarding marriage laws, and 2. With the Defense of Marriage Act, federal law does not recognize same-sex marriages. However, that is simply a red herring, because what we are engaged in is a state matter, and regardless what is decided, it will have no effect on federal law.

    “If you read the decision of the court, … they were moved far more by the “social inequality” of the difference.”

    I feel that this is the true root of what the gay community is trying to accomplish. There are no legal differences in the state of California between marriages and domestic partnerships. The gay community is trying to force social equality and also I might suggest moral equality. I do not believe that this is something you can force on a society by means of the courts. I come back to my earlier observation — it would be a lot easier for the gay community to obtain social equality if there were not a component of that community that encourages sexual exploration and advocates homosexuality as an acceptable alternative lifestyle.

    People must be able to maintain the right of religion to make a moral judgment regarding such behavior. That is the real right that we see is in jeopardy.

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