NB: Since writing this, I might have even changed my mind. By the logic I put forward here, Loving vs. Virginia - the case which allowed an interracial marriage to take place, despite segregation - should have also been decided in the legislature, not the courts. By that logic, interracial marriage might still be illegal today! Not good!As readers of Militant Ginger will know, I'm totally in support of same-sex marriage and was intensely disappointed when the California electorate shot down that liberty with their vile amendment to the State Constitution 'Proposition 8.'
However, when the California Supreme Court decided to uphold the amendment during appeal, I felt they made the right decision.
Don't get me wrong - I haven't changed my belief that same-sex couples should have the same right to marriage as heterosexuals. I just feel that this is an issue that's far too important to be decided in the courts.
Proposition 8 was ratified by referendum - the people of California were allowed to personally decide the issue, instead of leaving it up to the state legislature.
52.24% of them voted to redefine marriage as 'between a man and a woman,' obliterating the right same-sex couples previously had to enter into committed marriages themselves.
Sure, the fact that this issue was decided by referendum is incredibly disappointing. California's supposed to be a liberal state and has often led the way in progressive politics. These ballot results exposed underlying conservatism and religious zealotry in what many of us had previous considered 'safe territory.'
But the fact is, the vote was cast and the decision was made.
That it was the wrong decision is not up for debate - but, nevertheless, that's how democracy works. In the words of Thomas Jefferson: "A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine."
When the appeal reached the California Supreme Court, it stopped being about right or wrong and became about democracy and the law - and if the judges had upheld the appeal, it would have thrown everything the issue stands for into disarray.
"Put simply, the appeal complaint is that it's just too easy to amend the California Constitution through the referendum process," wrote Justice George, explaining the Court's decision. "But it is not a proper function of this court to curtail the Democratic process; we are constitutionally bound to uphold it."
7 million people voted to redefine the institution of marriage. Despite questions about the morality of that decision, or whether or not it contradicted the US Constitution, you simply can't ignore the fact that 52.24% of voters said 'this is what we want.'
Conservative pundits like Mark Levin often throw around the term 'legislating from the bench,' but if the seven Supreme Court justices had upheld the appeal, overruling the Constitutional amendment, 'legislating from the bench' would have been exactly what supporters of Prop 8 would have accused them of doing.
To them, it would have been a clear demonstration that those seven voices were more important than their seven million. Any faith in the democratic process would have disappeared forever - 'Prop 8' detractors had already seen their freedoms stolen by the ballot box, now the proposition supporters themselves would see their voices overruled by the courts.
Supporters of Prop 8 would never have accepted a Supreme Court decision to allow gay marriage. They'd have fought against it and won, as same-sex marriages would only continue until they manufactured another court ruling splintering that liberty once again.
The sad fact is; the only sustainable route to securing same-sex marriage is through the legislature. It has to be a freedom secured through democratic methods, otherwise it will never mean as much as the 'gay marriage' laws passed in Massachusetts, Connecticut, Maine and Vermont.
I'm not arguing that same-sex couples deserve the right to marry. I'm open-minded to comparisons between the struggle for gay rights and the civil rights movement. During the battle against segregation and racism, the majority of voters didn't always make what we know today to be the 'right' decision. The same applies today.
But, nevertheless, we have to uphold the democratic process, otherwise it's meaningless.
The good news: In 2010, the gay rights movement will have same-sex marriage back on the ballot - and this time, they'll win that fight. Last time around, less than 5% of votes separated the gay rights movement from victory. I'm confident that they can win those voters over this time.
When that happens - when a majority of Californians take a stand and support the freedom of same-sex marriage - then it'll be a long overdue, permanent victory. One that religious zealots and conservatives can't take away.
20 comments:
Man you drive me nuts sometimes.
It is people like you, not people like me, trying to redefine marriage.
For thousands upon thousands of years across social and religious boundaries, marriage has been between a man and a women. Only now are there serious movements to redefine it as two people (which I've shared previously is just as discriminatory as man and women rules).
Never, let me repeat that... NEVER has a group of citizens voted to redefine marriage as two people. It has been done more correctly in some states where the legislator has allowed it, but never has it been put up for a vote and passed.
California may be the first, but as shown before... that's not a guarantee. Give a few years of gay marriage in other states to start trampling on religious rights (like the ability to refuse to perform one if you are a minister or a church), and this will back fire.
Wow, ck seems to be a little confused about the legal ramifications of same-sex marriage being legalized in California. I can't speak for the other states, but I live in California and I've bothered to do some research. Gay marriage in California would not affect religious institutions AT ALL. Churches would retain the right to refuse to marry anyone they felt like, just like they've always had the right to do here. I'm amazed at some of the misinformation opponents of same-sex marriage will spread just to get their way. Maybe the motto is, "it doesn't matter if it's true, as long as it works."
What ever happened to arguing your point with logic and facts? And how about not making things up? That would make it a lot easier for me to disagree respectfully instead of angrily.
"For thousands upon thousands of years across social and religious boundaries, marriage has been between a man and a women."Not quite. Marriage has also been defined as between a man and several women, a man owning a woman (or several), or between a man and a woman, but only if they're white, or only if they're the same race.
Marriage has meant polygamy, has been a business transaction, was not legally recognized between slaves during U.S. slavery, and was illegal for interracial couples in some states until very recently (1967).
I say redefining marriage to be available to any pair of consenting adults isn't really that radical, considering how much marriage has changed over the millenia.
Hey, CK! Glad to see you!
And Eve - Oooh, I like the way you think!
I find it funny that marriage has NEVER been defined as 'between a man and a woman' which is why all the states are struggling to ADD that definition to their constitution. Even Loving vs. Virginia, the court case when interracial marriage was made legal, the justices NEVER commented on gender.
You can argue that it's implied - but it also means any state that wants to ban gay marriage has to add that definition to the constitution, thereby 'redefining' marriage.
And Eve's right - marriage throughout history has included multiple wives, multiple husbands, slavery, arranged marriage, child marriage...
The 'only one man, only one woman' definition is a recent one.
I'll actually say that since writing this, I might have even changed my mind. By the logic I put forward here, Loving vs. Virginia should have also been decided in the legislature, not the courts, and interracial marriage might still be illegal today.
Eve - thanks for stopping by! Hope to see you again!
Roland, I agree that legally the supreme court may have followed the right course (to the wrong decision, of course). However, I don't think a amendment to California's constitution should have been up for a majority vote in the first place.
I think it's ridiculous that in California we need a 2/3rds vote to pass a budget, but just a simple majority vote to take people's rights away.
Eve, the the Catholic church in Maine recently had a complaint filed against it. Why? Because they refused to wed to gays.
You can say there is freedom, but unless it is explicitly defined in any pro-gay marriage laws the freedom of religion apparently doesn't apply to many on that side of the fence.
So... check your own facts first.
You can ask Roland, I think that polygamy is 100% fine in the Bible. Homosexuality is not.
But if homosexual marriage is OK then polygamy HAS to be under the same rules. Along with brother and sister marriage... along with adult son and parent... after all its two consenting adults.
But I'm sure you'll say that nobody is arguing for crazy stuff like that... well two things to refute that:
1. NAMBLA.
2. 40 years ago nobody was arguing for this crap either.
Ck, you may notice that I said I was speaking about the ramifications of gay marriage in California, not other states. Read a little more carefully please. People can complain all they want that the church won't marry them, but that's not going to change the fact that religious institutions have the right to choose that sort of thing for themselves in California. Using other states as a measure of California law is not realistic. No two states have the same constitution, laws, or judges. Yes, there's plenty of overlap, and federal law to be considered, but different states DO work differently. Are you from California?
As for polygamy, I'm not saying it's necessarily a bad (or good) thing (I'll get into that another time perhaps, I'm not entirely opposed to that being legal, but I'm not going to fight for it either), I was merely using that to illustrate my point that the definition of marriage has not always been strictly "a man and a woman."
As for the bible's view of homosexuality, I don't think that should dictate the law. You have the right to any religious beliefs you want, and I will respect that in as much as I will not tell you not to have those beliefs. However the law is another matter. I don't think religion should dictate law, just as the law doesn't dictate what your religious beliefs should be.
Of course I don't believe siblings should be able to marry, or that a parent should be able to marry their child, but "one man one woman" doesn't specifically address that either. My brother and I are both adults, but neither of us is ever going to want the right to marry each other, despite being "a man and a woman". I'm pretty sure you knew what I meant. Even so, I will rephrase. I believe that the law shouldn't discriminate based on gender or sexual orientation. Current laws barring marriage to family members or minors or multiple people still stand. And I'm sure some people do want the right to do some of those things too, but gay marriage has nothing to do with that, and that's not what I'm fighting for.
Now aside from what your bible says (since the bible is not the law in this country, and not everyone is christian) what good reason is there to prevent gay couples from marrying in California? How does it hurt you? How does it hurt anyone? And please give me a better reason than "homosexuality is wrong" because that still doesn't explain why gay couples should be allowed to marry.
The word should be "shouldn't" in my last sentence.
I feel like I should say something here. But I don't really have anything to say, other than that I think the eventual end of this will be that the government no longer recognizes marriage, at least at the federal level.
And I think that would be a good outcome, as the current concept of marriage unnecessarily conflates religion and government.
(Can you think of any other government document that has a place for a minister to sign?)
I would like to add that I agree that it would be good to add to same-sex marriage legislation something protecting freedom of religious institutions to choose not to perform same-sex marriages. I am entirely for religious freedom, so respect the right of churches not to marry gay couples if they choose (even though I disagree with the decision).
It is specifically the law that I think should not be allowed to discriminate. Since religious ceremonies have no legal bearing, I see no reason to deny the right to choose in that regard.
Yeah... because we all know that there are no activist judges in California that will think its a basic human right that if a church does any weddings they must do gay weddings. Just wouldn't happen. Trust em.
No thanks.
As for, what does it hurt... its a religious issue. Business owners are religious. So what if I own a business and am required to offer benefits to a way of life I am 100% against?
What if I own a business and am required to offer benefits to, by definition (more so the male version than the female version), a high risk couple? I can charge an extra fee for smokers or older employees, but if I did it for homosexuals.. I can't?
As for the social aspect of gay marriage, there is absolutely no real measuring stick for what harm it causes. Its a proven fact that a household with a mom and a dad, especially with the dad part of it, produce much healthier (mental and physical) children.
I'd actually rather see marriage abandoned from a federal level before I'd want to see it 'redefined'.
Good debate going on here!
ck... having the government get out of marriage altogether is a great idea. I don't see it happening though.
Where businesses are concerned there are plenty of cases in different states where lawsuits have been brought by those seeking same-sex committment ceremonies claiming descrimination. In Arizona there was a case against a self-employed photographer who declined to photograph such a ceremony. I can't remember the state... but there was a case where a church owned a park and a same-sex couple sued for use of the gazebo. I seem to recall there was some sort of agreement with the city to retain public use of the park...???
Anyway, my point is that law suits are regularly brought up without the legality of same-sex marriage. There is nothing that leads me to believe that that would change if it were made legal.
I'm afraid it is only a matter of time before someone finds a way to word hate speech legislation to where it will be passed and that just saying that you believe homosexuality is wrong will fall under it and be a prosecutable offense.
Is it that much of a stretch to say that there may come a time when government controls force small business owners out of the picture? To accomplish that would require action from many different sources to force more and more regulations to the point where people no longer wish to have their own business.
When people say, "What does it matter to you?" you have to take a step back and look at the big picture. Gay-marriage is not a simple issue that does not carry ramifications for our society as a whole.
In the end, all we can do is vote our conscience and respect the right of those who have opposing views to do the same. It can be hard to discuss these sorts of issues with people because it sparks anger in many. However, if we all step back and are just honest about where we are coming from and why we might be able to understand one another and find more common ground. There is such a lack of respect these days.
I forgot to check the box to receive notification of follow up comments.
I lost all hope for California when they let Arnold S. in. You make some very good points, and I enjoyed reading your post. Also, I scrolled down, and loved all of the Mini Militant photos. Extremely adorable.
With regard to Roland's update and Loving vs. VA, I'll just point out that there are many places where our society considers it to be acceptable to distinguish based on gender, and illegal based on race.
For example, we have a mens' room and a ladies' room, but a while men's room or a black ladies' room would be illegal. Similarly in sports: The LPGA is fine, but the AsianPGA would be illegal.
My only point is the analogy is not as straight forward as it first appears.
Hey Tom,
We had a law passed here in Colorado just last year where people can use whichever restroom belongs to the gender they perceive themselves to be. Why? Supposedly so that violence would not be committed against someone using a restroom because they are gay,transexual,or whatever other combinations there are. I'm still not aware of any instances here where violence was committed against someone so I'm not quite sure why someone felt the need to write the legislation and then for it to pass...
I was going to mention the Colorado toilets thing, but Coffee Bean beat me to it (which is fair enough, since I learned it from her!)
I don't know how I feel about that - I mean, if you are a transsexual, I can understand wanting to use the toilet that is appropriate for the 'gender' you feel you are...
...HOWEVER, if a woman was peeing and a clearly masculine person entered her restroom, I'm sure she'd find that uncomfortable and intimidating. I think personal rights need to be balanced against the rights of others.
That being said, I was in a restroom the other day and a woman just comes barging in, looking for her husband!
I think it's fair to recognize people's differences - it's what makes us all special - but we should be protected from being discriminated against for those differences, targeted for violence because of those differences, or not enjoy the same rights as everybody else.
The whole toilet thing here is just weird to me because you'd think if there were instances where there was violence committed against individuals using the restroom they wanted to we would have heard of it... especially with the controversy surrounding this piece of legislation. You know what I mean? It really does make you wonder about there being some sort of advancing agenda that will come into play in a bigger way later on down the road.
The thing that bothers me about this law is that it may desensitize people to having opposite genders entering public restrooms and that individuals like pedophiles could use it as a cover. You know what I mean? Say little girls eventually know that men can enter the restroom and that instinctual fear that would occur would be overridden by the fact that it is legal and there would be an increased chance of them being hurt.
I don't know... weird stuff goes on in bathrooms. Rest stops are notorious spots for gay men to get together in the restroom. Gosh... another blogger was at a McDonalds in the middle of the day somewhere in northern California last summer and her husband took her two young boys to the restroom... and there was a McDonalds employee in a stall with a man doing something. She was very upset because when she is alone with her boys she often sends them to the restroom by themselves because she can see the door.
There is something very very wrong in our society where sexual matters are concerned. Can you imagine a heterosexual parade where lewd acts were out in the open and booths selling sex toys were about? What about that whole biking in the park naked thing that happened in Oregon last year? I don't care what their orientation was or what they were protesting. If a bunch of "straight" people wanted to ride through the park naked I'd have the exact same problem with it.
I just don't get it.
Coffee Bean, this story will send a CHILL down your spine when you read it. It makes me terrified to be a parent.
http://www.dailymail.co.uk/news/article-384573/Boy-15-admits-supermarket-toilet-rape.html
As for the naked stuff - c'mon, straight people get naked all the time! Naked protests against fur, 'the naked mile' and all sorts of other events. I think that's fine - but only in an appropriate time and place.
Let's be honest, the whole idea of having 'gay' and 'straight' culture is one of the reasons that discrimination and separation exists (the same with 'black' and 'white' culture.) When there's just 'culture' we'll finally see an end to discrimination.
There's a middle ground between fighting for rights that are fair (like gay marriage) and fighting for things that are absurd, or for special rights that regular folks don't get.
Really, if we were all evolved, these rights would be self evident. For example, gay marriage REALLY has no bearing on any straight person's life. If two men want to marry, it doesn't affect me, my marriage to my wife or anything else in my life, so as far as I'm concerned I have no right to stop it.
It's a simple principle - everybody has the right to do anything as long as it doesn't infringe the rights of anybody else.
Gay marriage - doesn't infringe anybody's rights. OKAY.
Gay people forcing a church to bless their ceremony - DOES infringe the churches rights. NOT OKAY.
Pretty simple to me.
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