Got Milk? Gay Marriage and the Courts
As a general rule, TPP sticks to national issues. At the same time we find that the national newsworthiness of the situation in California will affect the debate on the definition of marriage in the United States. We see a need for accurate information to be passed on to the general public in the interest of keeping the public informed. We are offering no moral judgments on which side is right, if either.
Our Libertarian stance on many of the social issues considers these things a matter of personal choice. A person should be at liberty to live his life without undue intrusion from the government. We consider most "morality" issues to be matters of personal conscience where the government has no business. After all, in this country a person has the right to find God in his own way, and by extension, has the right to ignore any particular interpretation what any specific group promotes as the will of God. That's the clear intent of the First Amendment. We are to promote individual liberty, not a collective salvation.
In the case of a specific public and governmental status being sought, as it is in this issue, we believe that the State, rather than the Federal government should be the ultimate arbiter. That is how it is outlined in the U.S. Constitution under Amendment 10.In California, that includes the public ballot initiative, which is the basis for this specific case.
California had a Constitutional amendment proposed and passed defining marriage as specifically the union of one man and one woman, which has been the traditionally held view in America. To quote "only marriage between a man and a woman is valid or recognized in California". According to the California State Constitution that is what is required for adoption. Here is the backstory:
On May 16, 2008 The California Supreme Court struck down the state law banning same-sex marriage. The 4 -3 ruling was broadly worded and served to invalidate any law discriminating on the basis of sexual orientation. The ruling found that the State constitution protects a fundamental "right to marry" that extends equally to same sex couples. The ruling, according to Chief Justice Ronald George, would make suspect, any law in California, that discriminated on the basis of sexual orientation - in the same way as discrimination by race or gender.
In response, opponents of gay marriage fielded a ballot initiative, Proposition 8, to amend the California State Constitution. The ballot measure passed on Nov 4 2008 (52.3% to 47.7% with a 79.42% voter turnout), and was enacted on Nov 5 2008. The measure did not invalidate the legal status of "domestic partnership" - a legal status granted to same sex, and certain opposite sex couples in 1999.
The passage of Proposition 8 caused an immediate chain of filings in federal court systems that culminated in a ruling of Prop 8 being unconstitutional by Federal Judge Vaughn Walker in August of 2010. Today supporters of Prop 8 filed a motion to overturn the ruling claiming "conflict of interest". It seems that Judge Walker is gay and in a long term relationship.
Again, we don't have a horse in the race on Judge Walker's personal life. What happens between consenting adults is their business. In the case of rendering this decision, the perception that is laid on it is that Judge Walker did have a horse in the race. Whether there is an actual impropriety or not, the appearance of impropriety has consequences. Ideally, Judge Walker should have recognized this and recused himself. It is California, and there would have been a host of other judges whose motives would not be called into question and who would have ruled the same way.
The facts of the case that wound up before Judge Walker were simple on the face of things. Gay rights lawyers argued that Proposition 8 removed a fundamental right from a protected minority that had suffered discrimination. The argument was that Prop 8 amounted to a revision of the Constitution which could only legally be done by a 2/3 majority of the Legislature, or by Constitutional Convention.
Lawyers for Proposition 8 argued the right of the people to amend their Constitution, which has been done 500 times already. By law, California Supreme Court justices are tasked with interpreting the Constitution as written, with regard to legislative statutes. There is no Constitutional provision for ruling on the validity of an amendment to that Constitution.
The filing today against Judge Walker provides the pathway that will be opened to the United States Supreme Court for disposal of this issue. It allows a leap-frogging over the actual issues being debated, and instead brings forward the issue in the light of judicial misconduct. The debate should be about the legal merits of the issue. The Prop 8 people can argue that the court overstepped its bounds in overturning the legal mandate of it's citizens. The gay rights lawyers can argue "equal protection under the law" (14th amendment) and any number of Federal statutes preventing discrimination on basis of sexual orientation. Arguments such as these are the basis of sound law. A circus sideshow because of the perceived bias of a single judge serves no greater good.
Once at the Supreme Court, a truly persuasive argument is up for grabs, and can be made use of by either side. A long held legal principle is that of "tyranny of the majority". It is a principal that holds that the majority cannot infringe upon the rights of the minority by law, except in the case of compelling reason. It is a legal principle woven deeply into the Bill of Rights, and has been cited in principle by James Madison, de Tocqueville, and for generations in western civilization dating back to Plato, in his work "Republic".
It also has been routinely ignored, when convenient in this country - for which we can cite slavery, Jim Crow, Manzanar and Guantanamo Bay. This principle limits the right to shout "fire!" in a crowded theater, as well as give the Nazis and KKK the right to public assembly and demonstration.
It will be the job of the gay rights lawyers to argue that marriage is a right, and that no compelling reason exists to deny it to their constituency. That is the uphill battle. It will be difficult to dismiss the protections that gay couples have under the "domestic partnership" status that affords all of the legal protections to gay couples as it does to heterosexual couples. It denies them only the word "marriage".
On the other hand, it is up to the Prop 8 people to argue that marriage is not a right, but a privilege - and therefore not inherent; or that there is a compelling reason in denying it as a right to gay people. Several thousand years of slavery did not make practicing slavery any more noble.. The outcome of the decision will depend on who argues their principles most skillfully.
Common Sense Dictates
Well, in this case, it doesn't. There will be no final resolution in the California Courts. The Supreme Court would show great courage in hearing and ruling on this case, but may opt to not hear it, and bounce it back to California to sort out, claiming no jurisdiction. Clearly there is a national interest in coming up with a uniform standard for what defines marriage, or we risk that the rights enjoyed by a couple in California, or Utah or New York, would not be valid in Delaware or Arkansas.
This issue muddles the religious definition of a marriage - which implies the sanction of God on the union; with the legal definition of marriage - which is a legal contract to protect inheritance rights. Obviously government cannot rule on the religious, and religion, while providing a moral grounding, cannot be the sole basis of our legal standards.Sharia works out so well with our Muslim friends.We need the basis of our law to be rooted in Constitutional principle.
Both arenas are trying to own the term marriage, and traditionally have made accommodation with prevailing social mores. In this case neither side seems willing to compromise the term marriage - if that were so, the "civil union" or "domestic partnership" already available in California and many states would suffice. It grants all of the legal rights of marriage without calling it such. So it would seem that the Supreme Court will need to decide a case of semantics. It is the legal equivalent of two young children fighting with each demanding that the other cry "uncle!" - and it will be Uncle Sam deciding. It is necessary, but the fact that it is necessary defies Common Sense.
RLB
Categories: Constitutional Issues, Social Policy
Tags: gay marriage civic responsibility gay rights Prop 8 Church and State
Well, as right wing as I am, I'm libertarian on top of that. The government belongs in as few places as possible, and the bedrooms and homes of it's citizens would top my list of forbidden places. Let em get married - makes no difference to me.
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No. I'm sorry. Can't stand with you doing the middling thing on this. A marriage is the blessing of a procreative relationship by God. It is not a legal definition of inheritance rights. Sometimes it is about the word. I don't begrudge the gays their "legal rights", but they can't call it marriage. That term is reserved for a holy union.
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But, if it's a "procreative relationship by God", then where does that leave infertile couples? This argument doesn't hold water for me, because virtually all civil and religious organizations will marry a man and a woman, even if they cannot conceive.
I agree with you that marriage is a holy union; I see it as a Sacrament. But the state of California does not see my marriage as a religious issue; it's a legal one. The same holds true for gay marriage. Churches wouldn't have to perform or recognize the union...the state would.
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The article hits it on the head - it's about the word marriage at this point. The California solution has been the model - a legal status that is equal as a contract to marriage - domestic partnership. That status is recognized in a majority of states. It removes the religious connotations as well as the moral ones. That has been the accepted solution.
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Look, I'm really not sure about how I feel about gay marriage. It's hard for me to wrap my head around - just not what I'm used to. But i know gays and they seem to want it, and it they say that they want an equality in their relationship status. I don;t have a really good reason to say no to it.
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Here's two. The Bible specifically speaks against it in BOTH Testaments, and you can't fertilize a turd.
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1: Because there is a separation of church and state, we cannot base constitutional amendments based on the Bible.
2. You can't fertilize an infertile woman, either. Should infertile women be denied legal marriages?
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Especially when the turd is in your skull, Hank.
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Wow - that was a really well thought out argument. Did you get that debate style at the University of Braindead. Rights transcend religious beliefs in this country. Brush up on your Constitution. You might want to develop a little of that Christian humility as well. Only God knows God's mind.
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"Ideally, Judge Walker should have recognized this and recused himself."
Really? REALLY? That's tantamount to saying a black judge should recuse himself in a racially motivated case. Or a female judge should recuse herself if a defendant is a misogynist. No way...Judge Walker did the right thing by hearing the case.
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Great article Bob! Very well written. I think that this is the defining civil rights issue of our time. I believe that prop 8 only serves to descriminate and legislate hate! The LDS church poured tens of millions if not hundreds of millions into the campaign. Insanity. Especially considering that those men and women both heterosexual and homosexual are defending and dying for their freedoms and don't even have proper protective gear. That amount of money and political influence could certainly serve to provide for our service peeople. Why is it so threatening to them? To anyone? A marriage or union or partnership based on two consenting adults love for one another should be recognized by our government as one term, whatever that term is regardless of religious bias. Separation of church and state. Equality for all. Let those citizens who believe in a particular religious doctrine call their individual unions whatever they want. But let the state use one term for all. My husband and I do not believe in any religion (thank goodness that it's our right not to) and would be happy change our legal "marriage" to whatever term would cover all of our fellow citizens regardless of sex, color, origin, or personal belief!
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I agree that the goverment has no business putting it's noseinto the home life of 2 consenting adults. What a person does in their own home, is their own business. You are about the first conservative I've known about who has taken this position. Glad that I kept reading. I was getting a little frustrated lately.
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Barry Goldwater, Randi - he thought that the religious right would only bring trouble to the Republican Party. We appreciate their votes, but true Republicanism is more like Libertarianism. All of the "morality" police are just the right wing progressives that think the government knows better than you how to live your own life. Two sides of the same coin.
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There has never been a definition of marraige because it has only recently become necessary. Marriage is between a man and a woman. I'm not going to even throw the Bible around. It is the best way for survival of the species.Nature has chosen a man and woman for marriage. It's called propogation of the species. Marriage as a custom grew out of the observation that when a man and a woman live together lots of times babes happen.When two men live together it doesn't. Whether that was based on keen scientific observation or some perceived magic, that's just the way it is. You can call a horse a bluebird, but it's still a horse.
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You say that America does have an interest in a standard definition. It already does in the Defense of Marriage Act, signed into law by Pres. Bill Clinton. Beyond that, Christine mentions the Mormons pouring all of that money into Prop 8. That is because they don't see why they aren't allowed their form of marrige, polygamy, but the gays may get an exemption for themselves. I'm not saying that there should be polygamy, but equal protection cuts both ways.
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I don't see why this is such a big deal. Let em get married, then they can be miserable like the rest of us. Won't be calling them "gay" anymore.
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Really, I have no problem one way or the other with this. I know many gay people, and they are all just normal people except for that one thing. They come to work, act appropriately, and what they do at home, I really don't care. I think that's part of the issue though. I know a lot of people that are against gay marriage, who don't know, or don't think that they know gay people. They think of them as The Village People,or some of those horrible caricatures on TV. They think that all gays are the freak show that winds up on TV from the Gay Pride parade. Maybe it would be a good idea to lose the parade. It doesn't help their cause. Or at least don't show up in dominatrix gear.
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"Modern Family" isn't helping their cause either.
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I cannot believe that I am seeing this forum used to promote the idea of gay marriage. Gay marriage is not marriage. Marriage is what it always has been., the union for life of a man and a woman. It is sanctioned by God. Homosexuality is not. As to the comments on infertile couples, so were Abraham and Sarah - there is always a possibility of pregnancy. As to not intending to have children, well the other liberal solution to that is the abortion mills. All of the Founding Fathers knew that for America to work it required the country to maintain it's morals, it's integrity, and it's values. Without that they all conceded that America would not last. We are seeing that now. Gay marriage contributes to America's decline, just as it did in ancient Rome. Shame on all of you.
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The Lord moves in mysterious ways. I have followed this thread with interest, and it seems that the sinners once again have a more charitable view towards our gay brothers and sisters than the modern pharisees do. Jesus taught us, by his example, to hate the sin, but to love the sinner. My denomination does not allow the marriage of homosexuals, some do. No one is asking any individual clergyman or any denomination to perform such ceremonies. I have gay couples in my flock. I pray with them, and I love them as Jesus would have. They lead moral lives and productive lives, and see love in a different manner that repels some people, much in the same way that a generation ago a black / white relationship would. I am not allowed to marry gay members of my flock, but God has given me the discretion to bless loving and positive bonds, whether we call it marriage or not. This I have done. The legal marriage is not a religious exercise, it is contract law. Matters of conscience are informed upon the individual. It is not our job to judge.
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This really is fighting over a word. That is why the deal was cut about "domestic partnerships". No one wants to deny anyone any legal rights, but the term "marriage" has always held religious connotations. Look at the commenters who don't want gay mariage - it's not that they are afraid thattheir ownmarriages will be threatened. They think that it is offensive to God. Their idea of meeting in the middle is accepting the idea of a domestic partnership, which gives them their fig leaf - the word "marriage". That was the only thing thay got out of the deal. It's why they protect it so hard.
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I think that this is a combo of two things. The first is that we have gone from a society of Americans to a bunch of hyphenated groups seeing special privilege. Everyone finds a group to join and see where they have been wronged, and then scream bloody murder about it. The second is that all of these me-group changes fall with the Baby Boomer generation, which is aout the most self-absorbed on the planet. Remember Al Franken's "Me - Al Franken" bit. That's who the loudest voices are. They raised important issues as young people, and now that they are in power, they just want to keep the "me" generation going. The next generation coming up will actually fix the problems rather than "show outrage." I hope that they take over sooner rather than later.
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The ideal from the Declaration wasthat the inalienable rights were "life, liberty and the pursuit of happiness". How each person does that is his or her own choice, not the business of the government to regulate without a really sound reason. Two people wishing to marry is one of the ultimate personal choices and a fundamental "pursuit of happiness". The government has no business involving itself in any form, except that the rights of the individuals are protected.
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It is both the tragedy, and the hallmark of America that injustice exists, and it remains until a majority of American society decides to change it. There was slavery when the declaration was signed. It took almost 75 years of educating the country to get the majority behind the idea of abolishing it - to the point of going to war. Even then, 90 years later MLK continued to educate America so that now we have an black President. It's not enough to whine and scream that your rights are being violated. Gay Leadership (is there any gay leadership? I can't think of the face of gay civil rights...), needs educate America. It's not bigotry denying you rights, it's ignorance.
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COURTS ARE NOT SUPPOSE TO BE THE LAW MAKERS.. OUR NATION IS SO UPSIDE DOWN..COURTS ARE THE WEAKEAST OF THE 3 BRANCHES.. BUT THE LIBERALS HAVE MADE IT THE LAW MAKING BRANCH.. SICK OF THIS CRAP
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