Proposition
8 - Gay Marriage and the Will of the People
Judge Strikes Down Voter-Approved Proposition 8 as Unconstitutional
Those opposed to gay marriage defend
California's Proposition 8 in four ways. First, they point
out that a ban on gay marriage is the will of the majority
as expressed democratically through the ballot box. Second
they assert that it is plain old common sense that marriage
is intended for procreation, a purpose that cannot be fulfilled
by allowing same sex unions. Anything else is a perversion
and immoral. Third they claim that it is better for children
to be raised in a household with a father and a mother.
Fourth they note that permitting gay marriage will impose
additional costs on businesses which would now have to provide
the same benefits to the spouses of gay employees as they
provide to the spouses of straight employees.
Which side in a debate like this has the burden of proof?
The side that is intent on limiting freedom and restricting
the rights of others has the burden. In a free society consenting
adults are presumed to have the freedom to marry. If laws
are to be enacted which limit that freedom, then the advocates
for such legislation must make the case that their desired
policy will benefit the common good and not violate anyone's
Constitutional rights. The theory here is the same as with
workplace, educational or economic discrimination on the
basis of gender, race, age or nationality. In a free society
those who would seek to deny a given subgroup a job, a mortgage
loan, a basic education, or a marriage must, at a minimum,
prove that the proposed discrimination against that subgroup
is not a violation of their fundamental Constitutional rights.
So let's look at the arguments made in support of a ban
on gay marriage.
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The
Back Story: California's controversial Proposition
8 would amend the state's Constitution to define
marriage as the union of a man and a woman. This
would end the previous practice in California, which
was, at least for a few months before the election,
to permit same sex couples to marry. A majority
of the California voters approved Proposition 8,
and the battleground shifted immediately to the
courts. The case, which appears to be making its
way to the US Supreme Court, was heard first by
a Ronald Reagan appointed US District Court Judge,
Vaughn Walker. On Thursday August 5, 2010 Judge
Walker ruled the proposition unconstitutional. His
ruling is being appealed to the Ninth District Court,
the last step before the US Supreme Court.
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Suppose
the majority of voters supported a ballot proposition to
ban the sale and possession of hand guns. There are many
cities and states where such a ballot proposition would
win approval, particularly since it would have the support
of most law enforcement officers, educators, health care
providers and the bereaved families of people killed by
hand guns. However, given the recent ruling by the US Supreme
Court, such a ban violates the US Constitution. A conservative
interpretation of the duties of the judicial branch of government
sees the role of judges not as the creators of policy but
as defenders of the Constitution. Judges must protect our
individual rights from being violated by those who would
make new policies or laws. Conservatives expect judges to
prevent do-gooders, even if they are the majority, from
making rules which abridge the rights of others.
Conservative judges have historically preserved property
rights and prevented overzealous legislatures from imposing
"new rules" simply to advance a politically popular
perspective. In New York City, for example, the owners of
a piece of land near Ground Zero wish to put a Moslem cultural
center and mosque on their property. If that is within the
scope of the zoning ordinances of the city, then it is their
right to do so. Even if the majority of New Yorkers objected,
a conservative interpretation of the duties of the judicial
branch of government would say that the judges should upholding
the rights of the property owners. So, it is a mistake to
think of Judge Walker as a "dictator" or as somehow
casting his single "vote" against the will of
the people. For it is certainly the will of the people of
California that the state's Constitution should be upheld.
We expect no less than that judges should protect our Constitutional
rights even if doing so is not popular or in accord with
the opinions of the majority of voters.
OK, well what about the appeal to common sense which asserts
that "the" purpose of marriage is procreation.
Oops, that can't work. It may be the singular or the major
reason why many people get married, or maybe not. But it
is not "the" reason, or even "a" reason
in every opposite sex marriage. Nor does the state's Constitution
say that people can marry only for certain reasons and not
others. Imagine the tyranny of requiring that to get married
a couple must agree to try to procreate! On this "common
sense" principle we might have to deny marriage to
opposite sex couples unless they could prove that they were
capable of having children. What about married couples who
stay together after their children are grown? Should we
say that they cannot continue to be married any longer?
When a person asserts something as bold as "the purpose
of marriage is X" one can only wonder upon what basis
such a claim might be defended. Is it God who said that
our species should marry in order to have and to raise children?
Some believe that. But even if so, is it not a violation
of the separation of Church and State to impose that religious
belief, or any other religious belief, on everyone else?
What if a religion taught that polygamy was God's intended
plan, or that marriage between older men and girls as young
as ten was what God had in mind? Would we say, fine, if
you think that's what God wants, then that should be the
law of the land? No.
If, as a nation, we permitted religious leaders to manage
our lives and to limit our freedoms on the basis of what
they might define as unnatural, perverted, or immoral based
on their various ideological perspectives and interpretations
of the mind of the Almighty, then we would surely become
a people subjugated, controlled and enslaved by dictators
claiming to have a direct i-phone connection to Heaven.
A just, enduring and pluralistic nation is built on a sound
constitution and on respect for law and for individual rights,
not upon religious ideologies. If the Spanish Inquisition
did not teach us that, surely watching the Taliban impose
their brand of religious fundamentalism should remind us
of the dangers of using religion in this way. The USA was
founded on the principles of religious freedom and tolerance
- the implication being that we do not allow any religious
group, no matter how large or how small, to impose its moral
ideology on the rest of us. We do not want the Pope, the
Archbishop, the Jesuits, the Church Council of Elders, the
Chief Rabbi, the Mullah, the Pastor or the Ayatollah running
the country, thank you.
Well, what about the idea that it is best for the children
to be raised in a household with a male and a female pairing
of adults. Oops. The claim is not factually accurate. Or,
to put it the other way, research does not support the proposition.
But even if it were true, what would we do? Would we take
children from single parents and put them in two parent
opposite sex foster care households? No. Would we make a
law that says that if you become a single parent that you
must bring a person of the opposite sex into your household
to help you raise your child better? No. Would we say that
it is better for children to have no parents than to permit
them to be adopted by same sex couples? No. Would we gather
up all the homeless children in the nation and order childless
opposite sex couples to raise them? As good as that might
be for the children, no, we would not.
Claims that "it would be best if X, and therefore we
should pass law Y" are difficult but not impossible
to defend. First we have to show that "it would be
best if X" is true. And even then, we have to show
that passing law Y did not violate some other right or create
some greater harm. For example, we can show scientifically
that "it would be best if people did not smoke."
And therefore it is reasonable to seek to pass various laws
to protect people from the effects of smoking. E.g. a law
that prohibits smoking in public places." Recall, however,
the decades it took to convince the general public that
smoking was harmful. Then recall the hue and cry of those
who demanded their "right to smoke" in bars and
restaurants, even if others might not want to inhale their
second hand tobacco exhalations. Legislation of this kind,
providing protection from harm, is difficult. Even if it
could be proven that "it is best for children if they
all were raised in a household with a male and female adult
parent" it would be almost impossible to defend legislation
enacting such a policy as socially or economically feasible.
Speaking of economics, what about the burden on employers
who must now provide benefits to the spouses of same sex
couples? Well what about the burden on auto makers who were
forced to provide seat belts, collapsible steering wheels,
air bags and all those other life saving improvements which
added costs to their products? Should we not have demanded
safer vehicles? True, there may be additional costs to some
employers, namely those who provide spousal benefits. But,
as any good economic conservative knows, the place to resolve
the pushes and pulls between labor and management is in
the marketplace, and not the courts. In California, gay
marriage was the law of the land prior to Proposition 8.
The repeal of the proposition did not impose "new"
burdens on employers. Employers were already addressing
the question of the costs of providing benefits to the spouses
and the partners of their gay and straight employees prior
to Proposition 8.
Something is wrong! The pro-Prop 8 arguments collapsed too
easy. There must have been more going on to lead a majority
of voters to approve Prop 8 in the first place. And there
was. The ads for Prop 8 promoted the fear that marriage
itself would be undermined, that families and children would
be harmed. Advocates for a ban on gay marriage suggested
that homosexuality was morally repugnant and hinted not
too subtly that gay marriage was the first step to even
more outrageous and bestial things. "What's next? Marrying
one's pet or a barnyard animal?" If only one-third
of California voters were swayed by fear, moral outrage,
or visceral revulsion, make that only 20%, no, make that
only 10%, that would have been enough voters to change the
outcome of the ballot initiative. That nobody had proposed
inter-species marriage was irrelevant to this 10%. That
there are no cases on record of home invasions by gay couples
intent on attacking and destroying an opposite sex couple's
family or marriage was not relevant to this 10%. Either
they were repelled by the very idea of gay sex or they believed
that they held the moral high ground. Whatever their feelings,
they voted for the proposition banning gay marriage.
I agree with Judge Walker, "Moral disapproval is an
improper basis for denying rights…"
Image
from The Daily Show, Comedy Central, 8-5-10.
For commentary and reactions to Judge
Walker's August 5, 2010 ruling, visit CNN http://news.blogs.cnn.com/2010/08/05/the-buzz-on-proposition-8-ruling/?iref=allsearch
Jon
Stewart's August 5, 2010 Daily Show illustrates the use
of reduction to absurdity as a strategy in comedic argumentation.
He takes on the "will of the people" argument,
the "will cost employers more" argument, and the
ad hominem "the judge was biased" attack
on Judge Walker.
http://www.thedailyshow.com/
Comedic
commentator Stephen Colbert in the video clip from his August
5, 2010 Colbert Report, "How to Ruin Same-Sex Marriages,"
uses irony and satire to editorialize on the gay marriage
issue. http://www.colbertnation.com/home?xrs=sem_col_colbert_report
Your
comments on this blog are most welcome. Please post them
at my facebook
page or send them to me via email at pfacione@measuredreasons.com
Blog by Peter A. Facione, August 8, 2010.
Click to go back to the blog itself,
"Proposition 8 - Gay Marriage and the Will of the
People"
Comments
and Posts Received
Through
facebook Reenee Cummins says: "Children
are better off with a mother and a father...My mother
was a prescription pill freak who was out of her mind
more than she was in it; my father tried to kill me several
times before I was 15. 30 years of therapy later (most
of it paid out of my own pocket), I will gladly laugh
in the face of anyone who says this...."
Thank
you, Reenee, for sharing your personal story. From the
critical thinking perspective it stands as a poignant
and powerful counterexample debunking the myth that
it is always better for a child to be raised in a family
with opposite sex parents. PF
More comments will be posted soon.
