Thoughts on the Overturning of Prop 8 in California
Well, my first thought is not really a thought but a reaction: Yeah you right!
[NOTE: As you might expect, Andrew Sullivan is all over this story with wonderful round-up coverage of the various reactions and musings about this decision and its impacts.]
Now that I've got that out of the way, let me proceed ...
I should start by saying that I have never understood the visceral antipathy to gay civil marriage in terms of social policy. From my point of view, I see allowing gay Americans to get married as a move towards enhancing freedom, ensuring equality, and even strengthening the institutions of marriage and family. I have never felt that my heterosexual marriage and my family unity was in any way undermined or threatened by any loving gay couple's marriage anywhere in the world (or, for that matter, by any unloving heterosexual couple's broken marriage). In fact, I have always contended that if someone's heterosexual marriage and family life was so fragile as to be shattered and destroyed by the abstract legalization of gay marriage, then that particular marriage and family was on shaky grounds to begin with. Furthermore, aren't we ultimately the responsible parties for our own affairs? If we let some other peoples' lives dictate the quality of our own lives, then we've got some serious problems of our own that probably require some professional psychological help. In fact, to the extent that there is some karmic connection between Bob and Joe's homosexual marriage in California with my and my wife's heterosexual marriage in Louisiana, it can only be a good connection. More people making a commitment to the institution in a bond of love means more power to that institution. There is nothing but good that can come out of gay marriage. And if someone just can't get beyond the "yuck" factor, that's just too bad. Go on living your heterosexual lifestyle. No one's gonna stop you.
I do want to address what will be the inevitable criticisms of the ruling. First, for those who decry the rulings of an "activist" judge who betrayed majority will, I want to point out that our system of checks and balances requires judicial review even of majority popular decisions. We do this in order to protect and defend the rights of the minority to full and equal constitutional protections. As A. McEwen writes so bluntly and clearly:
But there is a reason why this country has checks and balances. And there is a reason why people can’t arbitrarily vote on the rights of others without having to defend this vote in the logical arena of courts, where you can’t invoke panic by proverbially yelling fire in a crowded theatre.This is our democratic process. And if those who oppose gay marriage can't mount a convincing argument in support of their opinions in front of the courts that passes constitutional muster, then it just proves that victory at the ballot boxes is not grounded in a logical defense of constitutional rights, but merely an outcome of successful demagoguery grounded in nothing but fear and hot air. So, please, if you don't want to come across as an embittered and sore loser, don't go whining about "judicial activism" or "activist judges." It's just not going to cut it. If we liberal gun control advocates have to suck up a judicial decision that overturns locally-legislated gun control initiatives popularly ratified in free and fair elections (i.e. Chicago or D.C.), then you can suck up this court decision without having to whine about activist judges.
In the courts, you must defend your position. And in the long run, you couldn’t.
At a personal level, and as someone who believes that there is a particular grace that comes to committed couples through the institution of marriage, I think it is a moral travesty to acknowledge marriage as a grace-filled institution and then seek to deny the benefits of this grace to anyone just because of their sexual orientation. In fact, that would seem to me to be an unconscienable and malicious evil. If you are a religious person who believes in God (and believes that marriage is something sacred), it would be like a stingy faith miser withholding God from someone who is actively thirsting for God. How terrible is that?
I think the tide has irrevocably turned in the United States in favor of gay marriage. It is a foregone conclusion. The question now is simply timing. The big remaining disappointment to me is the Obama administration's reluctance to take a principled stand on gay marriage, which is something that seems so clearly to me as a question of basic civil rights. Supporting gay marriage is simply the right thing to do, and the Obama administration's wishy-washiness about it is very unbecoming, especially when the administration proclaims to be an ally of the GLBT community out of one side of its mouth and yet refuses to embrace the GLBT community's unanimous embracing of gay marriage as the single most important issue facing this community. Obama should come out and directly state that he both respects the court's decision and agrees with it.
But this disappointment aside (and in spite of it), today is a great day for civil rights and constitutional equality for all Americans.
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3 comments:
"This is our democratic process. And if those who oppose gay marriage can't mount a convincing argument in support of their opinions in front of the courts that passes constitutional muster, then it just proves that victory at the ballot boxes is not grounded in a logical defense of constitutional rights, but merely an outcome of successful demagoguery grounded in nothing but fear and hot air."
So then, if this decision or one like it gets appealed to the US Supreme Court, and they rule the other way, you will concede that it was settled fairly? Just like President Obama did when they overturned McCain/Feingold? No whining sore-loserism there.
I tend to lean towards the notion that the states should be able to decide what constitutes legal marriage, though they should be corrected by the courts if those definitions deny people equal property rights.
This isn't an issue I tend to cast votes over, but I'm sort of split on it. I see it as a civil rights issue when it comes to property rights and things like hospital visitation, but not so much when it comes to forcing larger society to accept these unions as being the same as heterosexual unions (such as forcing insurance companies to provide coverage for spouses, or forcing employers to treat gay marriages the same as heterosexual marriage when it comes to offering benefits). Social Security Survivorship is also a contentious area for me... the program is already stressed to the breaking point by family demographics it was never designed to support, and this just adds to the problem. I'll support granting gay spouses Survivorship benefits just as soon as they all agree to support letting me opt out the program. ;-)
I'd prefer to see the government fully removed from the institution of marriage, aside from being an enforcer of contracts, and when I get my own litle libertarian island to run that's how it will be! Regardless of what the law says, I consider the gay couples I know who have committed themselves to eachother for life, either ceremoniously or casually, as being married, and I refer to them as such. I think they deserve the same property rights that my wife and I have, but I also think employers and insurance companies should be free to treat them the same as heterosexual married couples, or not, without any hassle from the government either way.
I also think you are right that acceptance of gays and gay marriage is pretty much a foregone conclusion. I live in a town with 30 churches and no pubs (not because it is dry county, but because bars go out of business here for lack of customers) in one of the reddest areas of one of the reddest states in the nation, where they say the Lord's Prayer over the intercom at high school football games right after the Pledge of Alleigance and don't care if it is legal or not... and we've had an openly gay mayor, popularly elected, for most of the last decade. Court rulings aside, that's change you can believe in.
Eric - If the ruling gets overturned at any point in the appeals process, or by a SCOTUS decision, then I might think it is a wrong and misguided decision, but I would certainly accept it as legitimate, and I wouldn't go running around whining about "activist judges" ignoring the will of the people. If that were the case, I'd be pretty ticked about those "activist judges" who overturned gun control legislation sanctioned by popular will through free and fair elections in places like Chicago and D.C. But I don't. Disagreeing with the outcome of a decision and blaming that outcome on "activist judges" are two different things in my book. And while I have to admit to being a bit surprised at how strong the Obama Administration's reaction was to the SCOTUS ruling on campaign finance reform, I would explain the Obama administration's reaction in the same way: they thought the decision was wrong, but they didn't whine about "activist judges" rewriting the constitution from the bench. If you can point to me where the Obama administration expressed its disagreement with the SCOTUS rulings in such a way, I would appreciate it.
I hear what you say about your mixed reactions to gay marriage and how you oppose forcing private employers to offer the same benefits to homosexual spouses and their families versus heterosexual spouses and their families. I hear you, but I think when it comes to certain civil rights, there are limitations as to what kinds of discrimination private businesses can engage in. For instance, I would consider it wrong for employers to offer health insurance (or the government to offer Social Security Survivor benefits) to black spouses, but not to white spouses, simply because of a benefits policy that discriminates by race. And I would put discrimination on the basis of sexual orientation on the same footing. But I have to ask, given your apparent position that would allow employers to discriminate in this way based on sexual orientation, whether you would extend this right of employers to discrimination on the basis of race or religious affiliation, too? I would imagine that you would have to in order to be intellectually consistent. And if so, I would then ask you if you think that there should be no limitations on the rights of private employers to discriminate in terms of whatever services or benefits they provide to their employees (not to mention to their customers)? I do think government does have a proper role in preventing injustices based on discrimination perpetrated even within the private sphere when in comes to certain things like race, gender, age, sexual orientation, or religion. I would hope you might agree with me on this point.
"But I have to ask, given your apparent position that would allow employers to discriminate in this way based on sexual orientation, whether you would extend this right of employers to discrimination on the basis of race or religious affiliation, too?"
I think you know my answer on that. I pretty much agree with Rand Paul on this one.
Yes, I think private-sector employers should be able to discriminate based on whatever factors they wish when it comes to hiring (and the simple fact is they do and always will). But I think it is objectively wrong and unjust to discriminate based on purely racial factors, while discriminating on religious factors and matters of sexuality is a bit more ethically subjective because there is an element of choice in those matters that is not present in regards to race. I might think somebody is an asshole for refusing to hire gays or Muslims, but they are exercising a right of conscience that I would not use the force of law to deny them.
Public sector jobs, I believe, are another matter. I don't believe race should ever be a factor in those jobs (including affirmative action), and religious and sexual orientation should not factor into hiring decisions as long as those issues don't interfere with the ability of the employee to do the work.
"And if so, I would then ask you if you think that there should be no limitations on the rights of private employers to discriminate in terms of whatever services or benefits they provide to their employees (not to mention to their customers)?"
Well, here's how I decide that: What actions surrounding benefits would I be willing to put a gun in my hand and point it at an employer and threaten to shoot them if they don't comply with my ideas about justice and equality? If I wouldn't be willing to do that myself, or at least strongly consider it, I'm not willing to ask the government to do it on my behalf.
And with that in mind I can't think of any legislative limitations I would support off the top of my head, no. If an employer wants to offer insurance coverage to employees who work on Wednesdays after lunch, and nobody else, then I can see no reason why they shouldn't be able to do that. There are plenty of businesses I would refuse to support with my dollars if they engaged in abusive discrimination or hiring practices, and perhaps I'd even get involved in a pubic boycott against them, but I'm extremely shy about using the force of government to interfere with rights of conscience in the private sector, even when I disagree with them.
I'd also say a word about employer provided benefits in general: I think they are a bad idea. Employers offer benefit packages to try and retain good talent, but time and custom calcifies a sense of entitlement in employees regarding those benefits, and they end up being thought of as a right instead of a perk. And often employers are woefully inadequate at managing and administering these perks in a cost efficient manner that keeps the employees best interests front and center, in the same ways and for the same reasons that government is horrible at managin them.
The employer/employee relationship works best for all involved when money is exchanged for talent. In my experience all other forms of exchange ultimately serve to give one party leverage over the other.
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