Sunday, August 22, 2010

Do the people rule or are they ruled by their betters?

I forced myself to listen to Ted Olson on Fox News Sunday defending the judge who overturned California's Prop 8 that prohibited gay marriage.  He must have won most of his cases by boring his opponents to death.

Somehow, I managed to stay awake (until the very end).  He kept talking about how the Supreme Court has said 14 times that marriage is a fundamental right in America.  I don't know anyone who disagrees. Not all rights are specifically enumerated in the Constitution.  The question is whether the definition of marriage is so broad as to include the union of same-sex couples.  The question is not whether same-sex couples should live together.  That they do and our constitution protects that.  The question is whether such couples can be married.

I personally believe that they should be allowed to marry, however, the people of California voted to prohibit the gov't from equating the formal union of same-sex couples with the formal union of monogamous, opposite sex couples. It has been quite a while since the US has tolerated plural (non-monogamous) marriages, but even when it did, such couples were composed of opposite sex members.  Two women were allowed to marry one man, but not each other.

So the notion that same-sex couples can be married is a very new one.  It is doubtful that any of the justices who previously ruled on the matter had in mind same-sex couples.  If this is not the case and the record contains references to alternate definitions of marriage, Olson did not mention them.

In particular, Olson referred several times to Loving v Virginia, the ruling that overturned anti-miscegenation laws in this country.  His point was that this case established the principle that the state cannot dictate who can marry whom, for example, that a black person cannot be prevented from marrying a white person.

Again, I do not think that anyone disagrees with that point.  The question is really whether the state must regard the union of a same-sex couple as a marriage.  Once this redefinition of marriage exists in the law, then the state has no say in who may marry whom.  For example, the state could not prevent a black man from marrying a white man.  Clearly, the justices who decided Loving v. Virginia did not rule that same-sex unions are the equivalent of marriage or they would have written so at the time.  Olson seemed to believe that Loving v. Virginia did establish this kind of equivalence, but the evidence and history contradicts him.  Surely someone in the 42 years since that case was decided would have been able to point to where the justices redefined marriage to include same-sex unions.

What the justices did conclude, unanimously, was "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State."

They pretty clearly limited their observations to racial differences between opposite-sex mates.  There is no mention of the sex of those being married and certainly they presumed such a marriage to be composed of one man and one woman.  As for the race of the man and woman, take your pick.  In fact, they wrote, "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival...."  What makes marriage fundamental to our very existence and survival?  No doubt this refers to sexual procreation.

Let me clear: I support gay marriage.  I want all my gay friends to find someone they love enough to marry.  I hope that my fellow citizens care enough to allow them to marry.  But I am disgusted at the notion that arrogant judges overturn the expressed desire of the people.  Prop 8 did not prevent loving gay couples from living together.  It prevented marriage from being defined to include such unions.

Loving v. Virginia also stated this, "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law."  I can't help but think of sexual orientation as equally unsupportable as a basis for classifying couples and think that to deny gay people the privilege of state recognition of their unions is also not treating them equally.  I hope that some day a majority of my fellow Americans will vote to redefine marriage, or at the very least establish its equivalent for gay couples.


A E said...

As much as what you say seems perfectly sensible in terms of democracy and free will, you must stop to think of the religious side to the whole affair. I don't mean to come off as anti gay or anything of the sort. I am all for free will but understanding why gay marriages is such a complicated issue or an issue to begin with might lead you and others to reconsider your positions.

A E said...

Although everything you've said makes perfect sense in terms of free will and democracy, I suggest looking at it from a religious perspective.I don't mean to come off as anti gay but looking at the reasons why the issue is an issue to begin with might cause you and others to change your viewpoint.