Monday, March 2, 2009

Prop 8 Redux

I haven’t ranted in a while so, with all the snow falling from the heavens today and the pace of work a little slower than usual, I thought it’s time for a good old fashion diatribe. A screed if you will on one of my favorite topics from last year.


On the day after the election I wrote about how California voters had outlawed gay marriage but, at the same time, approved a ballot measure giving egg-laying chickens more rights.

I believe my reaction was something like this: “Are you seriously fucking kidding me? What the fuck is up with that state? How the hell do you go into a voting booth and say ‘I think we need to be nicer to chickens and give them enough room to stand up, spread their wings and turn around, but screw those fags and dykes they don't deserve the chance to love someone and be happy.’ ”

Actually, that was exactly what I said. I checked.

Well, according to the news this morning, attorneys for and against Prop 8 are heading to the California Supreme Court this week to argue their case before that august and esteemed body. (I don’t know if they actually are august or esteemed, but I liked the phrase.)

To me it seems the basic question the court must answer is this: If a majority of voters approve, can they deprive a minority of their fellow citizens of what the U.S. Supreme court has already said is a basic civil right?

In Loving v. Virginia the Court ruled:

“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.... 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. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

I included the whole citation from Wikipedia here to point out that Loving v. Virginia was a case dealing with the right of a white man to marry a black woman in Virginia, hence the descriptions of racial classifications and discrimination. I know some don’t like comparing the fight for civil rights based on race to those of sexual orientation, the thinking being it lessens the importance of those successes. But the truth is a lot of people really didn’t like the idea of equal rights for people who didn’t look like them in the first place.

To make it even more clear that Prop 8 is a violation of all our rights (in my opinion, of course), Section 1 of the Fourteenth Amendment reads, in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Seems simple, states cannot make laws – like the ones that once prohibited interracial marriage – to deprive individuals of their rights. And, since marriage has been declared a right, they can’t prevent eligible citizens (i.e., those who are of age and such) from marrying someone they love.

(Personally, I feel marriage is a religious institution and the state has absolutely no business mucking around in it. Why the hell should people have to ask the state for permission to take part in a religious ceremony?)

Ballot referendums are a useful tool. They are often used to right wrongs elected officials are unwilling to pursue. But they can and are abused from time to time. The passage of Proposition 8 was one of those times. It’s easy to see how the term “racial classifications” in Loving can and should just as easily read “sexual orientation” today.


Or, better yet: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

5 comments:

restaurant refugee said...

[you]know some don’t like comparing the fight for civil rights based on race to those of sexual orientation, the thinking being it lessens the importance of those successes.

Anyone who believes that doesn't really understand the significance or importance of those successes. In that light, I find it particularly troubling that one of the groups at the front of the Prop 8 charge (and many other anti-rights fights for homosexuals) is Black Evangelicals. Yeah, no irony there.

FoggyDew said...

Ref - You said it, not me. At least not directly.

Fearless in Toronto said...

I refer you to the ground-breaking and brilliant Halpern v. Canada, which legalized same-sex marriage in Ontario over 5 years ago (and look, the sky is still up there), and which made reference to the Loving case, as did the lower court rulings on this matter.

http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm

After this, the Canadian government passed legislation which made same-sex marriage available in every other province as well (2005, I think).

You know, in case you're interested.

FoggyDew said...

Fearless - Well, it's a well-known fact the higher your latitude the higher your intelligence.

Hannah said...

With all the problems in the world, I find it so incredibly pathetic and sad that some people spend so much time trying to prevent people from finding happiness. As long as their both consenting human adults, they should be able to marry. But of course, those who argue against this are all mindless zombies with nothing better to do than thump bibles. Blech!