Thursday, November 13, 2008

Gay Marriage

The issue that seems to have taken everyone by surprise in California is Proposition 8, which purports to amend the state constitution to limit the right to marry to couples made up of one male and one female only. I say taken by surprise because it was only AFTER Proposition 8 passed, that we are suddenly seeing demonstrations in favor of gay marriage, and politicians coming out of the woodwork on this issue. Perhaps because of the focus on getting Barack Obama elected, a lot of supporters of gay marriage may have paid less attention to this issue than they now wish they had. In a way, it may have been unfortunate that the California Supreme Court held that denying gays the right to marry was unconstitutional, because this prevented the development of civil unions to the point where the public might have become more accepting of gay marriage. Now it is going to be very difficult to find an Obama-like common ground solution to this issue.

One option that has been suggested, allowing civil unions for all, gay or straight, with marriage left to religious authorities, is not available. That is because the state has always been in the business of sanctioning marriage, and marriage has always had both a legal component--giving certain rights and obligations to married couples--as well as a moral component, sanctioning certain relationships so as to punish others. Remember that fornication used to be illegal in many states; so was sodomy; so was adultery; so still is bigamy. These are all moral judgments that the state was always assumed to have the power to make, that is, until constitutional rights took over, and the state was told that it no longer had the power to regulate birth control, or abortion for the most part, or sodomy, or most anything that people want to do in their own space that does not hurt anyone. Remember also that marriage does not have to have any religious or spiritual component; It's fine for people to get married in a church or synagogue, but people have also always had the option of having a purely civil marriage ceremony performed by a judge or a clerk, that has no religious significance whatsoever. And they should continue to have that right.

So where we are today is that gay couples are demanding the same rights as married couples as a matter of constitutional rights. Allowing civil unions for gay couples was at best an interim step that was permitting society to get used to the idea of equal rights for gay couples. It might have been good for that experiment to continue for a while longer, just to allow public opinion to come around, because the idea of gay marriage really is something new in history, but when the issue was brought to the courts, the courts were forced to recognize that denying gays the right to marry was denying them equality with married couples, and therefore the courts got a little ahead of public opinion on this issue.

And now that the California Supreme Court, and other courts, have decided the issue as a matter of constitutional law, there is, perhaps unfortunately, no middle ground left on this issue. Either gays are going to be allowed to get married or they are not. The legal issue that remains is whether the proposition amending the constitution to deny gay people the right to marry was such a fundamental change that it required more than a majority vote. I think there is a good chance that the California Supreme Court will invalidate the results of the proposition on that ground. But whichever way the Court decides, the issue will not die, as one side or the other will keep bringing it up for a vote. And we are all forced to vote up or down. There is no room for compromise any more.

1 comment:

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