30 July 2006

Gay Marriage

I tend not to post on "social" issues, not because I don't care but because I don't have any special expertise and because I generally think that my opinion doesn't tend to add a lot to the cacophony of voices out there on any given social issue.

But I'll break my rule just once because in the aftermath of the WA Supreme Court's decision to uphold the WA-DOMA, I have a thought which I haven't heard laid out in just about any other forum.

First of all, some background. I tend to view the ability to marry the partner of your choice as a fundamental human right. I think that expanding the institution of marriage to monogamous gays is hardly a threat to the Republic, and in fact would probably strengthen the institution of marriage (as well as innumerable families). I look forward in hope to the day that my gay friends will be able to participate in this important social ritual.

But in all, I think it is probably a good thing that, at least in Washington, the court did not impose a requirement for the admission of gays to the ranks of the married. Don't get me wrong -- I was terribly disappointed when the ruling was announced, and though I am no legal scholar, it sounds as if the justices were not able to come up with any rationale for their decision, but just punted back to the legislature. From a strictly strategic point of view, I think this is good.

Why? Because Washington is a pretty blue state, but also highly polarized, as are so many states. Imposing by judicial fiat the requirement for gay marriage, would play into the conservatives' game plan of decrying judicial activism and liberals' undemocratic governing practices. Worse, it might provoke a backlash strong enough to propel an anti-gay-marriage amendent to the state constitution to passage, which would be a disaster. This ruling, however unwelcome, forces us to go back to the legislature, and even to the people, to educate and persuade them that gay families deserve to be married, too.

It's harder, and will take longer. It will be uglier, with "debates" where bigots use code words and misdirection to try to defeat us. But in the end, it will be better. Social change is best effected by persuasion and consensus, rather by an authoritarian dictat. And given the state's political composition and current social trends, I have no doubt that we will be successful. It may take years, but once we win, it will be a clean win, with much less fear of any backlash-provoked take-back.


  1. I agree.

    Civil rights for gay people is a values issue. I think it is clearly unconstitutional to exclude gays from the institution of marriage. A legitimate strict constructionalist could not come to any different conclusion. But, it is more important to teach people that it is wrong, it is immoral to exclude gays from the institution of marriage.

    Like many progressive issues, this demands that we explain why our values demand that we protect the civil rights of gay people. You wrote, "I think that expanding the institution of marriage to monogamous gays is hardly a threat to the Republic, and in fact would probably strengthen the institution of marriage (as well as innumerable families)."

    Right on. Marriage is about love and commitment. It is not about property ownership or reproduction. As a Christian, I believe that transforming truth of the Gospel is that Love is more capable than Tradition of bringing us close to God. This is what Jesus meant when he said the law was completed in him. By recognizing that marriage is about love, not tradition, we sanctify; we raise it up and make it stronger.

  2. What does marriage have to do with civil rights? The state's (and fed's) only interest is the raising of future citizens and taxpayers. Raise them, get tax breaks; do not raise them, get no tax breaks. The rest is a matter or private contractual arrangement. (And note how this says nothing about sex, adopted children vs. own children, and so on, because it is irrelevant.)

    Wouldn't that be much simpler than having the government poke its nose through every bedroom window?


  3. You may be right. On the other hand, upholding the "procreation" rationale, seems to me to be a major example of judical activism -- tho you'll never hear the right wing decry it as they do those decisions with which they disagree. How gay marriage affects the procreation of the race escapes my understanding, given that it in no way changes the number of heterosexual couples who will choose to marry and/or procreate. At bottom, the only arguments against gay marriage are religious ones which ought to have no bearing (no pun) on public policy. It's only if you see homosexuality as "sin" that you rationalize the obvious discrimination inherent in the ruling.

  4. Felix kasza, this is what the Fourteenth Amendment, Section 1 says, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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."

    Prohibiting gay marriage violates the last clause, the equal protection clause. Why? Because it gives rights to straight people, civil marriage, that it doesn't give to gay people.

    Of course, the Supreme Court has radically limited the reach of the 14th Amendment by saying that its protections only really apply to descrimination based on certain "protected classes." Well, gender is one of those protected classes. I can marry Sally, but Jenny can't. Why? Because of Jenny's gender. Thus, the ban is based on gender and violate the EP clause.

    This is the exact reasoning for declaring laws banning interracial marriage to be unconstitutional.

    Under the constitution, if you let anybody get married, you have to let everybody get married. Any limitation must be narrowly tailored to address a compelling governmental interest.

    I like what you say about the government getting out of the marriage business altogether. And, as I said before, it really is a moral issue. It is evil to treat gay people diferently than straight people.

  5. "I tend to view the ability to marry the partner of your choice as a fundamental human right."

    How can marriage be a fundamental human right beyond the right for human beings to not be arbitrarily bound by government?

    The truth is that the government should allow us to give things to anyone we want, regardless of our relation to them -- hence no marriage, union, or anything as sanctioned by the government -- it makes no sense. If you want to have a business relationship with someone, we have laws for that.

  6. Matt Dick said:

    "How can marriage be a fundamental human right beyond the right for human beings to not be arbitrarily bound by government?"

    That is exactly right. We do not have a fundamental right to marry. We also do not have, for example, a fundamental right to vote. But after you give members of the society privileges, like voting or civil marriage, you have to give them to every citizen.

    And for the sake of redundancy, I'm all for removing eliminating civil marriages.

  7. I've heard a lot of people talk about marriage as an equal protection issue, wiht particular regard to the tangible benefits that go with it -- social security and the like. And though I agree with the rationale completely, I have a problem basing the argument solely on those points, compelling though they are.

    Marriage is more than a great benefits plan. It's more than a contractual arrangement regarding domestic partners. If that's all it were, they'd be fine with civil unions. As Jim so eloquently says, it's a values issue -- whether some families are going to be accepted as full-fledged partnerships in the eyes of society or not.

    It's always nice to have a genuine law-talkin-guy to come and clarify my thinking for me.

    I too would be OK with a separation of the governmental function -- civil unions, marriage, domestic partnership, whatever you want to call it -- from the traditional/religious component of the marraige rite.

  8. Jimii,

    thanks for your thoughtful comment. I am aware of Amendment XIV, even though I am a foreighner, and agree with you on the principle of the thing. My solution would be to split marriage into the two separate components that I see: One being a contractual arrangement between two persons (or twenty, for all I care), and never mind whether exactly half of them have a Y chromosome or not; and the other being the defrayment of the cost of raising future citizens, and never mind who does the raising.

    Instead of extending benefits to more folks, I would restrict them to fewer; but like you, I would want to see those benefits dispensed on the fundamental basis of equality.

    Thanks again --


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