Yesterday afternoon a federal court struck down California Proposition 8, the successful ballot initiative that had banned same-sex marriages in the state. U.S. District Chief Judge Vaughn Walker’s Perry v. Schwarzenegger decision offers a fascinating overview of the American SSM fight. Subjecting Prop 8 to the strict and searching scrutiny that any overt act of state discrimination invites, Walker found the evidence of social harm resulting from gay marriage to be wretchedly meagre, and the evidence of any additional administrative burden on the state to be worse than nonexistent. (In a display of perversity surely more nauseating to many of us than mere sodomy, debt-addled California has been foregoing revenue from marriage licenses issued to same-sex couples and has been maintaining a distinct bureaucracy for the creation and oversight of “domestic partnerships”"”a species invented in order to endow gays and lesbians with all the legal difficulties of civil marriage without entitling them to drink from the dregs of its social dignity.)
Walker, having entertained and weighed the evidence of a rational basis for Proposition 8, could find none"”none beyond discrimination against gays and lesbians for its own sake, which he characterizes as a “private moral view” that, in the absence of a legitimate government interest, cannot be an appropriate subject of legislation under the due process and equal-protection provisions of the Constitution. So runs the argument. (I’m not a lawyer, but it feels to me like a rather Canadian, Oakes-y one, structurally.)
How airtight is the ruling? One objection that someone like Supreme Court Justice Antonin Scalia would make"”for he has made it"”is that all laws implement some “moral view”, and could be struck down by a judge the minute some protectable class were found to object to it. Laws against homicide discriminate against murderphiles, and so on. Of course, this isn’t very convincing. Even if you can show that there is such an inherent characteristic as “being a murderphile” and that people in no way choose membership in this class"”which, in fact, is an argument you could probably win!"”the compelling state interest in preventing murderphiles from murdering is a million times easier to show than anybody’s interest, anybody’s at all, in fretting over the nebulous effects of gay marriage.
This debate is over in Canada, except as a convenient way for kooks to define themselves, because how the heck could you possibly show that absolutely anybody’s life was affected irreversibly for the worse on the exact date of July 20, 2005? I’ve given pro-lifers generous helpings of hassle over the years, but they’ve at least got the “Abortion Stops A Beating Heart” thing to fall back on. If you were picking a similar slogan for the anti-SSM movement, where would you even start? Gay Marriage"¦Makes A Gorge Rise? Gets A Dander Up? Sticks In A Craw?
The punchline to all this is that Justice Scalia is so forthright, confident, and frankly plain ornery in his views that he inadvertently supplied Judge Walker with a grace note for his magnum opus. Back in 2003, UCLA law professor Eugene Volokh pointed out that the then-fresh Lawrence v. Texas Supreme Court decision annulling that state’s sodomy law featured a little sideshow he thought relevant to the future of the gay-marriage struggle.
In today’s Lawrence decision, Justice O’Connor refuses a general right to sexual autonomy, but concludes that banning only homosexual sodomy violates the Equal Protection Clause"”there’s just no rational basis for such discrimination besides “a…desire to harm a politically unpopular group,” she says. What about gay marriage, one might ask her? She anticipates this, by suggesting that “preserving the traditional institution of marriage” is a “legitimate state interest.” “Unlike the moral disapproval of same-sex relations"”the asserted state interest in this case"”other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”
Justice Scalia derides this"””[Justice O'Connor's reasoning] leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples,” because “‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples” [emphasis in original]. But wait: Isn’t that the usual argument of those who criticize the heterosexual-only marriage rule?
In his tirade against “a Court"¦that has largely signed on to the so-called homosexual agenda”, Scalia gave the game away. Allergic to O’Connor’s cop-out, he argued that there was no need for hetero-only marriage to stand on any basis but “moral disapproval”"”and took the extra step, regarded as dangerous by many in his camp, of denying that it could possibly have any other basis. It was an admission, a rather gay-friendly admission really, that any search for objective harms or administrative excuses with which to bash same-sex marriage would be nonsensical and futile.
And lo and behold, in the year of our Lord 2010, the Volokh prophecy has come to pass; Scalia’s grenade has landed right smack in paragraph 21 of Perry v. Schwarzenegger.
Lawrence v. Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting): “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct"¦what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”
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Gay marriage is either a redundancy or an oxymoron. And Schwarzenegger is a girly-man.
"This is a simplistic argument."
Yeah, OK. This flu an fever has left me with nothing better to do, so…
"In fact, there are many ripples from gay marriage that can and do end up hurting people, mainly children."
Maybe? I don't know; your list of suppositions, weak conjectures, logical fallacies and flat-out baiting certainly doesn't back up this assertion. But, hey… it's all "mainly children"! Not icky queers. Why take a risk?
"[The] Netherlands. In fact, traditional marriage DID decline after gay marriage was legalized."
You mean the "traditional marriage" that was already on the decline in that libertine hellhole? Here's another shocker… I emptied my dishwasher… and the sun set!
"Just because you would not have a child out of wedlock to collect Welfare as a single mother, does not mean the availability of easy Welfare has not resulted in an etc etc etc…"
You get right into mixing it up, don't you? Right away, the HELL NAW shibboleth of race & class baiting. Welfare causes poverty, indigent single-motherhood is a crafty scam, and by the way same-sex marriage has something to do with 70 PER CENT BLACK BIRTHS GAY NEGRO PANIC.
"Many people in society ARE influenced by the zeitgeist and what society deems acceptable."
Duh. That's what the words "society" and "zeitgeist" mean.
"The state has to give such people children if they demand them."
If they're going through The State (ie Provincial adoption) then no; it's not the putter-rental booth at the mini golf. Maybe if a same-sex couple was denied adoption they'd squawk… but if the Agents of The State involved do their jobs properly (ie don't discriminate based on the nature of the partnersh–MARRIAGE) then what's the problem? As for the other way (God's Natural Way), well… so what else is new?
There are many comments that the judge’s ruling is somehow a violation of democracy. Majorities have a long and sordid history of trampling on the rights (and often the life) of minorities. It is no comfort to them that the excesses tend to be corrected a century latter. To correct for this with a check and balance, the Americans and later Canadians adopted a constitution which enshrine inalienable rights beyond the ability of government to violate with discriminatory laws. Proposition 8 was clearly such a law. The judge did his duty and justice was done.Fencesitter as a taxpayer doesn’t “..want to invest in relationships that bear no fruit.” I knowingly married a barren woman in a church; so our marriage is exactly like a homosexual marriage i.e. two people in love, forming a barren, mutually supportive, partnership, expressed in ways that are none of your business ( don’t presume you know), and having it recognized and accepted by society. As I remember it I paid for the wedding and as a mutually supportive couple we have saved Fensesitter and his fellow taxpayers a considerable amount of money.So the problem with gay marriage is…?
You wasted not just your own but everyone's time who reads your rant because your emotional irrational opinion and presenting your fantasies as fact e.g. only a gay couple would encourage kids to explore their full potential is hot air. You have no evidence. There IS evidence that the situation giving a child the best chance of growing up happy and healthy is to know and live with his biological parents. Arrangements that flout this in premeditated fashion are undertaken for the adults involved, at potentially great cost to the children. You cannot face the selfishness involved (and I said adoption when the parents are not available through death or illness is a special case).
Coverage of a recent Gay Pride parade showed a little girl, about 2 years old with a pink tutu and a Tshirt that read "Lesbian" in dark lettering. Looking more closely, one could make out light lettering saying "If you think I'm cute, you should see my LESBIAN mother but from any distance, the only legible word would have been lesbian. Odds are 97% that this little girl will be heterosexual. What are the odds she's going to grow up with healthy sexuality and relationships with men when she has two mothers who think what they did to a two year old to score cheap laughs is acceptable?
I didn't say anything derogatory about gay people, that's your paranoia but there is no justification for society to collude in using children to bandage their adult hurts. Having a child-centric view instead of homo-centric is not homophobic much as you would like to make anything but 100% agreement with the most extreme demands of the most extreme elements of a tiny minority homophobic.
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