Food & Wine Thursdays will return in the near future. In the mean time, I have other things to be pissed off about.
Hooray for Judge Vaughn Walker for his historic and important decision striking down Proposition 8 in California. Double hooray for his very well-worded decision that eviscerates the amendment and its supporters while excoriating all arguments in its favor, calling them out for their lazy logic and non-existent substantiation.
I would like to explain to Proposition 8 proponents why your argument failed and why tradition, even “millennias” of tradition (millennia is already plural, assholes), is never a logical or legal defense.
First let me put my cards on the table: I’m a bordering-on-socialist liberal and a strong supporter of gay rights. I’m not a lawyer. I am a former high school Civics instructor, a diploma’d student of Rhetoric, and I’m well-versed in the texts that formed the political foundation of America. I’ve read Locke, Rousseau, Hobbes, Aristotle, the Federalist Papers, the Articles of Confederation and the Constitution. I don’t just have a “feeling for what the Constitution means.”
All of these hackneyed talking points like “gays already have Civil Unions” or “I just object to the word marriage” are nothing more than veiled justifications for the fear, bigotry and homophobia endemic to those who oppose full equality for all Americans. What are you afraid of? The only justifications you can up with right now can be undermined so readily that it’s pitiful. I’m amazed these people have law degrees, and I already kinda hate lawyers.
So, without further ado, here’s why you’re idiots.
Argument One: “States regulate marriage because they have a vested interest in how children are raised, studies show that children are raised best when they are raised by a married man and woman.” Wow, it must be great to spontaneously rewrite reality and present it in a court of law without any statistical or historical justification. You’re fucking geniuses. Marriage isn’t about children, it’s about property rights. It’s about the state needing to figure out how to legally unify two unrelated (outside of Arkansas) individuals into a new, legal family entity to determine how taxes and property are administered and dispensed between people who are not kin by blood. Marriages were used to end family feuds, consolidate wealth and unite kingdoms. Children were a minor concern if they were a concern at all.
I won’t spend too much time pointing out the other glaring fallacy here which is that the state allows the following: unmarried people to adopt children, people to have children out of wedlock, gay and lesbian couples to adopt children, married couples to not have children, utterly incompetent and abusive parents to raise children, and for children to be taken out of supportive foster homes to be returned to incompetent neglectful blood parents. And no legitimate study has actually supported the assertion that children raised by heterosexual couples are better achievers than those raised by homosexual couples.
Argument Two: “The courts can’t overturn the will of the voters.” Yes, the courts can. That’s exactly what the courts have done numerous times before. That is one of the most significant roles of the courts throughout American history. The United States is a country ruled by law, not by men. We don’t live in a “one man one vote” democracy, we live in a Constitutional Republic. The only tricky thing is that the Constitution, although a living document, is not a sentient talking dictator, does need to be interpreted by man.
Most of the Founding Fathers show a well-documented skepticism for the “will of the people,” cf. Electoral College, Proportional Representation, Indirect Election of Senators (originally). The idea of a Constitutional Republic is to have a governing legal document (the Constitution) managed by elected representatives who, in all cases, must defer to said legal document. The process of changing the U.S. Constitution is a helluva lot more difficult than a 50%+1 majority of the voters (how Proposition 8 passed), indicating that the Founders understood the importance of the slowly evolving long-term rule of law versus the short-term capricious whims of cultural zeitgeist. It is, in my opinion, the definition of a Constitutional Republic to never universally give in to the “will of the majority,” especially when we never have a majority of citizens actually voting and when unintelligent bigoted imbeciles (I don’t care if you have a college degree) can be so easily scared into voting against their interests just because they hate fancy gay men and all the sex they have.
Argument 3: “When the Constitution was written gay marriage wasn’t even a question.” Lots of things weren’t a question when the Constitution was written. Automobiles. Nuclear missiles. Sarah Palin. You know what also isn’t in the Constitution? Any mention of marriage, period.
The Constitution doesn’t deal with marriage, it deals with the structure of our government and the basic rights of its citizens. Proposition 8 was unique because it was the first significant legal action that stripped a protected class of citizens of a previously guaranteed right. Homosexuals had the right to marry upheld by the California Supreme Court, homosexuals are a protected class in California and, to a different degree, in the United States, and homosexuals had their right to marry a person of his or her choice stripped from them. We all had that right stripped from us, if you want to get technical.
All other states that have bans on same-sex marriage never allowed same-sex marriage to begin with, making the California question unique. Proposition 8 CAUSED this problem, that’s what opened up the Constitutional question. It’s your own damn fault you near-term thinking hatemongers. The Equal Protection Clause requires that rights must apply equally to all Americans, which includes the right to have your rights protected by the courts and not be stripped from you by brain-washed monorail enthusiasts. And in the other part of the ruling, Judge Walker declared that even if, theoretically, you could strip otherwise law-abiding citizens of rights, how it was done in the case of Proposition 8 violates the Due Process Clause as well. That’s a two-fer bitches.
Here’s what it comes down to: Marriage is only about children inasmuch as its about producing a legitimate heir, which is meaningless unless you’re an inbred Hapsburg. Marriage (clearly) isn’t about love. At its best, marriage is about getting a bunch of presents and having a party. And marriage is a legal contract between two adults who want to form a life together and enjoy certain immediate rights and protections accorded that unique relationship. No law will ever require churches to marry same-sex couples just like no laws exist now to forbid them from doing it, just as there are no laws that force a Catholic Church to officiate the wedding between a Baha’i and a Mormon. You know why? It’s in the fucking Constitution, that’s why.
If you object to the term “marriage” for same-sex couples, fine–it should never have been a state-sponsored institution anyway. Marriage predates the Abrahamic religions and hails from a time when the state and the religion were one and the same. The emperor was a god, the religion was the state and everyone fucked everybody else anyway. Married men also had legally recognized relationships with adolescent boys, different tiers of wives, concubines, and slaves: all got fucked and all produced children (except the boys).
But modern liberal democracies don’t have state religions so we don’t need the stamp of a church to create a legitimate union. The state can issue Union Contracts between any two consenting adults and allow the churches to do what they will (as they always have) in regards to marriage.
My bet? Ninth circuit court will uphold the ruling and the Supreme Court will decline to hear the case and America will still be standing and in five years we’ll all laugh about this fucking nonsense.