“I believe that one day either the people or the courts will recognize gay marriage.”
- Gov Arnold Schwarzenegger – an opponent of Prop. 8 - commenting on Tuesday’s California Supreme Court’s ruling
This Tuesday, the California State Supreme Court ruled Proposition 8 was an amendment, and not a revision to the California State constitution, and upheld its provisions. Prop 8 is the voter approved initiative that defines a legal marriage as something that can only occur between a man and a woman. At the same time the Court recognized 18,000 same sex marriages that had taken place before Proposition 8 was passed.
The Supreme Court was not ruling on whether same sex marriage should be legal – they did that several years ago – but only if Prop 8 was a revision of the California State constitution or simply an amendment. If it were a revision, it would have required a higher standard for passage than a simple majority vote on a ballot initiative and it would be void. Over the years, the California Supreme Court has declared only two ballot initiatives revisions and not amendments to the constitution. So what happened Tuesday was not a surprise.
Members of the “straight marriage only” crowd are very happy. They feel they have defended a key institution from further corrosion. Speaking for myself, a heterosexual partner in a successful long-term marriage, my marriage has never been in danger because gay members of my family have married, my neighbors have married, or that five states allow same sex marriage. It would be a weak marriage indeed if that were the case.
The straight marriage only crowd, also says marriage was created by the deity for people to procreate and start a family – something that many same sex couples are unable to do. That defines marriage as an act that is unique because of sex. If you can have sex in a certain way, that can have a certain result, then you can be married. If not, then you can’t.
This view is, in itself a threat to the institution, because it ignores what marriage really is. The defining characteristics of marriage is a commitment through love two people make to each other, to bond and build a life together. Such a commitment, takes love, understanding, support, patience, and so much more. To say that two people of the same gender cannot achieve this bond is absurd.
The good news is Prop 8 seems to have been some sort of tipping point. When people nationwide saw the massive protests after Prop 8 passed, they saw their neighbors, coworkers, daughters, sons, sisters and brothers. They saw their best friends growing up, or people they had been to school with. They saw elderly couples who had been together for decades and decades, middle aged couples who were raising families, and couples who wanted the right to visit each other in the hospital.
These protests gave a human face to the issue for people who didn’t live near big gay communities. They didn’t see the freaks the far right had warned them about, who wanted to recruit their children and marry sheep (an argument against gay rights that you do hear). Instead they saw average people denied a right not because of anything they had done, but simply for being who they were. It was no accident that after those protests, support for marriage equality rose in California, to the point that in December of 2008, Prop 8 would have been soundly defeated.
Another error that the straight marriage only crowd makes, is confusing a sacrament with a civil act. A sacrament is a religious action conferred on the faithful – like communion, baptism, or Bar Mitzvah. The straight marriage only crowd says they are defending the sanctity of this sacrament. That may be so – if their churches are beginning to recognize same sex marriage. The rights and privileges of the sacrament of marriage are defined by each church according to its doctrine.
But marriage is also an act of civil law. Marriage in civil law confers rights and benefits that have nothing to do with partaking in the holy sacrament of marriage. One can have a legal marriage without the sacrament, but you can’t have a legal marriage without the civil act. Many couples go to the court house (or Vegas) to get married, and never step inside a church.
As “None” continues to become the fastest growing religious preference in America, the sacramental aspect of marriage becomes less relevant for people. If you believe that marriage is a sacrament that can only be conferred on a heterosexual couple, then join a church with that doctrine; just don’t make that doctrine the law of the land.
The Governor is right. It will only be a matter of time before marriage equality is California law. It is likely that there will be another ballot measure affirming marriage equality on the June 2010 primary ballot. If current trends hold that measure will pass. Then California will be able to stand with other states, and defend the right of two people, regardless of gender, to legally pledge their lives to each other in a commitment of love.
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Kerry Lauerman
Joan Walsh
Salon.com
Comments
Marriage has always had its civil and religious restrictions. Not all heterosexuals are free to marry who every they want and even heterosexual marriage has limits. The idea of gay marriage is no different, while all the talk about freedom it still is a restrictive proposition. Gay marriage supporters are still defining marriage as monogamous. What about polygamist or polymogamist shouldn't they have the same rights as monogamist gay or straight. If we are going to redefine the historical definition of marriage then why stop at Gay?
And if marriage is going to be redefined in our culture who should decided? Should each individual or society itself? Should a hand full of people in a court decided or should the society in a democratic process decide?
LOS ANGELES (Reuters) – Two lawyers who squared off in the legal battle over the 2000 U.S. presidential election teamed up on Wednesday to challenge California's gay marriage ban in a move that if successful would allow same-sex couples to wed anywhere in the United States.
The lawsuit, filed on behalf of two same-sex California couples barred from marrying under the voter-approved measure, Proposition 8, puts them at odds with gay rights advocates who see a federal court challenge as risky.
Gay rights advocates, fearing a loss in the socially conservative-leaning U.S. Supreme Court, have avoided going to federal court after losses at state ballot boxes and in state courtrooms.
The California's supreme court on Tuesday upheld Prop 8, which defines marriage exclusively as between a man and a woman, as a valid amendment to the state's constitution.
The same court last May struck down a state law prohibiting same-sex marriage, opening the way for an estimated 18,000 gay and lesbian couples to wed before Prop 8 was approved by voters in November, reimposing the gay marriage ban.
Ted Olson and David Boies, who opposed each other in the Bush v. Gore Supreme Court case, said that gays and lesbians who cannot marry were made into second-class citizens by California's voter-approved ban, known as Proposition 8, in violation of the U.S. Constitution.
"This case is about equal rights guaranteed every American under the United States Constitution," former U.S. Solicitor General Olson told a news conference in Los Angeles.
"For too long, gay men and lesbians who seek stable, committed, loving relationships within the institution of marriage have been denied that fundamental right that the rest of us freely enjoy."
RISKY BUSINESS
If the case prevails, it would establish the right of gay couples to marry as the law of the land. The vast majority of U.S. states specifically prohibit same-sex marriage, despite recent victories by gay advocates in Iowa and some Northeastern states.
The lawsuit itself was brought last Friday in advance of the state's high court ruling. On Wednesday, the lawyers filed a request for a federal court order to lift the ban, and allow same-sex marriages to continue, until the case is resolved.
Andrew Pugno, one of the lawyers who successfully defended Prop 8 in state court, said the will of the voters was under attack, and that he would defend it again. "This new federal lawsuit, brought by a pair of prominent but socially liberal lawyers, has very little chance of succeeding," he said.
Olson was joined by Boies, who opposed him in the U.S. Supreme Court case that decided the outcome of the disputed 2000 presidential election between then-Texas Governor George W. Bush and then-Vice President Al Gore. The high court ultimately ruled in favor of Bush, whom Olson represented.
Although political conservatives and liberals have split sharply over the issue of gay marriage, with conservatives tending to oppose same-sex marriage and liberals more likely to support it, the lawyers cast the debate in nonpartisan terms.
"We come from different parts of the political spectrum. But I think Republicans and Democrats, conservatives and liberals, all recognize the importance of equal rights guaranteed by the Constitution," Boies said. "This is a civil rights issue. A big one."
But gay rights activists are wary.
"A federal lawsuit at this time is terribly risky," said Jenny Pizer, one of the lawyers for Lambda Legal Marriage Project who argued against Prop 8 before the California court.
Her organization, the American Civil Liberties Union and others said in a statement, "without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage."
Olson and Boies disagreed, arguing that the federal courts were ready to affirm marriage rights on the basis of sexual orientation.
"We think we know what we're doing," Olson said. "We've studied the Constitution. We've studied the United States Supreme Court. There are a number of very, very important decisions by the United States Supreme Court on which this case is and will be predicated."
One he cited was a 1967 Supreme Court decision in that struck down a Virginia statute prohibiting couples of different races from being married.
By contrast, Boies said, the California high court's ruling was very narrow, holding only that Prop 8 was a valid amendment to the state's constitution under state law. The question of whether Prop 8 was constitutional under federal law was left undecided, he said.
(Additional reporting by Peter Henderson from San Francisco; Editing by Sandra Maler)
http://news.yahoo.com/s/nm/us_gaymarriage_california_court