11 January 2010

Prop 8 goes on trial

So it begins

Here's my take-away
1) I am not sure that pro-rights groups are likely to win this suit.
2) I am not sure that it matters if they do or not establish a Constitutional right to marry (yet). Largely because popular mandates have only passed in a handful of states (yet). Demographic trends indicate that this issue will cease to be a major issue very soon. (Abortion on the other hand, remains a firestorm).
3) I am pretty sure that there's not a strong populist blowback if they do win, even at the federal level. This is because areas and institutions of the country already with strong disapproval of gay rights and gay marriage specifically already have strong ideological connections with political institutions that strongly condemn or at worst do not advance these causes (usually Southern Republicans/social conservatives). Most areas of the country with opposition at present do not have overwhelming opposition but merely majoritarian opposition. The duty and measure of a majority is, in fact, in practicing tolerance and I expect most majorities of people appreciate this fact with strong minorities willing to preach hatred in dissent.
4) There appears to be a strong, mostly irrational, attachment to the use of terminology to describe relationships as "marriages" rather than as "civil unions", which many jurisdictions, including California, permit and in fact recognize with the same legal rights already (as a court decision handed down in California after Prop 8's passage declared). It is possible that these legal rights are insufficiently balanced, but in practice there are many heterosexual couples who seek the civil union benefits of marriage contract law already. These couples are also discriminated against in many jurisdictions (Virginia is an example) by requiring local bureaucracy to convene ceremonies (rather than some other accredited individual with the choice made by the individual parties involved).
5) It is possible that the strongest case would be simply to abolish federal involvement in the institution of marriage, or at best, to qualify it as merely recognizing state benefits of civil unions. The federalist/Constitutionalist case would be to allow states themselves to determine what, if any, qualifications are necessary to enter into these civil union/marriage contracts and allow people to receive legal benefits as are deemed appropriate to confer upon them as a result. I am persuaded personally that a 14th amendment defence is adequate to extend marriage laws to any consenting adults of sound mind regardless of sexual orientation, just as we previously used such legal merits to extend such rights to interracial couples and to extend protections given to men through contract law equally to women. This is not apparently a popular notion, most likely because homosexuality still holds a considerable popular stigma (for a variety of reasons, mostly misinformation).
6) Much anti-homosexual rhetoric centers around something called "the gay lifestyle", which is often depicted as some mixture of consumerism and self-indulgence/immediate gratification culture. Since it seems pretty clear to me that the immediate gratification culture is broadly mingled with heterosexual community already, and I have no idea how gays became identified as consumerists in particular, these are funny arguments. They will have no direct bearing on the legal merits of the case. However, their presence in the background will require opponents of gay marriage (or rather the extension of the legal rights granted by such), to form some argument as to why it benefits society to restrict such rights and what precisely is protected by doing so. I am not sure that this question can be credibly answered, given that most scientific evidence is against such notions as "homosexuals are child predators" and that the state already has provided no link between marriage licensing and child production for heterosexuals (something which, if adoption rights and IVF are considered in the broader picture, isn't and shouldn't really even restricted from homosexual couples anyway) as examples.
7) If we are left without a secular argument against extending such rights, it does not follow that we should allow religious institutions to demand such restrictions have force of law. Religious institutions are, and should be, free to provide marriage ceremonies to whomever they wish, and not to do so for whatever cause they wish. This is already true, regardless of whether the marriage ceremony can be legally recognized by the state (with the occasional exception that they must be between consenting adults of sound mind rather than child marriages or marriages between underage children and adults. Polygamous marriages are already performed in some religious ceremonies as another dissenting example, even without the full legal protections that we grant to monogamy). Legal recognition does not require people to agree with the underlying action, as with interracial marriages conducted in say, the South, merely to extend equal legal benefits. These may be unpopular and social discrimination and pressures which cannot be legally mandated away will continue to prevent many such productive relationships from forming anyway. But legal recognition will also allow many such unions to form, will tend not to degrade the broader community and provide supple evidence to this effect (as seen in Massachusetts), and will eventually be tolerable by most civil societies as a result. If this tolerance is something to fear, we should be provided with evidence as to what damages we fear it will cause. This has nothing to do with the strength, commitment, and social value placed upon heterosexual couples by legal forms but is rather a recognition that these are equally valuable relationships to the cohesion and vitality of the community itself. I've yet to see how allowing such practices destroys the institution of marriage itself or somehow increases the population of homosexuals willing to get married relative to the population of heterosexuals or any other bizarre rationale put forward. There are other forces which might be more threatening to such institutions. But to extend the force of an institution to more people doesn't seem like a proposal likely to harm it.
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