05 August 2010

Prop 8 Fail.

So how will this fly with the Supremes? (it will be appealed, I'd bet on it).

The facts and factors of the case were all laid out there. Every (semi-sane) argument that can be raised against permitting equal rights and privileges for homosexual couples was aired. They were found wanting by a judge appointed by Meese and Reagan. Hardly some liberal nut bags put this guy in charge of the case. (He is gay, but Pelosi opposed his appointment, so figure that one out).

Basics
14th Amendment's basic guarantees of equal civil rights was a central feature. It has been and ought to be (it was the same feature which struck down laws preventing interracial marriages). That amendment is coming out as one of the most useful for protecting individual liberties against government and public/majoritarian demands expressed in unfair laws and repressive legal states.

Due process clause being the other central legal feature. Denying people basic rights without substantive cause seems like a bad idea or precedent to set. Essentially, much like with freedom of speech, it is best to set a legal environment in which unpopular minorities have freedom to be themselves, even if they are hated and despised for it. So long as their actions do not take the form of active harms propagated against the community or individuals within it (ie, rape or sexual assault, laws against which apply equally to heterosexuals as well), the broader community ought to have very little to say regarding the private consensual behavior of adults.

States (and the Feds) could have gotten around this by simply not recognizing marriages with state privileges and rights and simply allowing a "market" contract which resembles civil unions to take the legal form of marriages, with churches or private ceremonies taking the forms of "actual" marriage. But there's a significant public demand to support marriages, presumably because they are intended to form stable families, which we deign, in our infinite wisdom, to support with funds and default state contractual rights, while sometimes ignoring the distinct rights of lesser unions or of simple contracts designed by private parties.

As for the argument in support of such a ban, it may indeed be a fair argument that a child would grow up best raised in a supportive family environment of mother and father, though I find it a little suspect in relation to adoption or alternative methods in the case of homosexual couples raising children together. There is some evidence that two women raising a child can do better still, and little evidence that the situation is much, if any, diminished by having two gay men raise a child from the standard assumed method. But in any case, this would be an argument that if expressed as a legal function that would cut against allowing women (and a few men) to raise children alone as single mothers (or fathers) and instead require them to seek out another mate rather than rely upon other social means of support, against couples who are not married and attempt (or accidentally) conceiving or raising a child, perhaps even against other family members to take on the parenting responsibilities instead of the biological parents, and so on. While there is certainly an empirically valid optimal environment for childhood development to occur in, we have little means of enforcing it equally by requiring people to take on new mates against their will for this purpose or even to purchase books for the child or take them to parks to play and so on, and there appears to be little enough called upon us to require that environment to exist despite the appearance of this as an important argument, much as we may wish to encourage it (and indeed attempt to do so with contractual rights and monetary benefits or incentives). If it is being raised against homosexuals, then it should be raised against every single parent in America or any parent who is the least bit neglectful or heedless of their child's development, effectively becoming a paternalistic sentiment far beyond scope and reason for the state to possess and enforce. Nor does this argument have much to say about the conditions, even in a two parent family, that may be suboptimal even relative to a single parent or a same-sex partnership, violence and domestic or substance abuse for example, for which the state often has a compelling interest in removing a child from a supposedly optimal arrangement of parenting and placing them in a further degraded environment still by usual measures (ward of state/foster care). And indeed, despite all this worrying over children, homosexuals couples were already NOT barred from adopting or raising children by California law. This was, in other words, not even at issue or contended against by the law in front of the court.

It then appears the remaining substantive concern was that teachers would be required to teach the sameness of same sex unions with traditional marriages in classrooms. As far as I can see, I don't see what the difference is. They cannot have children naturally seems to be about it. But many who are married do not or cannot have children naturally (the elderly who might remarry or stay married well after menopause for example, people with infertility issues, or just plain people who don't want to have children). Otherwise these are unions between consenting adults who wish to affirm an abiding respect and affection for one another publicly. Many of these unions, much as those of heterosexual couples, will fail, but it would seem that taking oaths, signaling openly and to the community that affection and respect, is important enough to want to make efforts that do not or may not take place in an environment without public commitments. As such, the state's interest in promoting such unions for heterosexuals doesn't seem any different when applied to homosexuals, in so far as it promotes healthy unions between adults. It doesn't seem like there need be any distinction made when discussing such things in educational terms as a consequence, other than that one cannot naturally have children (again, a consideration which applies to many situations where we sanction marriages). If privately manifested oppositions to these unions be made necessary, they may be raised, if contentiously. But I see no reason that our private discomfort with the actions, choices, or desires of consenting adults must be manifested as a publicly required distinction complete with legally binding force behind it. Should we also be granted the legal power to oppose a union between two heterosexuals that we feel is an unfit pairing which gives us some discomfort? I rather think not.

Other less worthy arguments were used in support of the now struck down law.
1) That opposition to gay unions somehow protects heterosexual marriage. This has always seemed so absurd that it hardly warrants a rebuttal.
2) Denial of equal rights permits people not to confront the very existence of homosexuals. Again, highly suspect. It is easy enough for families and friends over time to know someone who is gay, perhaps in their own families. Imagine instead of some random stereotypical gay male, it was instead your adult son. Then imagine what rights and privileges you would want for him. Why would it be any different because it is instead someone else's son?
3) Protects children... from?
5) Heterosexual couples > homosexual couples. Okay... why? This argument, raised during the campaign in 2008, was abandoned in trial as it appears to be an entirely religious or private moral view which was appealed to in order to rally support. Since it is deemed unconstitutional to make purely religious arguments prevail upon the general legal environment (as a consequence of decisions striking down state laws against sodomy for example), this had to be tossed out anyway. But it's still floating out there. I'd like to know if anyone can make a secular case for it. I've never seen it attempted.
6) Same sex marriages redefine opposite sex marriages. I sort of like the phrase opposite sex marriage. It could mean all sorts of things. But leaving that aside, this is essentially the same as argument #1. It does not redefine the terms of your own contracts and obligations and vows and so on. Those are still your vows and obligations and contracts regardless of how other people, straight or gay, have applied them to their own situation. You should worry about living up to them and supporting your friends and associates if you can in theirs. And in spite of the supposed damage being done to marriage as a useful institution, states and nations which have permitted and legally recognized such unions have generally improved the social (and economic) climate under which "regular" marriages may flourish. Not only is there hardly a threat nor a harm being done, there may even be advantages under which heterosexuals may operate by tolerating and indeed, supporting, such unions as they come into contact with while attending to their own.

Advancing an argument of popular sovereignty does little to support this case. Public sentiments are often set against unpopular minorities and their behaviors or views. We do not need to give those sentiments the force of law, much less a state's Constitutional laws. These may be sentiments which will change over time (as they have in the case of opposition to homosexuals, where public sentiment has shifted greatly and in very little time), or which will be found less appealing, or even damaging and corrosive to ourselves to hold in and of themselves.

And while I may sympathize with promoting a statistically optimal situation (much as I like optimal statistics that is), we have done little in other fields to promote this statistically optimal situation. It suffices that an environment should be as supportive as possible for child-rearing but that the state cannot mandate such an environment into existence. And that while a loving family with two parents may be ideal, a loving family with two homosexual parents is at least not harmful, if not statistically sufficient in many cases for our purposes. Certainly relative to some heterosexual couples, many but by no means all single parents, and especially to being a ward of the state. Evidence brought against this proposition is found wanting and groundless.

By so fetishizing the properties of marriage itself, we have made them appealing to all people who would wish to engage in them rather than the mere legal rights and privileges that attend to the unions themselves. Since we have simultaneously made it impossible for all people to engage in marriage with a person of their choice, which seems also to be our ideal conception of a functioning and lasting marriage partnership, then it seems only fair that people should be permitted to agitate (politically) for such affections as may be made consensually and legally (that is: between adults). I can find no reason to deny these affections as existing or that they should be presented and performed as ceremonial duties (where they may be performed by the choice of a religious or secular institution) recognized by the state as equal to those of the affections of heterosexuals. I do see a restriction which prevents the state from mandating that a religious institution must conduct such a ceremony, or that any particular and specific people must attend and witness it, or perhaps even that private parties must necessarily conduct business in relation to such unions without discriminatory behavior in relation to it (as say a wedding photographer). And I do think that if we are going to fetishize marriages such that a compelling interest is that children are encouraged to withhold their sexual experiences for it that we should recognize that some of those children will desire sexual contacts and conduct with others of their same gender. If abstinence is going to be your supposedly necessary and encouraged policy, then abstinence you should get. It seems groundless to suppose that simply because of the nature and gender of the person one's sexual appetites demand that certain sexual actions which are legal for one person to engage in, because they are legally married, or simply because such acts are not illegal, are rendered illegal or somehow inferior for that person to conduct them and act upon them. We might be able, if our private moral beliefs are in some way offended, to appeal to the supposed wrongness of those affections and appetites. But we could also simply look the other way where we are disgusted rather than suppose that everyone's else view of an appropriate sexual and/or romantic relationship takes the same form as our own.

This part in particular as part of the Judge's ruling was at least well-written and constructed. I'm not sure it will sway anyone who disagrees, but it should help solidify the equal marriage camp behind some central points.

"....The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses they seek the mutual obligation and honor that attend marriage, Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

As far as how it plays in the Supreme Court, I can see a possibility that it might be overturned, but I'm not that confident it would be. I can more likely see that it might be a very limited decision if Prop 8 continues to be defeated. I am not yet sure that it would be upheld as a sweeping law removing all state level laws of this construction, despite the nature of the 14th Amendment or due process clauses as being binding over those state laws. I'm fairly sure that there are enough voices in support of overturning Prop 8 on the bench given the legal requirements, having read more about the legal tests as applied in Romer or Lawrence. To be sure there will be a dissent. But perhaps a smaller one.
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