Proposition 8 And An Early Halloween
Expect an early Halloween. This year's favored outfit is that of the Old Testament prophet. Expect the street corners, the airwaves and the world of print to be swamped with cries of doom and gloom. A federal judge has decided that a California ban on gay marriage violates the federal constitution. Heaven help us! Soon three-headed children will tumble from the wombs of young mothers; water will turn to blood in fetid streams once alive with fish; the Earth itself may stand still in its tracks. Expect the apocalypse.
Bring on wrath, I say. Unleash the fury of ill-concealed hatred. Weep, gnash your teeth, pray that Jehovah will turn us all to pillars of stone.
Do all this and more and then grow up and face the fact that opposition to gay marriage is rooted in nothing more than religious prejudice.
Chief Judge Vaughn R.Walker's ruling held that the state of California has no compelling legal interest in banning gay marriage. Hence, the judge tossed Proposition 8 into the ash heap. The case will now head to the United States Court of Appeals and then, inevitably, to the United States Supreme Court. It will easily become one of the most significant of the twenty-first century.
It was really no surprise that Judge Vaughn ruled as he did. The record developed during trial can support no other conclusion. The right to marry is a fundamental right, our courts have long held. The state can limit it only out of compelling necessity. No such necessity was demonstrated at trial.
Consider the arguments launched against gay marriage.
First, it is a right of recent vintage not rooted in our history or heritage.
This is true but irrelevant. Slavery is well rooted in our history and heritage, as is the doctrine of separate but equal as regards the treatment of African-Americans. But the great weight of this sin against human decency was unsustainable. We say that all men and women are equal under the law. We are closer than ever to meaning what we say as regards race relations, although we still have a long way to go.
History resolves little. While I do not subscribe to a theory of historic progress, the fact remains that yesterday's hypocrisy is no moral guidepost.
Second, the very purpose of marriage is procreation and society's need for stable families.
This is a subtle two step than seeks to bootstrap an obviously true proposition onto a dubious assertion. Yes, a society needs to replicate itself. Children must be raised amid love and stability. This is a truism. But that doesn't mean that only a biological mom and a biological father are up to the task. There are many children without nurturing adults to raise them. There is no reason both parents cannot be members of the same sex. None whatsoever.
The claim that the sole purpose of marriage is to promote families is one-step removed from assertions that sole legitimate value of intercourse is procreation. How many people really both believe and practice that? Our courts have recognized that sexual relations express something deep and nourishing.
Finally, society is imperiled by easy tolerance of homosexuality. Frankly, this is risible tripe. I suspect the closet antics of Catholic priests have done far more to harm young people than exposing a child to a gay teacher or scout leader.
My how the right will fume. This is judge-made law in defiance of the people, they will say. To the states belongs the power to govern health, education and welfare. This is spiritual abortion, they will eventually say. It's Halloween, I tell you. Everyman is now Jeremiah.
Whether this ruling stands on review is an open question. We will see ever more clearly that law is politics writ obscure. But for today what pleasure to see hope on the faces of those long scorned. It is almost safe to be different today. Almost, I say. Hatred never dies without a fight. Ask the slaves.
Reprinted courtesy of the Connecticut Law Tribune.