Thursday, August 12, 2010

Proposition 8: They're both right

If you've been living under a rock for the past couple of years, you may not know about the controversy surrounding California's "Proposition 8" and the national implications it has. Here's a brief overview. A few years ago, California Supreme Court ruled that homosexual marriage was legal in California; that is, that the rights to the use of the term "married" and all the legal privileges therein contained were afforded to homsexual couples as well as heterosexual. A bunch of Californians didn't like that, and so they got together signatures for a ballot vote as to whether it should be legal or not, believing the country to be a democracy and that matters of such import should be decided by the people and not arbitrated by judges. So this proposal, dubbed Proposition 8 did appear on the ballot last year, and a majority voted against gay marriage. Well, this made the gay marriage advocates (who ridiculed the idea of the bill publicly) angry; how can anyone just vote to take rights away? So the gays who supported marriage, the Hollywood left, and others sued the Prop 8 people essentially. A ruling just recently came down from the California courts: Proposition 8 is unconstitutional, and gay marriage will be upheld.

What should the courts have done? Is democracy dead? Doesn't the will of the people count for something? Who was right here? Well, I've thought about it a lot and come to the unfortunate conclusion that both parties' arguments have merit.

I don't know whether the decision came down to Prop 8 being unconstitutional in regard to the Federal Constitution or the California State Constitution. I cannot speak to the latter, having no knowledge of it. However, I do know a little of the Federal Constitution, and it seems the judge has a point.

It seems to me that the fundamental question of the right to marry rests in two Amendments; the Ninth and the Fourteenth. The Ninth says essentially that the rights expressly outlined in the Constitution are not the only rights that exist; that the people still hold other certain rights that don't disappear because the Constitution doesn't mention them specifically. The Fourteenth is the muddier of the two and frankly the one that I think has caused the most undue harm from poor wording. The clause I refer to is in the first section: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law." The Amendment was born out of the ashes of the Civil War; its primary goal in this section was to grant citizenship to all former slaves, and ensure that the black race was given the same equal treatment as everyone else by law. But of course, the Constitution doesn't want to say we had slaves, so it keeps the language distant and vague. Immediate problems then arise: wording intended for one purpose is now open to interpretation on an infinite number of other unrelated issues. Furthermore, the nation sure didn't enforce this Amendment, since blacks were soon shackled by racist Jim Crow segregation laws in the South and shuffled out of increasingly "whites only" communities in the North.

The biggest trouble with the clause above to me is the use of the word "liberty". What does that mean? What does a citizen's "liberty" include? This word was left undefined, and yet no State is allowed to pass or enforce a law that deprives a citizen of it, nor take it away without due process. Again, the intent here was more to ensure due process of law than to make policy. But that's not what happened. Those few words led to a vast interpretation of what the Constitution's internal view of "privacy rights" might be, and the expressions of personal liberty. Aside from the search and seizure laws, the Constitution really HAS no privacy laws, but that hasn't stopped one from being inferred. It was based on this "right to privacy" and other such interpretations of those above few words that led to the Roe v. Wade decision which has kept America arguing to this day. The Supreme Court never GRANTED abortion rights; they interpreted that there were ALWAYS abortion rights. That's the sort of legal wrangling that gets done because of that one word.

So here we had some homosexuals who wanted to be married for whatever reason. They love each other, they want equal visitation rights for hospital visits and such, they want marital status for filing their taxes, whatever. Does this mean all citizens should be afforded these rights, if married? And if the option is open to the straight people who marry, should it be open to those who chose not to marry an opposite gender? It all comes down to that word "liberty"; does this freedom mean these gay citizens can do as the please and therefore the law must adjust to them? What makes the situation truly sticky is not the initial ruling that allowed gay marriage in California: it's that the Prop 8 vote came after that. Had the Proposition 8 vote been more of a pre-emptive strike before any official decision were made, it might have stood more of a chance. And yet, the "right" had already been extended. Now Proposition 8 was enacting a law that rescinded that right. That would seem to be in direct violation of the clause against the State making laws which abridge the privileges of the citizens.

Let's shift focus back to the other side, though. Considering a matter that is so vague in public law, it makes sense that the populace would like to decide for themselves whether to support something which would represent a major change in the understanding of the law and how it applies in daily life. We are raised to see our nation as a democracy (which it isn't exactly, but that's not quite at issue here, so I won't go much further there). The will of the people bring about what they want. "We the People" proclaims the preamble, and it is the language of many of our Founders and Framers that expresses democracy over tyrannical government. Jefferson even suggested that when the will of the people does not accord with that of the government, it is the right (or duty) of said People to abolish that government. That, in essence, was the drive behind Proposition 8. So neglecting the precedent ruling, let's think about the concept. They wanted to vote about an issue. The people of the state did vote. Then others who didn't like the outcome of the vote decided that the very act of voting was unfair. So often this issue is compared to the Civil Rights movement of the 1960s, or other movements such as womens' suffrage. But frankly, it's nothing like that at all.

When it came to passing laws that infringed on the rights of blacks or women, the deck was stacked because blacks and women COULDN'T VOTE. So it was a lot of white guys who wanted things their way, decided on them officially, and kept others down. The full populace was never really allowed to choose, despite the unconstitutionality of said suffrage restrictions. However, in the case of California's Proposition 8, there were NO such stacked decks. All citizens aged 18 and up (and even younger if the States decide, but that's another topic) were offered the chance to vote. When the people who SHOWED UP voted, those votes were counted and majority ruled. It wasn't as if they threw out any votes in favor of gay marriage, or refused to let supporters into the polls. Furthermore, the issue is not as clear-cut as the above examples. I don't think there were any black people who were against the idea of equal rights, or women who were against the idea of women having the option to vote. But there are a number of homosexuals who don't support marriage (you don't hear much about them, but they exist), and a number of heterosexuals who do (you hear from them all the time). So we're not talking about one homogenous group who's fighting it out with another homogenous group. It's all the different people with different backgrounds and different views voting their opinions and the majority rules.

I find it really quite fascinating that the so-called Democratic party tends to contain the people most in opposition to Proposition 8. I would think that if you really favored democracy, you would support it fully. But apparently, democracy is only good when it goes their way. I've pointed this out, that the democratic process reached a result fair and square, and been told that "it's not our place to vote on matters of civil rights." That's just hogwash. What is there to vote on besides civil rights? Everything comes down to certain rights of certain people for certain places. We infringe on perceived rights by vote all the time on all kinds of issues from higher taxes on tobacco products to child seat-belt laws. The voting process is a way to gauge on what side most of the people are. So when the judge ruled that it was unconstitutional, what the Prop 8 supporters heard was "Democracy doesn't matter."

So it's strange, but in the end they are both right in their own ways. If every decision that comes to a vote can be overturned by a judge, what's the use of voting? And yet, there are laws, albeit vague ones, that seem to allow for certain rights that cannot be infringed. I'm not here to come down on one side or the other. It doesn't matter which outcome I support. But I think what I'd most like us to take away from this situation is that if this is indeed an issue of personal civil rights, then it cannot be forever left to individual States. We tried that with slavery and it didn't work; that's why we have this messy Fourteenth Amendment in the first place. Secondly, I think it would behoove the nation to consider Amending the existing Amendment. We threw out Prohibition. The trick is that the Amendment only refers to States, not the Federal Government as a whole. So we could push for an Amendment which would properly define marriage however it be. That would then be covered by the Ninth Amendment as enumerated in the Constitution and not left to the vaguer ideas of what belongs "to the people." Or we could Amend the Fourteenth, which I think is the most troublesome Amendment we have. Nearly every issue you can think of comes down to infringing on liberty or such. That language should be made clearer, or restated, or even removed altogether if necessary. Really, if the Fourteenth Amendment says the State can't make any laws that abridge the privileges of the citizens, and the Ninth says that the citizens have all kinds of unspecified rights, then one could argue that nearly ANY law is Unconstitutional. Do I have the liberty to go exposing myself to kids? There are laws against it, but do those laws violate my basic unspecified rights? Or more simply, my right to sit in a car without a seat belt knowing the risks involved. There are now laws against it in nearly every state. See what I mean? The Amendment doesn't work. It provides too many back-door legalizations of hotly contested issues.

In the end, I think it's time we put all of these things to a national vote. There are a lot of existing laws I'm strongly opposed to, but when they were democratically decided I follow them. There are other initiatives I was in favor of, but they didn't get enough votes. Isn't it more an issue of voter turnout than it is the issue being decided, if you really have a problem with it? The best way to know is for every single voter to cast a vote, but that nearly never happens. We only ever are strongly pushed to vote when there's a Presidential election, when our votes don't even matter (that's a whole separate topic too). So I'd like to see a national vote regarding gay marriage. I don't care what the outcome. I would live by the law whether it went my way or not, at least secure that a decision had finally been made, and it was the will of the people.


  1. My argument is the the definition of "marriage" is the union of one man and one woman. That's the definition that we have known for thousands of years. Gay activists want to change the meaning of the word "marriage" to describe the union of two men and two women. I am against changing the meaning of the word "marriage." If we throw out the word marriage to describe what it has done for thousands of years, then ANY arrangement can also be called "marriage." Three people living together in sexual relationship could also be called "marriage." I object to changing the meaning of ANY word, not just the word marriage. Words mean something. We all know the meaning of the word "marriage." To use it to apply to any and all relationships is to confuse language. The activist homosexuals are really going to court to change the meaning of the word "marriage" and that is unacceptable to me.

  2. I agree that words mean something and their meanings should be maintained. I agree generally that "marriage" means between men and women and has always meant that. I do slightly disagree with the modern assertion that it always means "one man, one woman" since polygamist marriages have occured throughout history. Then again, each new wife involved a new "marriage", so maybe there's still something to that. I don't think any polygamist ever married three girls at once.

    It's not just the gay activists responsible for changing the definition. The idea of "marriage" is more and more in our culture simply an issue of "love and commitment" codified in some way. There's very little to set it apart otherwise in the popular mindset. We even use the term metaphorically in a general sense: "this sauce is a delightful marriage of rustic and exotic flavors". That sort of thing.

    I avoided arguing this sort of merit in the piece because I was trying to focus more on the straight legal issues than the ones that surrounded it all. The reasons for gay marriage or against gay marriage were secondary to the reasons for a vote or not a vote. But it is the use of the term and all that implies that the objectors most object to, and I think the most sensible solution is to find a way to legally grant the rights we afford "married couples" to other groups without it being marriage. And I don't just mean gays. Why not let two roommates have certain financial or emergency rights? Then it doesn't become a "homosexual" issue, it becomes a sensible rights for people in certain situations issue.

  3. In secular society marriage has become a term for a particular legal contract to which we have assigned certain rights and benefits. It became problematic when instead of defining the secular contract society wanted to support or encourage the law makers used a short cut and co-opted a religious term ‘marriage’ for the definition. There are already differences in who can marry, based on different religious institutions, some denominations prevent divorced people from marrying, some support same-sex marriages. In short we created this problem by using a religious term for this contract so now to provide the same rights and privileges to a broader group we need to use that term.

    I believe it was the intent of society encouraging the institution of marriage was to encourage interpersonal bonds and responsibilities, which provide stability to the culture. Broadening the interconnected links between individuals can only benefit social stability. I suggest if those married in a particular religious tradition want to differentiate their contract, find a new term or adjective to specify their particular sub-type of contract.
    Unfortunately on the vote question there is again confusion regarding the form of governace in the US. On a national level, we are a representative democracy. This means we do not directly vote on these questions but rather elect legislators to come to consensus and enact laws. The state of California has added a direct vote on legislative questions through the proposition system. The degree of conflicting legislation voted in by the people of California is staggering in its complexity and to my mind results in the state being goverened by the judicial branch, a step worse than the ferderal system.