Wednesday, August 04, 2010

Gay Rights Victory Creates Moral Opportunity for Conservatives

A federal judge overturned the gay marriage ban adapted by California as a result of Proposition 8. Judge Vaughn Walker was both comprehensive and direct.
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
That's the bottom line. California and every other state has a "constitutional obligation to provide marriages on an equal basis" and can only discriminate against any group if it has a very powerful "state interest" in doing so. The question then becomes whether California has some kind of over-riding interest in preventing gay people from getting married.

At which point, Judge Vaughn disposes of most of the arguments against gay marriage.
In the absence of a rational basis, what remains of proponents' case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.


The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce "profound and deep convictions accepted as ethical and moral principles" through the criminal code. ... The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California's obligation is to treat its citizens equally, not to "mandate [its] own moral code."
"Lawrence" refers to Lawrence v Texas, the Supreme Court decision that overturned sodomy laws across the nation. Gay rights activism has been one of the most inspiring developments in American society during the last forty years and is like the civil rights movement and feminism in being a shining example of what the United States at its best has to offer the world. When I was growing up in the sixties and early seventies, gay people were subject to a relentless series of abuses. I remember how one of my college friends from Syracuse talked about going around and beating up gay guys while he was in high school. There were relentless rumors about the sexuality of various male teachers who didn't fit the standard mode of educational macho (such as it was). It was especially painful for me to learn that my second grade teacher Miss Taylor had been forced to live a closeted existence her entire adult life because she was a lesbian. She was a tremendously nice lady and an excellent teacher who shouldn't have had to live like that. Nobody should have to live like that. In fact, gay life was so constricted in the places where I lived that I didn't meet a single openly gay person until I started graduate school in 1976.

In my opinion, the ultimate end point of the gay rights movement is the equal embrace of heterosexuality and homosexuality as modes of sexual living. One of the things I've learned as a heterosexual over the years is the extent to which heterosexuality is promoted by schooling, the news media, movies, and popular music. Given that heterosexuals are over 90% of the population, that will probably always be the case. But I'd like to see homosexuality embraced with the same kind of enthusiasm by the general public. That's probably over-optimistic, but I don't see why gay people shouldn't have their enthusiasms, questions, problems, issues, and failings given the same kind of sympathetic public representation as mine.

Conservatives have a variety of objections to open homosexuality. There's biblical passages in Leviticus and one of Paul's letters, arguments about the traditional character of the exclusion of homosexuals from marriage, and other more ridiculous claims about the slippery slope to bestiality and conservatives being subject to penalties for not believing in gay marriage.

Judge Vaughn very appropriately dismisses these kinds of claims as not having sufficient merit to outweigh the rights of gay people to equal treatment concerning issues of marriage. It's guaranteed that this decision is going to be played up as a right v left by all types of media. I've already posted something teasing conservatives on facebook myself.

Nevertheless, I also believe that American conservatives should take Judge Vaugh's decision as an opportunity to rethink their position on gay marriage and all other issues concerning sexual orientation. The key to conservative rethinking about gay marriage should be their on-going rethinking about civil rights and gender. Conservatives used to be just as attached to racial segregation as they're now attached to the exclusion of gay people from marriage. But it now seems that most prominent conservatives reject the legacy of segregation and that many conservatives are genuinedly pained by the association of the right with racism. Likewise, conservatives have reconciled themselves enough to feminism that conservative women like Sarah Palin have emerged as powerful forces in the Republican Party. If conservatives have rethought their positions on racial integration and gender equality, they can rethink their moral stance on gay people as well.

And they should.

1 comment:

ghost of harvey milk said...

One response to the ruling that I thought was ridiculous was that anti-gay people stated that Vaughn should have recused himself just because he was gay. As CNN legal expert Jeff Toobin pointed out, we do not expect female judges to recuse themselves in gender discrimation cases or black judges to recuse themselves in racial discrimination cases.

I believe Vaughn was correct in his ruling. As the Supreme Court ruled in Loving v. Virginia, discrimination by denying certain groups of people the right to marry is a violation of the equal protection clause of the Fourteenth Amendment. There is indeed no rational basis for banning same-sex marriage; the American Academy of Pediatrics has found that children of gay couples fare no worse than children of straight couples.

Speaking of Leviticus, I wonder why conservatives don't want to ban other things forbidden by Leviticus. For example, Leviticus 19:19 forbids clothing made from two types of fabric. Does that mean we should ban wedding dresses or tuxedos that are 50% cotton, 50% polyester?