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The Californian Gay Marriage Decision

I’ve now read the full (138 page) judgment in the case of Perry v. Schwarzenegger. To be candid, just reading it with a degree of care took me quite a bit of time, so I won’t be spending a similar amount of time writing a detailed commentary. Let me make just a few quick points.

At the level of social policy, this was a good outcome. Proposition 8, the voter-mandated addition to the Californian constitution that provides “Only marriage between a man and a woman is valid or recognized in California”, should never have been enacted. The outcome of the referendum back in 2008 was a tragedy.

Given the clear and specific terms of Proposition 8, combined with its status as constitutional law, there was no real prospect of challenging it under Californian law - opponents of the provision were forced to argue on a new basis, i.e. that it is inconsistent with federal constitutional provisions, specifically the due process and equal protection clauses of the US Constitution’s Fourteenth Amendment. The challenge succeeded under both clauses.

I’m not a great fan of US jurisprudence on the Fourteenth Amendment, which has been murky over the years and has led to many contrived theories and interpretations. Based on existing jurisprudence, however, the judgment seems to be pretty solid. It will be fascinating to see how it is challenged in the appeals to higher courts that will undoubtedly take place. In particular, the US Supreme Court still has a conservative majority, and there’s a prospect that several judges at that level will enter into quite fundamental questions about the Fourteenth Amendment. At least some (such as Justices Scalia, Alito, and Thomas) will seek to resist the outcome that has been reached so far. That’s a way off, however, as there’s a level of appeal in between.

Whether or not the institution of marriage is anachronistic and being maintained long past its original purposes and assumptions, it is still with us and permeates society in such a way as to affect people very seriously if they cannot marry. That is especially so in the US. The effect of Proposition 8 has to be assessed against that social backdrop. Proposition 8 was clearly motivated by bigotry against gays and moralistic disapproval of gay relationships, and it has contributed to the ongoing stigma that is applied to gays.

What becomes clear is just how much the campaign for Proposition 8 relied on bullshit arguments that then had to be repackaged significantly for presentation in the court. We’ve seen it all before, but it’s good to have the arguments all set out in one document - including fatuous arguments that religious parents did not want their children being exposed to ideas of gay equality. This idea of an absolute right to control the indoctrination of your children must be challenged at every opportunity.

By and large, the proponents of Proposition 8 were a pretty dismal, bigoted crew ... and this becomes crystal clear when their arguments are placed under a judicial microscope.

The whole judgment is well worth reading. It contains extensive sociological information (with pointers to a lot more) about gay relationships, gay families, and so on. It provides a valuable resource that will be worth returning to.

Chalk this up as a victory for the good guys, though of course with appeals lying ahead we can’t be sure the judgment will stand. This saga has a long way to run, and we’ll have to wait.

Russell Blackford Ph.D. is a fellow of the IEET, an attorney, science fiction author and critic, philosopher, and public intellectual. Dr. Blackford serves as editor-in-chief of the IEET's Journal of Evolution and Technology. He lives in Newcastle, Australia, where he is a Conjoint Lecturer in the School of Humanities and Social Science at the University of Newcastle.



COMMENTS

I also happen to be a lawyer, with graduate work in ethics and social theory and completing my PhD in systems science. Coincidentally I have appeared before not only Vaughn Walker but (recently) the Ninth Circuit Court of Appeals. I am also a member of the Bar of the United States Supreme Court. Judge Walker crafted his decision wisely. He based his decision on the fundamental right of all persons to marry. As a fundamental right, any governmental regulation concerning it can only be justified by a compelling state interest. He focused on the existence of such an interest and found none. I am confident that the Ninth Circuit will sustain his ruling and while I look forward to the decision of the USSC, I again have no doubt that it will be sustained at that level as well. A democratic government has not interest, (compelling or otherwise) in stigmatizing an entire class of people. This decision was not a victory for Gay people, it was a victory for all people.

“Whether or not the institution of marriage is anachronistic and being maintained long past its original purposes and assumptions, it is still with us and permeates society in such a way as to affect people very seriously if they cannot marry. That is especially so in the US. The effect of Proposition 8 has to be assessed against that social backdrop. Proposition 8 was clearly motivated by bigotry against gays and moralistic disapproval of gay relationships, and it has contributed to the ongoing stigma that is applied to gays.”
You got it, Mr. Blackford; the violent language of certain extreme anti-8 alliance members is a giveaway, ironically their Rightwing vehemence approaches Communist pro-gay levels (as you know, one percenters can’t manage anger in public). Marriage, btw, appears to be a remnant of medieval chivalry, a man marries and usually dominates a woman, and genuine love is often lacking; the husband seeking extra-marital partners more than the wife. Marriage is about social cohesion, not love—or at least such was the case in the past. The legal basis against 8 is a heterosexual majority attempting to tyrannize a gay minority, however I prefer to engage the 8- coalition on their own ethical grounds: no unwanted children have ever issued from gay unions, no abortions have resulted from the same.

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