Archive for November, 2008|Monthly archive page

Gay Marriage Is About Equality (California Prop 8)

In Civil Rights on November 23, 2008 at 4:13 am

There has been a lot of talk about dissolving the 18,000+ gay marriages which were performed in California before the referendum, but it can’t be done. The US Constitution states that no ex post facto law shall be passed by Congress. Then it defines “an ex post facto law [as one that] applies to an act committed before the law was passed, or that was not illegal at the time it occurred.”  [Article 1, Section 9, Limits on Congress] It goes on to say that no state is permitted to pass any ex post facto law. [Article 1, Section 10, Limits on the States] In plain English, no new law can be enforced retroactively.

It remains to be seen whether or not the state can dissolve marriages performed after the date of the rollback (presumably November 4th) because those 18,000 voices are not going to be silenced, and there is no compelling reason why some are and some aren’t allowed to be married. There may be some additional legal issues, as well; for example, I’m not certain, but I believe it takes a 2/3-majority vote of the legislative branch to actually make a constitutional change (not 51% of the voters). I think we should give some thought to why our founding fathers imposed that requirement before we start changing our fundamental agreement on what constitutes freedom.

Furthermore, the state has already come most of the way towards legalizing gay marriage by enacting “separate but equal” legislation: “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”  [California Family Code: Section 297.5.(a)]  Let me suggest that in trying to please everybody, we have come full circle and pleased nobody. Do we really want to go down the “separate but equal” path again?

In my opinion we have already established a precedent regarding “separate but equal,” which is to say we already know that it doesn’t work, that it isn’t right, that it isn’t honest and that it isn’t “equal.” But it is “separate.” Nothing better illustrates this fact than being required to identify yourself as a “registered domestic partner” instead of as a “spouse.” How many ways are there to say “registered sex offender?” How about for our first shot at equality, we start using the term “registered house spouse?”—”domestic” and” house” being reasonably synonymous for the one who stays at home. Better yet, we can just stamp “gay” or “straight” on everyone’s work records, making it much easier to invade their privacy.

With regard to California’s proposition 8, I have only heard two arguments for preventing same-sex marriage, both of which are born of fear and have no compelling justification for singling out and excluding a rather large segment of the US population: (1)  We have to protect our kids from gay sex education; (2) We have to protect our churches from being forced to perform gay weddings.

If anyone actually believes the first argument, I would ask why didn’t you think of protecting all of our kids, back when we legalized gay parenting and gay school teachers. But lets face it, more kids have been molested by straights than by gays. Different problem—a crime in fact that we should take seriously after due process in the legal system, or do we take that right away, as well? As to the second argument, I think the Church is on firm ground in refusing to go against their beliefs by performing the ceremony. Freedom of Religion doesn’t mean except for marriage.

If you don’t like what your kid learns in school, then get involved with the schools. Join the PTA. It isn’t the Government’s job to do your parenting, and it damn sure isn’t worth a constitutional amendment to enforce your version of parenting. But it is Government’s job to protect everyone’s rights, and that might just take a constitutional amendment. Pray they get it right if we go down that path because there is nothing worse than being next in line of an angry mob who wants to control your rights.

Personally, I believe that gay people will continue to fight this battle long after the rest of us get tired of it, although I don’t understand why we require them to fight for what the rest of us already have. I applaud them, I encourage them to continue, I feel grateful and indebted to those who do because the next battleground for protecting our rights may be on my front porch. Furthermore, I predict that one day we will all wake up and realize that we are quarreling over the legal meaning of a word, and that words should never be defined by lawyers because they have already abused and obfuscated the language quite enough.

So here we are again: lawyers all primed to make a killing on billable hours, costing in the millions of dollars (which you and I as taxpayers will pay); voters all primed to protect the churches and the children from imaginary threats to argue a no-brainer in perpetuity. Somehow we ignore the fact that the threat is everywhere, such as decades of heterosexual attacks on children by one of the largest churches in the world. Somehow we forget that unlike the churches, gays aren’t recruiting to expand their ranks, so they don’t spend a lot of time proselytizing. They are simply asking for “equality” in place of “similarity.”

The solution is not all that difficult. First, separate matters of church from matters of state. For marriage as a “sacrament” let your church define it (prescriptive), for marriage as a civil ceremony let the dictionary makers define it (descriptive), O.K., and the law-makers if we must, and for marriage as a personal experience, that bonds two people together for the rest of their lives as soul mates, don’t try to put it into words because the experience is inherently mystical and words cannot do it justice.

Copyright © 2008 by Tad Laury Graham

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