International House of Dan: California Gay Marriage Ban Unconstitutional

Monday, March 14, 2005

California Gay Marriage Ban Unconstitutional

Well, at least for now. Superior Court Judge Richard Kramer held today in San Francisco that "it's always been this way" is not sufficient legal grounds for statewide discrimination. The 27 page tentative decision comes as a result of six coordinated cases, and it strikes down two sections of the California Family Code that define marriage as between a man and a woman and invalidate marriages not between men and women, respectively.

What is happening in America today is remarkable, because public opinion is being dragged kicking and screaming to the left, it's being forced to its senses. The civil rights movement gained tremendous support when footage emerged of the hostility Southern black children faced just trying to get to school; people saw Norman Rockwell's rendition of Ruby Bridges and they recognized that there was something inherently wrong with agreeing with the angry people she was being protected from. Schools were allowed to become integrated, and over time, miscegenation laws were struck down. The marriage equality movement got a similar boost from those seeking marriages in San Francisco last year. The first to marry were Del Martin and Phyllis Lyon, a lesbian couple who'd been together for 50 years. It's hard for people who like to think of themselves as moderates to argue against those two women's right to marry while Brittney Spears is legally entitled to do it as often for as little time as she likes.

The way to win the debate on same-sex marriage is to draw the obvious parallels to interracial marriage. People are more likely to question their views if they realize that they are exactly the same views held by 19th century whites on miscegenation. I should include something from a piece I read on post-Reconstruction arguments for miscegenation laws:

Here are four of the arguments they used:

1) First, judges claimed that marriage belonged under the control of the states rather than the federal government.

2) Second, they began to define and label all interracial relationships (even longstanding, deeply committed ones) as illicit sex rather than marriage.

3) Third, they insisted that interracial marriage was contrary to God's will, and

4) Fourth, they declared, over and over again, that interracial marriage was somehow "unnatural."

On this fourth point--the supposed "unnaturality" of interracial marriage--judges formed a virtual chorus. Here, for example, is the declaration that the Supreme Court of Virginia used to invalidate a marriage between a black man and a white woman in 1878:

The purity of public morals," the court declared, "the moral and physical development of both races .... require that they should be kept distinct and separate .... that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion.

Re-read those four reasons, they are exactly the same reasons being given today by opponents of same-sex marriage. Let them know that their arguments are recycled from pre-civil rights era segregationists, it should make them uneasy about their views, and if it doesn't, then why are you hanging out with these people? As public sentiment shifts, more and more people say that they wouldn't mind civil unions, and that's when you slam them with the question: if homosexuals can have a separate institution with all the legal rights and benefits of marriage... why not just let them marry? The church is not involved here, the debate is on the legal ceremony by which we give people the right to inherit property, to receive benefits, to have access to their loved ones during visiting hours. Separate is inherently unequal, and that's why we don't have signs over water fountains anymore.

Judge Kramer said that it is an "obvious natural and social reality that one does not have to be married in order to procreate, nor does one have to procreate in order to be married." Which goes along nicely with my long-standing offer to stop supporting gay marriage as long as we start requiring fertility tests.

The case is expected to be appealed, perhaps directly to California's Supreme Court, but it will not make it to D.C. because of some silly Constitutional limits on the jurisdiction of the U.S. Supreme Court... something about states interpreting their own laws...


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