In defense of same-sex marriage

In just a few short weeks, Californians will head to the polls to decide, among other things, the fate of their months-old experiment with same-sex marriage.  A voter-initiated proposition (”Proposition 8“) aims to re-write the state’s Constitution to take away the right of any individual of any sexual orientation to get married. Opinion polls show Proposition 8 winning amongst likely voters, although not yet having a clear majority.

Earlier this year,  the California Supreme Court struck down all laws restricting marriage to heterosexual couples, finding that such laws violated California’s Constitution.  Chief Justice Ronald George (appointed by conservative Governor Pete Wilson), wrote for the Court that such laws violated California’s guarantee of liberty and privacy enshrined by the state’s supreme law.

Marriage, according to the Chief Justice, represents “the right of an individual to establish a legally recognized family with the person of one’s choice,” and is fundamental to a person’s “personal autonomy” and their “liberty”, both of which are protected by California’s Constitution.  Withholding marriage from same-sex couples deprived them of these constitutional freedoms.

The Court relied on its 1948 court decision Perez v. Sharp in reaching its decision.  In Perez, the Supreme Court struck down anti-miscegenation laws that prohibited two people of different skin color from marrying.  California was the first state in the United States to strike down such laws; the federal Supreme Court would strike down all such laws only some twenty years later in Loving v. Virginia.

In striking down similar restrictions against same-sex couples, Chief Justice George noted, “It is instructive to recall that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage, (2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment.”

It is strange and a bit sad that a thing like liberty needs defending; but these are strange times.  Why the private decisions of two consenting adults should be the business of anyone else — or the business of any government, be it local, state or federal — is a question that few politicians are willing to answer.  Yet more and more, Americans seem content to interfere in the lives of others.  Spying telephone companies and a failed war on drugs are just two of the more obvious examples of intrusive and inappropriate social policies designed to police the private lives of otherwise law abiding citizens.

Much of this interference is done in the name of terrorism (or more accurately, irrational fear of terrorism) but initiatives like Proposition 8 are a reminder that restrictions on liberty come in a variety of forms.  Today, it is fashionable to argue that liberty should be restricted — a sad testament to the decline of freedom in America.

And thanks to the explosion of money in politics over the last few decades, California’s direct democracy initiatives and voter referenda have become battlegrounds for this call to arms against liberty.  It is interesting to wonder whether in 1948, after the Perez decision, people would have flocked to the polls to keep Mexicans from marrying people with black skin (the couple in Perez) in order to preserve the institution of marriage for proper, decent folk.  Perhaps this is a hypothetical better left unanswered, because it is not unreasonable to think that such an initiative would have soundly passed, and even been enshrined in the state’s Constitution: “Marriage for one’s race, and one’s race only.”

Even today, more than fifty years after Perez, interracial marriage remains uncommon, and many people express preferences for people of their own “race”.  It is of course anyone’s right to be close-minded and prejudiced, and to believe in the fiction of race.  There are people who believe the world if flat, that climate change is a lie, and that you go to a place called Hell if you don’t worship a particular god.  In time, a more enlightened society will see the notion of “race” for what it truly is: a way to artificially divide people and keep them separate and at each others’ throats, without genuine communion, compassion, solidarity or love.  And, thankfully, California had a brave Supreme Court which realized more than fifty years ago that close-mindedness is not an appropriate bedrock for law; and that prejudice, no matter how defined, no matter how clothed, no matter the arguments made in its favor or the religious texts used to support it, cannot be what defines the concept of liberty for any free people.

The best way to preserve one’s own freedom is to support the freedom of others.  That’s how freedom works, in all its aspects.  If you want to have freedom of speech, to say what you want without threat of retribution, then, in addition, you have to support the right for people to say things that you don’t like or may not want to hear.  If you want to have the freedom to associate and join political parties of your choice or to vote for candidates who support the way you think, then, in addition, you have to support the right for people to vote for ideas or candidates whom you may find repulsive or deadening to your values.  If you want freedom of religion, to worship the god or gods of your choice, then, in addition, you have to support the right of others to worship who they want as well.

Freedom is not a thing that can be parceled to favorites — it must exist for everyone, or it exists for no one.

And if you want the freedom to love who you want, and raise a family with whomever you want, then, in addition, you must support the right of others to do the same.  The denial of anyone’s freedom is a denial of your own freedom as well.

There are many opponents of same-sex marriage who argue that same-sex couples should have a different institution to sanctify their relationship — a “separate but equal” relationship, if you will.  Has this country learned nothing from its bloody history with race?  Separate but equal is a principle that was implemented and tried for over fifty years, depriving black-skinned people of basic rights for no other reason than to keep them confined as a permanent underclass.  It was only through brave protest and judicial oversight that such laws and practices were banned.  Today, America still wrestles with these demons.  Yet there are those who would want to bring back such principles, once more!

There is no doubt that the institution of marriage will one day be open to any individual who chooses to make a life-long, civil arrangement with any other individual.  The question before Californians is whether they will recognize this inevitability now, or choose to restrict liberty for some undefined period of time.  This is what it means to live in a democracy — you have to present this choice to the people and appeal to the “better angels of their nature”.  It is this choice, and this responsibility, which represents what it means to be free.  Only now, we will see whether democracy will be used as a tool to protect freedom, or as a means to oppress a targeted few.  We will see the nature of those angels; we will see what they are worth.

This entry was posted on Wednesday, October 15th, 2008 at 5:34 pm and is filed under Alternative Living, Freedom and Democracy, Law and Politics and tagged with bigotry, california, same sex marriage, separate but equal. You can follow any responses to this entry through the RSS 2.0 feed.