So, here goes.
First, Kip manages with just a few “hasty stitches,” as Kip calls them, to cut through the legalese and underscores some aspects of the ruling that were totally lost on me. But then, of the two of us, he’s the on with the law degree.
I find especially frustrating the critiques of the decision relative to the gains California gays have made through the legislative process. The idea that gays’ ability to obtain a few crumbs — or even a comprehensive Domestic Partner Rights and Responsibilities Act — from benevolent legislators at some point in the past somehow negates the fact that gays are a permanently disadvantaged minority politically (or that there is no basis, under any standard of review, to allow this “just one bit of unfairness” to endure) is as baseless a proposition as the notion that “tradition” is a valid excuse for perpetuating injustice. It is the same sort of cruel drivel that Justice Scalia spewed in his vitriolic Lawrence dissent.
> Similarly, Judge Baxter’s dissent, making this same spurious argument (rather obnoxiously — “This is simply not so.”), gets it exactly backwards. It is indeed “simply so.” The fact that “California gay couples may already have 99% of what California straight couples have” shows not that corrective action is unnecessary, but exactly the opposite: That the missing 1% can only be explained by an improper cause — why deny gays that last 1% of equality except for some impermissible reason? See generally, Romer v. Evans.In conclusion, I never cease to be amazed that anyone, libertarian or not, bigot or not, gay or not, would dare suggest that there is such a thing as a “right to demand that someone else wait for their rights.” As I noted earlier, waiting to win more hearts and minds might be skillful pragmatic politics, but it is simply not the moral high ground.
I haven’t yet heard it put any better than those last two sentences.
Hans Johnson, who’s also a former coworker of mine from my HRC days, highlights a significant passage from the ruling that may resonate in other courts in years to come, and then arcs the spotlight from the bench to a personal moment that portrays what the ruling is all about.
George, in California, like Kennedy before him, held forth with a boldness informed by such extremism and determined to limit its tyranny. Similar to Kennedy, he struck down the specific provisions before him in a holding that transcends discrimination in the marriage cases. He wrote: “An individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.”
The court applied an age-old insight to efforts by antigay leaders to infringe on the rights and freedoms of a minority group through a referendum, like the one restricting marriage rights approved by California voters in March 2000. Hostility and hype aimed at barring a group of people from accessing a right they seek recalls a line from Shakespeare: You really do protest too much, the court, in essence, ruled.
But seek marriage gay couples have. “We waited more than 50 years for the opportunity to marry,” said Phyllis Lyon, 83, a San Franciscan who, along with her partner of 56 years, was a plaintiff in the California case. “We are thrilled this day has finally come.”
This isn’t necessarily related to same-sex marriage, but this Alternet post about why we care about other people’s sex lives (well, really about attitudes towards sex workers) includes a passage that is at least relevant if not related.
But I think there’s a core assumption underlying the argument, one that makes it hard to argue against merely by offering boring old evidence. And it’s an assumption that doesn’t just apply to sex work. It’s an assumption that gets applied to all kinds of sexual variation … and not with very happy results.
The assumption is this:
“Everyone must like — and dislike — the same sexual things I do.”
“If other people do sexual things that I don’t enjoy,” the thinking goes, “they must not be enjoying it either. And there must be something dreadfully wrong with them for them to do sexual things that are so obviously not enjoyable. They must be troubled, crazy, under coercion.”
(And let’s not forget the parallel notion: If other people don’t enjoy things that I do enjoy, there must be something wrong with them as well. They must be repressed, uptight, out of touch with their bodies. The sex-positive world can fall prey to these assumptions, too. I certainly have. “Everyone is basically bisexual, if they would just be honest with themselves” … Loki in Heaven, was I ever really that young?)
The Science Avenger also takes apart some of the empty arguments against same-sex marriage, like the one from the previous post.
(Also, this autistic blogger had an interesting take on same-sex marriage and social changes.)
Earlier this week, I spoke with a colleague about the California ruling. He happens to be heterosexual, and was happy about the ruling. He said at first he thought about in terms of the political impact, until he received a phone call from a California relative who told him that she would marry her partner of several years, after the ruling. What was good news became happy news; it became personal. The most interesting thing he said was that he was not so much pro same-sex marriage as he was pro-marriage in general, regardless of whether a couple is same-sex or opposite sex. He saw it as an incredible good that out to be equally accessible to both.
I was reminded of our conversation when I read E.J. Dionne’s story of how he came around.
Imagine what it would be like not to be able to marry the person with whom you want to spend the rest of your life. Then imagine how tens of thousands of gays and lesbians in California must have felt last week when the California Supreme Court declared that homosexuals have a right to marriage under the state’s constitution.
My visceral reaction to this decision, rendered by a moderately conservative court dominated by Republicans, was to share the joy of the gay and lesbian couples you saw celebrating on television. But my practical reaction was to wonder whether this decision would speed or slow our country’s steady change of heart on the matter of recognizing committed gay relationships.
As it happens, I am one of the millions of Americans whose minds have changed on this issue. Like many of my fellow citizens, I was sympathetic to granting gay couples the rights of married people, but balked at applying the word marriage to their unions.
“That word and the idea behind it,” I wrote 13 years ago, “carry philosophical and theological meanings that are getting increasingly muddled and could become more so if it were applied even more broadly.”
Like a lot of people, I decided I was wrong. What moved me were the conservative arguments for gay marriage put forward by the writers Jonathan Rauch and Andrew Sullivan and New York Times columnist David Brooks.
They see society as having a powerful interest in building respect for long-term commitment and fidelity in sexual relationships and that gay marriage underscores how important commitment is. Prohibiting members of one part of our population from making a public and legal commitment to each other does not strengthen marriage; it weakens it.
Dionne’s words came to mind when I read Kathy G’s post about how she came around on whether pursuing marriage equality was a good political strategy.
When GLBT activists first began pressing for gay marriage, and when in fact many GLBT groups made gay marriage the top priority on their political agenda, I thought it was probably the wrong decision on their part, both strategically and substantively. It’s not that I opposed gay marriage, but I thought that other concerns — such as the right to be free of discrimination in jobs and housing, and even the right to serve in the military, were more important.
I also thought that pushing for gay marriage was too radical. Face it, gay marriage is a lot of conservative folks’ worst nightmare. Wouldn’t it be better to work up to that gradually? To ease people into it by first advocating for less controversial measures, like a statute outlawing job discrimination against GLBT folks? Or by not asking for anything more, for now, than civil unions?
Gay marriage as an issue didn’t sit right with me for another reason: it seemed not only too radical but also too conservative. There are radical traditions within the GLBT liberation movements that are sharply critical of marriage for being a conservative, bourgeois, heteronormative institution. I always found those critiques useful, as I did the (similar) feminist anti-marriage critiques. I never entirely embraced the anti-marriage ideology, but I thought there was much truth in the anti-marriage arguments, and much reason, for me and other feminists, to be deeply skeptical of marriage as an institution, and and to view the romanticized portrayals of marriage that saturate our culture with a gimlet eye.
…All of which brings me to the change of heart I’d had about gay marriage. It now seems obvious to me that focusing on gay marriage was a stroke of genius on the part of the GLBT groups. It was daring, because it dramatically took issue with conventional wisdom (the same kind of conventional wisdom that has so sagely counseled us that, among other things, Democrats shouldn’t oppose the Iraq War, or they’ll look weak, and that Democrats shouldn’t “go negative” against the President, because that will be unpopular. And on and on). But it was brilliant, because it gets people right where they live. It exposes the evil lie on the part of conservatives that being gay is about some debased, sinful lifestyle, and makes it crystal clear that what the whole gay rights debate is really about nothing more than the right to love, and to live in dignity.
That seems like a pretty good note to end on, I think.