Activist “Republican” Judge Says CA Marriage Law Unconstitutional:
San Francisco Superior Court Judge Richard Kramer, described in the press as a Catholic and Republican, ruled on March 14 that California’s Proposition 22 is unconstitutional and violates the equal protection clause of the California Constitution.
Proposition 22 was passed in 2000 by 61.4% of the voters. It requires the government to define marriage as a one-man, one-woman union under California law.
Because Catholics and Republicans couldn’t disagree on this, could they?
Right?
As for the “61.4%,” this is a game both liberals and conservatives play. What’s right is right, regardless of the percentages. Law in the United States has always been used to protect the minority from the majority; it’s part of the great American tradition of representative democracy. But I suppose whining about the results of an unpopular decision is also a great American tradition.
What’s right is right, regardless of the percentages.
Not a helpful argument, I’m afraid. In fact, with the proper capitalization, it becomes the essence of the dogmatic conservative argument: what’s Right is right (and what’s right is Right).
What we need is a universal articulation of why certain things are “right” (a better, less religiously-charged term might be “serve our common interest”). Such an articulation, to be effective, which means, to provide a unifying, motivating basis for common action, must be based on our common humanity, not based on sectarian beliefs—whether they are in Jesus, Buddha, Adam Smith or Karl Marx.
We must be able to explain why what is “right” does not require partisan beliefs. We must be able to explain why people of all cultures and points of view can agree on a “right”, without requiring acceptance of an entire dogma to go along with it.
The right of humans to form lasting, loving unions via formal contracts that bestow equal rights and responsibilities to all similar lasting, loving unions, should become a human value, not a “liberal” value, or a “Christian” value, or a “capitalist” value or even a “Godly” value.
Only by surrendering our commitment to placing our beliefs and ideologies over those of others, can we commit to making real change in the world. Only when we elevate human rights above our sectarian beliefs, can we work together for true change.
I believe that the greatest barrier to progress in transforming the conversation from a war against conservatism to a flowering of human self-realization is our unwillingness to engage in such a conversation, because:
a) we fear that ours is a fragile coalition facing united opposition, and that if we have a true democratic conversation about our core values, the divides in that coalition will overcome our common interests;
b) because most of us are more committed to our beliefs than we are to each other.
We must release the idea that changing reality can only occur by changing entire world-views.
In this case, we need to rearticulate a strictly rational human justification for same-sex marriage.
History should teach us that the fact that the opposition to such unions is based in religious belief (which, I understand, some think is based on mistaken interpretation of “The Truth”, while others believe just as ardently that it is based on a correct interpretation), this basis does not preclude universal acceptance. Slavery, segregation, and disenfranchisement of women all had their basis in religious beliefs, and, specifically, the Christian community was similarly divided along the conservative/liberal interpretation lines in determining “God’s will” with regard to these issues.
Nonetheless, we live in a society today that nearly-universally rejects slavery, and embraces race and gender equality, at least in principle, and increasingly in practice.
Note that this happened without converting all conservative Christians into liberals.
Note that this happened without converting all capitalists to socialists.
Note that this happened without converting all atheists to Christianity.
Note that this happened without converting all Republicans to Democrats.
Why? How?
Because these civil rights were articulated in universal human terms, to an extent that even the relatively rigid dogmas of conservatism adjusted to accomodate them.
Of course, one of the greatest tools to change mindsets if the power of evidence. When slaves were liberated, and the global economy didn’t collapse, that irrational argument lost steam. When desegregation occured, and American civilization did not collapse, that irrational racist mythology collapsed instead. When women gained suffrage, and the American republic thrived, discrimination was no longer tenable as an argument consistent with a world-view that provided a positive self-image.
These processes are not linear, or sequential. It all happens at once. The more same-sex marriages we see, without the world coming to an end, the weaker the arguments against it will become. But not until we agree on a universal language that transcends faith, ideology and politics, not until we make a case for civil rights based solely on indisputable common human principles, can we hope to move the debate forward and achieve actual change.
As long as it is more important for us to convert others to our beliefs than it is to put them into action, we will continue to be defined by what divides us, rather than what unites us.
Oops.
“Not a helpful argument, I’m afraid. In fact, with the proper capitalization, it becomes the essence of the dogmatic conservative argument ….”
The argument that “What’s right is right, regardless of the percentages” is perfectly sound. The right to marry is fundamental. As Justice Jackson stated in Barnette, “The very purpose of [having fundamental rights is] to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and elected officials and to establish them as legal principles to be applied by the courts. One’s right to … fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
We have constitutions at the federal and state levels because we believe that some rights are so important that they shouldn’t be put to a vote. This approach protects minorities. We don’t have to worry about the majority as much because the majority can protect itself at the voting booth. But minorities need judicial protection precisely because they don’t have the numbers to be as successful through more traditional democratic means like lobbying and voting. Conservatives certainly don’t have a monopoly on arguing that minorities deserve constitutional protection even when offering the protection is politically unpopular. I mean, we don’t want to throw out Brown v. BOE, do we?
Thanks, Rat. That’s essentially my position–only a whole lot more succinct and clear than I could have put it.
So you don’t care if you are preaching only to the choir? Even if there is might be another compelling argument that could take this argument out of the realm of religion and “personal morality” and make it a universal human rights issue that even social conservatives could come to agree on?
The right to marry is fundamental.
Of course, opponents of same-sex marriage don’t argue that the right to marry is not fundamental. They simply define marriage differently than we do.
In fact, I define it differently than many liberal Christians do, who support civil rights in principle but insist that “civil unions” are sufficient. Like the conservatives, they place their sectarian faith above common human values and democracy. The only difference is the degree of injustice they are willing to impose by virtue of that faith.
Which is why my argument (which I’m not sure you understood, probably because I didn’t articulate it clearly enough) is NOT by any stretch of the imagination that what is “right” should be determined by what is popular. I am tempted to say that is a straw man, but it is more likely a simple misunderstanding.
My argument, in fact, is that any argument for same-sex marriage that is based on a sectarian belief (“Jesus loves all people”, “the founders didn’t mean for the Constitution to blah blah blah”, “workers of the world unite!”), is as inherently divisive and inciteful and counterproductive as faith-based arguments in opposition. It presumes to impose one morality on all, exactly as conservatives theists do.
Rationally, legally, structurally, there is no compelling reason to differentiate between a same- and a different-sex marriage. It should be a human rights issue, NOT a Christian issue, or a Democratic Party issue, or a Liberal issue, or a Left issue.
Finally, I’m not sure where in my argument you got anything remotely supporting putting basic human rights to a popular vote. Throwing out Brown v. BOE? Not sure how the hell you got from what I’m saying to that!
I’m simply saying that we need to articulate a universal, human-rights reason why same-sex marriages should be the law, just as we don’t need to resort to either Scripture or the Little Red Book to oppose slavery or support a woman’s right to vote.
Does that help clarify my position?
I agree completely with your position that gay marriage “should be a human rights issue, NOT a Christian issue, or a Democratic Party issue, or a Liberal issue, or a Left issue.” In fact, I thought your original comment was excellent both in form and content, and rated it accordingly. Because you expressed yourself so well, I didn’t feel the need to comment on the bulk of your post.
I only meant to disagree with your claim that pastordan’s argument wasn’t helpful. Within the gay marriage debate, Republicans like to point to statistics showing that gay marriage is politically unpopular. For example, Maggie Gallagher’s current column “A California Court’s Case Against Civil Unions” operates under the premise that voters should be able to decide the issue. I think pastordan’s argument, which I elaborated on in my comment, is “helpful” in rebutting that Republican premise.
In the end, I think our arguments complement each other, and I didn’t mean to leave the impression that I thought you bought into their premise.
I did misinterpret you as you suspected.
I think it is high time for a discussion about how to articulate progressive values in general in the most universal, fundamental and non-sectarian terms.
When we claim to be promoting progressive values, all-too-often we are actually pushing progressive solutions, which is what prevents dialog from emerging. Self-labeled “liberals” and self-labeled “conservatives” end up talking past each other rather than with each other. The disagreement ends up being about “Socialism” vs “Free Markets”, or “Intrusive Government (interfering in the marketplace)” vs “Intrusive Government (interfering in our bedroom)”, or about “What would Jesus do” vs “What would Jesus do”.
We will never resolve these binary arguments.
Meanwhile, the real needs of real people go unmet.
I believe there is a better way to actually see sustainable progress than a perpetual, pendulum-swinging power struggle over who control’s the votes this time around.
I’ll keep this (relatively short), and expand on these ideas in a diary soon…