I’ve been trying to make sense of the outrage on the Right over the decision in federal court by Judge Vaughn Walker announced yesterday overturning California’s Prop 8, which outlawed same-sex marriage. Social conservatives seem to be asserting three non-existent rights that permit them to deny equality to lesbians and gays: a historic right (we’ve always gotten away with this); a divine right (my religion should prevail over yours); and majority rule (we got seven million people to vote for this and while all the rights of heterosexuals are unalienable by majority rule, yours are, nyah-nyah).
There is also fear-mongering to fall back on — “Your religion will be sued and forced to violate its tenets by performing same-sex marriages!”
DrewM at Ace of Spades HQ says his support of gay marriage is lukewarm, as long as it is done in a way that will never, ever happen — democratically, state-by-state — then darkly vows vengeance via amending the Constitution to make gay people count as 3/5 of a human being … oh, wait, I read that wrong … not to count as human at all. Most of the comments are shallow and vulgar, except for the ones that are shallow and vulgar and sexist, but I have enjoyed reading Sally Ann Cavanaugh pwn all comers:
You’ve yet to address what happens when this so-called enlightenment open the flood gates to lawsuits when churches refuse to perform same-sex marriages (Separation of church and state and all)
[Sally Ann:] No such suit would prevail. In such cases the separation of church and state along with the Free Exercise Clause would compel the court to rule that the government cannot force any church to perform any marriage ceremony. The issue is legal marriage, not religious marriage. And legal marriages are easily obtained through civil means.
“Progress” sure smells an awful like social decay and totalitarian rule by unaccountable god-kings. Wonder why that is?
[Sally Ann:] That is what everybody said who has supported an outmoded, antiquated social restriction and saw that restriction give way to freedom. I am not equating your beliefs with theirs, but this is true of those who supported slavery, segregation, anti-miscegenation laws and more. “More” includes dancing in public, wearing a skirt above the ankle and similar harmless practices.
Very good. Now where is the compelling state interest in sanctioning “marriage” amongst knobgobblers and boxchewers?
[Sally Ann:] You don’t understand the law. There must be a compelling state interest to deny these people equal treatment under the law. But if you’re going beyond the law to something more abstract, the compelling interests in recognizing their rights and treating them equally are freedom and liberty. You’re familiar with freedom and liberty, right?
The fundamental rationale social conservatives advance for denying equal treatment to lesbians and gays under the law — including the liberty and freedom to choose sexual partners and spouses on the same bases that straight people use: sexual attraction and love — is that gays are intrinsically evil. Because social conservatives say so. And this is why it is social conservatives who rot the moral fabric of society: the utter depravity of the act of damning a group of people for a being crime, cutting them off from participation in social institutions that promote moral development and prosperity and then denying the value of every deed they do that socons would count as virtuous if done by a heterosexual.
People who are stigmatized as intrinsically evil, whose good and virtuous behavior is dismissed, must have a very strong moral compass indeed to escape the corrupting observation that if nothing they do can ever be good enough, they might as well do as they please and be hanged for a sheep instead of a lamb. The thing is, a strong moral compass does not develop in people who are taught their very being is evil, apart from any of their deeds.
I do predict a benefit for social conservatives in equality for lesbians and gays. To wit, since it is religions that have struck at gays to force us into second-class citizenship, it was logical that gays would try to change the religions with the goal of stopping the persecution over religious differences at its source. Unfortunately, this provided social conservatives with seeming proof that gays would force changes on religions if ever we attained equality. As Sally Ann notes in her comment 287 above, this is impossible legally. However, equality removes the motive for trying.
Plus, gays and lesbians already have a church that will marry us, the Metropolitan Community Church — the church whose founding on Oct. 6, 1968, by gay ordained Baptist minister Troy Perry marks the real beginning of the modern gay rights movement (rather than the Stonewall riots in Greenwich Village in June 1969).
The only exception to this is that programs operated by churches and funded with government money, and/or operating on government land or in government buildings, would be barred from discriminating in such things as providing services and hiring. They would continue to be entirely free to discriminate in every program that they fund entirely on their own dime, in their own buildings, on their own land.
One of the reasons that religious leaders promote the lie that equality for gays would force them into changing the tenets of their religions is that equality for gays will be like a radioactive dye exposing the trainloads of government money that have been garnered by various church enterprises founded and operated for the purpose of getting the government to fund their evangelical activities. But, to repeat, they will continue to be entirely free to discriminate in every program that they fund entirely on their own dime, in their own buildings, on their own land.
The bottom line is that equality for lesbians and gays is going to strengthen the moral fabric of society by providing us with the right to the supremely socializing institutions of society: marriage, adoption and service in the military. Of these goals, marriage is the most powerful socializing force because the dream of marriage influences life choices for the better from an early age — such as deciding as a freshman in high school to work hard to get an education or learn a trade in order to be able to provide a better life for the spouse you will marry and the family you will have together.
Since I’ve been writing here pretty much the same things that Judge Walker in the conclusion of his opinion in striking down Prop 8, it’s no surprise that I agree with him:
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.