Proposition 8: California’s Indecent Proposal
On November 4, voters across the country elected Barack Obama president by a margin that, if not overwhelming, was very nearly so. The crowning irony of that occasion–seen by many (rightly, I think) as a vindication of the long struggle for civil rights in this country–is that many of those same voters chose to disenfranchise one part of the population at precisely the same time they were elevating another.
And it’s not as though you could conceivably argue that they didn’t know what they were doing. Unlike the 2000 election fiasco, where Florida voters who intended to vote for Al Gore may instead have ended up voting for Pat Buchanan, there was no chance that anyone who voted Yes on 8 in California could have missed the measure’s intent. First, there was the wording of the proposed constitutional amendment itself, consisting of two sentence-long Sections:
Section One: This measure shall be known and may be cited as the “California Marriage Protection Act.”
Section Two: Only marriage between a man and a woman is valid or recognized in California.
Then there was the summary of the measure, written by the State Attorney General, which was no less succint:
ELIMINATES RIGHT OF SAME–SEX COUPLES TO MARRY. INITIATIVE CONSTITUTIONAL AMENDMENT.
*Changes the California Constitution to eliminate the right of same-sex couples to marry in California.
*Provides that only marriage between a man and a woman is valid or recognized in California.
And, by the way, we’ve been here before.
We’ve been told by opponents of gay marriage, nearly ad nauseam, that the right of two men, or women, to marry will somehow erode the fabric of the institution of marriage, if not of society as a whole, as if the institution–which has survived reality television, self-help books, and Elizabeth Taylor for God’s sake–is really on such precarious footing. What those same opponents won’t often tell you, if any of them dare to tell you at all, is that those same arguments were trotted out for decades before Loving v. Virginia.
Loving was the 1967 Supreme Court case that belatedly struck down the constitutional basis to prohibit interracial marriage. Until that time, laws existed on the books in several states by which interracial couples would face not just the usual (dirty looks, rocks through their windows, the occasional cross burnt on the front lawn, or worse), but also criminal charges on top of everything else. The court’s ruling at least changed the legal part of that, though some parts of society still grapple with the rest of it. From the court’s ruling:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Proposition 8 is troubling on a number of levels. First, there’s the Equal Protection clause of the Fourteenth Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Then there’s this idea that marriage somehow needs to be “defended.” Let’s think about this for a second (please). If marriage is, in fact, the bedrock upon which our society is built (which is often asserted, unless something else needs to be defended and stand in as the bedrock for an election cycle or two), are we not undermining the very foundations we seek to reinforce by denying that right to our citizens? Nobody, least of all the proponents of same-sex marriage, is suggesting that we legalize incest, polygamy, bestiality, or a host of other acts (though some on the Right seem to salivate over that very prospect). What’s at issue, and at stake, here is nothing more or less than equal protection under the law.
Anyone who can be called upon to pay taxes, serve their communities, love their neighbors as themselves, exercise their civic duty, or to fight and even die for their country, should not be told that they can have some rights but not others. If two people want to make a lifelong commitment to each other, with all the rights and responsibilities, joy and pain, good times and bad that come with that, they should be allowed to do so.
And yes, I know that some people will bristle at what they see as a false comparison between Gay rights and the civil rights struggles of the sixties. But it’s a valid comparison. For years, African-Americans were told that their claims to their human rights were “special rights,” much as the LGBT community is told today. Equal rights are just that; the rights, and the responsibilities they bring with them, are the same for everyone, or they bring justice, in the end, to no one.
Mildred Loving certainly thought so. She wasn’t given to public appearances or announcements, but she did speak up in 2007, forty years after the Supreme Court ruling that bears her name:
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.
Postscript: Many of the quotations herein come from the Wikipedia article on Loving v. Virginia.
November 12th, 2008 at 6:06 am
[…] Bogan writes angrily yet eloquently about California passing Proposition 8, which bans same-sex marriages. One of his points is that Californians could not possibly have […]