After a singularly frustrating day, some of the best news I’ve heard in months: San Francisco Superior Court judge Richard Kramer ruling that “the state’s 28-year-old law defining marriage as a union between a man and a woman is arbitrary and unfair.”
“No rational purpose exists for limiting marriage in this state to opposite-sex partners.”
Well, duh. I’ve been begging someone to give me a rational, non-faith-based reason why a government should care about the sex of marriage partners for months, and still haven’t heard one.
A discriminatory law “cannot be justified simply because such constitutional violation has become traditional,” Kramer said. He said the same argument was made and rejected in 1948, when the California Supreme Court became the first in the nation to strike down a state ban on interracial marriage.
It’s a great day for humans, though we should be sober enough to realize that the ruling could be struck down in the future.
What I don’t get is where the “activist judges” epithet comes from. Is it not the role of a judge to interpret law when existing laws or constitutions leave it unclear? Kramer is not making laws, nor is his analysis of the constitution out of bounds with reason. Yes, the people voted in Prop. 22 that marriage was to be opposite-sex. But Prop. 22 is unconstitutional. The people enacted a law that goes against a more fundamental law of the land. Judge Kramer is not being “activist” — he’s making clear that the people must change the constitution if that’s what they want — they can’t simply enact laws that contravene it. Where exactly is the “activism” here?
One small step at a time. Someday we’ll wonder why this ever seemed controversial.
Well, duh. I’ve been begging someone to give me a rational, non-faith-based reason why a government should care about the sex of marriage partners for months, and still haven’t heard one.
Well, uh…that’s because there isn’t one. Every single anti-gay argument I’ve heard has been a thinly veiled religious diatribe.
And yes, I know “religious” ’cause I am :) Of course, I go to a “welcoming” church which probably means I’m not a real Christian (sarcasm alert – imagine that, a church that welcomes everyone ;)
Activist judges? I always thought that meant people like Judge Roy Moore from Alabama, who imposed a 5000 lb. stone Ten Commandments monument on his court building. If he isn’t an activist judge, who is?
>What I don’t get is where the “activist judges” epithet comes from.
I’d wager it came from the Heritage Foundation. The same people who came up with (or at the very least embraced and popularized) welfare mothers.
See: Kicking America’s Welfare Habit: Politics, Illegitimacy, and Personal Responsibility by the Honorable Pete Wilson
http://www.heritage.org/Research/Welfare/HL540.cfm
They give a nice definition of Activist Judge in another paper:
Then there’s this gem from 1997, by our favorite Attorney General, John Ascroft:
Courting Disaster: Judicial Despotism in the Age of Russell Clark
>I’ve been begging someone to give me a rational, non-faith-based reason why a government should care about the sex of marriage partners for months, and still haven’t heard one.
How’s this for a partial answer?:
First ask yourself why the government cares about marriage at all? After all, the government doesn’t care when you choose a new friend or even a boyfriend/girlfriend.
My answer is that marriage is a social contract that has some benefits for society as a whole, particularly in the area of rearing children to provide the next generation. With this in mind most of the legal benefits/rights of marriage are intended to promote the raising of children and the maintenance of the marriage contract, albeit within the context of a societal structure that may no longer apply.
Examples of such rights include a spouse’s entitlement to a deceased worker’s job-related benefits, the primary idea being that a stay-at-home mother would have some means to bring up any dependent children in the absence of the deceased wage-earner. They also include a spouse’s a priori right to a share of a deceased’s estate, sometimes even in the face of will to the contrary, again for much the same reason.
All of this costs society lots of money.
Therefore the government is better off limiting the benefits of marriage to those who are most likely to have children. In the absence of a detailed analysis of every couple’s intentions and ability to have children, sexual orientation is a simple and self-evident (in the sense that it is fairly easy to the tell the sex of both members of a couple) way to make the call within the current legal framework. Of course this will be unfair to many homosexual couples who already have children from previous relationships or who intend to adopt. And heterosexual couples who have no intention or ability to have children get a free ride of sorts.
Which is why I would suggest that most of the benefits/rights that are currently associated with the status of being married should only became available when a couple reach the status of being married parents. And that should include being parents via adoption. Again, whether a couple has children or not is a simple and fairly self-evident measure. However, re-writing all the current laws that deal with the benefits/rights of marriage would be a giant task.
However, once the source of benefits/rights has been redefined in this way, and throwing in a default pre-nuptial agreement to guarantee some basic rights in the event of a separation, the difference between a legal marriage and a civil union seems small to non-existant. I personally wouldn’t care what my pledge of love and commitment to my partner was called in these circumstances.
Thanks for the thoughtful response Jayzeep. Some points in response:
> First ask yourself why the government cares about marriage at all?
It’s a legitimate question, and deserves more exploration. Many of the libertarian readers here have argued that government should get out of the marriage business altogether, and I have to say I agree. It’s a personal decision, or perhaps a religious one for some, but it’s hard to think of a good reason why govt should be involved.
> My answer is that marriage is a social contract that has some benefits for society as a whole, particularly in the area of rearing children to provide the next generation.
On the surface that’s true, but if that’s the govt.’s actual premise, it’s incredibly weak, as it presumes that people wouldn’t have children if there was no such thing as govt-sanctioned marriage. Tell that to the n million years of human society that predates the institution of marriage! Humans make babies just fine, thanks very much, without government help.
Even given that this is the government’s presumed concern, married people are free to have kids or not, and so are unmarried people. The “most likely to” argument is just too fuzzy to hold up to reality.
I appreciate that you’ve taken a stab at presenting a rational argument in favor of hetero-only marriage, but I don’t think it quite stands up.
Scott thanks for your response. I agree upfront that my argument is relatively weak in a totally rational world. And I agree that hetero-only marriage is unfair – I wasn’t trying to justify it as a perfect solution but rather trying to give one possible explanation of why a government might prefer to consider it the norm.
In turn, your argument that “people have been having kids for millions of years without legislation, so why should the government get involved?” does not hold much water either on its own. People have been doing most things for millions of years without governments existing, but I haven’t heard any good arguments for getting rid of governments altogether now that they have been invented. The arguments always revolve around what activities are “personal”, and therefore should be off-limits to government interference, and what are “public”, and therefore allow for some degree of government interference.
It is not as if the government just tells someone what to do within their legal marriage and doesn’t give the married couple anything back. In as much as the government and society do give something to every married couple, ranging from tax breaks to certain special protection within the law, there must be more to the government’s involvement in marriage than just some fascist desire to tell people how to live their lives.
If society were willing to remove all the legal and fiscal benefits from marriage (assuming your argument that they make no difference to child-rearing or the permanence of relationships), then the only people who could “legitimately” have an issue with homosexual marriage would be narrow-minded religious groups, and the only sanction that they could impose would be to deny a homosexual couple religious recognition of their marriage within their own religion(s). However, in this ideal world why would homosexual couples be clamouring to have their marriages recognised by the government? What difference would it make?
Isn’t the real reason for making homosexual marriage legal the natural human desire to have one’s deep emotional relationship recognised, applauded and supported by all those around you? And an equally natural human desire to force others to accept that your way of life is as acceptable as anyone else’s? That’s why I would prefer to change marriage so that it is legally and fiscally neutral and move the relevant tax and legal breaks to child-rearing, where I think they belong.
Does this stand up any better? :-)
(Sorry, I’m not sure what the etiquette is here about following up your own posts, but having just come back from the pub, I may not have made myself entirely clear in my previous post…)
Just to wrap up – for now :-) – what I am trying to say in my best libertarian accent is that the government should pull out of the marriage game altogether and just support civil unions with some basic legislation to protect individual property rights. Sanctioning of “marriages” should be left to religious and/or any other groups that an individual couple want to turn to. Thus homosexuals and heterosexuals get the same treatment from the government and no-one is discriminated against.
JayzeeP, I think we’re pretty much in agreement on these points, just expressing ourselves in slightly different ways (you more carefully than me).
> However, in this ideal world why would homosexual couples be clamouring to have their marriages recognised by the government? What difference would it make?
We’ve let the discussion bifurcate into three threads:
1) Should govt. be involved in marriage at all?
2) Why should govt. want to promote the raising of children? There are too many people already.
3) Is there a rational argument against gay marriage?
To be realistic, I think we have to grant that govt. will stay involved in marriage for the forseeable future. Given that premise, I still don’t see how govt. can rationally or fairly discriminate based on the sex of partners, because I don’t grant that govt. has a demonstrable interest in promoting the creation of more children.