Thursday, October 23, 2008

Proposition 8 and the issue of rights

This is taken from an ongoing discussion with a couple of friends of mine regarding Proposition 8.

I would like to explain that by definition--the understanding of marriage to be between a man and a woman is not an infringement of anyone’s rights. Any citizen, regardless of race, gender, or sexual preference may choose to marry as it is legally defined. So, by definition, people of homosexual preference are not discriminated against by the law--rather, it has a "disparate impact." In my effort to support this claim, however, I have focused on several reasons (the main one being the link between marriage and procreation) as to why the traditional definition of marriage should continue to be upheld by law. But there are other, perhaps more compelling reasons. Let me offer, then, the LEGAL reasons why reserving the term "marriage" to describe the union of heterosexual couples should not be considered unconstitutional. Now, by arguing this point, I am NOT stating that same-gender unions should not be respected and treated fairly by the law--I am simply saying that it is NOT unconstitutional or an infringement of fundamental rights to retain a separate definition for marriage and domestic partnerships.

Please allow me to explain. Until the very recent and controversial decision of the California Supreme Court to overturn two sections of the family code, the right to marry a person of the same gender has NEVER been declared by any court in CA. In order to do so, the court had to label “homosexual preference” as a suspect class--the same designation granted to “race” and “gender.” By labeling it as a suspect class, the court is then allowed to invoke “strict scrutiny” which basically allows judicial intervention when a suspect class has been shown to be discriminated against by law. (This is not to be confused with discrimination by individuals--which has been an unfortunate and despicable reality which I do not condone.) In order to qualify as a suspect class, certain qualifications need to be met. Without going into detail here (although I will be happy to post more on my blog) the court was severely divided over whether “homosexual preference” qualified as a suspect class and merited the use of strict scrutiny. In his dissenting opinion, Justice Corrigan (who opens by saying that he actually favors a change in marriage) explains that “the people are entitled to preserve this traditional understanding in the terminology of the law, recognizing that same-sex and opposite-sex unions are different. What they are not entitled to do is treat them differently.” (emphasis in original)

So what’s my point? The strongest argument against Prop. 8 is that it is an infringement of fundamental rights. If this is the case, it certainly should not pass and no decent person of integrity could vote for it. However, it is my claim, (and that of three dissenting California Supreme Court judges) that the slim 4-3 majority ruling overstepped the bounds of judicial prudence and has effectively legislated from the bench. Unlike other examples of fundamental rights being extended to all (like voting and interracial marriage), they didn’t just extend the benefits of marriage to gay couples, they ALTERED the current legal definition of marriage to do so. The people are the only ones with the right to amend the constitution. This ruling was unfair and unprecedented--homosexual preference has not ever met the qualifications of being a suspect class in ANY other case in California.

Until people are willing to see that these separate definitions for marriage and domestic partnerships are not unconstitutional, the argument of civil rights being violated will continue to obscure the issue of defining marriage. Now you may not agree with my definition of marriage, and I am fine with that--you are entitled to your opinion. But this change needs to come before the people through proper democratic channels. Although we are in essence voting on the definition of marriage now, because of the recent California Supreme Court decision, many people who share my opinion on how marriage should be defined are being misled and unfairly prejudiced by the idea that by doing so they are eliminating a fundamental right of another human being. It is my claim that this is not the case. I am NOT against the people deciding to change the definition of marriage if such an initiative comes through proper democratic channels--and although I will still hold my same opinions as to why it should be preserved, at least I will know that people are actually voting on the definition they espouse and not out of fear that they are infringing on someone else’s rights.

Comments are now closed.


Darlene said...

That was totally amazing. Thank you.

Jennifer B. said...

Thanks, Darlene!

beauandshariemccraney said...


m_and_m said...

So. Well. Done.

Michelle S. said...

You are a gifted writer. You are intelligent, eloquent, and kind. I think many people are voting yes on Prop 8, because of your influence.

Jennifer B. said...

In our country the voice of the people may amend a state constitution--as long as it is by majority vote and does not directly contradict a basic principle in the U.S. Constitution.

So, if you're asking me if I believe in the democratic process--yes I do.

djinn said...

A. We're a republic.

B. It is not illegal to be a homosexual, since Lawrence v. Texas.

C. California found that sexual orientation (like race or gender) does not count as a legal basis to deny rights.

E. Therefore, gay marriage.

F. To oppose, am I understanding that you say that ones sexual orientation IS a legal basis to deny rights?

G. What other rights do you think should be denied on the basis of sexual orientation?

H. The idea of marriage does change. Why is changing the idea of marriage from a same-race couple to a couple of any race (Perez v. Sharp) any different from changing the idea of marriage from a different-sex couple to a couple of any gender?

E. Your argument, I think, rests on your definition of "traditional marriage." However, is "traditional marriage" a legal concept? Before Perez v. Sharp, if it could be considered a concept, didn't it mean marriage between two people of the same race?

D. I notice you sidestep all of the changes that have occurred in the legal definition of marriage, without actually making an argument: "The basic definition has never been changed -- it is the union of a man and a woman." WHy is this the basic definition? Why not couverture? Why not disallowiing women to have their own checking accounts? (Lasted into the 60/s?) Why not only those between same-race couples?
You are merely making a semantic argument--"Traditional Marriage means just wht I want it to mean, right not" but that, alas, is not an actual argument.

Thank you for allowing me to leave a comment on your blog,

For what it's worth as you are advancing legal arguments on an open forum, you are at least implicitly allowing someone to make a different legal argument. And "Our side only lost by 3" is not a legal argument.

Jennifer B. said...

djinn, You make some very good points. Let me respond to a few of them.
A- Yes. We are a democratic republic
F - I am not saying sexual preference is a basis for denying someone their rights. What I am saying is that because marriage is between a man and a woman, some ideas about marriage may change, but the basic definition of it should not legally change unless the people desire it.
G - to clarify, no basic right should be denied to anyone because of sexual preference.
H. Perez v. Sharp is different because the right for interracial couples to marry was simply extended to them--it did not require the basic definition of marriage as being between a man and a woman to change. (This is one of the same claims made by the three State Supreme Court judges I previously mentioned.)

Furthermore, yes--marriage was legally defined in two different sections of the family code as being between a man and a woman, and although the 4 justices admitted that this was also the definition of marriage when the state constitution was written, they claimed that other legislative changes were enough precedent for this change to come about. Many others disagree.

Finally, this is not a semantic argument, even the 4 judges who made this change agreed that marriage between man and woman has long been the basic definition of marriage. They did not argue that point. What they did was decide that it was time to change it.

And since, as you put it, "our side lost by 3" it is now being considered as an amendment to the constitution so that it can not be unfairly changed again. Should this change come by the voice of the people, so be it--but defining marriage is not about taking away rights--it's about clarifying what that right is. Even people of homosexual preference may marry--but they must marry as it is defined--they don't get to change the definition unless the majority of the people agree.

Jennifer B. said...

djinn--I realize you left a few other comments. In the interest of space (and time) I am limiting them. I will try to respond to your questions or points, but only if I have not already directly answered them in one of my previous posts. Hope you understand.

Thanks for sharing your point of view.