Liberty in America
columnist: rtbohan

Topic: Presidential Campaign 2008
Right on Schedule

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The Designated distraction, same sex marriage, is back in the campaign. What will Barr, McCain and Obama do?

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by rtbohan
(libertarian)
Wednesday, July 9, 2008

In May,2004, the Supreme Court of Massacusetts declared that it was a violation of the Constitution of Massachusetts to deny marriage licenses to same sex couples. It became a widely publicized campaign issue, trumping things like the War in Iraq, the War on Drugs, the War on Terror and the War on the economy. In June, 2008, the Supreme Court of California, in a tortured decicion, ruled that it was a violation of the Constitution of California to deny marriages liecenses to same sex couples.([link edited for length])

It almost looks like a conspiracy.  

The California Supreme Court ruled (in a majority opinion) that California's Definition of Marriage law, which defines it as allowed only between one man and one woman, violates the non-discrimination clause of the California constitution.  The non-discrimination clause forbids discrimination on the basis of sex, race, religion, national origin or sexual orientation.  The first  problem with the ruling is how it arrived at this conclusion. The majority opinion says that both men and women have the right to marry under the California law.  When they wish to marry, they add a third entity, which is the couple.  The definition of marriage does not discriminate on the basis of sex or sexual orientation as far as the individuals are concerned, but by limiting it to one member of each sex, the law discriminates against the posited third entity, a same sex couple, and therefore violates the constitution.  The creation of this third entity is the whole basis of the ruling, and it is an example of the "Humpty Dumpty" rule--"When I use a word it means exactly what I want it to mean, nothing more and nothing less".

Aside from the rather strange legal reasoning employed by the court, several other questions arise.  Why California? Why Now?  Why a Republican Court?

California does have a rather strict definition of marriage law, which was adopted by referendum after the massacusetts decision.  It also has a civil contract for gay couples which, despite some shortcomings, is one of the most comprehensive in the country.  Under California law, same-sex partners who entered into a civil contract are entitled to all the legal privileges and benefits as married couples.  The major shortcoming of the law in this respect is that it does not provide the same benefits to couples who have entered into a civil contract or a marriage in other states. 

In writing about same-sex mariage earlier article,([link edited for length]), I said that I thought that most same sex couples were mainly concerned about being denied the benefits the state reserves for married couples. I pointed out that the state issues a license permitting marriage, and registers the marriage once it has been performed.  But the state does not marry people, and it imparts neither sanctity nor social acceptance to the relationship.  Sanctity is the business of the churches, not the state, and people are free to relate to couples, or not relate to them as they choose.  So California seems a particularly strange place to bring the suit.

Some within the gay community say that they want to be able to say they are married, to refer to each other as husband and wife and to have the social dignity of being married.  But you can call yourself anything you want in public or private--"husband", "wife", "cuddles", "snookums".  You can refer to yourself as married even if you have no marriage licence (heterosexual couples do it all the time.  You can take the same last name if you choose.  Basically, in others words, in California you have all the rights a married couple has, and in social situations, no one asks to see you marriage license anyway.  So why were the suits brought? I said that I did not believe that most gay couples were interested in the right to marry primarily to emulate or shock the social conservatives.  But some of them are.  I would assume that they believe the ruling from the court will hasten a societal change toward acceptance of same sex couples which is already under way.  As the rapidity of collecting signatures for Proposition 8 shows, it is likely to have the reverse effect.  Pressure groups prefer going to the courts rather than the legislature or referendum because they see this as a way of preventing argument and discussion of change.  But it distorts the political process, and is less effective in the long run in calming opposition than going to the people directly or indirectly.

The suits challenging the California definition of marriage having come through during a Presidential election campaign serves the interests both of the gay and lesbian interest groups (but not necessarily the gay and lesbian community) and the Republican Party.  For three of the last five presidential elections, gay and lesbian issues have been pushed to the forefront ot the presidential campaign and the Democratic candidate has dutifully put himself in the gay and lesbian camp.  The Republican candidate, in the meantime, has had an issue on which he can ask for and win the votes of social consrevatives even when he is not himself a social conservative.  And this year, right on time, here we go again.  Pundits have been looking at the California decision and analyzing what it means to have a Republican Court side with the gay and lesbian plaintiffs.  The answer might be smart Republican politics.

The immediate response to the decision of the court, aside from 4,000 applications for marriage licenses by gay and lesbian couples, was a petition to move the definition of marriage from a California law into the California constitution.  The Proposition has already been certified for the November ballot.  Equality California, joined by other groups, has already filed a law suit to remove the proposition from the ballot([link edited for length]).  The basis of the suit is that the proposition is a revision of the constitution rather than a simple amendment to it.  Since the proposition would effectively contradict the non-discrimination provision of the constitution, they may be able to win the case.

Both John McCain and Barack Obama immediate jumped into the Proposition 8 campaign, implying that they regard it as a proper matter for presidential candidates (and therefore the President and other federal officials) to be involved in.  McCain came out in favot of the proposition, thus certifying his belief that marriage should be limited to one man and one woman (at a time).  This will probably help his campaign with conservatives and he will benefit from votes cast by those who turn out for the election primarily to vote in the referendum.  Obama immediately came out against the proposition, although California law at the present time reflects his personal opinion.  He has said that he is in favor of marriage only between a man and a woman, but favors civil contracts for same-sex couples.  His campaign later released a statement that he opposed the proposition because he was afraid that it might lead to a reduction of the rights same sex couples in California have under the civil union law.  But this is rather a stretch, since that question is not at issue in the proposition itself.  So Obama seems to have left himself, again, open to the "flip-flop" charge on an issue which is not a proper issue for presidents or candidates for President in the first place.  Of the other candidates in the race, Ralph Nader will soon come out with a position which will be said to insult somebody, Bob Barr has already written Proposition 8 into federal law, the Green Party in California has already announced its opposition, and Proposition 8 is a part of the Biblical U.S. Constitution which the Constitution Party is pledged to support.

So the questions of War in Iraq, War with Iran, War on  the Economy will have to compete for attention while the candidates quibble over the law of California.

The decision of the California Supreme Court will quite possibly result in a loss of liberty for te gay and lesbian community of California and elsewhere. And it might result in the election of a President McCain.

Judges are fond of the quotation "Hard decisions make bad law"  They ought to remember that Bad decisions have the same effect.

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©2008 rtbohan, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Wednesday, July 9, 2008
Last modified: Wednesday, July 9, 2008

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