Halting the Gay Marriage March: The California Supreme Court and Proposition 8

It has been a rough past few weeks for gays – especially those from California. First, their representative to the Miss USA Beauty Pageant, Miss California Carrie Prejean, disavowed her support of gay marriage on national television (introducing into the lexicon the weird term “opposite” marriage).  Immediately following her loss to Miss North Carolina, the media devoted days of coverage to a debate on gay marriage, which could have been advantageous for the gay community but for the contumelious politicking of Perez Hilton. And, more recently, the ostensibly gay Adam Lambert (from San Diego) was defeated in contest on American Idol. Mercifully, the agitation surrounding the singing competition’s denouement was more benign.

Of course, on the issue of gay marriage, the actions and statements of the world’s most glittery citizens are outshined by the decision released Tuesday, May 26, 2009, by the California State Supreme Court. In a 6-1 decision, the justices upheld Proposition 8, which made illegal homosexual marriage in the state of California. Gay activists sought to invalidate the new law by arguing it fundamentally altered “the governmental plan or framework of California.” It was agreed, even by some in favor of gay marriage, that the claim lacked merit. For this reason, it is likely the legal challenge to Proposition 8 is over (the only option left open to litigants is the U.S. Supreme Court). Still, the opportunity will be available for gay marriage advocates to reverse it through ballot initiative in a future election. And, if trends continue, they may only have to wait another couple of years.

The interim, meanwhile, provides a serviceable opportunity for both sides in the gay marriage dispute to consider their part in the broader context of history. It will be a unique time for opponents of gay marriage. They must focus hard on marshalling arguments that will be least shameful when forty years from now students are studying this latest American travail for civil liberties. They must decide if they will choose statements like the one from Mike Choban – “If marriage were between two men society could not go on. It’s not fear; it’s just the way it should be.” – to represent them when the dust settles. GOP Chairman Michal Steele seems to be working to recast the debate. Unfortunately, his attempts demonstrate (or accentuate) his party’s inexperience with making a social argument not lacquered by religion. Gay marriage, he says, will force small businesses to open their wallets for people they have “no responsibility for.” Here, let it be noted, the GOP presents a social proscription with an economic justification. It is very refreshing, but also fatuous. Keep trying, Mr. Steele.

In the spirit of charity, I’ll try and outdo the Chairman and provide a more stable platform for opponents of gay marriage to stand upon. To begin, let us consider why the government involves itself in marriage at all. From the outset it seems peculiar. Marriage is a social custom that originates from the evolutionary biology of primates. Successful primates formed family units which could best care for offspring. In human society, this instinct was codified through religion. Having a child out of wedlock was taboo, adultery was sin, and thus procreation was relegated to the married. In modern society, the wisdom of these religious dogmas became a tool. Successful governments required expanding populations and the institutionalization of marriage was the logical outcome. To improve upon the inducements of religion, governments began to create their own. These presented in the form of tax incentives, medical permissions, insurance benefits, etc. Because, for many reasons, people are reluctant to procreate outside of marriage, governments across the world established laws that actively promote emotional, psychological, and spiritual unions. However, the primary achievement of marriage is, and always has been, the physical union and the replenishment of the species.

Thus presented is one conceptualization for legalized marriage in society. If they are willing, opponents of gay marriage may insert themselves here. The argument that says heterosexual marriages are lawful because the state wishes to maintain a stable birthrate; whereas homosexual marriages are unlawful because – on their own – they do not grow the population; has the outline of a defensible position. Should opponents adopt something resembling this example, the gay marriage debate would be worth having.

 But enough with the opposition.

To gay marriage activists: catch your breath, let rest your placards and righteous anger, and use this interim in legal wilderness to meditate on the achievements you have so far won. In the past few decades recognition and rights for gays have grown enormously. Now, in the past couple of years, they seem to be growing exponentially. Opposition to gay marriage, which rests most firmly in the minds of the older generations, is withering away. In today’s youth there can be observed the incorporative sentiments that were present for blacks in the 1960s. In young minds, the vice-grip of xenophobia is decaying. When the final law is passed (or gavel struck against the dais), the one that puts to rest the necessity of your movement, you will notice that the scene will not be of two equal foes, with one just barely overcome. No, by the time gay marriage is fully tolerated by law, the opposition will be small and – more importantly – silent.


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