I’m feeling relieved and proud of our legal system today. Today, Chief Judge Vaughn Walker of the Northern District of California decided Perry v. Schwarzenegger after a pretty lengthy trial. His order, thankfully, declares that California’s Proposition 8 violates the U.S. Constitution. As most people with any social or political pulse know, Prop 8 amended the state constitution to add the following: “Only marriage between a man and a woman is valid or recognized in California.” The practical effect of this amendment was to ban same sex marriages in California, with a few nuances. (For example, Prop 8 was not retroactive, so same sex marriages performed before its enactment were still valid.) Judge Walker’s 136-page order concludes that Prop 8 violates both Due Process and Equal Protection afforded by the U.S. Constitution.
I’m happy with today’s outcome even though it doesn’t impact me directly, per se – I’m not gay and I’m not marrying anybody of the same sex. Still, I’m happy with the outcome because, personally, I believe it is the right legal, political and, frankly, moral conclusion. I have a number of unmarried friends who are in same sex relationships and I can’t help but smile at thinking that today’s ruling eliminates a significant barrier that previously kept them from truly equal rights under the law. It’s been said before: why should same sex couples be deprived of the same right to postnuptial misery that married men and women enjoy?
I’m also happy with today’s outcome because, seems to me, it’s a logical and natural progression from the right to interracial marriage that the U.S. Supreme Court granted in 1967. Think about that – before Loving v. Virgina was decided in 1967, states had the right to pass anti-miscegenation laws that made it a crime (a fucking crime?!) to marry someone of a different race. Think about that – how many people do you know that are in mixed race marriages? How many of you are in mixed race marriages? That shit was illegal in some states not less than 43 years ago.
Now, I know some people, probably many, view the “mixed race marriage” question as entirely different from the “same sex marriage issue.” Not me. And I know there’s hardly convincing some people to the contrary, but let’s consider some of the rhetoric that surrounded both issues, just for shits and giggles –
The trial court judge that sentenced Richard Loving (a white man) and Mildred Jeter (a black woman) to 1 year in jail wrote this in his opinion:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” Loving, 388 U.S. 1, 3.
The judge then suspended the jail sentence on the condition that the Lovings leave the state of Virginia for 25 years. (Leave Virginia to avoid jail? I would’ve taken that, sheeeit…)
Now let’s look at one of the chief arguments that was made at the trial leading up to today’s decision in support of Prop 8:
“Proponents’ procreation argument, distilled to its essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. Tr 3050:17-3051:10. The state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Tr 3053:10-24. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because samesex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in oppositesex sexual activity.” (Aug. 4, 2010 Order in Perry at 10:5-22.)
Do you read the same moralistic, holier than thou mumbo-jumbo I read? (Don’t answer that cause I’ll just think less of you if you don’t.) It’s about, oh, half a century later and people are still caught up with this sanctimonious nonsense?! Don’t get me wrong – I believe in marriage. I, too, will be married in about a year. But what the hell do I care whether a black woman wants to marry a white man, a Micronesian a Swede, a fabulously dressed gay man another fabulously dressed gay man, a marvelously sculpted transsexual with a 12-inch-schlong-toting pre-op wearing wings? I don’t! I don’t fucking care – marry whoever the fuck you want, it bothers me none! And however much it is my business, it’s less the government’s business!
But, wait! you say. Prop 8 was not the product of an overly concerned government, but was an amendment resulting from a ballot initiative, the truest form of democracy that exists. And I say, ahhh, now we’re talking! In my opinion, that was the only rational argument in support of Prop 8. But that argument also has its limitations. First, consider the media campaign leading up to the general election in support of Prop 8. Remember those TV ads with the little boys running into the kitchen to tell their mommy that they had learned about gay couples in school – “Teachers could be required to teach your children that gay marriage is like ‘traditional’ marriage.” That media campaign was the biggest crock of shit-smelling steal and subterfuge I’ve seen! First of all, like kids learn anything in school anyway…Secondly, when is the last time you’ve heard of a grade school teacher teaching about any kind of marriage? As part of an anthropology lesson on Mowry wedding traditions, perhaps? Give me a fucking break.
Agree with me or don’t, I don’t frankly care. The point is this: how truly democratic can a process be when one incredibly well-funded viewpoint runs an aggressive, paranoid, largely inaccurate media campaign?
The more important point, though, is this: one of the primary functions behind any Constitutional protection is to protect the rights of minority groups from the whims of the majority. In other words, even if you assume that all people who voted “Yes” on Prop 8 were fully educated on the subject despite an aggressive one-sided media campaign (how’s that for a fair characterization?), so what if a majority of voters cast a “Yes” ballot that day? It doesn’t necessarily mean their vote is (a) a good idea or (b) Constitutional. A majority can’t just shit on a minority group’s fundamental rights because they want to.
So, yeah, I’m happy about today’s decision. And while it’s obviously not the last word on the subject, it’s a very important one as it’ll very likely be appealed all the way up to the Supreme Court. And if, on some happy day in the not too distant future, the Supreme Court affirms today’s decision, that’s pretty much all she wrote. (Unless, I guess, the U.S. Constitution is amended – good fucking luck with that!)
And how’s this for irony: Judge Vaughn was appointed by Bush, Sr., that champion of the moral right. I guess democrats aren’t the only ones susceptible to appointing rogue “activist” judges.
