California

Last updated on: May 15, 2008 at 6:54 pm by Fred Clark

California 2008-05-15T18:54:55-04:00 Fred Clark

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“California Court Affirms Right to Gay Marriage“

and also —

“Gay Couples Celebrate California Court Ruling“

Game on.

From that first article:

“In view of the substance and significance of the fundamental constitutional right to form a family relationship,” Chief Justice Ronald M. George wrote of marriage for the majority, “the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

… “The right to marry,” Chief Justice George wrote, “represents the right of an individual to establish a legally recognized family with a person of one’s choice and, as such, is of fundamental significance both to society and to the individual.”

Chief Justice George conceded that “as an historical matter in this state marriage has always been restricted to a union between a man and a woman.” But “tradition alone,” the chief justice continued, does not justify the denial of a fundamental constitutional right. Bans on interracial marriage were, he wrote, sanctioned by the state for many years.

… “No religion will be required to change its religious policies or practices with regard to same-sex couples,” Chief Justice George wrote, “and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”

So a right for me must also be a right for thee. I’m not alone in finding that reasoning difficult to argue with. Lots of people will be upset by this ruling — or at least they will feign outrage as fundraising fodder — but you won’t hear any of them directly engaging that part of the court’s opinion. What you’ll hear from the most vocal of these opponents will be, instead: A) contra the last paragraph quoted above, fearmongering claims that your church will be forced to perform same-sex ceremonies or even be forced to hire gay clergy; and B) fearmongering claims that this will mean the End of Marriage and thus the End of Civilization and the End of the World. There’s a reason they call it homo-phobia. Those fears are in the former case factually incorrect and in the latter case hysterically unreasonable. But appeals to fear aren’t supposed to be based on facts or reason.

We’ll also hear a great deal, I suppose, about “activist judges.” If the people want rights to apply equally to everybody, this argument goes, then they should pass laws that say so, not simply rely on a constitution that says so. For the judicial activism complaint to be credible, those making it need also to make the case that the activist judges have made a bad decision. A proper interpretation of the state’s laws can’t be condemned as undemocratic judicial fiat. But don’t hold your breath waiting for the anti-judicial activism crowd to make that case.

Apart from the squawking clique of demagogues and those who follow them unquestioningly, there will also be a larger group, comprising millions of Americans even in California, who oppose and lament this decision. They do so based on sincere religious convictions and, to a surprising extent, without the visceral fear and hate that characterizes the demagogues’ response. Yet this larger group will also be unable to engage or respond to the core logic of the court’s decision. They will also be unable to explain why a legal right should apply to the majority but not to the minority. Instead, they will speak of God and what God has ordained; they will speak of sin; they will cite verses from the Bible. They will, in other words, present a theological argument while side-stepping the legal and constitutional questions.

I disagree with the theological argument presented by these faith-based critics of the equal right to marry, but that’s actually a secondary point of disagreement. It seems to me that the more important question has to do with why these friends and brothers and sisters of mine think that such theological arguments can or should be persuasive to those who don’t share our religious perspective. I don’t think they quite really believe that everyone else can or should be compelled to act in accordance with our particular religious beliefs. I think, rather, that their unexplored assumption is that everyone else can be expected to live as though we all believed the same thing.

That’s a peculiar expectation for a “peculiar people.”

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