First thoughts on the Prop 8 ruling

I’m still working my way through the ruling, and I highly recommend reading it. I really liked this passage:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents.Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

[Pg 113]

And while I haven’t yet finished the whole piece I think this might be my favorite bit so far.

Beyond the howls of betrayal at the court overturning something enacted by popular vote and just-plain-dumb speculation about the role the judge’s sexual orientation may have had there’s a bigger dynamic at work.  This ultimately, as the judge lays out plainly in the ruling, is a question not of tradition or respecting the wishes of the electorate but of the law and whether there was any reason to deny same-sex couples a fundamental right.

And this is where the real values argument lies.  Some of the darker days in our history have been when a tyranny of the majority has been allowed to vote on the rights of a minority. I could ramble on about it but I really believe that the best take on it was from the July 22nd episode of TRMS:

We‘re not just a democracy.  We‘re a constitutional democracy.  There are rights guaranteed to us all by the Constitution.  Those rights are not up for a vote.  And the reason that’s truly important, the reason it’s not just a romantic sepia-toned flashback to the founding of this country is because people always want to vote on rights.  They always want to vote on minority rights.
And whenever they do, whenever you put the rights of a minority up for a vote, it almost always fails.

The full video:

We do not live in a mob-rule country.  The will of the majority is an important part of our politics and society but it is still subject to the rules spelled out in the Constitution.  If marriage itself is a fundamental right than in order to deny it to anyone  it must be shown that the government has a compelling interest to do so, something that the moral and traditional arguments have clearly failed to establish.

Opponents of marriage equality clearly view sexual minorities as inferior and less deserving of rights, but that shouldn’t cut it in this country.  It is not the role or duty of the government, at any level, to discriminate against any group simply because some people, even a majority, don’t like them.

More to come, as I get further along.