Wednesday, August 04, 2010

A Civil Matter

My internet has been down for five days, and that has been most unbearable. Of course I could still use my iPhone to stay current, but 3G is not as fast as wifi. Yes, I'm spoiled by internet speed. But all is well now.

I believe that today's historic ruling on the unconstitutionality of Prop 8 and on gay marriage bans in general will prove to be a landmark case in constitutional history. Law professor Ari Ezra Waldman offers an excellent analysis of Judge Walker's rulings:

1. This case is about civil marriage. Religious belief has no place here.
Right off the bat, Judge Walker found that "[m]arriage in the United States has always been a civil matter" (p. 60, para. 19). The pen is indeed mightier than the sword. We watched with dismay, anger and frustration as Prop 8 supporters screamed that marriage equality laws would forces churches and synagogues to cosecrate relationships contrary to their liturgy. In one line, Judge Walker does away with this nonsense. What we are dealing with here, he states, is civil marriage. After all, it is the "[c]ivil authorities [who] may permit religious leaders to solemnize marriages but not to determine who may enter to leave a civil marriage." (p. 60, para 19). The supremacy of civil marriage takes this conversation out of the church and onto the town square.

2. Marriage is a state of commitment, not a construct in which to have children.
Just as important is Judge Walker's findings about the nature of marriage. "Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents" (p. 67, para. 34). Absent from this definition, based on extensive citations to evidence offered at trial, is marriage based on procreation or gender-specific roles. A marriage is a partnership based on deeply held emotional love and, as an institution, channels benefits to the married couple, their dependents and society at large. What's more, each of those benefits -- facilitating order, creating a realm of intimacy, creating stable households, providing children with support structures, assigning caregivers, facilitating property ownership and incentivizing healthy behaviors -- exists irrespective of the gender and sexual orientation of the married couple (pp 67-71).

3. Same-sex couples are just like opposite-sex couples.
The entree to these appetizers came later. Judge Walker found that "[s]ame-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love to do not differ depending on whether a couple is same-sex or opposite-sex" (p. 77, para. 48).

And on the seventh day, he rested.

Seriously, though, this profound description of equality is at the heart of the marriage equality movement. Judge Walker cites Prop 8 supporters' admissions at trial that gay partnerships are loving and commitment and that the capacity to commit and love "does not depend on the individual's sexual orientation" (p. 77, para. 48(d)). We are all the same and we all deserve to be treated as such.

4. Domestic partnerships insufficiently recognize those relationships.
Since marriage is not merely an economic union, or a procreative one, for that matter, domestic partnerships that assign certain economic benefits of marriage to nonmarried cohabitants is a separate, unequal and insufficient substitute. "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States" (p. 80, para. 52).
Judge Walker recognizes that we do not want to marry the loves of our lives for the joint tax return or the propsect of doubling our wardrobes. That might be part of it, but it's not the whole story. Citing expert testimony about the cultural importance tied to marriage, Judge Walker finds that marriage is greater than the sum of the economic rights associated with it. And, since same-sex couples are no different in their love and commitment than opposite-sex couples, there seems to be no reason to exclude them from this institution.

In the end, it is hard to accept these facts and not conclude as Judge Walker did. Nothing here is clearly erroneous and any appellate court will be hard-pressed to upset any of these factual findings. (Source)

Go America.

A new and fantastic video has been released:

"Forced to Love" by Broken Social Scene.
BSS goes special effects nutty and then literally rocks the house apart. And then some tress grow. Awesome.


At 8:00 AM, Blogger Kathy posited...

I, too, am encouraged by Judge Walker's opinion on Prop 8. I've been enjoying reading all the legal analysis and seeing videos of celebrations, etc. I know that in the short term, it doesn't really mean anything (no gay couples are getting licenses in CA right now), but it's a step in the right direction.

At 12:29 AM, Blogger Jason posited...

I suppose I have mixed feelings on this, and the real crux of the matter is the importance of the term "civil marriage." I seem to find various nearsighted arguments in this analysis that bite each other in the tail, but I will try to explain what causes my own confusion, as well as possibly that of Judge Walker and likely that of 95% of concerned parties on this matter.

"Marriage" as religiously (or otherwise personally) understood is certainly not a matter of the state, and indeed I believe this is the main liberal thrust of the pro- gay marriage movement: the United States or the State of California cannot, by the 10th Amendment, legislate against the ability to call the loving union of two people a "marriage." In this way, one's religious or otherwise personal understanding of "marriage" is far more compelling than what the State has to say on the issue. Indeed, marriage is an institution that goes back to the beginning of human history, and, as Judge Walker even clearly states in point 4, "is not merely an economic union, or a procreative one, for that matter," but is associated with a "social meaning" and "regarded as the definitive expression of love and commitment in the United States." There is "cultural importance tied to marriage," which is clearly seen to be "greater than the sum of the economic rights associated with it." Indeed, whether Judge Walker or Prof. Waldmann like it or not, marriage has been, until perhaps half a century ago, very much a construct in which to have children. It has been a sacred covenant between couples, within the contexts of their religions, cultures, what have you, dating back to the dawn of time and impervious to (and certainly not inferior to) "state recognition and approval" at a given point in history. Speaking of such marriage, what right at all does the United States or the State of California have to legislate or dictate?

But of course, the State must somehow recognize and, what was the sterile language used, incentivize healthy behaviors such as those associated with this cultural and very human phenomenon called "marriage," which does, admittedly, wear a few different coats depending upon whom you ask, but mostly boils down to the elements of commitment and intimacy detailed in point 2. From point 1, it is declared that "marriage... has always been a civil matter," and I can even get behind this - as long as it's clear that we are speaking of legalistic, civil marriage. I think the catch here, which is the point upon which the whole debate hangs, is that this "state recognition and approval" has also, unfortunately, been dubbed "marriage." Why couldn't this have been called a civil union or some such, conferring all the benefits and regards from the State which "civil marriage" (or legally equivalent civil unions) currently do, and leave the term "marriage," along with the traditions and accompanying practices to be matters of personal preference and religion, to each couple their own? Then the Bible-thumping couples could have their Christian wedding and run over to the courthouse and get their civil union legally recognized; the Hindu couples could have their ceremonial week-long festive wedding and run over to the courthouse and get their civil union legally recognized; and the lesbian couple could bring their families together for a ceremony and run over to the courthouse and get their civil union legally recognized. Nobody stepping on each other's feet, nobody restricting anyone else's rights. Couldn't this work?

At 11:54 AM, Blogger CoachDub posited...

Good point, Jason, and this is in fact what used to be done. Couples always used to have to go to the courthouse as well as their individual ceremonies. But then we decided to take out the middle man and gave the priests, ministers, etc. the power to perform the legal, civil aspect of the ceremony. In essence, all marriages are civil unions, but it's this taking out of the middle man that has conflated the civil with the religious. (I'm not certain of the exact history, but I think this was done in the early 20th century.)

But since that is now the way it is done, and since we now call all civil unions marriages, we should not have a "separate but equal" distinction.

Though I must say that I question the use of the word "sacred" when you say that marriage has always been a sacred thing. For much of history, including in the Bible and in the American part, women were treated as property and marriage was often an economic arrangement between families. Nothing was sacred to the women who had no say. The idea of romantic love as an aspect of marriage is a relatively new one in human history.

At 7:59 PM, Blogger Jason posited...

I suppose I had heard that things had been done that way. I would be interested to know more about the history of the matter, and I agree that the legal contract of civil marriage should not be applied in a discriminatory manner. But I would bet that even before religious leaders had this power, the civil union was called "marriage," and I think the term itself should be removed from state documentation. Of course, this isn't entirely a reasonable position, as there are plenty of pragmatic problems associated with trying to simply remove the term.

Calling the tradition of marriage "sacred" was, I suppose a Freudian slip reflective of my upbringing and beliefs, and doesn't necessarily apply to every view of marriage. On the other hand, while I don't believe romantic love is an essential for marriage (then or now), I would hesitate to say that marriage is not sacred or not romantic just because one or both parties do not initially elect to enter the covenant. Marriage, as I said, wears a few different coats, but I think it cannot be reduced to merely economic terms, neither now nor in history.


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