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Oh, Fabulous...

Well, California has managed to follow Massachusetts' example and legalize gay marriage by judicial fiat. The judges of the state's Supreme Court have decided that yeah, people have the right to marry partners of the same sex if they so choose.

I've repeatedly stated my support for gay marriage -- I just don't see the harm in it, and think that it would promote more stable couples and families, which would be a net gain for society -- but I am not happy about this development. And it's for both ethical and pragmatic reasons.

Ethically speaking, I don't like it when courts get involved in making laws. In our system of government, the role of the courts is to interpret the law and the other essential documents, and to enforce principles and rights by striking down unjust laws when necessary. And no matter what kind of semantic games anyone should choose to play, that's precisely what is going on here -- the courts in California (following the example set by Massachusetts) have created a right where none existed before.

But on a more pragmatic note, I fear that this "victory" will end up being ultimately pyrrhic to the cause of gay marriage in the long run.

In essence, in California there were to arguing factions over gay marriage.

"We want the right to have our relationship with this person of the same sex recognized by the state, and accorded the same privileges traditional male-female marriages are given!"

"Hell, no!"

They hemmed and hawed and fought back and forth, then they finally struck a compromise:

"OK, we'll settle for pretty much all the legal benefits of marriage."

"All right, you can have all that, but we're keeping the term 'marriage' to ourselves."

That was fine with most people. But then the courts stepped in and said "sorry, no compromising is allowed. It's gotta be all or nothing, and since you didn't stand firm on nothing, the gays get everything."

The pro-gay-marriage side was ecstatic. (See this week's Caption Contest for some proof.) The attitude seemed to be "yay, we won! You guys now just admit you lost and go away."

On the other side, though, the response seems to be a bit more like "it ain't over 'till the fat lesbian sings -- and no, keep Rosie O'Donnell out of this." They're madder than ever, and more worked-up than they had been before.

They had done pretty much everything they thought they had to in order to secure their position. They had not only gotten the legislature to pass civil unions BUT NOT MARRIAGE, they had also managed to do the same through a ballot initiative. The People had spoken, there had been a free and fair vote on the matter, and by all the rules, they had made their proposed compromise and kept up their end of it.

And then the court stepped in and threw all that in the trash.

Angry people tend to be motivated people. This issue raises the passions of many, and this move by the courts will galvanize the hell out of the gay marriage opponents. They still have many legal recourses, and they will be most likely pursuing all of them at once.

First up, they can recall the judges who issued the ruling. In California, justices can -- and have been -- removed from office by a popular vote, and this is precisely the kind of issue that can get enough people riled up to do just that.

They can also pursue an amendment to the state's constitution. They've already done a lot of the legwork when they passed the law and the ballot initiative; the process, as I understand it, is not that dissimilar. It's their way of saying to the courts: "you say that banning gay marriage is against the Constitution? Fine, we'll change the Constitution!"

These kinds of victories do not, in my opinion, help the cause of gay marriage. They're wins, yeah, but they're seen as "cheating" wins. They don't work from any sort of consensus or shifting of public opinion; they're simply a couple of high officials looking down from their ivory towers and telling the rabble what's best for them, despite what the rabble thinks -- or, in this case, spent considerable time and effort doing.

In the strictest sense, it's undemocratic. The people have been asked to express their opinion and they did so -- for absolutely no reason whatsoever, apparently.

Now, the people are not always right. "The masses are asses" is occasionally true. (Witness Massachusetts.) There have to be some checks on the power of the majority.

But in the end, simple numbers can prevail in a democracy. (Or, to be pedantic, a democratic republic like we have.) There is no law, regulation, or Constitutional element that can not be overturned if enough people want to do so.

To use the example many want to use, look at slavery. It was enshrined in the Constitution as a legal institution, and the Courts backed that up -- until enough people got together and amended the Constitution to abolish it. And nowadays, the very thought of slavery is abhorrent to nearly everyone -- and to those to whom it isn't, they are ostracized and regarded as lunatics and sociopaths.

Yes, there is the possibility of a "tyranny of the majority." Lord knows we've seen enough examples of that around the world. But the antidote to that is not a "tyranny of the minority." The majority have rights, and they have considerable resources to back up those rights should they feel they are being infringed.

In the end, I think that gay marriage will come to pass, and it will be at least grudgingly accepted by the majority of Americans. But it will come about not through brute-force tactics like this, but through legislation. When enough people are persuaded to shrug and say "what the hell, do whatever you want, just don't make me have to look at it" and not told that they WILL embrace it and welcome it and put on their happy faces.

To quote someone who was the son of an American woman and who was an American by an Act of Congress, "You can always count on Americans to do the right thing - after they've tried everything else."

It took me a while to get to that point, but I made it. I looked at the matter and said "hey, what's the big deal?"

Marriage these days is a troubled institution. More and more people are not bothering to wed, instead just living together and bearing children and setting up all kinds of arrangements and legal agreements, but forgoing the actual matrimonial part. And that is, I think, a Bad Thing for society.

Opening up marriage to gays will not only widen the pool of potential couples (once you get past that whole "Adam and Steve" thing), but get a whole bunch of new folks who have a personal stake in preserving the benefits and status of marriage itself. Hell, being married could become the new "in" thing, a status symbol in and of itself.

(And for the record, no, I don't think that allowing gay marriage opens the doors to polygamy, incest, bestiality, or any of a host of other afflictions. I have read many cogent arguments that refute each and every one of these points, but I'm already over 1200 words here already.)

So let's do it already. But let's do it the right way -- in a way that won't get overturned in relatively short order, but in a way that will actually last. Or, at least, let's give it a try and see if, indeed, it does end up with fire and brimstone coming down from the skies, rivers and seas boiling, forty years of darkness, earthquakes, volcanoes, the dead rising from the grave, human sacrifice, dogs and cats living together, and mass hysteria, then we can undo it.

America is often known as "The Great Experiment." Let's show we still deserve that nickname.


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Comments (22)

The more the government doe... (Below threshold)
Jamie:

The more the government does towards this issue, the more I'm convinced that the government shouldn't be in the marriage business. Let legal papers achieve the same benefits for whomever wishes to enter into such an agreement; let those who wish to be married be married, and get on with things that actually matter to the nation at large.

This is about as much as non-issue as MLB players using steroids, IMHO.

And though I'm likely to ruffle some feathers on fellow conservatives, I just don't see how marriage as an institution is so damned important, yet so fragile as to be harmed by the notion of "nontraditional" marriages. I suppose I just don't consider my relationship with my wife dependent upon a government sanction, so I don't think it's "cheapened" by the governmnent sanctioning other types of marriages.

The laws of nature cannot b... (Below threshold)
twolaneflash:

The laws of nature cannot be changed by man's law. The word "sex" implies the potential of procreation. Queers cannot have "sex" with each other. Redefining "sex" to "normalize" the perversion of a natural function does not change nature, it just makes idiots out of humans. "Marriage" also implies the potential to procreate. Redefining "marriage" to relieve the shame, guilt, and frustrations that a subset of humans have because of their unnatural behaviours does not change the union God created between man and woman. You can put a momma cat and her kittens in the oven, but that doesn't make them biscuits. America's greatness is being lost with the loss of its goodness. No good will come of destroying the American family unit in the pursuit of sodomy.

Hey J. T.,Do you r... (Below threshold)
Myronhalo:

Hey J. T.,

Do you really believe that allowing gay marriages will bring a lot of "new committed couples into the marriage pool?" If they are 2-3% of the over-all population as the statistics show, how is that going to add a lot to anything? It will only serve to undermine the remaining stability and respect that still exists for the marriage institution. If marriage means so little to its opponents, why should gays work so hard to get married. They don't really seek marriage; they seek to destroy what marriage means to the straight people who still respect and defend it.
The whole question of gay marriage is not about building-up society, but rather about tearing it down.

The unspoken part of the ar... (Below threshold)
epador:

The unspoken part of the argument is the ECONOMIC impact on government and employers. Surviving Spouses. Family benefits. And a WHOLE new set of victims for divorce attorneys and family court to pick clean.

I support civil unions, and... (Below threshold)
CarlF:

I support civil unions, and I even support "gay marriage". However, I can't support either one if dictated by a handful of judges. State governemnts have been stipulating the conditions under which they will license a marriage since... well, since there have been state governments.

Some states will allow first cousins to marry... and it's not just the states stereotyped by the media. Erudite states such as California, New York, and the District of Columbia allow first cousins to marry without condition. Other states allow first cousins to marry but with age and child-bearing restrictions (see Arizona, Indiana, and Illinois).

Marriage licensing has nothing to do with "love", and as long as the laws for licensing marriage are applied evenly to all citizens, then the court's ruling is out of line. A homosexual cannot marry someone of the same sex, but neither can a heterosexual.

Like I said, I support marriage licenses for homosexuals as long as it is done through the democratically elected legislature and governor. If I still lived in California, I would support a constitutional ban on same sex marriage, not to combat same sex marriage, but to combat increasingly dictatorial judges in the court system.

Good post Jay but you never... (Below threshold)

Good post Jay but you never made the correct point. However, Myronhalo did it for you with this "The whole question of gay marriage is not about building-up society, but rather about tearing it down" and contrary to your personal view, most heterosexuals want the institution of marriage preserved.

I'll bet if we held a national plebiscite among gays on gay marriage, it would not pass. I know several, both men and women, and not one of them want to destroy "marriage" just to make a point because most gays are not strident and raucous about their sexuality.

P.S. We all know that a lot of the pro gay marriage activists are not even gay. I wonder what THEIR real agenda is.

"Marriage these days is a t... (Below threshold)
GarandFan Author Profile Page:

"Marriage these days is a troubled institution. More and more people are not bothering to wed, instead just living together and bearing children and setting up all kinds of arrangements and legal agreements, but forgoing the actual matrimonial part. And that is, I think, a Bad Thing for society."

So allowing gays to "marry" will solve the problems of this "troubled" institution by widening the pool of people eligible to be "married".

I'm not buying it.

..I don't think that al... (Below threshold)
Les Nessman:

..I don't think that allowing gay marriage opens the doors to polygamy..

Why in the world not? I don't see the logic in allowing gay 'marriage' but not allowing a man to marry two women. What gives you the right to say a man can't marry two women? What exactly do you say to people who want to do this?

Why change the concept of marriage for some people and not for other consenting adults?

Once you change it you can change it again and again. 'Marriage' becomes a meaningless concept.

One word---PUKE!!... (Below threshold)
jhow66:

One word---PUKE!!

Just to put it on the razor... (Below threshold)
Jamie:

Just to put it on the razor's edge, the general consensus seems to be that gay marriage could lead to multiple-partner marriage, and that both are tearing down the institution of marriage and the family unit.

How?

And further, how does that pose a greater threat than shacking up (perfectly legal in most states), rampant illegitimacy, and the current rate of divorce?

As I stated before, I don't relate to my wife based upon a government sanction that could potentially be revoked; therefore the pool of people eligible to marry has absolutely NO effect upon my own marriage, nor does it have any potential impact on the marriages of anyone else.

Just to throw a little more... (Below threshold)
Jamie:

Just to throw a little more gasoline on the fire, why is it that the threat of potential poly marriages is used as a "slippery slope" argument here?

Polygamy has deep roots in Judeo-Christian tradition. To portray it in a Judeo-Christian moral framework as somehow worse than gay marriage is demonstrating an ignorance of the history of not only your own faith, but of the history of the institution of marriage itself.

Get the government out of the marriage business. Let people decide for themselves whether they want to be married or not, and live and let live.

This is one of those issues that has me just as disgusted with conservatives as with liberals. Different agendas, one solution: MORE GOVERNMENT.

So we mark you down as pro-... (Below threshold)
SPQR:

So we mark you down as pro-polygamy, Jamie?

Polygamy has deep ... (Below threshold)
Polygamy has deep roots in Judeo-Christian tradition. To portray it in a Judeo-Christian moral framework as somehow worse than gay marriage is demonstrating an ignorance of the history of not only your own faith, but of the history of the institution of marriage itself.

Every polygamous relationship presented in the Bible is a dysfunctional mess. Abraham, David, Solomon, their families were all seriously screwed up. Given the accounts of what went on in the families of the biblical patriarchs I don't see any grounds for people to try to argue from the Bible that polygamy is acceptable.

Jamie, I will try to answer... (Below threshold)
WildWillie:

Jamie, I will try to answer your question. The government by our republic is "we the people". By our government saying that a homosexual has the same legal rights in a marriage as I do is saying I am on board with that when that couldn't be further from the truth. I believe same sex affairs is a sexual deviancy that they will answer for from their GOD, but I could care less who they poke with their penises. Just don't have my government afford them any rights that validate that deviancy. ww

No, it's not right to paint... (Below threshold)
Jamie:

No, it's not right to paint me as pro-polygamy. I'm simply pointing out that when one takes a "slippery slope" argument against something, that the situation further down the slope is typically worse than the one that is coming to pass, but when applied to this situation it's not consistent with the historical or moral arguments being made.

I would point out, Samantha, that the first "dysfunctional mess" was among children of a monogamous pair, Adam and Eve. Imperfect relationships happen when imperfect people are involved, and Biblical dialogue seems to indicate an abundance of wives was a blessing to those men faithful to God. I don't use the Bible to argue that polygamy is acceptable, so much as I find fault with those who use the Bible to argue that monogamy is "the way God intended."

Feel how you feel, but don't claim a higher authority when it doesn't exist.

WW, I would only disagree o... (Below threshold)
Jamie:

WW, I would only disagree on one front; I don't think that the government, though comprised of "we the people" will ever, or should ever be, representative of "I the person." Although I'm enraged that the government subsidizes illegitimacy, I don't feel as if it constitutes a personal endorsement.

Jamie, there are a lot of r... (Below threshold)
SPQR:

Jamie, there are a lot of reasons why polygamy is bad and a much worse situation for our nation. It would be hijacking this thread to explain them all however.

Well, JT hasn't addressed m... (Below threshold)
Les Nessman:

Well, JT hasn't addressed my questions and the only one who has addressed them seems to agree that there is no logical reason to ban polygamy.
btw, I haven't said one way or another yet if I personally think polygamy is good or bad. I also wasn't specifically using the 'slippery slope' argument here, but if that argument fits so be it.

I suppose it's just a (short) matter of time before some sharpie goes to court for some weirdo Utah polygamist 'family'. Why exactly do we tell them 'No' now? (I'm not talking about the sicko child-raping polygamists here, I'm talking about the weirdo consenting-adult polygamists.) Why do we change marriage for a new lifestyle but not for another consenting adult lifestyle?

But getting back to my original proposal: C'mon, it's just one man and two women. It's just one extra woman. Why are you so uptight about that? It won't affect your marriage so why should you care?

I've found there's no point... (Below threshold)
Mac Lorry:

I've found there's no point trying to explain to people why traditional marriage is important to protect. It just doesn't sink in. I've come to the conclusion that liberalism is self-limiting or perhaps self-terminating would be a better phrase. Like other nations, the U.S. is suffering from Progressive thinking and like other progressive disease, this one is fatal if not treated. Problem is, know one has figured out who to treat this disease.

Bringing polygamy into the ... (Below threshold)
tonto:

Bringing polygamy into the issue establishes that polygamy has some precedence and has been rejected. Gay marriage has no precedence.

That said, Carlf sums up my feelings on this pretty well.

Bringing polygamy into t... (Below threshold)
Les Nessman:

Bringing polygamy into the issue establishes that polygamy has some precedence and has been rejected. Gay marriage has no precedence.

I don't understand what this means. Gay marriage has been rejected, resoundingly and repeatedly, in several states.
Also, how does merely mentioning polygamy establish anything?

Mac, I'm not arguing that t... (Below threshold)
Jamie:

Mac, I'm not arguing that traditional marriage is unimportant, I'm simply questioning how nontraditional marriage threatens it.

I'm far from a liberal, I certainly don't consider myself a "progressive." I do believe, however, that marriage is much more of a socio-religious institution than a government issue.




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