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Gay marriage and the benefits of (un)democracy

I’m sure it comes as no surprise to anybody that I was pleased by Judge Vaughn Walker’s decision last week striking down California’s Proposition 8 and clearing the way for gay couples to enjoy the questionable benefits of marriage to the same extent as straight couples. As I’ve written in the past, the maid of honor (title by his own insistence) at my wedding was a gay friend of my wife (and an all-around decent guy), I have more than a few gay and lesbian friends, and I see no particular reason why they should be denied access to the many legal niceties, conveniences and (occasionally) pitfalls that come with obtaining a government-issued license recognizing a supposedly private relationship.

Frankly, by allowing the government to tie so many bells and whistles to state-sanctioned marriage, the public made it inevitable that many people beyond the originally intended audience would not just want, but need access to that official seal of approval. Holy matrimony be damned, it’s about inheritance, joint bank accounts, common property and the simple decency inherent in being allowed to make hard decisions after an unexpected summons to a hospital bed. Mixed-race couples wanted (and got) access to state recognition for their marriages first, and now same-sex couples want (and are getting) the same thing.

But I’ve written about that before. For a change, let’s take a gander at the reaction to Judge Walker’s ruling.

Unelected judge” is the critical phrase most commonly leveled at the San Francisco-based Reagan appointee (along with charges that the allegedly gay jurist is just defending his own). Having lost the legal battle (so far), social conservatives have now become rabid majoritarians, advocates of 50% + 1 as the ultimate arbiter of what’s right and proper. Suddenly, National Review’s Rich Lowry is arguing, “let’s stipulate that Judge Walker is right. In that case, he and like-minded people should come up with, say, Proposition 9 overturning the ban and persuade 50.1 percent of Californians to support it.”

Uh huh. And Lowry has the same take on the recent decision in McDonald v. City of Chicago (PDF), voiding that city’s handgun ban, right? Overturning that law was judicial overreach, too, wasn’t it? Or is that different?

Look, a lot of terrible violations of liberty and equality before the law can be very popular, including various types of discrimination, bans and restrictions of all sorts, censorship of speech critical of charismatic politicians, ad nauseum. Pretty much any type of authoritarianism is capable of commanding the support of the majority given the right time and place for a poll.  Care to guess how a national referendum on the Fourth Amendment would have turned out in the aftermath of 9/11? The founders had a lot of faults, but a lack of awareness about the flaws of majority rule wasn’t one of them. That’s why they were so critical of democracy and put in place restrictions on what the people and their representatives can do.

With his decision, Judge Walker exercised a 21st-century implementation of the long-established power of the judiciary to rein-in the power of the state, even when that power is exercised directly by the majority. In truth, individual rights and limits on state power, and the enforcement of those rights and limits by the judiciary, are fundamentally anti-democratic. And that anti-democratic tradition is a good thing.

A majority of California voters tried to ban the extension of the legal rights attached to state-sanctioned marriage to a group they don’t like — an overt exercise in discrimination. Judge Walker said no. Democracy may have lost in that contest, but liberty triumphed.

Now, if you want to discuss why the government is involved in marriage at all …

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8 Comments

  • You wrote, “Having lost the legal battle (so far), social conservatives have now become rabid majoritarians, advocates of 50% + 1 as the ultimate arbiter of what’s right and proper.”

    Exactly, and that was what I found most annoying about the so- called “conservative” response to the ruling.

    Nicely written piece.

  • A lot of what the conservatives are objecting to is the idea that churches that strongly oppose gay marriage, or being gay full-stop, will find themselves sued if they don’t open their facilities to such unions—if nothing else, a church that rents out space to others might have such a lawsuit on its hands, under the “public accomodations” rules.

    And, like it or not, in most religions “marriage” is a term-of-art, meaning a union between male and female, usually with the ultimate intention of reproduction. If the G-D gays had had the mother-wit to push for “civil unions” with all the same trimmings vis-a-vis the law as traditional marriages, but not the actual name, I think that most people wouldn’t particularly object, even those who are strongly opposed to gay marriage.

    Unfortunately, there are gays who love to get into straight people’s faces, and they won’t be happy as long as gays are treated differently in any way. A lot of the gay spokesmen on this subject that I’ve seen or read have chips on their shoulders the size of 2 x 4s, and if they got their own way on this, they’d be howling for something more tomorrow.

    And a lot of people on the other side remember how Affirmative Action was sold to the country as, cross our hearts and hope to die, not a quota policy…but promptly morphed into a de facto quota policy once it became law. “Fool us once, shame on you,” they now say, “but fool us twice, shame on us!”

  • I’ve heard the fear that conservative churches will now have to sanctify gay marriages several times now — but never based on any evidence. I suppose it’s possible that the state could somehow make an end-run around the First Amendment to require churches to violate their own beliefs and give the blessing to such ceremonies, but that would be a brand-new and unprecedented problem. To-date, the right of religious institutions to choose what to sanction and what to condemn has been recognized.

    The laws and decisions opening marriage to same-sex couples have very explicitly applied to the state-sanctioned and licensed institution, not the religious version, which remains subject to the rules and consciences of ministers, priests, rabbis and imams.

    Certainly, marriage-in-every-thing-but-name civil unions would have solved practical concerns gays have about the benefits of marriage, but they would have done the same for mixed-race couples, too. At the end of the day, people like to be treated as equals before the law. Whether or not gays and lesbians have been too pushy … well that’s a matter of your personal preferences and the styles of diverse individual activists who work independently and disagree with one another.

    The affirmative action concern strikes me as a red herring. Equality before the law of the races was always worth fighting for, even if some people went too far and pushed for racial preferences. The same goes for same-sex relationships.

  • The Infamous Oregon Lawhobbit

    August 16, 2010 at 7:43 am

    Except, J.D., we *have* “marriage-in-every-thing-but-name civil unions” here in Oregon and the problem is still not “solved.” Gays want to be able to use the word “married.”

    So it’s actually not a fight about legal rights, here, it’s a fight about the feel-good use of a single word. And if your self-esteem comes not from having full legal rights, but only from a small piece of language, I’d suggest that you have deeper problems than a lack of equal rights under the law.

  • Do you think blacks or interracial couples would have settled for civil unions? Even if they were legally identical?

    Honestly, I think the ultimate answer is to divorce marriage from the state. Get the state to offer only a civil union package of benefits (or a benefits buffet) that’s available to all-comers and leave marriage to loving couples, triads and other private arrangements of any composition.

  • Honestly, I think the ultimate answer is to divorce marriage from the state.

    I’ve been thinking along the same lines. If the religious folk think marriage is a God thing, maybe the state shouldn’t be involved in marriage at all but instead be involved only in civil unions or domestic partnerships- call it whatever you want. Let the God folks have their way but, if they want the state benefits of a state sanctioned civil union, they’d have to have their union approved by a judge, or other public official.

    I read somewhere that France does it like that. You go before a priest for the God part of a marriage (assuming you want the God part) and before a judge, or other public official, for the legal part of the marriage. Makes sense to me and it would change little in the way things actually work now. It would just change the names.

    I don’t know about other states, but here in California you already need to go to the County Clerk’s office to apply for a marriage license. Then you go to whoever you chose to go to perform the actual marriage. Just change the name of the marriage certificate to civil union, or whatever name you want to use and everything else is pretty much the same.

    But, I guess since we’d be taking the word “marriage” off of a marriage license and replacing it with “civil union”, then we’d be destroying marriage, wouldn’t we?

  • The Infamous Oregon Lawhobbit

    August 17, 2010 at 7:45 am

    Depends on how much of a Lefty you are, I suppose, as to whether the label is more important than the reality underneath. I’d bet that a LOT of mixed race couples, given a choice of “legal rights” or “use of the word” (one, but not the other) would have been happy to take the rights over the word. 😀

    That said, you’re absolutely correct that getting the State out of things would simplify matters immensely. Which is exactly why it won’t be getting out any time soon.

    Oh – I’d love to see you weigh in sometime on the judge issue, just to see yer two cents’ worth of thinking on “what to do.” Judge Walker is one of those “unelected” judges, but here in Oregon we elect ’em and it doesn’t seem to make much of a difference, quality-wise.

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