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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Friday, August 06, 2010

More on the Californian gay marriage case

I've now read the full (138 page) judgment in the case of Perry v. Schwarzenegger. To be candid, just reading it with a degree of care took me quite a bit of time, so I won't be spending a similar amount of time writing a detailed commentary. Let me make just a few quick points.

At the level of social policy, this was a good outcome. Proposition 8, the voter-mandated addition to the Californian constitution that provides "Only marriage between a man and a woman is valid or recognized in California", should never have been enacted. The outcome of the referendum back in 2008 was a tragedy.

Given the clear and specific terms of Proposition 8, combined with its status as constitutional law, there was no real prospect of challenging it under Californian law - opponents of the provision were forced to argue on a new basis, i.e. that it is inconsistent with federal constitutional provisions, specifically the due process and equal protection clauses of the US Constitution's Fourteenth Amendment. The challenge succeeded under both clauses.

I'm not a great fan of US jurisprudence on the Fourteenth Amendment, which has been murky over the years and has led to many contrived theories and interpretations. Based on existing jurisprudence, however, the judgment seems to be pretty solid. It will be fascinating to see how it is challenged in the appeals to higher courts that will undoubtedly take place. In particular, the US Supreme Court still has a conservative majority, and there's a prospect that several judges at that level will enter into quite fundamental questions about the Fourteenth Amendment. At least some (such as Justices Scalia, Alito, and Thomas) will seek to resist the outcome that has been reached so far. That's a way off, however, as there's a level of appeal in between.

Whether or not the institution of marriage is anachronistic and being maintained long past its original purposes and assumptions, it is still with us and permeates society in such a way as to affect people very seriously if they cannot marry. That is especially so in the US. The effect of Proposition 8 has to be assessed against that social backdrop. Proposition 8 was clearly motivated by bigotry against gays and moralistic disapproval of gay relationships, and it has contributed to the ongoing stigma that is applied to gays.

What becomes clear is just how much the campaign for Proposition 8 relied on bullshit arguments that then had to be repackaged significantly for presentation in the court. We've seen it all before, but it's good to have the arguments all set out in one document - including fatuous arguments that religious parents did not want their children being exposed to ideas of gay equality. This idea of an absolute right to control the indoctrination of your children must be challenged at every opportunity.

By and large, the proponents of Proposition 8 were a pretty dismal, bigoted crew ... and this becomes crystal clear when their arguments are placed under a judicial microscope.

The whole judgment is well worth reading. It contains extensive sociological information (with pointers to a lot more) about gay relationships, gay families, and so on. It provides a valuable resource that will be worth returning to.

Chalk this up as a victory for the good guys, though of course with appeals lying ahead we can't be sure the judgment will stand. This saga has a long way to run, and we'll have to wait.


Anonymous said...

From reading other blogs, I gather that the judge in the case is himself gay, not that that should affect the substance of the case, but watch the bigots tie themselves in knots about that. Amusingly, the Californian government refused to support the case, so the name of Schwarzenegger as defendant is purely nominal, and the case was argued by the private groups (or some of them) who pushed Prop 8, and their lawyers (who were probably holding their noses as they spoke, given how weak the arguments on their side were).

Yes, several justices on the Supreme Court are apparently very unenthusiastic about the 14th amendment.

Still long way to go, but overall this is heartening development.


March Hare said...

There is a way out for the bigots...
If they had a proposition that stated something along the lines of:
Whereas marriage is a beneficial institution to raise children and marriage elicits state benefits for the purpose of encouraging the best practices of the raising of children, no couple shall be entitled to the benefits of marriage [which would probably include the word itself] unless there is a medical possibility of that marriage naturally producing children.

Not sure how that would play, especially since a single medical advance could blow it out the water, but I don't see the 14th Amendment coming into play against that one.

In this ruling, or similar ones, I have yet to see any logic that, correctly, gives same sex couples the same rights as opposite sex couples that doesn't also apply to polyamorous groups (who are in even more trouble than the gays since they go to jail if they try to get married!) Or, for that matter, consenting adult relatives.

So-called liberal people will say it's fine for Adam and Steve to be married, but not for Adam, Steve and John. Or not Adam and Steve if they're related. Why not? Seems to be exactly the same concept that "moral disapproval alone is an improper basis on which to deny rights to" people.

Anonymous said...

Dahlia Lithwick (US Supreme Court commenter extraordinaire) has a great post giving context to the Judge’s ruling. This ruling may go down as one of the most significant none Supreme Court rulings as it was carefully crafted to make it difficult to over turn; i.e. no easy way to overturn on “technical” reasons, they may have set precedent. It has to do with “finding of fact” vs “finding of law.” She of course explains it better than I and I would encourage everyone to read her blog http://www.slate.com/id/2262766/ for the analysis. On Rachel Maddow she called the ruling a “love letter” to Anthony Kennedy who has been the key vote on a number of gay/lesbian related cases.


Rupert said...

I have never seen so many tightly knotted knickers as I have on 'dundie' sites over the last couple of days.

Part of me wants to laugh at the overcoming of bigotry and hatred espoused by these people and the squawking and spluttering the decision has induced.

Part of me is absolutely gobsmacked at the sheer scale of dishonesty, misrepresentation and just plain bullshit claims the same people are spouting.

And of course they do not listen to facts and reason. I think that that alone makes it obvious that these people would wish a theocracy upon us.

Rupert said...

um, 'fundie', not 'dundie' - facepalm!

Anonymous said...

Zackov mentions that the judge may be gay, and some bigots might claim that this makes him biased, so he should have recused himself. Presumably, the same would be true if he were 'straight.' So, what does that leave, castratos?

Bob Carroll

MosesZD said...

I thought it was a pretty solid ruling. However, there are four serious wing-nuts on the Supreme Court who routinely shred the plain-reading of the Constitution when it's for the rights of actual people, versus fictional people such as Corporations, when it suits them.

Not that the left-side is better. They're the ones that trashed the 4th Amendment in this "War on Drugs" bullshit where they can confiscate your property and you have to prove you didn't buy it with/didn't derive from drug money. They also approved the eminent domain crap where a city can take your property and hand it over to a developer for purely commercial purposes.

So, both sides have their blind spots. But I will say the right is far worse, far more oppressive and inhumane, and much harder to undo.