e-Claire

Whose Prerogative ?

Boobie-gate ... Gay weddings ... Kerfluffle ensues and the State steps in to correct the situation. "Corrections" like the War on Drugs, gun control laws, Jim Crow Laws, smoking laws. Laws that tell us how we are allowed make love and whom we are allowed marry. On the way: food laws, weight restrictions, income limitations, travel restrictions . . . Is that what we want our State to do for us; to step in and legislate until all the loudest feathers become unruffled? It takes a lotta laws to satisfy Mrs Grundy. Is that the highest and best function of the State; to legislate societal and cultural norms? Is that what we want our State to do? Do we support the State so that it can make our decisions for us? The problem is deciding whose standards to use. Some call us a Christian, or Judeo-Christian nation. Will that come to mean that everyone must accept that Jesus is saviour? Or that everyone must take communion? Will it spell the end to BLT's and ham on rye? Or to using technology? Each of those ideas is Truth to some very respectable, decent people. And anathema to some other respectable, decent people. So if a particular religion holds as a sacred tenet that women should cover their hair and not speak about political matters, or that crab cakes are forbidden, or that no one must sing, or that everyone must sing, or that people of the same gender shouldn't be life-partners -- how do we decide which set of values the State should choose to force us all to live by? Or have we given up that prerogative?

1. On March 7, California voters passed Proposition 22, proposed by state senator Pete Knight, which mandates: “Only marriage between a man and a woman is valid or recognized in California.” The proposition, known as the Protection of Marriage Act, passed by a margin of 63 to 37 percent.

   This has nothing to do with my opinion, just reaching into where it’s being said that the gov is stepping in and mandating this stuff. I just don’t see it that way since, well, see above. Even when Dean signed the bill in VT, it was for a Civil Union and not marriage.

   Posted by SondraK  on  02/24/04  at  08:52 AM

2. The California State Constitution says: A person may not be . . . denied equal protection of the
   laws... Which covers Prop 22.

   btw, my take on Prop 22, seen now in 20-20 hindsight as being vastly, incredibly and overwhelmingly naive, was along the lines of “No reason to hit the streets—This is CA, man. That crap’ll never pass.” *blushing furiously*

   Posted by Claire  on  02/24/04  at  10:00 AM

3. That’s a pretty strained reading of the equal protection clause, and one that I doubt even Gavin Newsom himself truly believes.  If he did believe it, he wouldn’t be sanctioning these illegal, unenforceable and criminal “weddings” that are going on right now.  Instead, he would have quietly mounted a suit alleging a violation of the equal protection clause of 14th Amendment, which is substantially identical to the one you cite but applies everywhere rather than just in California.  Do you really think that a publicity hound like Newsom would pass up a golden opportunity to be the “Newsom” in the famous landmark case of Newsom v. Lockyer, (or, more accurately, Newsom v. Half of Lockyer’s Ass) that every first year law student reads about in con law?  That would net him a lot more attention than these phony weddings will, if he won. He won’t, and I think he knows he won’t.

   Posted by Xrlq  on  02/25/04  at  05:07 AM

4. A] I’m not altogether prepared to give Mr Newsom credit for being that crafty . . .

   and 2] Somehow I’m less concerned about the “criminality” of the weddings than about the fact that discrimination and bigotry are The Law.

   I have yet to hear any rational argument - not based on religion or ignorance based fear - about why this is such a threat to anyone.

   My question stands—are we willing to give up our prerogative of choice and allow a religious bias to be codified into Law?

   Posted by Claire  on  02/25/04  at  05:39 AM

5. Who is “we?” My choice is to leave marriage laws the way they are.  That is the choice of the overwhelming majority, as well, religious or otherwise.  Simply brushing aside other people’s concerns as “ignorance based fear” does not make the issue go away.

   Posted by Xrlq  on  02/25/04  at  10:28 AM

6. You say, [paraphrased] “What this we shit, white man?” *raises eyebrow* Indeed.

   This “we shit” is we as a free people, she answered.

   Until 1967, it was a felony in most states for a white to marry a black.  It wasn’t until 1948 that Cahleefohrneeiah legalized marriage between a black man/woman and a white woman/man. [Perez vs. Sharp]

   All sorts of justifications, many of them “from the Bible,” were used.  The vast majority of the people were against it.  Was it right?

   Has marriage between people of different races “attacked,” “spoiled,” or “destroyed” Marriage?

   Posted by Claire  on  02/25/04  at  01:19 PM

7. That analogy is way off the mark.  Anti-miscegenation did not arise in a vacuum.  They were part and parcel of a series of Jim Crow laws, all of which together served one and only one purpose: keeping whites and non-whites apart.  They had nothing to do with anyone’s idea of what a “real” marriage was or wasn’t.  Even the lame “Adam and Eve, not Adam and Steve” argument wouldn’t work on that issue, as the Bible (or the Koran, etc. etc.) tells us nothing about the races of the two.  Maybe Adam was black and Eve was white; we just don’t know.

   Here’s what it would take to get me to take the gay marriage as civil rights analogy a bit more seriously.  Out of our 50 states plus a few territories, show me at least one jurisdiction that formerly allowed straights to enslave gays, and later required the newly freed gays to use gay-only bathrooms, drink from gay-only water fountains, attend substandard gay schools, or live in designated gay parts of town.  I don’t think you’ll be able to do that.

   Also, your statement that “most” states prohibited miscegenation in 1967 is factually incorrect.  According to the Supreme Court opinion in <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=388&invol=1">Loving v. Virginia,</a> only 16 states prohibited miscegenation at that time.  Not that it matters anyway, as a constitutional matter.  All that does matter - or should, anyway - is that anti-miscegenation laws amount to invidious, race-based discrimination, of precisely the sort that the 14th Amendment was intended to do away with.  We didn’t fight a civil war so that gays could redefine marriage.

   Posted by Xrlq  on  02/26/04  at  04:03 AM

8. They didn’t fight a Civil War so that we could treat a significant part of the population as second class or different, either.

   Any statement beginning with the words “Those people” is invidious by definition.  When followed by the idea that “those people should be treated differently than I am,” the statement goes over the edge. 

   No, there haven’t been formal Jim Crow laws against gays—only customs.  ...Though I imagine you would acknowledge that there has been significant discrimination?

   My question remains:  are we willing to stand behind the state deciding that those people cannot be treated equally?  Particularly if the justification is religious in origin?

   The FMA and the like are invidious, gender-preference based discrimination, of precisely the sort the 14th amendment covers.

   Posted by Claire  on  02/26/04  at  12:39 PM

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