Saturday, December 10, 2011

Prop "Hate" and Judicial Social Engineering

I do see the judges' decision (the one that Prop 8 was intended to address) as an end run around the law-making process. They say they are merely filling in the blanks where the law is not clear -- so the people make it clear.  Most of the opposing viewpoints see this the same as adding legislation outlawing interracial marriage. Just because it's law, enforcing a common prejudice doesn't necessarily make the law right.  I think "marriage" by history and jurisprudence only makes legal sense as a contract between a husband and a wife. This, to many people, is merely a fiction to disguise bigotry against people with a lifestyle that one is "against".  I do think the bigotry is real.  And that may well be a significant factor in the success of the Proposition.

But I think the judicial activism potentially creates a double-standard. How does the history of rulings between husbands and wives apply to cases where there is no wife or no husband?  I think they will make it the best of both roles, and not in a way that will create any more equality in traditional marriages.  So is it simply unacceptable to me that, in schools and in the workplace, that these spouses are afforded the same recognition?  Is it arbitrary to restrict marriage in such a way that it only supports what people have always though of as "normal"? I was reading some material on "common law" marriage, and one precedent seems to be that the couple that presents themselves to the community at large as married are entitled as married.   Supposedly, the community doesn't have to "accept" their marriage, and yet their marital status depends on a relation to the community.

However, this wasn't true for Utah. I'm not prejudiced against Mormon --they seem to have a special interest in limited government and the Constitution. But I think their Church gave in to political pressure in the late 1800s by deciding that polygamy was no longer a sacrament (and having their loyal believers comply).  I don't advocate polygamy.  But there are Mormon fundamentalists that are excommunicated from LDS proper for exercising their religious beliefs this way. They don't have the legitimacy of even a civil union as that is mostly because of federal lawys and Supreme Court rulings from the 1850s onward that Utah couldn't change the institution of marriage to suit their desires. The Mormon church has since been domesticated into not finding other ways (e.g. cohabitation) to legitimize what their Prophet once called a sacrament. 

Gay Judge Walker rules CA constitution unconstitutional
But this raises questions about how states recognize each other's marriages and other unions.  In other cases, a state may be required to honor a contract made in another state under its laws.  And for most marriages this is the case: if you get married in Vegas, it doesn't just stay in Vegas. But entering multiple marriage contracts is forbidden by some unwritten definition even if your state tries to legalize it. Are the excommunicated polygamists wrong or disenfranchised?  Are they without civil rights?  There's no civil union that will give them comparable privileges. Are we discriminating against them or are we protecting an institution from getting messy? Maybe both. I do think that how the states recognize each other's contracts does play a role in defining legalities, but I also think that states should have a lot of leeway for behavior they allow in their own borders.

So will Obama put judges in the Supreme Court that will overturn Prop 8 as unconstitutional? I don't know what precedent they would use, but I wouldn't be surprised. They've defined what "science" is, so maybe "marriage" is next on the list. It took special legislation to legalize a certain entheogen as a protected sacrament for Native Americas (giving them a "1st Amendment" right we don't have).

Judicial restraint is labeled 'activism' by progressives.
I wouldn't want our state to not provide civil unions that offer comparable rights.  And yet, I don't think it makes sense to call it "marriage" unless lawmakers decide to enlarge the definition building on precedent in a way that is not binding on other states.  I want the question definitively outside judicial hands.   Is there a definitively good reason for not calling these monogamous commitments marriages beyond simply that I wasn't raised to call them that?  It might be noted that the Greeks were not "homophobic" as a society, but they were very specific about marriage. And yet, marriage is not quite the same as it was then.  It has become more about the State recognizing implications of a commitment between two individuals, and less about two families consolidating their economic (and hereditary) interests.  But in marital law, "husband" and "wife" still aren't interchangeable terms in general, even if they are with regard to community property in a particular state. From the other angle, I suspect that having the State recognize homosexual marriages is not an end in itself but a means to force the community to acknowledge a redefinition of family-making.  Is that fundamentally different from forcing acknowledgment of interracial marriages?

I think that there is an anti-male bias in society and that it has some history in marital case law (common law). I do think one way out of that could be to make civil unions something that doesn't discriminate between genders, something with more equality than marriage. Some would argue that my motivations about Prop 8 are based on some negative thinking about marriage in general, whereas they would think that the honor this institution confers in society shouldn't be limited to certain people

But I think the argument that it won't be taught in schools is misleading.  If it is just another kind of marriage, what is to keep it out of education?  Could the state be accused of discriminating against a certain type of marriage by not including examples of it?  Is it "wrong" to excluded it from state curriculum?  Would that be an infringement of the Establishment Clause?  (Note that criticisms of Darwinian interpretations have been excluded from curricula because of alleged infringement.)  

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