Proposition 8 and the Gay Marriage Debate

prop8Americans can be very slow to understand the negative effects of assuming a “right” that corresponds to every want.  This was true when slave owners led the South by mob, crowing continually about their God given rights to their “property”.  This was true in regard to the civil rights movement when people powerfully proclaimed their right to separate schools, separate restaurants and separate portions of buses, their claim being that they had a right to be separate.  The supposed right was illusory and harmful to the community, all true rights being for the community’s good.

When the argument is made that there is no reasonable relationship between marriage and gender, while only corresponding genders produce children and gendered pairs are the primary environment for the social, educational, and physical well being of children it might seem that some are willfully ignoring unavoidable facts of human experience.

There is no need for one to be a Christian, nor even particularly religious to question the nature of the human rights claims made in the recent decision by federal Judge Vaughn Walker regarding Proposition 8.  The European Court of Human Rights recently maintained a unanimous decision against the categorization of Gay Marriage as a Universal Human Right.  Judge Walker re-classifying Gay Marriage as a “fundamental right” is in essence making that claim; that there is an implied but until now secret right hidden in the nooks and crannies of the Constitution.  I guess it’s possible, but whoever makes that kind of a claim should understand that it is contingent upon them to make very powerful arguments in their favor.  Here, and this is in being as charitable as possible, these are sorely lacking.


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In every piece of major international legislation or convention on the rights of the child of the last 100 years, the nature of the family in both its form and function as essential to the well being and protection of children has been maintained.  The family is not nearly as fluid as many Americans might think.  From the “Convention on the Rights of the Child”, “Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,”.  Far from being merely cultural or an arbitrary artifact of private opinion, the special relationship found in the family’s structure is a dictate of biology as much as by thoughtful political science.

The rights of children and their well being are intimately tied to the family as the basic form for human community.  It is in the un-interpreted fact of the biological offspring of the gendered pair that we gain our most basic assumptions of those who naturally desire the “best interest of the child” so foundational to our laws.  Thus for any person open to thinking squarely about these things, and contrary to the decision, gender in regard to marriage is an issue of primary significance.  This alone greatly weakens any of the arguments from Judge Walker that there are no rational justifications for the protection of the traditional family against needless innovations.  Judge Walker may not appreciate the basis but it is wholly and unavoidably rational as long as one appreciates the depth of the subject matter and avoids narrowing the scope to those issues that fit with ones personal stake in the case.

There are two big issues involved in the ruling by Judge Walker:

First, the age old discussion about the measurement of the right of the people to govern themselves according to the dictates of reason and conscience, weighed against the right of individual actors to do what they would contrary to that larger societal will. This is not a new discussion, but that Judge Walker chose to unilaterally impose his personal views upon that larger society is something not easily reconciled with the American political process as generally understood.  It’s not that judges have not been forced to impose their authority between a majority and an abused minority, but that an abused majority is now being subjected to the will of the minority and this without due process of law.

The second, is the place of newly created and heretofore unknown “rights” and their relationship to previously existing law. Before anyone objects to the newness of the right of men to marry each other, it is so new and such a dramatic innovation in regard to existing social and legal institutions that to deny its newness seems to place one squarely in the camp of mere ideology over common sense and historical reasoning. Since we would not be having the discussion were it not so, the thing speaks for itself.

As Judge Walker’s decision goes through the process of being analyzed for integrity by the public, the lack of clear legal and moral reasoning is becoming increasingly apparent. His disdain for traditional marriage and his inability to find “any rational justification….” for its existence and legal protection in the light of thousands of years of moral and legal normativity shows what we might think of as an unwillingness to bear the proper burden of persuasion. The one who makes the striking and counter intuitive claim has the obvious burden of arguing powerfully, persuasively, for the reinterpretation of a social institution. What we see there seems to be a light dismissal of marriage and an exertion of power in the absence of the needed reasonable arguments.

There is a very real danger in the disestablishment of long respected and institutionalized rights; the right to marry; the right to familial relationships; to make way for the legal protection of new and different kinds of relationships, or even innovative and highly speculative reinterpretations of those institutions and rights, that the laws were neither written nor intended to protect. The 14th amendment to the U.S. Constitution for example, was written to eliminate the moral evils of slavery and to mitigate the effects of that bizarre institution. That law is not a guarantee of wholesale protection for any kind of personal preference that someone might claim as a right and does not have the effect of replacing the rest of the Constitution and its protections of the people’s right to govern themselves. The new rights created in gay marriage have not, in this sense, been “vetted” by history for rationality and universal respect, and this makes them seem highly subjective and more the preference of persons than something integral to the overall good of the society. The proper legal path to arrive at this place would be the same way that we approved the 14 amendment and the Civil Rights Act itself; we voted on these things and passed them into law. We the people did this; not a mere act of judicial fiat.

Judge Walker’s most powerful arguments tend to be emotive more than reasonable or legal and are rooted in analogies from things suffered by other people in very dissimilar conditions.  Is gay marriage a universal human right, the violation of which is analogous to the 300+ years of institutionalized violence and oppression against African Americans?  It’s hard to take that kind of claim seriously.  It might even be thought of as insincere or lacking a due apprehension of the historical plight of a persecuted people.  Is it then the same as when men and women of different races were not allowed to marry, as in the famous case of Loving v Virginia, as Walker claims?  It is hard to see how unreasonable laws against women and men marrying each other within the context of traditional marriage to form traditional families is helpful to Walker’s cause, much less analogous to his preference.  If anything the “Loving” decision was an endorsement of the inherent validity of traditional marriage and its protection from state power, whether legislative or judicial, to mandate a reinterpretation by law.

Two thoughts about the importance of real human rights as opposed to those created in the pursuit of a self interest:

First, this decision is increasing the real problem of skepticism and disregard for the very idea of “universal human rights” in that the more extraneous and superficial a claim for a right becomes the more difficult it becomes for thoughtful persons to take such seriously. The ongoing plight of human rights talk in the international community is plagued by the denial of such universally applicable values and a strong movement towards the values of distinct “cultures” specifically because so many “rights” are affirmed in the absence of clear natural and moral reasoning. In this very serious debate which is often measured by survival itself, “gay rights” talk is a case in point. It is simply unconvincing in terms of being in any sense “fundamental” as opposed to merely “civil”.

Second, The farther we move from protecting those rights that are rationally and immediately apparent to all to using the law and force of state to impose supposed rights upon the people that they neither recognize nor find rationally compelling, the more we endanger our own hard fought right to self determination, this being the fundamental political right without which the others become impossible to protect.

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