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Edited on Fri May-16-08 05:57 PM by Prophet 451
I'm going to presume that, by now, everyone has heard about the California Supreme Court legalising same-sex marriage in that state. Obviously, kudos to the judges who made the decision are in order as are congrats for any couple now looking to marry in Cali. However, it appears likely that the reactionary brigade will manage to get an item on to November's ballot in an attempt to amend the state constitution, just to make it clear that gay people are second-class citizens. So, in the spirit of preparation for that upcoming battle, allow me to offer a few pointers. This is in "he said / she said" format but feel free to insert a righteous ass kicking between the two if you see fit.
"The judges overturned the will of the people" ~ <insert ass kicking> It is not the job of the judicial branch to uphold the wishes of the majority. There is a very good reason why very few states and virtually no civilised nations elect judges and that is because it would open them to the same pressures as politicians face. Judges are deliberatly insulated from the political process to ensure that they don't have to follow "the will of the people". The judges were asked to rule on whether the state's ban on same-sex marriage conflicted with the state constitution's ban on discrimination on grounds of sexual orientation. They decided it did. making that decision was their only responsibility. Not enforcing the will of the people, not following the prevailing political winds, simply stating the law as they understood it. The judicial branch is independant to guard against the tyranny of the majority, not to enable it.
"Activist judges / legislating from the bench" ~ <slap> The phrase "activist judges" has only ever meant "a decision I disagree with". Of the seven judges who made this decision, six were appointed by Republicans and California currently has a Republican governor, not the kind of people normally slandered with cries of judicial activism. As anyone who has ever studied law knows, it is utterly impossible for a judge to avoid legislating from the bench. In any case at all (except Bush V. Gore), the decision establishes a legal precedent. By the principle of stare decisis (roughly "the court stands on it's previous decisions"), that precedent then has the force of law to all lower courts unless and until it is overturned, thus establishing law and thus, legislating from the bench. That is how the legal process is supposed to work. It is, in a very real sense, the essence of what judges do. Further, the cry of activism can only ever have any weight (beyond the previously mentioned "decision I dislike") if a decision is made without firm legal reasoning. In this case, the legal reasoning was entirely sound. The wording of both the State Constitution and the marriage act were exceedingly clear and the court also drew on the decision made in Loving which established the right to marriage as a fundemental right. That is a well-reasoned, well-thought out judicial opinion.
"Now people will be able to marry children/dogs/box turtles" ~ <boot to the head> First off, there is no evidence whatsoever that gay people abuse children any more frequently than hetero people and a certain amount of evidence suggesting exactly the opposite. Secondly and more importantly, marriage is (shorn of the religious connotations) a state-sanctioned contract. Children cannot consent to a contract, nor to sexual intercourse so when one is asked "where do we draw the line?", the appropriate answer would probably be "at people who are able to give consent". While we're on the subject, animals are also judged unable to give consent so leave that one at home too.
"They're free to marry someone of the opposite sex, like anyone else so same-sex marriage is a special right" ~ <kick to the balls> There is a reason the phrase "one size fits all" appears in no known constitution or bill of laws anywhere. If you wish to apply that arguement, one can as easily shut down every church except the Satanists, not our fault if you choose to be something different or we could enforce vegetarianism, not our fault if you like a steak. Quite apart from the absurdity of the arguement, it becomes rather more sinister when you flip it around: If the government can say I only have the right to marry a woman, why can it not say I only have the right to marry some women? Or this woman? Or this aardvaark? A reasonable arguement can be made for limiting marriage to two people out of sheer practicality and the need to maintain a tax base but beyond that, allowing the state to decide which people can marry sets a dangerous precedent.
"Marriage has always been between a man and a woman" ~ So was child labour, so was miscengenation, so was slavery. Everything is "always" until we decide it's something else. The satirist Terry Pratchett once described tradition as "the name we give to something daft we've been doing a long time". His point was not that tradition is inherantly a bad thing but that holding a tradition simply because it had always been a tradition was absurd. Until quite (shamingly) recently, it had "always" been legal to force sex upon one's wife. And then the world grew up and realised that was foul and changed it. Humanity is not static, what was done does not have to continue to be done. If humanity had stuck with what it had "always" done, we would be eating our meat raw and living in a tree. Respect the last by all means but don't be a slave to it and, when necessary, be willing to learn from it's mistakes.
"God says it's immoral" ~ Got God's fax number? Willing to share it? Then it's just your opinion. You may have an elderly book that says your god feels this way but I have a book which says otherwise and since neither of us can prove our case or disprove the others, let's just leave everyone's gods out of the equation. Or, to quote Sir Francis Walsingham: "Is your god such a worldly god that he must play at politics?".
"It's unnatural" ~ So is wearing clothes, driving cars, modern medicine, corporations and American Idol. The life of man in a state of nature is nasty, brutish and short. The entirety of human existence has been a flight away from nature, a drive to modify nature to our own ends. That is what has made us the dominant species on the planet and, because we never know when to stop, is killing the planet. Homosexuality has been observed in at least a hundred species (last time I checked, it may be even more now). If animals in the state of nature do it, it is natural by definition.
"It will encourage homosexuality" ~ You can't encourage an inborn trait. All the evidence, while not entirely conclusive yet, indicates that homosexuality is almost certainly inate. More to the point, what do you think is going to happen? Are otherwise hetero kids going to notice two guys getting married and think "I'm cured, I want the boys!". If gay people have been being gay and living as gay and coming out as gay despite the ban on same-sex marriage and despite the phonomenal pressures to be straight and conform and despite the (decreasing but still very prevelent) threat of physical violence, we can safely assume that surpressing gay people hasn't worked.
"It will destroy the sanctity of marriage" ~ OK, first off, let's talk about that sanctity. Last time I checked, the divorce rate was around fifty percent and around eighty percent of married people (men and women) will cheat at some point in their married life so marriage doesn't currently seem to be very sanctified anyway. Secondly, do you honestly believe that gay people getting married will have any effect on hetero marriages (beyond the miniscule effect on tax revenues)? Straight people are not going to stop getting married purely because marriage is no longer exclusive to them, the human mind doesn't work that way.
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