The California Supreme Court decided on May 16th to that it was unconstitutional to maintain separate legal categories for domestic partnerships (same-sex) and civil marriages (male-female).
For those of you who are blissfully unfamiliar with California gender politics, the Court's decision finally overturned the California electorate's long-standing preference for granting identical rights to gay couples and straight couples... while maintaining a tattered linguistic distinction between the two. In fact, Californians are so committed to fudging this issue that they passed a voter initiative (Prop 22) saying that California does not acknowledge out-of-state or out-of-country same-sex unions. And they passed this initiative in the very same year that they gave California's extremely progressive Democratic Party a 25% margin in the Assembly. So in my book, May 16th was a day to be proud of our Supreme Court's wisdom and willingness to flout democracy in the name of good jurisprudence. The fact is, sometimes people want to have contradictory or ambiguous law out of an unwillingness to make hard decisions. On some level we want to give with one hand and take with the other. A good Supreme Court - like California's - guards the rule of law and, ultimately, democracy by not allowing us to do that.
Now, I've been told that my opinions on this subject are in no small part due to the fact that I don't actually have a family. But by the same token, if I took the opposite position I'd be hearing a variation of the same refrain. That is; "You don't know enough same-sex families." or "You've never had a gay lover and three adopted children." But rather than start a gay-family (sorry guys) and a straight-family (hello April!) and then wait for an informed opinion to emerge, I'm going to see if I can write convincingly on the subject with no experience of having either. Hopefully that doesn't offend...
I want to make three points concerning the effects of the In re Marriage cases: (1) it has no effect on the substantive family issues, (2) it holds no interest from a religious perspective, and (3) it upholds the kind of liberal separation of Church and State that the Church needs in order to remain free.
(1) In light of our state's constitution, Prop 22 and the California Family Code, which defines marriage as between a man and a women, are clear cases of arbitrary discrimination. In the court's words, 'both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.”'
Once you've granted same-sex couples the right to adopt, the substance of the marriage-issue is exhausted. It would asinine to grant same-sex couples the ability to start a family and then turn around and systematically undermine the dignity and respect with which that family is held (see 'separate but equal').
(2) The Court's decision - despite fears that it will suddenly alter God's policy on marriage - will not. I know we have a lot of non-Christian readers and friends, but they will surely follow along hypothetically with the proposition that "IF there is a God, THEN he doesn't conform his will to the California Supreme Court's". (Despite the fact that the CA SC is the most followed state court in the land GO CALIFORNIA!!!!!) So, as most Christians define marriage - something between God, a man and a women - this linguistic shift will have precisely no effect on the sacrament of marriage.
From the historical perspective (not to mention theological) civil and sacramental arenas have always been either opposed or at the very least, detached. John Calvin created civil marriage in the Marriage Ordinance of Geneva to express the theological position that marriage is a civil contract, not a sacrament relationship. In other words, Calvin changed the marriage triad from God-Man-Woman, to State-Man-Woman, (in his opinion God was pretty much disgusted with the whole sexy thing.) This transformation conformed to the central motifs of Enlightenment intellectual thought - disenchantment of religious institutions and the commodification of relationships.
Thus, the creation of civil marriage made explicit the unromantic truth implicit in marriage during Calvin's time. Calvin simply hastened marriage's regression to a mere contractual relationship between two individuals for the purposes of procreation, property and economic production. With the advent of civil marriage, the higher significance of marriage as an icon of spiritual truths, a sacrament and the ruling metaphor of the New Testament, receded behind it's economic and juridical meanings. It is unsurprising then that following Calvin's "contribution" to the institution of marriage, divorce ceased to be a non-starter. What previously would have been seen as blaspheming suddenly became, in Protestant countries, a part of the normative structure of marriage. The profaning of a sacrament is re-imagined as a business deal gone bad. (Pre-Reformation divorce was normally reserved for spiritual reasons like unfaithfulness, after the Reformation the reasoning becomes economic, i.e. impotence, accident, infertility...etc.)
Now this is all a long way of saying that those of us that believe in marriage as sacrament should stop obsessing over this issue since nothing can change marriage in the sense that matters to us. Marriage as a sacrament can only be further undermined by linking it to the institution of civil marriage; these institutions may look similar but at bottom they are in completely different universes. (What's far worse is that in the interest of Christianizing our government, Christian "culture warriors" have aided and abetted one of the most immoral administrations in recent memory. )
So it is fair to say that from the perspective of the Churches that still recognize marriage as a spiritual practice (the Orthodox, the Catholics...etc.) this is a complete non-issue. Civil marriage was irrelevant from the start and the California Supreme Court deciding what sound we make with our mouths when we talk about same-sex marriages just makes it hilariously irrelevant. No one can force the Church to recognize a marriage.
(3) The decision reflects the kind of jurisprudence that will keep Americans free to practice their faith without interference from the state.
The really clever thing about our country and why it functions so smoothly is that it isn't a democracy. We have a constitution which defines the rules that democracy must play by. (I would be tangential to argue for this here, but I think it's clear that we wouldn't want unmitigated democracy.)
One of those rules (thank god) is that the government - regardless of democracy - cannot establish privileges that are delimited to a particular community. Granting heterosexual couples extra privileges or recognition is a clear example of illegitimate discrimination based on both gender and creed. So the four judges had the right to maintain the principles of our state constitution by opening up marriage - and the privileges that go along with it - to homosexuals. If people want it to be otherwise, they can change the constitution (we'll be voting on just that in Nov.).
We have a choice in how we handle contentious cultural issues like this, we can choose a clash of cultures or cultural liberalism. Culture war: Christians, and presumably others, should attempt to give their beliefs concerning society the weight of law. Cultural liberalism: In the simplest formulation - if what you are doing does not harm any one, the government should not prevent it.
Personally I think that all creeds, including my own, are safer in a liberal society. Yes, our beliefs won't be officially seconded by the state, but we will be allowed to do what we personally believe is right and to carry on our cultural traditions - like marriage - in the manner that we see fit. Once we define the situation as a culture war, then we are in a scenario where losing is a disaster and any win is empty. That is; if we lose, we have established the idea that the cultural "winner" gets to enforce their personal code through the mechanism of the state. If we win, what have we achieved? It's not going to change anyone's heart, it's not going to significantly change how people constitute their families, it's not going to change the culture, it merely deprives homosexual partners of certain legal rights and symbolic support enjoyed by heterosexual couples.
Wednesday, May 28, 2008
Same-Sex Marriages in California
'Separate but Equal'
Do you want a guy who excommunicated all of Geneva for not letting him excommunicate people giving you advice on marriage?
Culture War v. Cultural Liberalism
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6 comments:
New Polity, I posted this response to your comment on this subject at Christianity Today's Liveblog:
New Polity, your understanding of constitutional law is misguided. I well addressed the tyrannical nature of the California Supreme Court's ruling in my earlier post here, to wit, the right to homosexual marriage does not exist in the California Constitution. This, again, is the tyrannical aspect of the decision and all such decisions which locate such rights within the shadows of the constitutional text in order to effect nothing more than social policy. No, New Polity, you have imbibed at the well of liberalism and its necessary corollary that the Constitution is organic and must change to fit the tenor of the political times. This once more illustrates the perniciousness of the ever-moving "rights" target. Of course, perhaps like you, I was taught that the will of the majority cannot trump the Constitution, and that's okay as far as it goes. But we've gone WAY, WAY beyond that point in constitutional jurisprudence in America. This, Mr. Polity, is the tyranny of the judiciary.
BTW, Greg and I have a history here, and my comments to him are not as mean-spirited as they might initially appear. I generally find him good-natured, but like your understanding of con law, misguided.
DiverCity
BTW, I would be most interested in your commentary on the main dissenting opinion in the case.
DiverCity
There is some really interesting research on moral decision-making that might shed some light on the issue.
People who are politically conservative tend to judge things as morally offensive and wrong based on how much those things elicit feelings of disgust. Liberals, although they feel the same amount of initial disgust, will adjust their feelings post-hoc using the principle of harm. Basically liberals think that if an act does no harm to anyone else, then it is in fact not morally offensive (there's an interesting study involving sex with chickens that backs this up, but I won't go into the details here...)
I think the reason same-sex marriage proponents get frustrated by the whole issue is because they are trying to use rationality to argue with people who are making an emotional decision. If you feel homosexuality is wrong, then no argument will be sufficient because you think it is wrong at your gut level.
By the way, I hope this doesn't come across as conservative-bashing...I find it interesting that research shows that EVERYbody finds homosexuality initially repulsive--its just whether or not they correct for their feelings in the end that contributes to their political feelings on the matter.
Dear Anonymous,
I agree that there is something shady about judicial activism. But the State of California (as of recently) is in a majority about this issue (ie will of the people says go). Maybe a better question is what happens when Christian culture becomes the culture of a minority? Should state and church remain tied, even when culture has long since divorced itself from church teaching? If so, isn't this a different kind of tyranny?
Of course, one must vote as one would hope the state to be, not as it is inevitably.
Hey DiverCity,
You are entirely correct that homosexual marriage does not exist in the California Constitution. But this is the interesting thing about constitutional jurisprudence in the United States, it lies somewhere between the (non)constitution of the UK, where what's done and what simply isn't done constitutes the polity, and the civil law constitutions of continental Europe wherein the the structure is set more explicitly. We have a "principled" constitution where the values of the state are set but the work of defining substantive rights is vested in the judiciary. Thus a great deal of what we call our constitutional rights come from decisions rather than explicit precepts in the constitution. That's just "common-law" jurisprudence.
There are advantages and disadvantages to our system, but that said, it is emphatically our system. Terms like activism or tyranny are ideological in their deployment. We have always had and must have activist courts. It's in both the design and the tradition of our institutions all the way back. So the measure of a court is not whether it is activist or not, but whether it nuanced and wise enough to make its decisions conform to both the norms of jurisprudence (the illusion of precedence and positivism) and to the deepest principles of the polity (court as oracle of the national conscience). (The Burger Court did neither, Rehnquist and Warren where geniuses in keeping this balance.)
many more things to reply to, but thanks for the thoughtful comment. I'm always ready from a bit of well-meant sparring.
I'll be writing on "judicial activism" and the dissenting opinion in the next week or so.
EP
Not to split hairs, but let's split some hairs. I think all that is meant by the term "judicial activism" in the pejorative sense here is simply a judicial decision that does not conform to the social normative or will of the people, or- a decision that is applied to a large group of people where perhaps only a small group of people find legal action necessary. But this of course is irrelevant to this particular decision. Activism is probably the wrong word, nevertheless the expression is still used for the concept of "undemocratic" legal decisions in most recent contexts. This is probably a useless post, but there it is.
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