No on 8: Yes To Gay Marriage
Sherman Oaks, California
When I was growing up in suburban Ohio, two old women lived in a house down the street. One of the women was a mystery; we sometimes saw her through a window but we rarely, if ever, saw her outside. We saw the other old woman a lot; she was always cleaning or gardening or fixing the house. She was also a grouch, yelling at us kids whenever frisbees or balls landed on her lawn.
In retrospect, the women were probably a lesbian couple. The mysterious woman probably had a major illness, forcing the other old woman to be the primary caregiver in addition to maintaining the household. That would make anybody crabby.
* * * * *
On May 15, 2008, the California Supreme Court held that gay marriage was legal within the state. When the decision went into effect, county clerks began to issue marriage licenses to couples regardless of gender or residency.
A movement to reverse the court decision immediately formed, and the result is Proposition 8. While many of California's ballot propositions are pages of dense legaleze, Proposition 8 has the virtue of simplicity. The operative section reads in its entirety: "Only marriage between a man and a woman is valid or recognized in California."
I voted No for several reasons.
1. Government And Marriage Should Get A Divorce. The government shouldn't be in the marriage business, period. The government should not be defining marriage eligibility criteria, nor should it continue its contemptible practice of imposing taxes or granting tax breaks based on marital status.
Marriage should be left entirely to individuals and religious groups. The only involvement government should have in marriage is to state the default rules for property allocation in the event of divorce. That's it. Every other question -- who can be married, at what age, the obligations of the marriage -- should be left to private individuals and religious groups. (The government should also have a say in the custody of children; but, as you can see every day in Family Court, marriage is not a pre-requisite to having children.)
The famous "Lemon Test" holds in part that a law is unconstitutional if it would result in "excessive government entanglements" with religion. Yet state and federal law is inextricably entangled with marriage, which in most human societies has been a profoundly religious institution. The legal realist in me sees this as an example of how legal principles (in this case, the separation of church and state) are enforced in trivial circumstances (such as a Nativity scene at City Hall) but ignored when a decision would disgruntle hundreds of millions of people.
Social conservatives will argue that this libertarian position will lead to unconventional marriages. Yes it will, and no I don't care. If three women want to be married, or one guy wants to live in a household with ten wives, it's none of my business (but, man, that guy's a masochist). People who want to live in such arrangements can and do under current laws, anyway. Divorcing government from marriage also neutralizes the objection that the government would be sanctioning such unorthodox arrangements; in my world, the government wouldn't be doing anything. And the percentage of people who would adopt such lifestyles would be miniscule.
Voting No on Prop. 8 is a small step toward disentangling the power of the state from the institution -- the overwhelmingly religious institution -- of marriage.
2. Californian Judicial Activism Is Subject To Checks And Balances. The marriage ruling was straightforward judicial activism. For reasons that the electorate never consecrated, our Supreme Court held that the distinction between marriages and civil unions did not pass muster under the state constitution. In doing so, the court struck down an anti-gay marriage proposition that the electorate enacted in 2000 with 61% of the vote. The drafters of Proposition 8 are correct on this point: the high court did flout the will of the people.
But that's not a big deal in California. Our Constitution is so easily amended -- by the people -- that any court ruling based on the California Constitution can be overturned by a ballot proposition at the next election. As UCLA law professor Eugene Volokh has persuasively blogged, the "counter-majoritarian difficulty" of unelected judges striking down democratically imposed laws isn't a problem here. (California Supreme Court justices are also subject to a limited form of recall.)
Some supporters believe that the right to gay marriage has to be won at the ballot box, that judicially imposed gay marriage would result in a weak law that's constantly being limited and challenged by opponents resentful of the fact that the issue was taken off the table by judicial fiat. These supporters are absolutely correct -- but the defeat of Prop. 8 would be a legitimizing democratic victory. Because of our state's excess of democracy, a California Supreme Court opinion can be seen as little more than the initial volley in a democratic confrontation. In most places, contentious issues are debated during elections and later decided in court; here, an issue can be raised in court and ultimately decided in the polling booth.
3. Show Me The Money. Gay marriages may be performed in California even if both participants are non-residents. Consequently, California can establish itself as the national and global leader in the gay marriage industry, generating income, jobs and tax revenues.
California's competitive advantage is monstrous. You can have a sunny, outdoor wedding on the beach in February. Try that in Connecticut or Massachusetts, the other two states which allow gay marriage. Every gay couple living west of the Mississippi River could come here, along with their guests, and splash out for venues, catering, hotels, car rentals, flowers, you name it.
And, to perorate on the blitheringly obvious, this is the worst possible time to voluntarily contract the economy.
4. The Two Old Ladies. If the two women from my old neighborhood wanted to marry each other, they should have been able to.
Labels: California Uber Alles