Monday, February 20, 2012

Culture Wars Again?

In the midst of the worst economic crisis of since the Great Depression, the so-called Culture Wars are back.

The Obama administration and Catholic Bishops pit government mandated health coverage against the freedom of religion.

And over the last few weeks, the Washington, New Jersey, and Maryland state legislatures voted on the question of same sex marriage. New Jersey Governor Chris Christie vetoed that state's bill, demanding instead a state constitutional amendment.

Californians adopted the constitutional amendment approach, only to find themselves on the losing end in federal court. The background in a nutshell:

Marriage has been understood traditionally as a union between a man and a woman. So universal is this traditional understanding that many state statutes regulating marriage include no references to gender. Homosexual rights advocates have seized upon this perceived vagueness in state civil or family codes to make their legal cases for same-sex marriage. In 1977, California state assembly removed this vagueness by amending its civil code to confirm the traditional definition of marriage as “a personal relation arising out of a civil contract between a man and a woman.”


Same-sex marriage developments in other states moved California to further refine its statutes on marriage. Because California law recognized the legal status of marriages conducted in other states, this opened the door for the establishment of same-sex marriages in California. Couples who were parties to a legal same-sex marriage as citizens in another state could relocate to California and demand recognition of their marriages. In addition, California citizens could subvert their own state’s regulations by marrying in a state that licensed same-sex unions and returning to California.

California voters attempted to close this loophole in 2000 through Proposition 22, called the Defense of Marriage Act. Passed by a 61-39 percent majority, this initiative amended the statutes in the family code to read that "only marriage between a man and a woman is valid or recognized in California." Homosexual rights advocates filed lawsuits in several different jurisdictions challenging its constitutionality. These cases wound their way through the California state appellate system until they reached the California Supreme Court. The Court consolidated and reviewed six of these cases. In May 2005, the court by a 4-3 majority struck down Proposition 22 and other related statutes that maintained the traditional definition of marriage as violating the California state constitution.


To reinstate the traditional understanding of marriage and the state’s statutes on licensing, a petition drive placed another initiative before the voters. Proposition 8, the California Marriage Protection Act, sought to bypass the state’s Supreme Court ruling by amending the state constitution itself. The petition drive secured twice the number of signatures need to be placed on the ballot. On November 5, 2008, voters passed Proposition 8 by a 52-48 majority. Several same-sex couples filed lawsuits challenging even the validity of amending the state constitution. On May 2009,  the same California Supreme Court court that rejected Proposition 22 upheld Proposition 8.

Finally, suits were filed in federal court. In the first trial, Judge Vaughn Walker ruled that the amendment to the California state constitution known as Proposition 8 violated the equal protection clause of the United States Constitution and struck it down.

Now a federal appeals courts has upheld that decision. Without going into the details of the opinion or the controversy of same sex marriage itself, let's look at some of the opinion's more remarkable claims.

“Proposition 8 serves no purpose and has no effect other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

No other purpose? I don't not know about that. Voters in California probably had hundreds of different reasons for approving Proposition 8. It does not appear that the judge asked any of them. The passage reads more like advocacy of a lawyer  than the impartial conclusion of a judge.

“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause"

The describing of  Proposition 8 as an attempt to "withdraw a right" is a bit disingenuous. Same sex couples only possessed this right because of the decision of another activist federal judge named Vaughn Walker.

"A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.”

In this clumsy effort at sarcasm, the court unintentionally warned other states about the dangers of  so-called "civil unions." In California, homosexual rights groups actually advocated civil unions. Once the legislature enacted them, however, these same rights groups claimed that such legislation stigmatized (in the words of the original plaintiffs)  and discriminated against same sex couples. The judge cited civil unions as evidence of discrimination.

The only thing the court got right in this case was its repeated allusions to the negative impact of restricting marriage to heterosexuals on the social status of homosexuals. And social status is really what this is all about. A very small percentage of same sex couples will ever marry. Homosexual rights advocates see  traditional marriage as one of the last distinctions between homosexuals and heterosexuals. They seem to think with the abolition of this legal distinction, "homophobia" will go away. The fail to see that in the minds of many if not most people, it is not the lack of the "fundamental right of marriage" that stigmatizes homosexuals; it is homosexuality itself.

2 comments:

Mrs. AL (Always Learning) said...

If you flunk first grade biology, don't expect me to put a whole lot of stock in anything you say. That's my response. Not nice perhaps, but sure beats getting into all the emotionalism that occurs around this topic.

Great post.

V.L.Ewell said...

I agree. Marriage is a social convention that we as a society can define--or redefine--any way we want. But it does rest on certain biological realities.