Do You Think Gay Marriage Should Be Allowed in the State of California?

Once again, SodaHead has done an almost criminally inept job of posing the range of alternative answers to the question it posed - not that the question was a particularly good way of addressing the issues that were before the US District Court in SF. The issue before Judge Walker of that court was whether the State of California should have the power to enact a statute creating an institution that sets up a special set of legal rights between a couple and then limit the ability to create that institution in the State of California to situations involving couples composed of different genders. Please note that the issue of whether "the existence of Gay Marriage Should Be Allowed in California" is entirely moot, out-of-state Gay Marriages and other otherwise validly existing same-sex marriages in California are perfectly legal, the controversy in California concerns the creation of new marriages.

I answered as I did, not because I'm opposed to same-sex marriage, though I might have a different title for it, but because I have a deep and abiding respect for the democratic process. Regardless of my opinion of what a state's social policy in regard to the issue I stated above was before Judge Walker, as a matter of US Constitutional Law I am utterly appalled that judges have so lead-footedly trampled on the prerogatives of a democratic electorate. DeTocqueville warned us about America falling victim to a "tyranny of the majority"; little did he know. The current Liberal element in American politics has trumped his fears by endorsing a "tyranny of the minority", so long as that minority pays obeisance to a priesthood dressed up in black robes and says things that are endorsed by the Editorial Board of the NYT.

As to the merits of the case, all the State need have to justify its limitations on marriage is a rationally cognizable interest. The State has a rationally cognizable interest in having its citizens reproduce. A significant portion of heterosexual marriages involve people who, for whatever reason, do not intend to have children when they marry, but whom, after they marry, have an "accident" or otherwise find themselves wishing to produce offspring. That does not happen in significant numbers in same-sex marriages. That is an adequate basis, IMHO, for ratifying California's democratically enacted restriction limiting marriages to couples of different gender.

Actually, the USSC case you're talking about, which said barring marriage between "races" was a 'civil rights violation', was a case called Loving v Virginia and it is chock full of statements that can be used to limit the applicability of the case to racial situations. However, I'm not really into discussing the Proposition 8 case in that vein anymore, I think the case should have been dismissed because, as I have subsequently learned, there is no difference in California between a Civil Union and a marriage; the case should have been dismissed because no one was being denied any federally cognizable rights.

I'm actually much more intrigued by a different question, now. Virtually all of the anti-Prop 8 arguments I read went somewhere along the lines of "two people who love each other and want to raise their children together ought to be allowed to do so, particularly since the restriction against sole-sex marriage is directed against a group, homosexuals, who have traditionally been persecuted in this country because of uptight Bible-thumping freaks". What I would now like to hear your opinion on (and that of anyone else who wishes to offer it, but particularly those from the "anti-8" side) is: What is the justification for limiting marriage/Civil Unions to unmarried people, particularly when those people do not and cannot have any children with their other spouses, and those other spouses have executed waivers of their objection to the plural marriage? Aren't these bigamist wannabes just like the Prop-8 plaintiffs, i.e., traditional victims of an overactive streak of Christian belief in America that wants to attach archaic conditions to legal marriage that no longer have any merit?

1. The Judge has the power to overturn laws he deems unconstitutional ... . Indeed, yes, the judge does have such power, but s/he is not supposed to exercise such power whimsically; that is what the argument is about.

2. ... the state does not have an interest in couples reproducing ... . An interesting concept, albeit not a particularly defensible one. I find it interesting because, if it were established that there truly was no legitimate state interest in promoting population growth/regeneration, would there be a case for abolishing marriage generally? After all, why do we have all these special rules for marrieds? Shouldn't they just be treated as two singles and establish their rights vis-a-vis each other through contracts, as the "regular" people do? But I digress.

3. ... allowing gays to marry would NOT lessen ... . You have failed to apprehend what I have said. Marriage is a collection of special privileges. Presumably those privileges occasion some type of cost, be it to society generally or to the government fisc in particular. Government limits the participation in marriage to limit those costs. In the case of marriage there are some people who are included in marriage who can't have children. It's entirely possible those people were added merely to encourage support w/in the electorate for according certain of those marital privileges to marrieds, but political jockeying is a legitimate legislative concern and activity. Is it unconstitutional to extend marriage to elderly couples or couples otherwise incapable of reproducing, but not gays? Nobody has brought that pointed a lawsuit, perhaps because it would likely have pointedly negative political consequences, but it might be interesting to watch Judge Walker wrestle with it.