Monday, March 31, 2008

S147999 - Part III: As Long As You Believe in God

While we wait for the California Supreme Court to decide on whether we will be able to marry in California as we might in Massachusetts, Canada, Spain, Holland, Belgium, South Africa and many municipalities around the world, we worry not so much about the face-level justice of recognizing gay people's long-term relationships. As a people, we have come a long way, and increasingly, just as racists and sexists and anti-Semites have been marginalized, homophobes have, as well. Fewer people every day suggest that gay people's long-term relationships are in any way inferior to straight people's long-term relationships. If we lose the marriage equality battle in California this time around, as we have so often in the past, it will be a kinder gentler homophobia that does us in.

While we beat our chest about justice and fairness and common sense and why can't people just be nice to each other, the courts live in a world of exquisite attention to detail. One person's technicality, I mean, is another person's winning (or losing) legal argument.

Consider the following:

  1. The constitution considers the right to marry a fundamental human right.
  2. California currently limits marriage to two people of opposite sexes, making it a heterosexual institution.
Then consider what the marriage equality folk are doing:
  1. Petitioners in S147999 are arguing that if marriage is a fundamental right, it should be available to all citizens, and not just heterosexual citizens.
  2. They have used Perez v. Sharp, the court case in which anti-miscegenation legislation was found to be unconstitutional, as precedent.
So far, so good, right?

But now what exactly was the court getting at when it ruled the anti-miscegenation laws were wrong?
  1. Traditionalists (defined here as those people who argue limiting marriage to heterosexuals is a time-honored tradition) say it is all about racism and preventing people of different races from marrying each other. (Actually, they'd be more accurate to make it about white supremacy, since nobody gave a damn whether Chinese married blacks; they just didn't want either of them, or any other "coloreds", to sully the white race, that's all.)
  2. The Marriage Equality side insists that a close reading of the majority opinion in Perez v. Sharp makes clear the Court understood the issue to be not about race, but about the right of any one individual to marry any other individual of his or her choosing. The heart of the issue was not racial discrimination, as is commonly understood, in other words, but the unconstitutional restriction by the state on an individual's right to select a marriage partner without government interference.
Fine, say the traditionalists, but we still insist that Perez is not precedent, since anti-miscegenation laws limited access to marriage, while in the present case, there is no limited access to marriage and no singling out of gays. Gays can marry as well as straights. They simply have to marry someone according to tradition – i.e., heterosexually.

One wonders why the entire Supreme Court doesn't collapse into hysterical laughter. So ingrained is the homophobia, that traditionalists cannot see the absurdity at face level. It's a kind of Animal Farm form of reasoning. Elephants have the same rights as birds to build their nests high in the trees. To migrate to Canada in the summer. To sit on their eggs without government interference.

Reminds me of a conversation I had with my grandmother once.

Grandmother: So what church do you go to now?
Me: I don't go to church, grandmother. I'm an atheist.
Grandmother: Well, as long as you believe in God.


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