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.

In re Marriage Cases S147999 – Part II

“Well, it’s looks like 61% of the people in California disagree with you,” he said to me, this little turd I got into an argument with over gay marriage some time ago. He was referring to Prop. 22, that nasty little proposition which garnered 61% of the vote in 2000 and which makes it possible in California for us to say we don’t care if you are married in your country, you’re not married here.”

I can’t forget the smug look on his face. “There, Mr. Smarty Pants who thinks he knows everything,” it said. “Guess you’re wrong about this one!”

Well, no, I don’t think I was. This is another one of those dumbed-down ideas – that might (or at least majority opinion) makes right.

We forget just what an opinion is. An opinion is an idea that sometimes comes after considerable deliberation, and at other times seems to ride out on the wax out of your left ear. Opinions are like teeth. Sometimes they glisten. And sometimes they need to be yanked out.

And sometimes, to prevent yourself from being sidewindered by some smartass who thinks he’s got you by the cojones with his statistics, you’ve got to be able to dig around in those opinions and find the cavities.

This 61% figure, for example. (And I’m done with the triple body metaphors.)

It tends to be taken on face value. The arguments before the California Supreme Court by opponents of marriage equality for same-sex couples, for example, take the stance that 61% of the people can’t be wrong. Furthermore, we are told, Californians are in tune here with the majority of the American public, including all kinds of wise and wonderful people. Bill Clinton, for example. Hell, all three candidates running for president. The opinion is clear and steady. Gays may make civil unions or domestic partnerships in some places (but note the number of states where they can’t even do that), but marriage? No. We draw the line at marriage.

Now it’s no secret I am with those who argue this is a constitutional issue, and thus should be decided by the Supreme Court and not majority opinion, so arguing over numbers, actually, is a red herring to me.

But since I think it’s useful to keep the brain fresh by having a whack now and again at sloppy thinking, let’s – just to keep in practice – take a look at this “majority opinion” question here.

First off, note how the impact of this majority “opinion” changes if instead of looking at the raw bottom line figure you look at trends and at a breakdown of who the people are expressing those opinions.

For example, according to a Pew Forum report in 2006, while “Americans” continue to oppose marriage equality for gays by a 56 to 35% margin, these numbers break down in an interesting way. (1)

If you’re over 65, chances are 73% you oppose marriage equality, but
If you’re between 18 and 29, chances are 53% you favor it.

If you’re a white evangelical, you oppose it at a rate of 78%, but
If you’re a black protestant, that rate is less, at 74%, and
If you’re a non-religious American (or at least describe yourself as ‘secular’), you favor it at a rate of 63%.

Don’t miss that last bit. Non-religious people in 2006 favor extending the right to marry to same-sex couples at a slightly higher margin than the people of California as a whole voted to withhold recognition of out-of-state marriage in 2000.

Liberal democrats collectively are even more in favor than secular people collectively – 66%.

Now take this one step further. The “reason” religious people tend to give for their opposition to equal civil rights for gay people is that homosexuality is a choice, (and a bad one, of course) and not an immutable characteristic. This matters. If I am born with a natural inclination to want to team up for life with a person of the same sex, then assigning that partnership to a second class status, even a “separate-but-equal” status, is an injustice. If your “opinion” is that it is a choice, you can make decisions that hurt people, just as you can hurt kids in school if your “opinion” is that the world is only 4500 years old. The health of a majority-rule democracy depends on an informed public.

And there is more. We often set up religious people on one side and secular people on the other, as I just did, and the Pew polltakers just did. But what if they had gone beyond separating out white and black evangelicals, and correlated religion and education. Pew doesn’t do this (or, if they did, they didn’t publish the figures here), but I’ll wager the gap in the churches between the highly educated and the less well educated matches up with the figures of the public in general.

People who do science, and people who ground their opinions on evidence, overwhelmingly hold that homosexuality is not a choice. These people include the American Psychological Association and virtually every single professional psychological and social service organization in the country.(2) The opposition comes from those with their finger on the scripture (the part about homosexuality, of course, not the part about slavery and eating shellfish). The Catholic solution is for us to do as priests and nuns are supposed to do – tie a knot in it. The evangelical solution is to pray to Jesus to lift the sin. Both solutions strike the gay people who don’t buy this crap as on a par with removing the testicles with a plastic fork.

And don’t forget that while Mormons, Catholics and evangelicals oppose marriage equality in large numbers, 17 California religious organizations joined together to write an amicus brief in favor. (3) To use religion, in other words, as a crutch for your opinion against same-sex marriage, means nothing more than to listen to a more authoritarian religious organization and turn your back on less authoritarian (including evangelical) religious organizations.

When asked about whether they think homosexuality is “something people are born with.” here are the figures of those who said yes:

high school graduates: 26%
people with “some college”: 39%
college graduates: 51%

Another interesting figure is the change over time. A total of 20% said yes in 1985. In 2003, that figure had risen to 30%. And this is for the country as a whole. People on the coasts tend to express far more progressive views.

It’s worth repeating that these are opinions. They reflect beliefs, not facts. And human rights should not depend even on enlightened opinion; they should be grounded in reason, extended to all at the earliest opportunity and guaranteed by the highest law in the land.

Marriage for gay people is an idea advancing with stunning speed, astonishing to anybody like me who grew up in the dark ages when you could still hear “I thought people like that killed themselves.” I have debated this issue with gay people who are terrified of a backlash, who insist we need to go slow, give people time to get used to the idea. One of the amicus briefs against marriage equality is from a gay activist who makes the case that we put our civil rights at risk by assuming the time is here and now for full equality.(4) No, Mr. Martin Luther King, they say. Justice delayed is smart, sometimes.

Tactically, they may be right. The Supreme Court may go against us and we may be set back several years.

But I’m hoping they will not give in to “majority opinion” (if indeed that majority still holds these days.) And, if they do, I hope they will at least consider that maybe college graduates may know something high school graduates are missing.

Opinions. Let’s hear them.

And let’s use them as jumping off points for discussion. Not as the be-all and end-all of the rules we live by.


_____________

(1) http://pewforum.org/docs/index.php?DocID=150#6
(2) http://www.courtinfo.ca.gov/courts/supreme/highprofile/ Click on: “Amici Curiae” and then on American Psychological Association et al. (Part 1) (Part 2)
(3) http://www.courtinfo.ca.gov/courts/supreme/highprofile/ Click on “Amici Curiae” and then on California Ethnic Religious Organization for Marriage
(4) http://www.courtinfo.ca.gov/courts/supreme/highprofile/ Click on “Amici Curiae” and then on “Traiman (Leland) et al.”

In re Marriage Cases S147999 – Part I

I’ve been focusing a lot lately on what is being broadly referred to as the dumbing down of America. Got any ideas on how to measure this? I suspect it’s simply too vague a concept, smart and dumb, to be measured meaningfully, and we are doomed to go on forever hitting each over the head with anecdotal evidence of how stupid people are (http://www.darwinawards.com/darwin/darwin2008-06.html), how uninformed our high school students are (http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2007/10/24/notes102407.DTL), and how ridiculously irrational some of the assumptions are we work with on a daily basis.

One that has been like sand in my teeth is the conclusion that we have not suffered another 9/11 attack because Bush is doing a great job. But that’s only a variation of the claim that because I got over my cold, that proves that God loves me and answered my prayers. And that’s only a variation on the claim that since Obama did not denounce Jeremiah Wright a long time ago, that means he loves Farrakhan and that means he hates America and that means he’s controlled by the Muslims, and if that weren’t enough proof, just look at his middle name.

The other biggie that has been bugging me is this notion that there are two sides to every story. That truth always lies in the middle.

There are two things wrong with that. First, by seeking to explain everything from the middle, you reduce and even eliminate important information that should govern your thinking. As my friend Ed once pointed out, if your head is in the oven and your feet are in a bucket of ice, “on average” you’re pretty comfortable. If one person loves you and another hates you, is the best course of action to stay away from both and be neutral?

We should be able to work out these ideas on the basis of common sense, but there is evidence everywhere that people still operate on the basis of idiotic principles instead, seeking to solve problems with solutions that have not worked before, for example, or pumping ourselves full of medicines for depression that worked for Aunt Edna’s bursitis, or looking for keys over here where the light is better instead of over there where you dropped them.

Those of us who grew up with religion were taught early on that there is something “beyond reason” which is worthy of respect. I still hold that view, I’ll have to admit. But giving too much respect to something beyond reason leaves us terribly vulnerable to the thought that we can dispense with evidence for our claims.

We have reached a place in the culture where rights outweigh responsibilities, and that means we have less reason to be civil, less reason not to throw trash on the sidewalk, less reason to watch out for the other guy. It also means “I have a right to believe what I want to” outweighs “I have a responsibility to ground my assertions.” It means we don’t need to discipline ourselves, educate ourselves, or sacrifice ourselves for a good cause. Holding the belief that any opinion is as good as any other leads to the assumption that whatever the majority says should hold. We forget that’s only another way of insisting that might makes right.

Here’s my favorite current example of that folly. In 2000, 61% of California voters supported a proposition, Prop. 22, which stipulates that marriages by people of the same sex in other places should not be recognized in California. 61% is close to a 2/3 majority, and 2/3 feels like a powerful force indeed. How could we, in a democracy, go against the will of two-thirds of the people?

Without a good reason for the contrary, majority rule is the democratic way to go, of course. But then again, we need to be careful we aren’t missing that good reason, if there is one.

On March 4th, the California Supreme Court took up the challenge to Prop. 22 and the claim by the City of San Francisco (God bless this place forever) that the State of California and its governor, Schwarzenegger, were wrong to overturn the marriages by gays and lesbians performed there because the law prohibiting same-sex marriage is unconstitutional.

I went to hear the oral arguments, and have since become almost obsessive about replaying them again and again, and sifting my way through the 44 amicus briefs. You can do this, too, incidentally. For the oral arguments, – go to http://www.courtinfo.ca.gov/courts/supreme/audio-arch.htm and click on the first entry under “Archived Broadcasts” – In re Marriage Cases – video. Set aside three hours and 34 minutes. To read the amicus briefs, go to http://www.courtinfo.ca.gov/courts/supreme/highprofile/amicicuriae.htm. Set aside a good two weeks of eight hour days if you want to get the full impact. Seriously. You can work and earn money anytime. How often can you read amicus briefs in anticipation of a Supreme Court decision?

While I wait, with inordinate impatience, I have had lots of time to reflect on what just happened here. What I witnessed was evidence that the founding fathers understood our current dumbing down potential and accounted for it in the balance of powers. And in establishing a Republic, rather than a mob democracy.

What’s going on is the defenders of Prop. 22 are insisting that 61% is the voice of the people and must be obeyed. Opponents are saying the real voice of the people, the more sober voice, lies in the state Constitution, and it is appropriate for the Supreme Court to decide on whether that proposition, or any law like it, is in line with the rights established in that Constitution. This battle is being fought elsewhere, as well. It was won in Massachusetts in 2004, and in Iowa in 2007, although it is being held up in the courts. A decision is pending in Connecticut. California promises a decision by June 4.

The point I am making is that there are two different things going on simultaneously. The marriage equality debate is one. The other is the debate over whether this is in fact an instance where the court needs to correct an error made by a whole lot of citizens acting not necessarily in bad faith, but without proper reflection on justice in America. Put more simply, this is a debate over whether the majority is wrong.

As I suggested, a whole lot is riding on this. Enormous progress has been made to root out homophobia, and it’s an open question whether homophobic animus is what is driving the resistance to marriage equality. If the Supreme Court fails to overturn Prop. 22, and puts marriage equality on hold, we will be in for a much longer run before we get what Canada, Spain, Holland, Belgium and South Africa have already.

But if they listen to the claims of the marriage equality side (including the overwhelming majority of writers of amicus briefs) and demonstrate that in America political might does not always mean legal right, we will have a bit of relief in the evidence that we haven’t lost the ability to reason.

Six of the seven Supreme Court Justices are Republicans, appointed by conservative governors. That scares the bejeezuz out of people who believe ideology always trumps reason. I am optimistic, however, that in this august group there is a dedication to duty, as well as a belief that applying the law and keeping government’s hands off marriage rights is a solid conservative principle.

The tension is almost crippling at times. I have their pictures on my wall and I try on a daily basis to read their minds, as if those old photos of their faces would give me that information.

OK, so I’m not limited to reasonable behavior.

But just because a germ-free environment is almost impossible to achieve, we don’t have to perform open-heart surgery in a sewer.