Journey To The Center Of Prop 8

Contents after the jump due to the political (and highly contentious) nature of the content.

A couple of weeks ago I had the great honor to officiate the beautiful civil ceremony that saw my dear friends Caryl and Amy married. As Jennifer and I were married just a bit earlier in the year, we were well aware of the logistical nightmare that is a wedding. Given everything else that was going on in the lives of our friends at the same time, the timing of the wedding seemed likely to give one of them a heart attack…but there really wasn’t much of a choice. It’s now or potentially never.

The shortened timeframe that many of our friends and colleagues have planned their weddings on is due to the impending vote on California’s Prop 8 ballot initiative which seeks to amend the California constitution to take away the right of same-sex couples to marry. For those who haven’t been following along closely, earlier this year the California Supreme Court ruled (on a split vote) that Article 1 makes denying the rights of civil marriage to any set of consenting adult citizens illegal.

This makes some people crazy, irate, or both.

Not a week after our friends were married, Jennifer and I were folding laundry while listening to the radio. An episode of the call-in show Forum came on which had the “pro” and “con” sides both represented by articulate advocates. I can’t recommend strongly enough that you listen to the broadcast, since it gets to the core arguments for and against Prop 8 in an incisive way.

Fundamentally, the prop-Prop 8 argument (i.e., anti gay marriage) is that it’s always been done this way, that gay marriage in some way undermines straight couples and the family structure, and that change would make those who are against gay marriage feel like they are being discriminatory. The first argument I have some sympathy with, particularly as it relates to the appropriateness and timing court decisions. When courts are significantly ahead of public opinion regarding grants of negative rights, the potential to exacerbate existing social frictions is very real. This can harm lots of people on both sides of an issue. That, on balance, however hasn’t been sufficient grounds to continue to deny major groups of Americans rights before (think women’s suffrage and equal pay). Arguments based on the idea that something has always been done a particular way therefore run counter to the subversive and radical nature of the American system. We base interpretation of the law on argumentation (informed, of course, by common morality). Courts are not allowed to re-enforce the status quo simply to preserve a group’s sense of comfort. Groups looking for a particular remedy must provide an argument that squares with the Constitution. It’s worth remembering that documents which suggest that everyone is entitled to equal rights under the law aren’t common in human history. There is nothing so American, then, as to suggest that what makes us different is that we explicitly recognize the rights of groups not like ourselves. After all, it’s the only way to guarantee that those groups respect and preserve the rights of others as well.

That, then, leaves the arguments that gay marriage (or, more broadly, an understanding that being gay is not criminal) will cause the decay of straight relationships and marriages. As a married straight person, I find this argument ridiculous. Let me be very clear on one point: when we as a society recognize the rights of our minorities, we do not create those minorities from whole legal cloth. The people who that Prop 8’s supporters want to take rights away from have always existed. It’s not as though the recognition that they have been oppressed for centuries somehow makes that continued oppression right. Nor does it suddenly cause more people to “become gay”. I’ve had gay and lesbian friends since high school, and never once has it caused me to question my own sexual orientation. Given the deep conversations I’ve had with my friends over the years, it’s clear to me that being gay is as much of a choice as being black is. Those who oppose civil gay marriage seem to believe that they aren’t doing any harm to anyone by denying others rights. What this means to me as someone who grew up in a very conservative part of the country but nevertheless has nearly always had gay and lesbian friends is that Prop 8’s supporters are simply denying the harm they have caused to their own communities, families, and co-workers. It is simply willful ignorance to wish away ten percent of the population. Likewise, their argument assumes that some among us don’t deserve equal protection because somehow granting them standing in court will diminish the standing of straight couples. I have yet to see any compelling evidence of this.

Lastly, the argument that children will somehow see their parents as bigoted and that parents have a right not to be viewed as prejudicial by their families strikes me as particularly foolish. Progress requires that we change, and change requires that we acknowledge that what came before was not optimal. This is true no matter how you define “progress”. To effect real change, abolitionists required an understanding in the populace that slavery was wrong. Similarly, prohibitionists had to build a large constituency against alcohol consumption in order to get the eighteenth amendment passed. In both cases the question of moral right and wrong needed to be settled independently of the question of legal and illegal, but settling that issue was a pre-requisite for social change and legal action. In each case, large sections of the people fundamentally disagreed with the majority well past when the issue appeared “settled” in the law. That is a question of private morality and the fact of the disagreement is what animates our political and legal processes. Without recognized disagreements, how can there ever be progress in any direction?

So the question for those concerned parents comes sharply into focus: do those parents agree with every single other thing taught in public schools? If they don’t (and I’m guessing parents who are “Yes on 8” voters aren’t big on, say, biology, astronomy, and the scientific method), how do they handle the the other disagreements? What makes this one so much different? Have those parents abdicated the teaching of morality to the public schools on every other front? And why do they assume that they won’t be able to exercise their rights to have their kids exempted from teachings they don’t agree with on religious grounds?

Lets get to the real center of this: religious groups have a right to be prejudiced against whomever they please. It’s a fundamental part of being an American that you are allowed to believe whatever you want. It’s not, however, a recognized right that you will never be presented with evidence of your disagreement with others. Hiding behind a cloak of forced ignorance and denial is intellectually and morally dishonest. If the church to which I belong wants to argue that gay marriage is sinful, wrong, or in some other way morally bankrupt, then it needs to have the courage of its convictions to make that case forcefully in the world as a moral and ethical case. Isn’t it the church’s job to convert those who disagree with it to the church’s way of viewing the world and in so doing change their behavior? If religious organizations think that it’s wrong for gays and lesbians to practice their rights under the law, it’s incumbent of the church to convince gays and lesbians of that, not the rest of us.

When the church over-reaches and instead attempts to legislate from the pulpit, both the genius of the constitution and the authority of the church are jeopardized. Arguing the civil implications on the moral grounds is simply inconsistent with how our law operates, and the church knows it. Worse, what if the church were to win such a fight on that basis? Who then interprets where to go from there? Lots of faiths with many differing views all reject religious gay marriage…which of those faiths should be consulted next time? All of them? What if they don’t agree? It’s a far better thing that the Church understand the distinction between church and state in order to preserve the independence of its message from the corrupting influence of power. History is crystal clear on this point.

More to the point, though, if you wish to be prejudiced why should it somehow cause distress that others disagree? Isn’t the mere fact of the disagreement an opportunity to make a case? And if the argument doesn’t hold up for the majority of the population, doesn’t it deserve to loose? For churches and communities of faith to attempt to argue that the institution of holy matrimony (as distinct from civil marriage) is in any way affected by the equal protection provisions of the law is dishonest and misrepresents their interest in the political process. To argue that it would be best if society simply didn’t recognize the difference between the law and what the church teaches is also disingenuous, dishonest, and dangerous to the church.

I cannot support Prop 8, and I urge you not to either. Please vote “no”. The proponents have not fielded good arguments that show harm and have resorted to incredulous arguments which bear no resemblance to the truth. The opponents have sought and won the protection of the law. Taking that away – which is what is on the ballot – is unconscionable.


  1. C. R.
    Posted November 24, 2008 at 1:40 pm | Permalink

    You’re missing / mis-characterizing a few of the yes on 8 arguments. I recommend you read what Stanley Kurtz has written on the subject.

    A few quick points.

    First, keep in mind that since a domestic partnership is defined in CA as the legal equivalent of a marriage (even after the yes on 8 vote), the only thing at stake with prop 8 is the state’s use of the word “marriage.”

    If the yes on prop 8 vote stands, the state will have two legally equivalent institutions, one called “marriage” and one called “domestic partnership.”

    In that world, no one will have lost the right to be married. Any man — straight or gay — can have a marriage with a consenting woman. Gays aren’t likely to exercise that right, but they’ll have it.

    The pro-8 folks aren’t really worried that calling domestic partnerships marriages will cause there to be more gay people.

    The main worry is: if we re-define the word marriage as being between any two consenting adults rather than between only a man and woman, aren’t we then on a slippery legal slope in which we will eventually have to redefine marriage to include folks who define themselves as having been born into polygamous and polyamorous orientations, in which case the whole concept of marriage won’t mean much? (Note: many gay intellectuals are interested in pushing gay marriage explicitly and precisely to undermine the traditional concept of straight marriage.)

    Second, what is the negative consequence of potentially divorcing the idea of physical monogamy from the idea of marriage? The huge majority of gay men are not physically monogamous with each other, not even when in committed relationships. If these open relationships are legitimized as marriages, won’t the notion of physical vs. emotional monogamy over time leak into straight culture and erode the idea of monogamous marriage? And won’t that in turn reduce the odds of straight marriages surviving? Keep in mind, we are all children first, and it is in the interests of our unborn progeny to be born into a world in which married couples have the highest odds of staying together.

    Flipping the question, why should the state offer marriage benefits to same sex couples?

    The state doesn’t compensate renters; it compensates home owners, because it views home ownership as good for society.

    Similarly, the state doesn’t compensate straight co-habitating couples; it compensates straight married couples, because it views straight marriage as good for society.

    Why is straight marriage good for society?

    First, promising you’ll be monogamous to someone improves the odds you actually will be. Being monogamous improves the odds you’ll stay together. When parents stay together it’s good for children. So, encouraging people to marry is good for children.

    Second, promising permanence to someone improves the odds you’ll be with them until death do you part. This is advantageous to women. A sad fact of the world is that men have more options as they get older than women do. It’s in the interests of women and all of society to get men to promise to stay with women even though they could leave and easily remarry. The institution of marriage helps stigmatize cad-like behavior by men.

    What benefits does society get by defining male/male or female/female relationships as marriages?

    Gays are only 2-3% of the population, tops. They are not anywhere near 10% as all modern research shows. Most gays don’t have children nor do they want to have children. So, even if gays are more likely to stay together because you call it marriage rather than domestic partnership, you’re only going to affect some teensy fraction of children. Probably < 1%. Not much benefit there.

    Calling male/male relationships marriages won’t do anything for gender complementarity. Nor will calling female/female relationships. And in neither case is there a reason to stigmatize cad-like behavior by men. Not much benefit there either.

    So, you have very little upside from calling gay relationships marriages, but you have an unknowable downside from calling them marriages. Why take the risk?

  2. Posted November 24, 2008 at 2:01 pm | Permalink

    Hey C.R.:

    A quick response. My personal experience with gay friends who are (or would like to be) married runs directly counter to most of the basis for your arguments. The intent is absolutely to create stable, monogamous relationships. Children (as in straight marriages) are a separate but related discussion, although sighting intent (which you don’t seem to have actual knowledge of) instead of the barriers in many states to same-sex adoption is simply disingenuous.

    How familiar are you with how screwed up and socially stigmatized adoption is in this country? You’re arguing against social utility (another deeply dubious basis for this discussion) on the back of a-priori discrimination. On that basis alone your argument crumbles.

    The the larger point is this: the state of California held that under the constitution, consenting adults of any sex had the right to marry. Californians then voted to destroy a civil right. We don’t make laws to reduce risks that might be there, we create laws to eliminate harm which is already existing. The government may retain the ability to regulate those things in the future (hence the charter of negative liberties), but it certainly is not framed in such a way as to require affirmative grants of legal standing in cases of ambiguity. You have a rights until and unless they are taken away, particularly in cases where they do not negatively impact others. The pro-Prop 8 crowd was absolutely unable to show substantive harm in court, hence they lost and had to appeal to our worst angels with misleading and dangerous arguments.

    What you are arguing for is simply a different form of government than the one which the framers radically and subversively created.


  3. sw
    Posted November 25, 2008 at 9:34 pm | Permalink

    This issue makes my head fill with sun-dried sidewalk chewing gum.
    All arguments on this issue are gross simplifications. You argument for “rights” is inane.
    ( I notice that no one argues that marriage is seen as a sacrament — of course it has lost that “purity” by being absorbed into the state contractual system.)
    Also, one should never argue about issues such as this using analogy: the whole basis of the “it weakens the institution of marriage” argument is argument by analogy. C.R. above is arguing on the basis of utility theory — the standard method, if not the best.
    It does seem, though, that homosexuals getting married is like playing dress-up. It is a pretense. (Of course most marriages are pretense anyway — thus the ever-expanding elaborations!) An argument, or observation, based on analogy, that quickly goes nowhere.
    Now why anyone would want the hassle of marriage and divorce and property conflation — that is really mind-numbing.
    All I see is $$$$ for family law practitioners.
    Anyway, I have enjoyed reading about Dojo.

  4. Posted November 25, 2008 at 11:45 pm | Permalink


    The rights argument is the only one you can make in front either a court or the voters. Not sure why that’s “insane”.

    As for the religious aspect, many Christian faiths don’t consider marriage a sacrament (that’s kind of a Catholic thing). Not sure where you’d even go from there. Folks of faith can’t agree, why should the courts?


  5. cody
    Posted December 1, 2008 at 12:31 pm | Permalink

    There is so much rhetoric and illogical thinking around this topic you have to look at the issue from an unbiased perspective to get your head around it. Here are three points for you to think about.

    1. Under the law, there is no discrimination (legal definition of the word) or inequality. We all have the same rights under the law itself. And in order for discrimination to occur legally a protected class would have to be involved. Which is not the case here. The objective fact remains that the law itself gives all men and women the same right to marry under the definition of the word by our legislative powers. The real fight here is not over inequality or discrimination, but over the redefining of a word for legislative purposes. Besides, if you believe what anti-prop 8 people are saying then anyone who is not married to a person of the opposite sex is being discriminated against. This would include single people. Its just absurd what people will digest as a sound logical argument.

    2. Biology here objectively divides the same sex couple from a couple that can produce offspring. This objective fact is relevant to governments because governments govern people, and marriages (used here as defined by government) produce people. I think it makes logical sense here for a government to protect and guard this unique relationship (and its definition) in an effort to protect itself. In other words, governments have a unique interest/inherit interest in any relationship that directly effects it’s governing. All other relationships, while not prohibited, are just simply not relevant to legislative logic. The marriage that currently is being legislated produces future generations. Protecting this special relationship should not be taken lightly from a legislative perspective.

    3. When you boil this down in my opinion it really comes down to a subjective motive based on the emotional merit of respect. It seems that to some people respect can only be achieved through the perfection of equality. Or, the perception of perfection by attempting to make something equal by ignoring logic. Wcan bend the words, and even redefine them. But ultimately biology has the final objective say. And no matter how hard people want two different relationships to have the exact same definition the relationships attributes themselves will forever keep them different. Logically the endeavor to make two items exactly identical when they are inherently different seems pointless to me. The only way for this to make sense to most people is to wrap it up in emotional thinking and sell it as indecent from a human perspective. I say, if marriage, as legislated today is indecent than biology itself (the natural nature of human beings) and our entire race would have to be indecent for only choosing the relationship between a man and a women to produce offspring.

  6. Bernard Devlin
    Posted March 22, 2009 at 2:34 am | Permalink

    homosexuality is natural: