Saturday, November 8, 2008

It's time to privatize marriage!

The provision added to the State Constitution by Proposition 8 was deceptively simple:

SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

But it is not at all simple. It is time to make marriage a private affair.

"Marriage" has two complex components, a religious component and a civil law component. To understand the difference between the religious component and the civil component, consider this. A couple could be "married" by the Pope on the steps of the largest Catholic church in the country and the marriage would not be legally valid in any state without a license issued by a government clerk. Yet in many places, a marriage ceremony performed by such a clerk pursuant a license issued by that clerk would be valid anywhere else in this country. The validity of a "marriage" in America is all about a government license and nothing about the beliefs of the couple involved.

It wasn't always this way. Prior to the Civil War, Americans would have been startled at the idea that they would have to get the government’s permission to get married. Our Founding Fathers had no understanding of marriage in that context. Americans must remember that marriage license laws were introduced in America mostly to prevent blacks from marrying whites, in other words to write into law racial discrimination based on beliefs of the sincere American majority.

And so it came about that in our legal federation marriage must be licensed by the government. When two people accept a state marriage license, they authorize the state to define a "contractual agreement" between them. This is the most bizarre legal entanglement ever foisted on a naive population. Most Americans who marry have no idea what is in the terms of the contract they sign. Unlike most contractual agreements people enter into, a majority of the legislature of the state in which the couple reside can rewrite a portion or all of that contract, without the consent of the couple. Further, unlike most contractual agreements, the terms of the contract change the moment the people involved relocate their residence to another state.

It is true that most religions have some form of marriage ceremony and many use terms like "sacrament" or assign a context of "sacred duty" to marriage. Within the religious context marriage historically relates to sexuality and procreation. And the dominant religions in this country adhere to doctrine the precludes gay marriage.

But whatever religious context within which one may consider marriage, "real Americans" know that religious context has no place being incorporated into any law.

The problem isn't just that Proposition 8 precludes gays from getting married. The problem is that entire legal structure related to marriage legalizes discrimination. The crux of the problem is that single persons (including couples who cannot get a marriage license) do not have the same status under the law that a state marriage license grants to those who can get one.

The 14th Amendment to the U.S. Constitution clearly states: "No State shall...deny to any person within its jurisdiction the equal protection of the laws." Proposition 8 clearly denies some persons the equal protection of the law by expanding the discrimination inherent in marriage license laws. We could discuss the concept of "civil unions." But such a conversation is relevant only if you believe in applying the legal doctrine of "separate but equal" whenever "equal protection of the law" is inconvenient for the majority within one American state.

My beliefs and your beliefs about marriage shouldn't be the basis of a legal structure creating different classes of people. Apparently, around 1867 many people who sincerely believed that blacks and whites should not marry instituted marriage license laws. Today marriage license laws exist that prevent gays from marrying because the majority of people sincerely believe gays should not be allowed to marry.

Many do still believe marriage license laws exist to protect children or women. But that is belied by the fact that we do not prohibit parents of children under the age of 18 from getting a divorce. Nor do we require women to marry to conceive children through artificial insemination. The majority of married women today do earn a living, and divorce laws offer little economic protection to either party. We most certainly do not require consenting adults to be married to engage in sexual activity.

It is time for California (and the rest of the nation) to eliminate from its statutes all references to any form of the word "marriage", and to "spouse", "husband", and "wife" or any term equivalent to those terms. The law must be silent on marriage as there is no way that the use of the term could not create a "suspect class" of favored people.

To paraphrase the U.S. Supreme Court: To separate [legally unmarried people] from others of similar age and qualifications solely because of their [marital status] generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

It's time to privatize marriage, to make it a private affair between people, not subject to government interference.

Wednesday, November 5, 2008

Obama's win is not a mandate for liberal social policy - consider California's Prop 8

Based on the 2008 election results in California, Obama's win is in no way a mandate for liberal social policy. Two issues that were on the California ballot were social policy issues:
  • Proposition 4 which would have required parental notification before a teen could get an abortion and which was defeated by the voters;
  • Proposition 8 which placed in the state constitution a provision effectively banning gay marriage.
In nine counties casting a majority for Obama, voters also approved requiring notification of parents in advance of any teen abortion. In six counties casting a majority for McCain, voters were against the notification measure. These 15 counties seem to indicate a discrepancy between attitudes on social policy and reasons for voting for a presidential candidate. In itself, this would not be surprising. After all, the issues most affecting how people voted for President - the economy and national security - do not indicate attitudes on any single social policy issue.



So how does one explain the differences between the two maps on social issues, Prop 4 Abortion Notification (top right) and Prop 8 Gay Marriage Ban (bottom right)?

First, consider the voting pattern on Proposition 22 passed in 2000 which created a statute defining marriage as between a man and a woman and which the State Supreme Court overturned as violating the state constitution. As you can see from the map bottom left, Prop 22 was defeated in only a few of the most liberal California counties. It was clear from that vote that even in the generally liberal counties the electorate was probably two decades away from supporting gay marriage.

Now, consider the voting pattern on the 2008 measure, Proposition 8. While the measure was defeated in many of the traditionally liberal counties representing a gain for the gay community, in fact Prop 8 passed in Los Angeles County, Imperial County, Solano County, and Sacramento County.

Why did that happen? We have no polling data on these ballot issues at this time. So all one can do is speculate based upon other considerations. Generally the Hispanic and Black communities are thought to be more conservative on the issue of gay marriage due to cultural and religious background. And while the same cultural and religious background might favor anti-abortion laws such as Pro 4, the abortion notification issue is decidedly a women's issue that would tend to cause many somewhat socially conservative women to vote against it while still voting for Prop 8.

Though the high turnout in the Black and Hispanic communities in other states probably got Obama elected, the high turnout in California did nothing towards getting him elected and may have led to Proposition 8 winning.

While Obama's win might generally be considered a good thing in the gay community nationally, in California it likely was a disaster for the efforts of the gay community to gain the right to marriage. In 2000, California voters approved a simple initiative statute stating the marriage would be defined as between a man and a woman. The California Supreme Court ruled that the statute violated the California Constitution. In 2008 the California voters approved an initiative amending the California Constitution to again declare that marriage is between a man and a woman.

Hence, one can conclude that Obama's win does not represent a general voter mandate for liberal social policies.