Wednesday, November 19, 2008

Proposition 8 and the Pursuit of Happiness

I have been thinking a good deal about the furor over Proposition 8.
That's the referendum on marriage in California that confines marriage to being between a man and a woman. It was proposed to counter the gay marriages that were beginning to take place among gays in that state. The argument for this ban on gay marriage that I have most commonly heard is that such a union degrades marriages among the straight population.

And being somewhat of an Aspie about this, I just don't get it.
I cannot figure out how my marriage to that wonderful man, the Engineering Geek, is in any way threatened by gays having a civil marriage contract. My marriage is what it is--the formation of a Jewish household. The fact that Catholics and Presbyterians have marriages that are not defined in the same way does not change the status of my marriage. And the fact that some people have civil marriages, rather than a religious covenant, does not change the status of my marriage.

In fact, I think it is downright responsible of gays to want to settle down and make a household together and protect that relationship by legal means. Marriage is not an easy proposition. It means standing "before G-d and everybody" and promising to live with another person who is not your flesh and blood for the rest of your life.
It is not a step to be taken lightly, though some do.
The legal contract and the rights and responsibilities that come with it encourage one to take it seriously.
And even among those that take it seriously, there are circumstances that cause a person to admit failure and dissolve the contract in divorce.

I do not believe that it is right for government to deny the civil benefits of a contract to any person. We are all equal under the law, different though we certainly are in a range of attributes that make us individuals. To say that one group of people have the right to make a civil contract that others do not because of a class attribute (race, gender, religion) is certainly discrimination. And when government fails to treat all persons equally under the law, it subverts the Rule of Law. This is not something to be taken lightly, either, because once the law begins to discriminate among citizens, then all of our rights are at stake.

The constitutionality of Proposition 8 is being appealed to the California Supreme Court. And I believe it should end there because that court has a precedent in the case it decided in 1948, Perez v. Sharp (aka Perez v. Lippold). In that case, the California Supreme Court recognized that laws forbidding interracial marriages violated the 14th Amendment of the United States Constitution.

Other states were slower to overturn their bans on interracial marriage. Finally, in 1967, the United States Supreme Court ruled that laws forbidding interracial marriage were unconstitutional according to the equal protection clause of the 14th Amendment in the case Loving v. Virginia. That case is particularly interesting because it is one of the few cases in which SCOTUS cited the right to the Pursuit of Happiness, which is asserted in the United States Declaration of Independence. That phrase has been interpreted to mean the right to property and its disposition, as well as the right to freedom of movement, and the freedom to choose a vocation and manner of life, so long as those choices do not violate the natural rights of others.

Most of the arguments I have seen for the legal ban on gay marriage are derived from the religious beliefs held by those who object to these unions. However, in the United States, the legal aspect of marriage is adjudicated by the state. In this form, civil marriage, it is a contract that is ultimately about household property and the forming of a legally recognized relationship that supercedes those recognized among blood relatives. (What I mean by this is that for a legally married person, the closest living relative is the spouse, not the parents or children). The states, in turn, have given the privilege of representing the state in this legal contract to the clergy of various religions as a matter of courtesy and convenience to the marrying couple. (And in fact, in some states, of which New Mexico is one, anyone may apply to be the formal state representative at a wedding, clergified or not). The religious covenant of marriage, which is very important for a lot of us, is entirely separate.
Thus the rabbi or minister or priest assumes the role of the state when she or he says:
"By the power vested in my by the State of _______, I now declare you husband and wife."

Some of us have two separate weddings. When the Engineering Geek and I were planning our wedding, we had already set the date for a June Kiddushin (Jewish Wedding) with our rabbi and cantor. Then in December, I found out that my insurance benefits were going to be raised by nearly half. So we had a January civil wedding before a District Court Judge. When we had our Kiddushin in June, the rabbi did not have to say the "by the power vested in me . . . shpiel. The religious covenant of marriage was recognized by the signing of the Ketubah (marriage contract) and the giving of the rings. But our legal status as a married couple had already been recorded and there was no change in our civil status. That had already changed in January.

Here's the deal: A person's natural rights are guarranteed by the state. They ennumerate what the state may not do to the individual. So the state may not interfere with an adult citizen's pursuit of happiness--that is her property, freedom of movement, and choice of vocation and manner of living, among other things. The state may not use force against a person to stop her from pursuing her own happiness, so long as she does not violate the rights of others. So if the state recognizes a civil contract between two people that makes them a special kind of corporation, then it cannot refuse it to others, so long as they have the standing (age of majority, of sound mind, and not coerced) to make a contract.

However, religious institutions and their clergy may discriminate. Since they are not governmental agencies, they can make any rules they want to regarding the covenant of marriage. My rabbi, for example, will not perform Kiddushin between a Jew and a non-Jew. He says that Kiddushin requires two Jews, a Chuppah, and a ring. He recognizes the validity of the civil marriage to the state, but he does not recognize it as a Jewish marriage under Jewish law. So, too, for those whose religious beliefs do not allow for gay marriage: They can join those religions that are of like mind. They do not have to associate with married gays (or gays at all, for that matter) in their personal lives. They do not have to accept gay marriage into their worlds.

To those who object: Yes, you have the right to be offended. And no, you do not have the right to not be offended.

But for the sake of Liberty, they cannot ask the state to violate the rights of others.
And they cannot demand that the state impose their religious beliefs on others. That would be the establishment of a particular religion by the state; that is a violation of the First Amendment to the United States Constitution.

To forestall certain arguments: Yes, Christianity is the most common religion in the United States. No, this is not a Christian country: There is no established religion in the United States; that would be a violation of the First Amendment.


Anonymous said...

I agree 100%.

Amie said...

Well, my opinion is that why should we change the definition of marriage in terms of gender but not number? Maybe we owe the Mormons an apology for making a part of their religion illegal as well as anybody who has been arrested or spent time in prison for polygamy.

Why does the state have anything to do with marriage in the first place?

Anonymous said...

Superb analysis!


Luke said...

Fascinating and thought-provoking.

Hmm... I like Amie's comment: What is the state doing with marriage? Civil unions (which homosexuals have in California) are a state thing, and make sense. Interesting.

... [nods] interesting.


Elisheva Hannah Levin said...

Amie, you ask two very good questions. Not being a Constitutional scholar, I do not know about the issue with the Mormons. If I were to give an off-the-cuff answer, I would say that maybe we do owe the Mormons an apology. But I am not sure about it.

About your second question: Why does the state have anything to do with marriage in the first place?

I think it derives from the duties of government. The state and federal governments have reserved the right to initiate force to themselves in order to do the job of protecting the natural rights of individuals. Enforcing contracts is one of the duties given to the state through the Constitution. This creates a whole body of law we call civil law and tort law. In the eyes of the state, marriage is a special kind of contract that gives the couple specific contractual obligations and privileges. Some of those obligations and privileges deal with property--and those can also be gained through other types of contracts (such as an LLC incorporation). But other obligations and privileges are relational and deal with personal status: a civil marriage contract creates one entity out of two people, and defines a familial relationship that supersedes that of blood.This relational piece of marriage cannot be obtained with any other kind of contract. Marriage is, in the eyes of the state, a unique kind of contract. It is this legal relational piece that gay couples want to obtain, in order to not only protect property held in common, but also to protect the rights and responsibilities of being the closest living relatives to one another, and to any children brought into the union.

However, in the eyes of the state, marriage is only a civil contract. The spiritual dimensions of marriage, defined by religion, are also the domain of the various religions, and their definitions of the covenant.

But maybe the question really is, should the state have anything to do with marriage? That's also interesting, but it would take a multiple part blog entry to even begin to discuss, and there would certainly be multiple opinions.

Magpie Ima said...

Another great post, Elisheva. Well done!

As for Amie's comment, I'm not sure we owe the Mormons anything seeing as they were a huge force behind the passage of Prop 8. Highly ironic, in my opinion

Elisheva Hannah Levin said...

Hi, Ima,

Not being a Mormon, I can't say exactly what that church teaches about marriage. But I do know that the LDS church (unlike some of the splinter groups) does legislate monogamy and has done so since Utah became a state.

There are many cultures in which polygyny (multiple wives) is common. There are some features of polygyny that are problematic for a free society. It does had the consequence of concentrating wealth and power into the hands of a few patriarchs. Often young men cannot find wives, and become rogues in the society, causing some mayhem. It also seems to devalue the voice of women in family decisions.

In Western rabbinic Judaism, polygyny has been outlawed since about the year 1000 C.E., by Rav Gershon Or ha-Galut (Gershon, Light of the Exile). It was done in order for Jews, already distrusted and oppressed in Christian Western Europe, to conform more closely to the norms of the lands in which they were living. Gershon also noted certain of the problems I listed above.

There has been a history of moving from these other types of marriage in many cultures to the monogamous type, which seems to support more family stability and better outcome for children. But whether the state should regulate this or not, I don't have an informed opinion at this point.

But, yes, that Mormons organized to stop alternative marriage is kind of ironic, isn't it? Things do certainly change . . .

christinemm said...

Thanks for sharing your deep thoughts with us.

This statement of yours could apply to many areas of life and I love it for that reason.

Elisheva said:
"To those who object: Yes, you have the right to be offended. And no, you do not have the right to not be offended."

Crimson Wife said...

Here in CA, homosexual couples registered as domestic partners ALREADY had the EXACT same rights as married couples under state law. Nothing in Prop. 8 changes that! The only thing it does is re-affirms the traditional definition of marriage as that between one man and one woman.

Men and women are biologically different. Because of that, there is a difference between a union of a man & a woman and a union of two men or of two women.

By contrast, race is a meaningless concept from a biological standpoint. That's why the comparison to laws banning interracial marriages is an invalid one.

I can insist upon calling a square a "circle" but that does not change it into one. 4 unelected judges can insist upon calling a homosexual union a "marriage" but that does not make it one.

Elisheva Hannah Levin said...

Crimson Wife:

Thanks for stopping by.

Well, if the law in California already gives gay couples the exact same contract as that of marriage, then the whole issue appears to be a semantic argument. I am not sure why such passion and money has been spent on that! If it walks like a duck and quacks like a duck . . .

As for biological differences: the genetic differences between men and women are not any greater than those among the "races." Gender works like this: In the beginning we are all female. Then a developmental cascade set off by a very few genes makes the male. This is how it must be for a male to be carried inside the body of a female.

The biological differences with respect to genetic expression are about equally as great. It is also likely that for men, at least, 'gayness' is a matter of the regulation of gene expression gone awry--at least from the standpoint of reproductive success.

In any case, since being gay is a class variable, then the government has no right to deny the right to a special kind of contract to that class and at the same time grant it to others. That is the denial of equal protection under the law as guaranteed by the 14th Amendment.

I don't really care what you call that contract, though. Perhaps the civil contract enforced by the government should be called a civil union for everybody? And then the religious covenant should be called 'marriage'? The war over semantics does not interest me.

I do think that, unlike abortion, gay marriage is likely to be a non-issue in a generation or two, because the presence of gay couples and their children will be more common.