Thursday, May 15, 2008

Little by little by little...

Today the Supreme Court of California de facto legalized gay marriage by overturning the "pro family" ban on such marriages. The decision by the court is an interesting read, if you have the time. The court accepted a similar argument to one that the Church of the Orange Sky has been making for some time now - that sexual orientation, like race, is not a relevant factor in determining an individual's right to marry a person of their choice. In the court's eyes, this is derived indirectly from the fact that orientation, like race or gender, cannot be used as a basis to deny a legal right.

(And in California, thanks to pro-family people in the past, the right to marry is a fundamental constitutional right. I'll bet they wish they had a chance for a do-over on that...)

Naturally, supporters of civil rights greeted the news quite happily and apparently there was already long lines forming for marriage certificates, partially in excitement and partially in the fear that the legislature may find a way to overturn this decision over the next few weeks. Because the decision just came down today, many of the "pro-family" organizations haven't prepared detailed responses. I searched in vain for an angry denunciation on the website of Focus on the Family and didn't see one.

(Another tangent: drop the "pro-family" bullshit. Gay people have "families" too. Being "pro-family" in this case usually means being "anti-family," i.e. anti-recognizing-that-gay-people-have-families-too.)

The Associated Press does have an incomplete list of immediate responses which shows that people are pretty much falling along predictable party lines. The White House denounces it as judicial activism (that old chestnut again), James Dobson says it's an "outrage," Randy Thomasson says it's a "disaster," and plaintiff Robin Tyler says it's "about love," which I have to believe it is, in her case. The people in question, particularly those on the opposition side who think it's "judicial activism" but also those on the winning side, are obviously gifted by a divine power of discernment I don't have, despite my close connection to the Orange Sky - they've been able to form their own judgements on the issue so rapidly that it's obvious they haven't even had time to read the decision from the court. That's very impressive.

Firstly, well done to all the human rights organizations in California who were part of this fight. I hope you enjoy your victory.

Secondly, I sure as hell hope the religious conservative backlash to this isn't going to be too strong, though I fear it will be. Opponents really ought to consider that "social tradition," which was the chief argument addressed by government lawyers as well as by "pro-family" organizations, really shouldn't have much in the way of legal standing. And rightly so!

Look at the sad state of legal arguments that so often fall back on such an argument. Intriguingly, much the same position was advanced way back in 1948, when the same court ruled on an inter-racial marriage ban in Perez v. Sharp, and came to a decision on the same narrow division (4 to 3) as it did in today's verdict. With that judgement the California Supreme Court became the first 20th century court to overturn an anti-miscegenation law, as they were then known; it took until 1967 for the Supreme Court of the United States to agree, when it freed a Virginia couple convicted of living together as part of its judgement in Loving v. Virginia.

Tradition was also invoked, with much the same result, in R. v. Knowles ex parte Somerset in 1772, when the British courts effectively paved the way for the abolition of slavery; and in Wedderburn v. Knight in 1777, when the Scottish courts concurred. (Those with a literary bent may be interested to know that Knight's successful case was prepared by Samuel Johnson and James Boswell.) That's not to say it never works - for example, it was basically accepted by the U.S. Supreme Court in Dred Scott v. Sandford for example, when that court agreed to uphold the institution of slavery in 1857. In part this galvanized the growth of the Republican Party, which, despite its present racist politics, was actually originally formed as a progressive anti-slavery party.

Over the next few days look for angry responses from conservative religious groups claiming we must return to the traditional family and, inevitably, intimating that this will one day pave the way for polygamy politics.

Let's try and disentangle that one for a moment too. Religious conservatives want us to ban gay marriage, which is clearly not Biblical (whatever you think about the issue, we have to agree that those who wrote the Hebrew Bible, in particular, would have been shocked by the prospect of two men marrying one another); in part because they also want to keep banning polygamous marriage or at least concubinage, which clearly is Biblical (again, whatever you think of the issue, the Hebrew laws in their original form obviously included provisions for multiple marriages).

The inconsistencies continue. They no longer favour the ban on inter-racial marriages, which was once Biblical (though arguably this ban was lifted by the prophets or at least by the New Testament), nor are they in favour of banning divorces, which would also be Biblical (the Old Testament didn't ban divorce, but Jesus did, or at least severely restricted it, depending on which gospel you assign the most primacy to). They also don't support inheriting wives of dead brothers (Biblical), stealing and then raping and marrying prisoners of war (also Biblical), required marriage to victims of rape (you guessed it... still Biblical!), or forced marriages of two employees imposed as part of the regular employer-employee relationship (also Biblical, though with a bit of modern re-interpretation). They oppose prostitution, which is Biblical (at least until 1 Corinthians 6). They are in favour of banning sex outside of marriage, which is not a Biblical position to take; and opposed to lesbianism, which isn't mentioned in the Bible at all, except in Paul's sarcastic rant in Romans 1-2, which, given the extent of the hyperbole, I seriously doubt he meant us to take literally.

So sometimes they side with the Old Testament, sometimes they side with the New Testament, and sometimes they don't side with any Testament at all. This leads me to believe that the Bible is actually completely irrelevant to the "pro-family" organizations, despite the fact that they invariably claim to be conservative and Christian.