In a great reversal of justice, the 9th Circuit Court of Appeal this week decided those voters acted unconstitutionally. (Hip, hip, huzzah for the 9th District!)
Reading the entirety of the court’s majority decision, it’s clear the ruling was made on narrow ground, leaving up for debate whether states have an obligation to allow same-sex couples to marry or whether same-sex bans are themselves unconstitutional.
The court only stated a right can’t be taken away from American citizens unless there’s a damn good reason. That’s pretty solid ground.
According to judicial precedent cited by the justices, government — even a vast majority of the electorate — needs a legitimate reason to withdraw a right from one group of people but leave it intact for another. The 9th District majority found no such reason behind Proposition 8.
In other words, the sole purpose of Proposition 8 was to make same-sex relationships less legitimate in the eyes of the state — a goal plainly evident to those who remember the 2008 Prop. 8 campaign.
The court also found as spurious all the arguments presented by Prop. 8 proponents in support of the ban.
Of course, that hasn’t stopped some folks from raging about activist judges overturning the will of the people or making arguments about why the court should have upheld the Prop. 8 ban.
Too bad most of those assertions — in addition to having nothing to do with the rationale behind the justices’ decision — don’t hold water. Just for kicks, let’s consider a couple of the most popular arguments, one at a time:
The 9th Circuit court has subverted democracy
Only if you don’t believe in checks and balances.
In the American system, the courts have a responsibility to read and review the laws of the land and overturn those that are unconstitutional — even those passed directly by the voters, such as Proposition 8.
This function of the court could be seen on a superficial level as undemocratic, because it sometimes overrides the will of the people. In actuality, it embodies the republican spirit of our government, because it prevents a tyranny of the majority and ensures the protection of all people — not only those who happen to be in the majority.
To paraphrase the biblical Paul, what is popular is not always right, and what is right is not always popular.
I share the fear of a government that takes rights away from its people, especially when it comes to the vote. But I fear as much as a tyrannical government a tyrannical populace, willing to deny others rights based on gender, religious persuasion, race, sexual orientation, or any other difference that has no bearing on a person’s capacity as a citizen.
Ideally, the courts check both an overzealous government and an overzealous populace.
Religious people will be forced to accept something they find abhorrent
Remember, California is not a religious institution. With marriage — at least when it comes to the state — we’re talking about a contract between consenting adults, not a covenant with the Almighty.
At least in the United States, religions are left to deal with the sacred, and states are tasked to deal with the secular. They’re two separate things, and as far as I can tell, there’s nothing in this ruling that tells churches they have to change their canons.
I share the concern that religious organizations be allowed to practice freely and without government interference. The First Amendment is there to protect churches from government intrusion as much as it is to protect government from becoming an arm of religion.
So while I think the state has a responsibility to extend the same rights to same-sex couples that it does to heterosexual couples, churches should be free to grant sacraments as they see fit — including not extending the sacrament of marriage to couples who don’t adhere to their religious standards.
But these believers shouldn’t seek the enshrinement of their religious precepts in secular state law.
Instead, they should demand greater assurance from the Legislature that anti-discrimination laws won’t be wielded against congregations for exercising their consciences when it comes to same-sex unions being anointed by their sects.
That way, everyone’s rights are protected.
Children should grow up with a mother and father
First off, as the 9th Circuit court pointed out, Proposition 8 changed nothing about the right of gay couples to raise a child, so this argument has nothing to do with the initiative’s merit.
Still, it’s an important point to address.
I’d say letting the government into this aspect of life sets a dangerous precedent. Just because a mother-father combination is ideal (let’s concede the point for the sake of argument) does that mean the government outlaws other arrangements, such as single-parent households, grandparents who raise their grandchildren as their own kids, or godparents who take over when parents cannot handle the load?
No. The government has no business telling its citizens how to build their families (outside of setting base rules regarding neglect, abuse, etc.). That precept should apply to same-sex couples.
Furthermore, consider how many broken homes and abusive situations stem from heterosexual marriages. A child who has two loving same-sex parents committed to one another would be in a far more “ideal” situation than a child dealing with dysfunctional heterosexual parents.
I think it benefits communities when institutions encourage people who want to be parents to raise children as responsible citizens. And marriage — for all couples — can be just that type of stable, familial building block.
• Second Thoughts is a personal opinion column by Editor Jon Mendelson. Share your thoughts at firstname.lastname@example.org.