Thursday, August 5, 2010

Yes, I am going to do a PROP 8 post as well.

I'm sure you all are up to your eyeballs in PROP 8 posts since yesterday's federal decision of the referendum's unconstitutional nature. This is an important topic for me, so I want to make some comments.

First, here is Judge Vaughn Walker's conclusion:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional. [via]

I was never really concerned about same sex marriage until the 2008 democratic presidential candidacy debates. Prior to that, the one argument I found sense in was from a gay journalist with NPR who was opposed to gay marriage. Joking, I imagine, he said the best thing about coming out to his mother was that she stopped asking him when he was going to settle down and get married. On a more serious note he was concerned that legal same-sex marriage would create castes within the gay community. There would be the nice married gays and the lascivious unmarried gays. This made sense to me at the time, but then during the democratic debate on Logo Dennis Kucinich described how gay rights are human rights, and that denying gay marriage was a limitation on civil liberties. I was sold.

Of course, now the Fox Nation is saying that an activist judge has thwarted the will of the electorate. The landslide 52%-48% success of PROP 8 has been overturned by a leftist agenda. There are of course several problems here.

First, Judge Walker was appointed by, guess who? George H. W. Bush. You know, that left-wing radical, man of the common worker. Not Bill Clinton, not Barack Obama, but George I.

Second, unconstitutional laws are reversed all the time. That is why there is a process to determine if a law is in fact constitutional or not. That which the federal constitution does not clearly allow or prohibit is within the individual states' rights to make law. That is Civics 101.

See, the right likes to talk about the intent of the framers, and how they could not have conceived of things like gay marriage or the internet. Maybe the internet would be beyond the scope of reason at the time, but gay marriage certainly was nothing new. These were some of the best educated men in the world at that time, and beside being brilliant they were courageous. They stood against the monarchy of the most powerful empire of the day. Monarchies, by the way, are also supposed to be ordained by god. These men were radicals, and while not all were leftist by modern standards, they certainly knew what they were getting into by taking England on. That however is a tad beside the point.

The point is, these incredibly intelligent and brave men knew something that you and I often forget: the masses are asses. The framers of the constitution knew that the common man can be roused to most any cause by anyone with charisma and a bully pulpit. We have plenty of those on both sides of the aisle. I'll admit, Barack Obama is a smooth talker. I voted for him, and will again in 2012. The right is, in my opinion, heavier with the bully pulpit and the fanaticism of their flock. Because charisma can turn the heads of many today does not mean the sentiment will last. The picture to the right is a Charles Darwin joke, but it is true of the Constitution. We have Representatives that are from the masses. Their terms are two years so that if they are overly radical or dangerous they do not have time to do much before they come up for election again. Senators are typically from society's upper echelons. They must be older than Representatives, and expected to be of a higher caliber. They get six years. Judges, however, are for life. That is why we make such a big deal out of appointing them. Judges are supposed to be the top of the line in Constitutional thought, and they are not effected by the whims of the electorate. The rallying cry of today is the laughing stock tomorrow, and the judiciary is there to keep us from completely destroying our government every time some radical notion or special interest gets a foot hold.

Now, I'll admit that the fervor over same-sex marriage, on both sides, might be temporary. In the coming years same-sex couples may stop caring about marriage, once it is available to them. These are still just people we are talking about. However, Judge Walker's decision is not based on the whim of the people, it is based on interpretation of the Constitution. There is no federal law of prohibition, but there is federal law providing equal protection and rights to all citizens. The decision is a good one, despite what we all think in ten years.


bliss_infinte said...

Great post! Many good points.

Darius Whiteplume said...

Ah, thanks. I wrote it in a rush between moving servers. I'm feeling a little dizzy, is that normal with blogging? :-D

Bubbashelby said...

Great points and great post!

Darius Whiteplume said...

I was pretty shocked when I saw Walker was Bush I appointee, but then a lot of far-right presidents have appointed some astonishingly fair-minded judges (despite what they thought they were getting ;-).

Kal said...

I have been reading alot today on the Prop 8 decision and your post was one of the best things I have ever read on the topic. You provided many fresh arguements that I had not thought of before, specifically what you said about the founding fathers and the power of the bully pulpit. Great stuff.

Darius Whiteplume said...

I appreciate it. I don't like it completely, but it was a hurried draft with only basic editing for grammar. I am a little hard on myself where argument is concerned at times.

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