Earlier today, a pair of high-powered attorneys — one a prominent Democrat, the other a former Bush administration official — announced that they will be challenging Prop 8 in federal court now that the state Supreme Court failed “to protect gay couples’ fundamental right to marry.”
So the battle continues.
Generally, I’m loath to question the constitutionality of a public referendum, but the California Prop 8 vote and yesterday’s state court ruling should not be viewed through the lens of populist democracy.
Rather, the vote only uses the trappings of democracy to restrict the rights of a minority group, while the court seemed to seek some politically pallatable compromise that ultimately pleased only the most vociferous of the anti-gay marriage contingent.
Consider what The New York Times had to say in its editorial, “A Setback for Equality“:
The California Supreme Court got it terribly wrong Tuesday. It upheld Proposition 8, a state constitutional change on last fall’s ballot intended to prohibit marriage by couples of the same sex. In addition to denying basic fairness to gay people, the court’s 6-to-1 ruling sets an unfortunate legal precedent that could allow the existing rights of any targeted minority to be diminished using the Election Day initiative process.
Gays and lesbians are the primary victims in all of this, but the ruling has the potential to reach beyond the marriage-equality debate into other areas of civil-rights law, creating the possibility that equal protection under the law is subject to a majority vote.
Perhaps I’m being overly sensitive. But as a member of an ethnic group — Jews — that has been subject to enslavement, pograms and the Holocaust, a group that faced a level of discrimination and religious hatred that only a few ethnic and religious groups can comprehend, I don’t think so.
Prop 8 is an example of tyranny of the majority and further proof that the rights we believe derive some a higher power are really just manmade constructs — as George Carlin pointed out in “You Have No Rights” on It’s Bad for Ya — that we must fight to preserve. We cannot rely on the courts or the benificence of lawmakers, we must do what the civil rights movement did and create a moral imperative that makes it impossible for politicians not to do the right thing.
Momentum is moving the gay-marriage debate in teh right direction, thanks to an aggressive push from marriage-equality activists.
Consider the poll released today by the Quinnipiac University Polling Institute that shows a plurality of New Jerseyans — 49 percent for, 43 percent opposed — backing the legalization of same-sex marriage, a sea change when compared with a December 2006 poll that found marriage-equality opposed by a 50-44 margin. The poll also found that voters, by a 63-30 margin, support the existing civil unions law.
“Two years after New Jersey’s civil union law went into effect, sentiment for allowing same-sex marriage in the state has shifted from six points against to six points in favor,” said Clay F. Richards, assistant director of the Quinnipiac University Polling Institute.
“Support for the same-sex civil union law has risen dramatically and New Jersey voters do not see gay marriage as a threat to traditional marriages between a man and a woman. Support for allowing gay couples to adopt children is nearly 2 – 1.”
Another key finding of the poll is the complete rejection of the claim made by the homophobes at the National Organization for Marriage and other like groups seeking to demonize gays and paint the LGBT community as somehow a threat to American values. Groups like NOM have long argued that same-sex marriage is a threat to so-called “traditional marriage.” They’ve never explained what that threat entails, beyond saying that it redefines marriage and parenthood — an argument that is beyond specious and appears to be losing steam.
From the Quinnipiac Poll:
New Jersey voters reject 66 – 30 percent the argument that same-sex marriage “is a threat to the traditional marriage between a man and a woman.” Even Republicans disagree with this claim 51 – 46 percent, as do those who attend religious services weekly, 52 – 43 percent.
Think about it — two-thirds of New Jersey voters find this argument unconvincing, meaning that the chief pillar on which the opposition has built its case is melting.
Let’s keep up the heat.
Maine’s Legislature has opened a very public debate over marriage-equality this morning with public hearings kicking off on separate bills, one legalizing gay marriage and the other expanding domestic partnership rights.
AUGUSTA, Maine – Same-sex marriage supporters far outnumbered opponents as legislative hearing got under way about 9:30 a.m. today at the Augusta Civic Center. Between 2,000 and 3,000 people filled the floor and most of the side seats in the auditorium.
Members of the Judiciary Committee are hearing testimony on two bills – LD 1020 that would allow same-sex couples to marry and LD 1118 that would extend to people registered on the Domestic Partner Registry the same rights and benefits as those who are married but would stop short of creating civil unions.
Supporters of same-sex marriage, decked out in red, cheered and rose to their feet as Sen. Dennis Damon, D-Trenton, introduced LD 1020. Damon announced in January that he would sponsor a bill to repeal a law that defines marriage and between a man and a woman and allow any person in Maine to marry.
“It’s fair. It’s right. It’s time,” he said of same-sex marriage.
Damon, obviously, was speaking of the Maine marriage bill, but his admonition to his colleagues can also be read as a more general exhortation, as in: “Hey, New Jersey. Pass marriage-equality: It’s fair. It’s right. It’s time.”
Dispatches is on the same-sex marriage debate.
Hank Kalet 