Proposition 8

A little earlier today, the California Supreme Court decided that Proposition 8 stands. Proposition 8 was the voter's response to an earlier decision by the Court that the California Constitution requires same-sex marriage as a matter of equal protection. Proposition 8 aimed to change the Constitution, thereby nullifying the Court's decision. A narrow (52%) majority voted in favor of Proposition 8. The question before the court was whether its earlier decision was subject to this sort of nullification, and the Court held that it was.

I'll start with the law, if only to set the issue aside. I am not a lawyer. I am in no position to say that as a matter of law, the court decided wrongly. The vote was 6-1, which suggests that whatever the private views of the Court members may be on the matter of gay marriage, it seemed clear to them that California law does, indeed, allow the earlier Constitutional decision to be set aside by a simple majority vote. I'm in no position to second-guess the Court about that.

It's worth adding, nonetheless, that the idea of a Constitution that can be amended by a simple majority is already a misbegotten one. Constitutional law is not straightforwardly democratic, and that's one of its virtues. The whole idea of a constitution is to set certain principles beyond the reach of day-to-day political pressure. That's how the US Constitution works, and it's also how most state constitutions work. Not so in California, land of participatory democracy gone wild.

But leave all that aside. The real problem here is that Proposition 8 is on its merits an awful proposition -- however you look at it.

Some people have religious objections to same-sex marriage. I think those objections are bad religion, and on another occasion, I'd be prepared to argue that at length. But that matters not. Civil marriage is not a religious institution. I hope we can all agree: no religious denomination should be required to perform same-sex marriages. What marriage means, understood religiously, is not a question for the law. But what civil marriage means, understood as a secular institution, is not a matter for sectarian settlement.

That leaves three sorts of objections: empirical ones (that somehow same-sex marriage will undermine an important civil institution), symbolic objections and moral complaints.

The empirical objection has no plausible support. On the contrary, it's hard to see how promoting legally-sanctioned stable unions between same-sex partners could hurt "traditional" marriage, and equally hard to see how it could be a bad thing. The idea that it will somehow weaken "traditional" marriages is hard to fathom. The idea that it might strengthen the idea of commitment across the board, on the other hand, is pretty plausible.

Still, no one can force anyone to approve of same-sex relationships, and some people may say the that label "marriage" carries a symbolic meaning -- a special stamp of social approval. Some of these people might say: we can't tell you how to live your life. But we can withhold our symbolic approval.

The symbolism issue isn't silly. On the contrary, gay people themselves rightly see it as important. And it's true: the body politic does have the right to decide what to put its stamp of approval on. Thinking something ought to be allowed is one thing; thinking it ought to be honored is quite another. And so we come, at last, to the nub of the issue. For in fact, the symbolic and moral issues aren't simply distinct. If someone thinks that same-sex unions are wrong , it would be strange to expect them to think they ought to be treated as honorable.

So are same-sex relationships wrong? I'd suggest that the answer is so clearly no that once you see it, it's not even thinkable to say yes. In this sense, it's rather like slavery. Slavery is wrong. Not so long ago, many people thought otherwise. But once you come to see that slavery is wrong, there's no going back.

I use the word "see" advisedly, because what happens for many people is a bit like a Gestalt switch. After you manage to fasten on the right features, things just look different. You may think that people "choose to be gay." But there's simply no good reason to believe that. You may think that homosexual relationships are inherently unhealthy, or that gay people are somehow disturbed. But time spent around ordinary gay people and around loving gay couples makes that idea melt away. It simply doesn't stand up to what you see before your own eyes when you really pay attention. On the contrary, what people find is that the gay/straight distinction matters less and less as they get to know people more and more. And anyone who doubts that same-sex relationships can be every bit as loving, as affirming, as sustaining as "traditional" relationships simply hasn't gotten around enough. Once you open your eyes, the evidence is as plain as the evidence that people of African descent are as fully and richly human as everyone else, or that women are the equals of men in every sense that matters.

The good news is that only a bare majority of Californians don't get it. The landscape has shifted dramatically in the past 30 years. People who say that Proposition 8 is simply bucking the tide of history are right. One can only hope that the tide move fast.

Finally, a more personal note. After I post this, we'll be going to the funeral parlor to bring whatever poor comfort we can to Stanley, whose partner Jimmy died a few days ago of a cruel respiratory illness. Jimmy and Stanley were married in all but name and as marriages go, it was a very good one. Stanley has lost the love of his life and his life partner of twenty years. Who cares that they were both men? Who who knew them couldn't grieve with Stanley that his funny, smart and gentle Jimmy is gone? And who couldn't taste the bitterness in the fact that this loving partnership was treated by the law as a nullity? Let it soon not be so for the others who wait.