Friday, March 6, 2009

Does CA Proposition 8 Revise the Constitution? An Important Question

The Supreme Court of California is reviewing Proposition 8 and has 90 days to decide if it is constitutional.  An argument has been made that banning gay marriage is a major revision of the U.S. Constitution,  and not an amendment.  If this is found to be the case,  Proposition 8 would be necessarily deemed unconstitutional.    Whatever the decision,  the losing side will cry foul.  Which is more important,  the will of the people voting in free elections,  or the decisions of Superior Court judges?  This question was also asked regarding Lawrence v Texas,  which set the precedent for decriminalizing sodomy. 

Strong secular arguments have been made that allowing gay marriage is a major and pernicious revision of the constitution.  Gay marriage is not a neutral issue.  It is not the same,  for example,  as allowing deaf persons to marry,  or as allowing biracial marriage.  Strong arguments have been made on both sides;  yet there are concerns belonging to the contra side which have not been seen within the simplistic framing of the conflict by mainstream media.  Gay marriage is not the cause of divorce of familial breakdown or the blurring of gender roles (obviously)  but its acceptance by mainstream culture would certainly make these worse.  It would give people to understand that we were in a wholly new world,  somewhat the way the sexual revolution of the '60s and '70s did, and with the same alienation and confusion coming in its train.

  In my opinion,  the case for civil unions,  but no gay marriage,  is the most workable.  Philosophically,  the love argument is weak.  Love of two persons for each other demands allowing civil unions,  but does not easily encroach on natural law.

After the seven jugdes had listened for 3 hours to boths sides'  arguments,  a majority of them seemed inclined to uphold Proposition 8,  not believing it to be a major revision of the U.S. Constitution.  Kenneth Starr has raised questions which he says "trancend the marriage issue",  touching on democratic disourse,  popular sovereignty,  and the meaning of the state constitution.

San Francisco's Civic Center Plaza has become a colorful arena of argument and debate.  Hundereds have gathered to await the court's decision.    Some are arguing philosohically and politically,  while others take the religious tack,  complete with bullhorns and talk of Sodom and Gomorrah.  ( The last being a bit silly,  I think,  regarding the age we live in.  )

 Over 18,000 gay couples were allowed to marry before Prop 8 won in the November elections.  This would seem to indicate that there had been legalized gay marriage in the state of California,  albeit for a brief period.  What will be the status of these marriages if Prop 8 is upheld,  is anyone's guess.

I think whether one is for Prop 8 or among its opponents rest on one's stance toward culture,  the marriage perspective being merely secondary.    If one takes the sentimental view of love and individualism  ( what I consider the liberal and feminist view which has its root in '60s ideology) then one is going to oppose Proposition 8.    Conversely, if one takes the conservative view  -  and here I mean conservatism in its best sense  -  then one is unlikely to want gay marriage to take root in the culture,  because one can see that there will be a myriad of unintended consequences,  and a backsliding into what we have been attempting to escape.  Classical liberalism would stop at the civil unions.  Hyper-liberalism will want to encroach of traditional values.  It is not homophobic to be against gay marriage,  by the way,    and no one ought ever attempt to assert this.  This issue has been made far too black and white,  and over simplified to the point of negation.  And yet. . . There is so much passion coming from the opponents of Proposition 8,  I wonder if there will ever be resignation.  Perhaps a middle road will be found.  It remains to be seen.  As Nietzche said,  "Let others grapple with it.".

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