Editorial - Proposition 8: An Irrational Assault on Civil Liberties, the 1st Amendment, and Gays

Printer-friendly versionPrinter-friendly version Share this

By Joel A. Harrison

Prop 8 Opponents at November 15th March.
Photo credit: Rick Greenblatt.

Updated December 4, 2008 — Though heterosexual,
I was both saddened and angered at the passage of Prop 8. In California it
takes a two-thirds majority to pass a tax law, i.e. the state taking personal
material property from an individual; but it takes a mere majority to deprive
someone of a civil liberty. Supporters of Prop 8 were angered by the State
Supreme Courts "thwarting the will of the people" in
overturning a previous anti-gay marriage proposition. In Federalist Paper 10,
James Madison, considered the Father of Our Constitution and author of our
Bill of Rights, writes that one of the key purposes of our Constitution was
to [restrain the ability of] "a majority or minority of the whole, who are
united and actuated by some common impulse or passion, or of interest, adverse
to the rights of other citizens." When all else fails, it is the role of our
courts to protect the rights of individuals.

The phrase "a wall of separation between church and state," referring
to the 1st Amendment, comes from a letter Thomas Jefferson wrote to the Danbury
Baptist Association in 1802. The Danbury Baptists were a religious minority
in Connecticut who complained that in their state, the religious liberties
they enjoyed were not seen as immutable rights, but as privileges granted by
the legislature. Historically it was the Baptists, forerunners of today's Evangelicals,
who fought hardest for the 1st Amendment understanding the risks when
the will and passions, the tyranny of the majority, can be entrenched in law.

Many of the arguments of gay-marriage opponents are religious in nature. Nothing
in the California court's decision affects how religious groups treat marriage.
Religious institutions are, and will always be free to choose whom they will
and will not marry. In modern societies, marriage is both a religious sacrament
and an institution recognized under civil law. Though they may overlap in appearance,
they are quite separate. Without a marriage license, a marriage ceremony performed
by a religious body is not recognized by the state. The reverse is also true:
religious denominations are under no obligation to recognize a civil marriage
performed by a justice of the peace (or a civil divorce).

Many claim that legalization of gay marriages is a threat to the institution
of marriage. Ask yourself these questions: If gay marriage is legalized, do
I intend to abandon mine? If gay marriage is legalized and I am currently single,
will I drop any future aspirations of getting married? Obviously, the answer
to both is a resounding NO! In fact, according to a November 4, 2004 New York
Times article "the lowest divorce rates are largely in the blue states: the
Northeast and the upper Midwest. And the state with the lowest divorce rate
was Massachusetts, home to same-sex marriage. Kentucky, Mississippi and Arkansas,
for example, voted overwhelmingly for constitutional amendments to ban gay
marriage. But they had three of the highest divorce rates in 2003, based on
figures from the Census Bureau and the National Center for Health Statistics.
In 2003, the rate in Massachusetts was 5.7 divorces per 1,000 married people,
compared with 10.8 in Kentucky, 11.1 in Mississippi and 12.7 in Arkansas. The
Barna Group, a California organization that studies evangelical Christian trends,
has produced two studies about divorce that found that born-again Christians
were just as likely to divorce as those who are not born-again Christians."
In a recent book by Jonathan Rausch,"Gay Marriage: Why It Is Good for
Gays, Good for Straights, and Good for America," the author argues that pervasive
separate-but-equal strategies weaken the institution of marriage more than
marriage for all because of the inevitable appeal of "marriage-lite" [cohabitation]
to heterosexual couples who might otherwise marry.

Another argument used is that "traditional marriage" is for procreation. So
what do we do with couples who don't have children? Should a marriage license
automatically convert to a domestic partnership/civil union license after,
say, 5 years without children? And should senior citizens only be offered a
domestic partnership/civil union license? Where do we draw the line?

One of the key arguments against gay marriage is the claim of protecting children.
Yet, there is no credible scientific evidence that children are harmed by growing
up in a gay family. Gender identity does not stem from ones upbringing, though love, compassion, and acceptance certainly do. There are many thousands
of children in this country living in single parent families, many of whom
live in poverty; many thousands of other children living in extremely abusive
two-parent heterosexual families; and many thousands more languishing in foster
care. Surely, being raised by two loving committed gay parents is better than
any of the above. Arkansas, a state with three times as many children who need
homes as people willing to adopt or foster them just voted in a measure
to prevent unmarried, cohabitating couples from adopting or fostering children.
The ban affects all unmarried couples but was written with the intent of preventing
gay couples from raising children in Arkansas. 

Some parents were afraid their children would be taught about gay marriage
in our schools. Somehow this would undermine what they teach their children
at home and through their respective "churches." Yet we teach our children
that polygamy exists in the world, that other religions exist, even the existence
of atheism. Teaching that gay marriage exists is no more an endorsement than
teaching about other religions or cultures. How much difference would there
be teaching that domestic partnerships/civil unions exist between committed
loving couples of the same gender? If people are so insecure in their
personal faiths and lifestyles that they feel threatened by the teaching of
the existence of other faiths and cultures, then perhaps we should ban from
our history and civics courses all references to the diversity of religions
and cultures in our world. That would certainly prepare our children for living
in a pluralistic society and world.

Many proponents of Prop 8 view one-man-one-woman marriage as coming from the
teachings of the Bible. However, marriage existed long before the Bible was
written, and in some form in all human societies, including polygamy (even
in the Bible), age of consent, laws against interracial marriages, banning
of divorce, etc. Prop 8 is about denying the right to civil marriage. Many
of these same proponents claim they support domestic partnerships/civil unions
entitling gays to all the rights and privileges of marriage, just not usage
of the specific term. Is one to believe that $40 million was spent simply to
claim a monopoly, a copyright, on the usage of the word "marriage?"

Make no mistake Prop 8 is a direct assault on freedom of religion and the
1st Amendment. We leave clerical titles up to their respective faiths. Religious
seminaries do not need any type of state accreditation. Not only do we recognize
clerical titles in general, included as options on surveys, and other official
papers; but recognize them in our courts. Rabbi Cohen, Father O'Malley, Reverend
Jones, all are addressed by their clerical titles, not "Mr.," "Mrs.," or Ms."
While lawyer-client privilege is the only one recognized in common law, both
the States and Federal courts recognize, with some exceptions, the "sanctity
of the confessional" and cannot compel clergy to reveal what has been said
to them by their congregants. This is the 1st Amendment at work, civil society
recognizing religiously granted titles and privileges.

Many religious groups support gay marriage. It would certainly be an infringement
of their religious freedom to ban them performing the sacrament of marriage.
However, without a marriage license conferring civil recognition, marriage
ceremonies performed by religious groups would have no "legal" standing; but
shouldn't we still allow the couples to call themselves married if their respective
churches performed the ceremony? How does this differ from the granting of
clerical titles?

In countries dominated by the Catholic Church, divorce is illegal. I respect
their right to enforce this for members of their faith; but should their interpretation
of the Bible be extended to our civil laws and liberties? Should our civil
society and civil rights be decided by a simple majorities' religious view?

So why not leave it at domestic partnership or civil union law? The word "marriage"
is a public declaration of affection and a special commitment to one other person.
It's a powerful word. Having different terminology for different groups represents
unequal treatment before the law, the civil law. As opposed to "marriage-lite"
(cohabitation), the public commitment inherent in marriage by gays would serve
to reinforce the special nature of the institution of marriage.

One solution not currently contemplated would be to change the law: instead
of granting a "marriage license" to straight couples and a "domestic partnership/civil
union license" to gay couples, grant everyone the latter. Then, following a
public display of commitment, either before a justice of the peace or a member
of the clergy, couples would receive a "marriage certificate": the witnessed
public display of commitment would allow them to call themselves married. In
my view, as with the recognition of clerical titles, this would be in accord
with the spirit of the 1st Amendment.

Americans like to brag that we are the freest society on earth, with the greatest
Constitution ever written. Separation of church and state as well as protecting
the rights of minorities elements of that freedom are crucial factors
behind the strength of religion in the United States. Because the Founding
Fathers disentangled religion and government, we have a greater variety of
worship and more believers than any other industrialized country in the West.
As a civil institution, gay marriage is not a threat to any religion. In a
society proclaiming itself free, with equal protection under the law, the right
of consenting adults to decide whom they wish to commit themselves to in a
public declaration of marriage should be obvious.

What amazes me is how easily the public can be galvanized to join in on campaigns
aimed at infringing on the rights, liberties, and life styles of others based
on misperceptions and faulty logic when there are so many other issues that
genuinely merit our time, attention, and financial contributions. For instance,
in this country there are millions of children who go to bed hungry at night,
who live in poverty, who lack health care, who live in dangerous environments,
and who receive substandard educations. With so many pressing issues, with
so many "real" problems in our society, why do we continue to focus on emotional
issues and straw men? Perhaps, just perhaps, the people benefiting from the
inequities in our society are content to keep our attention and energies focused
elsewhere.

Bio: Joel A. Harrison, a native San Diegan, is a semi-retired
epidemiologist. Dr. Harrison has lived and studied in both Canada and Sweden
. He recently had an article published on health care costs, "Paying More,
Getting Less," which can be found at www.dollarsandsense.org/archives/2008/0508harrison.html

Editorials submitted by our readers reflect their views and do not necessarily
reflect the views of East County Magazine or its publisher.  If you wish
to have an editorial considered for publication, please contact editor@eastcountymagazine.org.


Error message

Support community news in the public interest! As nonprofit news, we rely on donations from the public to fund our reporting -- not special interests. Please donate to sustain East County Magazine's local reporting and/or wildfire alerts at https://www.eastcountymedia.org/donate to help us keep people safe and informed across our region.