Proposition 8

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I have stayed silent on proposition 8 thus far although I don’t imagine that many people would guess wrong if they were to predict my position. I have heard plenty of opposition to the proposition so I know the major reasons for those who oppose it. The most famous reasons for those who support Proposition 8 seem to be the "Six Consequences." I have not read those six consequences, but again, the opposition has been vocal enough that I have a pretty good idea of what those are. Today when I read the statement by Constitutional Law professors from California I decided that it was time to set the record straight about this whole issue. Like so many issues, the rancor and the passion on both sides has served to obscure the real issue and color the arguments into inaccuracy. For my purposes I will stick to the 3 points emphasized in this statement .

The first point is correct only to the first sentence – Proposition 8 would change existing California law. The trick is that there is nothing inherently bad about changing our existing written laws, especially when those laws are unreasonable in any way (self-contradictory, vague, or outside the jurisdiction of law are examples of why a law may be considered unreasonable). Those arguing in favor of Proposition 8 are arguing that the definition of marriage falls outside the jurisdiction of human law. To them it is not a matter of discrimination, it is a belief that the following statement is fundamentally false on simple semantic grounds:

Proposition 8 would forbid government officials from according gay men and lesbians a fundamental right they now enjoy and that all other adults in California will continue to enjoy: the right to marry a person of their choice.

The real argument behind Proposition 8 is that no person has the fundamental right to marry the person of their choice but that, in fact, every person finds that their choice is limited by the very definition of what constitutes marriage. At the core, what proponents of proposition 8 are claiming is that marriage is not a man-made construct and cannot be made to conform to the changing whims of society. When society forbade interracial marriage half a century ago it did not mean that interracial couples could not meet the criterion of marriage, only that society was too myopic to tolerate such a marriage.

The real argument of Proposition 8 supporters rests on two premises: 1) that what constitutes marriage is defined by God and not by society, and 2) that God’s definition of marriage requires (among any other criterion) that the parties to marriage may not share a common gender. Anyone who accepts those two premises (as I do) must support this proposition or be in open rebellion against God. (Those who reject these two premises cannot be judged by their fellow men to be in such rebellion on this issue.)

There are two very unfortunate truths regarding the arguments being made by most proponents of Proposition 8. First, they give little if any emphasis to their real argument (as stated above) preferring instead to try to make their case in terms of human law (which argument is naturally riddled with bias and inaccuracy as I will show below). Second, they fail to articulate that – contrary to what opponents claim in order to accuse them of bigotry and discrimination – while they believe that marriage by its nature cannot be entered into in a homosexual fashion they do not argue that gays and lesbians do not have the same fundamental rights as all other people, namely the rights to devote their lives to the person of their choice, to share their earthly possessions with the person of their choice, to offer care and support for the person of their choice in times of emotional, financial, physical, or mental distress (or comfort). In other words, gays have every right to cohabitate, enjoy hospital visitation and inheritance rights, and everything else commonly associated with marriage, but we assert that it is a matter of fact, and not a matter of discrimination that such sharing does not meet the qualifications for the term "marriage."

What is being decided by the voters of California is whether they will make California law conform with the definition of marriage espoused by the proponents which states that a marriage cannot be made without the participation of both a man and a woman or if they will insist in California law that marriage is a human social construct that may be altered according to the prevailing views of society.

The second point is correct on the surface and clearly exposes a flaw in the argument by Prop. 8 proponents. The tax exempt status of churches who refuse to perform marriages for same sex couples will receive the same protection regardless of the outcome of Prop. 8. Historically the tax exempt status of churches has been regularly challenged and rarely overturned. Going forward, it will be regularly challenged and occasionally overturned. The statement by the law professors ignores the truth behind such challenges which is that taking a position against legalized same sex marriage is as good an excuse as any for a group to get angry at a church and challenge their tax exempt status.

The third point is like the second in that it is technically correct and exposes a flaw in the arguments of proponents. Proposition 8 is neither necessary nor sufficient to "prevent public schools from teaching issues relating to marriage by same-sex couples to children whose parents oppose that instruction." Here the statement by the law professors ignores the facts that regardless of what is written in the books of law, very few parents have the time or the expertise to exercise their "absolute right to review all materials provided as part of a school’s comprehensive sexual health education program and to have their children excused from participation," and that legal recognition of same sex marriage by the state gives tacit permission for those who would wish to push such an agenda to test the limits of what parents will permit.

Yes, I just offered correction on the statement of 54 constitutional law professors – including Lawrence Lessig (who I esteem very highly) – and yet the only point that anyone can disagree about is the one that this issue is meant to resolve. In other words, the voters of California will go to the polls to decide between me and those who disagree with me as far as California law is concerned. On the other points everyone should stop their posturing and pointing out of technicalities. The real issue is the question of semantics.