The California Supreme Court ignored the will of millions of voters Thursday and legalized gay “marriage” in the state by throwing out precedent and existing law. In doing so, it has empowered an assault on the foundational freedoms of this country.
In scenes reminiscent of the Visigoths dancing in the ruins of Rome, spontaneous celebrations by gay “marriage” supporters broke out in San Francisco and other cities following the announcement of the court’s ruling. Reported the Associated Press:
“Our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation,” Chief Justice Ron George wrote for the court’s majority, which also included Justices Joyce Kennard, Kathryn Werdegar and Carlos Moreno.
The decision doesn’t settle the issue, as there is a movement to pass a constitutional amendment to keep marriage in its traditional form. If passed, the amendment would trump the court decision.
The court clearly overstepped its authority in making law for the entire state, a job that is supposed to be reserved for the Legislature. But the most troubling thing about the court decision is that it apparently did not even consider what I regard as the most important issue: that marriage is a religious matter.
The concept of male-female marriage has been around in one form or another in every culture throughout history. Marriage has always been considered primarily a religious ceremony. Governments traditionally have protected and regulated marriage because all states have an interest in the circumstances of creating and raising the next generation of citizens, but they have always taken their cues from the religions specific to their cultures.
I do not believe the gay marriage movement has ever been about “gay rights,” though many people have been lured into supporting it based on that slogan. If it were about particular rights, then we could have made a list and made a case in the legislatures of this land. But the fight has been about changing the very concept of marriage, a concept which was not invented by the state.
The real fight has been about using the government and other authorities to hammer away at traditional religion, particularly Christianity, and reducing its influence in this country:
- In the Senate, Edward Kennedy, Harry Reid and other liberals are pressing for passage of ENDA, the Employment Non-Discrimination Act. Superficially well-intentioned, the law would prohibit discrimination against gays and any other non-heterosexual. The law makes no exception for the religious conscience of an employer or co-worker, and it provides for the government, at taxpayer expense, to be the primary enforcer of the law. In short, ENDA could force churches, private schools and individuals to choose between their religious convictions and possible financial ruin.
- In New Mexico in April, a couple of Christian wedding photographers were fined by authorities $6,600 for refusing to photograph a lesbian “commitment ceremony.”
- In 2002, Kodak fired a loyal 23-year employee who objected to pro-homosexual indoctrination and refused to attend “diversity” re-education.
- In 2005, Allstate fired a manager for writing, on his own time, a column critical of gay marriage.
- In 2004, an appeals court upheld Hewlett Packard’s firing of a Christian employee for posting anti-homosexual Bible verses in his cubicle after company officials placed pro-homosexual posters around the office as part of the company’s “diversity” program.
- Google made news for rejecting ads from Christian groups ChristianExodus and Stand to Reason, both of which opposed gay marriage.
- At Sandia National Laboratories, Christian employees were forbidden to use the employee bulletin board, ordered to remove religious screensavers and posters, and finally were prohibited from displaying family pictures after homosexuals complained that they found it “offensive” to see photos of traditional families.
- In 2005, the American Red Cross in San Diego fired an employee after he objected to a memo encouraging workers to help support Gay and Lesbian Pride Month. The e-mail he sent to his boss included the phrase, “I would like to start by stating that I am a Christian not willing to compromise my beliefs to promote the agenda of the homosexual community.” He added Bible verses including Galatians 6:7 and Joshua 24:15.
Gays certainly must have the same basic rights as anyone else. But there is no doubt in my mind that if gay marriage stands, it will be used to oppress Christians.
Supporters of gay marriage may think they’ve struck a blow for freedom, but what they’ve really done is laid a cornerstone for a state church.
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You really don’t understand this issue, do you?
It is the DUTY of a state supreme court to override the will of the people when that will violates provisions of the state constitution, regardless of the numbers involved. I stayed up all night and actually read the California Supreme Court’s decision – all 172 pages. Did you actually bother to read the decision for yourself? The court held that the existing limitation of marriage to opposite-sex couples violates both the due process and the equal protection guarantees enshrined in the California state constitution (which is more generous, both by its terms and as construed by the California state courts, than the US Constitution, in terms of the guarantees that it affords people against state encroachment of their liberties). The decision was intricate, extremely well researched, and analytically rich. The dissents, on the other hand, were analytically impoverished and fell back on your line of reasoning – marriage has always been between a man and a woman, therefore marriage must always be between a man and a woman (stated differently, your reasoning appears to be summed up as follows: since gay people have never been permitted to marry, gay people should never be permitted to marry). This is not analysis – this is merely a restatement of the original objection. The logical fallacy is called “post hoc, ergo propter hoc” (after this, and therefore because of this), and the California Supreme Court recognized the absurdity of this proposition. The majority soundly rejected this tautological and conclusory reasoning, embracing much of the brilliant dissent authored by Chief Judge Judith Kaye of the New York State Court of Appeals (the highest state court in New York) when the Court of Appeals, in a hopelessly incompetent decision, upheld New York’s prohibition against gay marriage (see Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)).
Your comparison of gay people AND MANY HETEROSEXUAL people celebrating this decision to “Visigoths dancing in the ruins of Rome” is patently offensive, if not downright disgusting, both to gay people and to those heterosexual people who believe in eliminating the cancer of discrimination, whether it be racial discrimination, gender discrimination, sexual orientation discrimination, anti-Semitism, or any other form of irrational and bigoted discrimination.
In finding for the gay plaintiffs, the California Supreme Court also became one of the first appellate courts in the country to conclude that gay people comprise a “suspect class” for the purpose of equal protection analysis – not just with respect to the issue of marriage, but with respect to all legislation that classifies on the basis of sexual orientation. This is indeed a blow for freedom, much as it may upset you. The California Supreme Court again adopted much of Judge Kaye’s reasoning in her Robles dissent, citing from this dissent repeatedly.
The right of Christians to marry is in no way impacted by the California Supreme Court decision. Christian churches cannot ever be compelled to marry people in violation of their religious tenets. The fact that gay marriages will now exist in California in no way impairs the liberty interest of heterosexuals, or of fundamentalist Christians. We do not live in a theocracy, notwithstanding your impassioned diatribe. We live in a pluralistic, diverse society comprised of many different people with many different belief systems, religions, and moral codes. As far as marriage is concerned – no statement is pithier or more eloquent than Chief Judge Kaye’s pointed observation (cited by the California Supreme Court) that “There are enough marriage licenses to go around for everyone.”
Prior to 1948, it was illegal for white people to marry non-white people anywhere in the country. Those who supported “anti-miscegenation” statutes firmly believed that they were necessary to maintain the existing social order. The California Supreme Court noted that these statutes were rooted in the dogma of white supremacy, and held that the California “anti-miscegenation” statute violated the state constitution (see Perez v. Sharp, (Oct. 1, 1948) 32 Cal.2d 711, 198 P.2d 17), this becoming the first state supreme court in the country to strike down a state “anti-miscegenation” statute. The US Supreme Court took 19 years to adopt the same line of reasoning under federal constitutional jurisprudence, eventually handing down Loving v. Virginia, 388 U.S. 1 (1967), which invalidated all state “anti-miscegenation” statutes throughout the country (a more appropriate case name cannot be imagined).
You complain about Christians suffering “discrimination.” Just one example from your litany of woes suffices to demonstrate the absurdity of your complaints. Specifically, you write about Christian photographers in New Mexico who were fined $6,600.00 for refusing to photograph a lesbian commitment ceremony. What you conveniently omit from this complaint is the fact that New Mexico (like at least 20 other states) has a statute on its books that prohibits private sector sexual orientation discrimination in the provision of employment, housing, and public accommodations. This means that hoteliers, store-owners, restaurants, and other providers of public accommodations may not discriminate against clients, or potential clients, on the basis of sexual orientation. Clearly, these photographers violated this statute. This statute was enacted by the state legislature through the usual political processes of the state. The legislature, acting in response to complaints of discrimination, enacted this statute in accordance with the democratic process. The will of the people of New Mexico was clearly expressed through the enactment of this statute – yet these photographers chose to evade the reach of this statute by attempting to employ their religion as a shield. Where are your complaints about the will of the people not being respected in this instance? The people of New Mexico expressed their desire to eliminate private sector sexual orientation discrimination, and these photographers chose to disregard the law. Furthermore, anti-discrimination statutes such as New Mexico’s statute have been challenged in the courts – and have been found to be constitutional under the Commerce Clause. Simply put – when you enter the realm of the free market, you assume liabilities and responsibilities that do not attach to personal conduct in the home.
The Employment Non-Discrimination Act (ENDA), which will probably pass both houses of Congress, is merely an attempt to update existing civil rights legislation to extend the protective ambit of this legislation to the prohibition of sexual orientation discrimination.
Private sector firms have every right to establish anti-discrimination policies and to ensure that their employees are made aware of – and abide by — these policies (which, as pointed out above, frequently reflect the will of the people). Substitute race or ethnicity in your complaints – and see for yourself how ugly and bigoted those complaints become.
The US Supreme Court, in Lawrence v. Texas, 539 U.S. 558 (2003) (the decision striking down all state sodomy statutes as applied to consensual sexual activity between adults acting in private), expressed the proposition that lies at the heart of constitutional adjudication, noting the following:
“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
While this conclusion pertained to a decision striking down the sodomy statutes of 14 states that chose to criminalize gay men and lesbians by legislative definition, and did not address the issue of gay marriage, this principle applies with equal force to the California State Supreme Court’s actions. Far from being the victims of persecution, many so-called “Christians” are the embodiment of hatred such as that which animated the efforts of these fourteen states.
I should know. In 2006, I was hired as a computer consultant by a small firm which I later learned was owned by ultra-conservative, religious “Christians.”
When my manager found out that I am gay, I was fired.
PHILIP
Comment by Philip Chandler — May 16, 2008 @ 10:13 am
Philip did such a good job in responding to this, that I have almost nothing to add. There was one thing that slipped through his reply, though. So I’ll address the issue here.
Tad, you said that: “Marriage is a religious matter.”
This is wrong.
Marriage is a secular matter of both personal and civic importance. Some people believe that marriage has religious significance – they have the right to believe this as members in a free thinking society. As Voltaire said – I may disagree with what you say, but I’ll defend to the death your right to say it.
However, those people that self identify as ‘religious’ don’t have the right to do is impose their belief that marriage has religious significance on other people. You don’t have that right, Tad. And neither does anyone else.
You can think and believe that the marriages of same-sex couples are not valid in the eyes of God. I find that belief detestable – but it is your right to believe it, and I support that right.
You don’t have the right to try and stop the state from recognizing their marriages on a personal and civic level, and you don’t have the right to discriminate against such couples on religious grounds.
It’s not about opressing Christians. It’s about civic fairness for all – and civic fairness is a social value sadly lacking from the lives of many (though by no means all) practicing Christians.
Christianity can keep its internal understanding of what marriage is about, but it has no right to monopolize the civic institution of marriage. None at all.
Che and Phillip,
We’ll probably have to agree to disagree on this, but I do thank you both for the thoughtful responses. I remain skeptical about the premises of the gay marriage movement, but I suppose we’ll all just have to see how things work out. It’s good we can have civilized discussions on “hot-button” issues. Personally, I wish that our Legislature in California would have taken up the issue, rather than letting the courts essentially make law, which I don’t believe is their proper role. Anyway, thank you again for your responses.
Comment by Ubiquitous Che — May 19, 2008 @ 3:47 pm
“Personally, I wish that our Legislature in California would have taken up the issue, rather than letting the courts essentially make law, which I don’t believe is their proper role. Anyway, thank you again for your responses.”
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Response:
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The legislature did take up this issue — in both 2006 and 2007, both houses of the state legislature voted to enact gay marriage in both name and substance. However, Governor Schwarzenegger, kowtowing and groveling to the religious right, vetoed this legislation on both occasions. For that, I can only hope that fate will grant him the opportunity to relive those vetos and to hang his head in shame.
Thank you for your comments and for civil discourse pertaining to such an emotional matter.
PHILIP
Comment by Philip — May 23, 2008 @ 6:51 pm