It is hard to remember that just six and a half years ago, a ban on same-sex marriage narrowly passed… in California. Critics will point out, of course, that the voters of California never voted to allow same-sex marriage and, while true, does it really matter?
In a matter of a few short years, Californians went from being swayed by a scare tactic campaign saying that allowing same sex marriage would mean kids would learn about same-sex marriage in school and would think it was all right for them to marry someone of their own sex, to enjoying overwhelming support statewide.
As I wrote on November 15, 2008, “The day after the proposition passed by a relatively narrow margin, the activists hit the streets to protest it. I found that very odd, frankly. Even now, I have mixed feelings about protesting the passage of a proposition. Let me explain.
“My first reaction was that the majority of the people who voted, voted in favor of the proposition. So what good would a minority protesting it do. It seemed like a futile gesture. I mean, whatever you think of majority rule in this case, it certainly supersedes mob rule.”
I believed following the vote that same-sex marriage equality would be inevitable. I based that on looking at demographic voting patterns which showed that the group most supportive of same-sex marriage was the young people – people who grew up alongside those openly gay and who did not have the same type of innate fear that older generations had.
Moreover, religion plays a huge factor. The Field Poll showed that Barack Obama won California by a 24 percent margin, and yet large groups of Obama supporters also backed Proposition 8. For instance, 59 percent of California Catholics supported Obama and 64 percent supported Prop. 8.
According to Mark DiCamillo of the Field Poll, their exit polling showed that religion trumped party affiliation on these types of social issues. Eighty-four percent of those who attend church weekly voted yes and 83 percent of those who never attend religious observances voted no.
As we know, younger people are less likely to have a religious affiliation, which ties right back to my belief that in the future we would have marriage equality. But I thought the future would be 20 years away, not six and a half.
I would have believed that it would be the US Supreme Court that affirmed that right. As Justice Anthony Kennedy wrote: “The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”
Justice Kennedy recognized that the strength of the US Constitution, and indeed its power and endurance, rests in its ability to evolve along with the nation’s consciousness.
For me the transformation has been remarkable. Politicians who a few years ago would not dare to support same-sex marriage, even if they believed in it, have changed their minds.
President Obama is one of them. In his first Presidential campaign, he opposed same-sex marriage, but in 2012 he changed his mind. He said yesterday, “Our nation was founded on a bedrock principle that we are all created equal. The project of each generation is to bridge the meaning of those founding words with the realities of changing times — a never-ending quest to ensure those words ring true for every single American.
“Progress on this journey often comes in small increments. Sometimes two steps forward, one step back, compelled by the persistent effort of dedicated citizens. And then sometimes there are days like this, when that slow, steady effort is rewarded with justice that arrives like a thunderbolt,” he continued.
He said the decision “affirms what millions of Americans already believe in their hearts: When all Americans are treated as equal, we are all more free.”
But, of course, not everyone believes that.
Justice Antonin Scalia, in an opinion more dripping with sarcasm than legal reasoning, writes, “But the Court ends this debate, in an opinion lacking even a thin veneer of law… Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect.”
“‘The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,'” he quoted from the majority opinion before adding, “Really? Who ever thought that intimacy and spirituality were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.
“The opinion is couched in a style that is as pretentious as its content is egotistic,” he writes. “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
Justice Antonin Scalia blasted the Court’s decision as a “threat to American democracy.”
But is it? The Federalists in writing their Federalist Papers were concerned with a tyranny of the majority and, in fact, feared that the masses would at times combine together in numbers to deprive the minority of their rights. The courts, while clearly seen as the least powerful of all branches, have acted throughout history as a brake – or a potential brake, if you look at the Korematsu decision – against the tyranny of the majority.
Can the majority legitimately vote to deprive the rights of the minority? The ideals of equal protection under the law are bedrock principles of American Democracy – every bit as powerful as the principle of majority or plurality rule.
At the same time, I have seen the view that the US has somehow turned away from “God” through the legalization of same-sex marriage. As one person put it in a Facebook comment, “Now there is no turning back. So time to start turning to God and get ready because he’s coming back soon.”
For me it’s an interesting view. One passage comes out of Leviticus, “You shall not lie with a male as one lies with a female; it is an abomination.” On the other hand, there are a lot of practices in Leviticus that have long since been forgotten.
In a world full of hunger, pain, and suffering, is the “sin” of legalized same-sex marriage really going to push us over the top? I think there has been a disproportionate focus by many on this particular “sin” in a world full of what would seem to be to be much greater sins.
Back to the ruling. To me it was always curious that the gay rights movement picked marriage equality as their central issue. To me, the bigger issues still remain – enshrining gay rights into anti-discrimination laws and the US Civil Rights Law, and dealing with bullying issues, particularly in school.
But for now, many of us will celebrate an extraordinary victory. Ten years ago it seemed that this day was a long way off – most of the nation opposed the concept of marriage equality and even liberals I knew preferred some sort of civil union to same-sex marriage. Six and a half years ago, California voted to ban same-sex marriage.
And now, in 2015, marriage equality has come to the nation.
—David M. Greenwald reporting
“Who ever thought that intimacy and spirituality were freedoms?”
The answer is simple. The writers of the constitution and Bill of Rights did.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. “
They did by enshrining as a fundamental part of our constitution the right to practice one’s own religion or no religion at all. For what is religion at its base but a codification and series of rituals evolved around a particular form of spirituality. The writers of the Bill of Rights were clear that the right to practice one’s own religion ( not necessarily that of the majority) or to not practice at all were fundamental.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
While it is true that the clause itself says nothing at all about “intimacy”, it is very clear in ensuring “equal protection of the laws”. If it were the case that “marriage” were not a privileged status for anyone within our society with benefits not allowed to those who are unmarried, then there would be no argument here. The problem is that we do make have legal benefits and monetary benefits for those who are married. We allow this not only for the purposes of reproduction since we are allowed to marry even if we are beyond reproductive age, or if we are known to be infertile, or if we have voluntarily been rendered operatively infertile. Therefore the claim that marriage is about the ability to reproduce is nullified. There is no rationale reason that I can fathom that would protect the “intimacy” in the form of marriage of a man and a woman over that of two men or two women. So if Justice Scalia were to be consistent, he would either have to argue for no special legal status for any married couple, or he should uphold the equal protection clause and admit that the special legal status known as marriage should be extended to all couples.
I agree, David; I am amazed it happened so early in the historic timeline.
I happened to be in downtown Oakland the night Obama was elected the first time, and in downtown San Francisco the night after yesterday’s Supreme Court announcement. There is no joy like that of masses of individuals that have seen the end of institutionalized oppression of their freedoms.
I am one that started out years ago perplexed at the concept of gay marriage, came to believe that civil union was the answer, then through talking to a friend who is an activist minister on the issue in the Methodist church and coming to know through friends more people in the gay community in the Bay Area, I came to see and understand love between people in different modes than what I grew up with, and also came to understand where rights were still denied in the civil union concept.
Someday, ideally, “marriage” will come out of government-sanctioned unions and everyone will be tied by civil union with the rights of what today is called marriage. When I saw rights were still denied to some, I came to see gay marriage must come first so that the associated freedom and equal rights could be extended to all.
This is indeed a joyful day.
Some thoughts on “product” and “process” from “The Lessons of History”[1]
Intellect is a vital force of history, but it can also be a dissolvent and destructive power. Out of every hundred new ideas, ninety-nine or more will probably be inferior to the traditional responses which they propose to replace. No one man or woman, however brilliant or well informed, can come in one lifetime to such fullness of understanding as to safely judge and dismiss the customs or institutions of his or her society, for these are the wisdom of generations after centuries of experiment in the laboratory of history.
Therefore, the conservative who resists change is as valuable as the radical who proposes it-perhaps as much more valuable as roots are more vital than grafts. It is good that new ideas should be heard, for the sake of the few that can be used; but it is also good that new ideas should be compelled to go through the mill of objection and opposition. This is the trial heat that innovations must survive before being allowed to enter the human race. It is good that the old should resist the young, and that the young should prod the old. Out of this tension, as out of the strife of the sexes and the classes, comes a creative tensile strength, a stimulated development, a secret and basic unity and movement of the whole.
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[1]Durant, W. and A. Durant. 1968. The Lessons of History, Simon and Schuster, New York, N.Y. 117p. (citation (pp.35-36).
Durantfan–beautiful quote, and it seems to me, highly accurate. I’ve always thought that 97% of the ideas that came out of the hippie and other movements of the 1960s were bad or worthless or ideas of little merit, but perhaps 3% were pure gold; so hopefully new ideas can be heard and the few golden ones winnowed out. Will be interesting to see what happens with this re-definition of marriage, the good and the bad, together with so many other social changes that are occurring.
Slavery, racism, rape slaves, corporate welfare, ad naseum . . . no one could possibly safely judge if one lifetime . . . no one . . .
Mr. Miller: The “wisdom of generations after centuries of experiment in the laboratory of history” will demonstrate that your list of “customs and traditions” are inferior They are clearly failing the “product” and “process” tests of history.now!.
Fabulous quote and absolutely true.
Note that a progressive has the added challenge of never admitting progress as it is their stock and trade to criticize and demand more even when the “more” is just repackaging of previous mistakes and failures.
Talked a soldier today happy that he can marry his soldier partner and get a significant bump in military benefts.
What was to stop a male soldier and female soldier from doing that previously?
A female soldier would have to agree. There are a lot more male soldiers.
Article 10… So all states now have to honor all state gun carry licenses?
Why? I don’t see a compelling reason why some locations can allow concealed weapons and other can’t. On the other hand, could you imagine if my wife and I decided to move to Alabama with our adopted daughter and they refused to recognize that she was our daughter since we have an interracial marriage? That’s the better parallel.
Come on David. This is about licensing. If one state has to accept another states’ gay marriage license… basically what this far-left court decided… then it should extend to all state licensing. If article 14 is to be superior to article 10, then it should not be only for those things politically biased and convenient.