As Goes California . . .

Nick,
Yikes! Why all the bitterness?

California rocks!

Well, Geoff, if you’re really such a mind-reader, why not explain all of what I’m thinking right now? Why not explain how thankful I am right now for judges who are brave enough to properly apply the law, even when it means facing political and religious animus? Why not explain how thankful I am for the many good LDS members, who wisely understand that they protect their own rights when they stand up for the rights of others? Why not explain the respect I have for the Constitution of the United States, which protects the rights of people like you to believe differently than I do, even if I vehemently disagree with some of your views? Why not explain my willingness to stand up for the right of religious persons to express their views on homosexuality, under the direction of the Doctrine and Covenants, in a way that seeks to persuade, rather than legislatively coerce?

Yeah, that would be pretty hard to explain all that, just on the basis of your telepathic powers. Maybe it’s better you just stick with what my above post actually indicated—that I disapprove of the LDS church’s expensive lobbying efforts to impose their faith on the broader citizenry.

David,
I certainly understand that certain religious groups, including the LDS church, have chosen to characterize marriage equality as “redefining” marriage. That is certainly their right, just as it is my right to disagree with that characterization.

The court did much more than just declare Prop 22 unconsitutional. It has – all of a sudden – “found” a right to same-sex marriage and made it a requirement. The court has gone against the will of the people to create a new definition of marriage that hadn’t existed before.

I suppose such a characterization plays well with the “laymen” of Fox News, but it certainly doesn’t reflect anything at all found in the actual court decision. Did you bother to read it, David?

Yes, the court found Proposition 22 to be unconstitutional under the Constitution of the State of California. The court did not “find” any right at all, let alone a “new” right. Rather, the court determined that the long-established fundamental right to marry the person of one’s choice happens to apply to homosexuals, just as much as it does to those who, by accident of birth, happen to be heterosexual. Likewise, the court did not “create a new definition” of anything at all, let alone marriage. Rather, the court found that it was demeaning and discriminatory to call the legal unions of same-sex couples “domestic partnerships,” rather than acknowledging these relationships as the formation of a family, i.e. “marriage,” particularly in a state where the domestic partnership law mirrored “virtually” (the court’s choice of word) all the state’s legal rights and responsibilities of marriage.

Nick – Exactly. The [LDS?] Church is exercising it’s right just as you are.

Actually, David, that’s not quite true. The LDS church is not simply exercising a right to free speech. Rather, the LDS church is actively seeking to limit (and if they push for an amendment in California, actually eliminate) certain legal rights for a particular class of persons who are not subject to LDS authority. It’s really no different than when the U.S. government sought to disenfranchise and otherwise punish LDS polygamists for living according to the dicates of their conscience. Such behavior is morally wrong, in my opinion, no matter who is doing the lobbying or who the target/victim is.

You may consider the traditional, millenia-long definition to be in error.

If you are like many I’ve heard from, David, you believe that the modern western ideas about marriage have “always” existed in more or less their current form. Historical research simply doesn’t support this. “Traditional” marriage, for example, was for hundreds (if not thousands) of years a financial exchange, in which the property of one man (in the form of his daughter) became the property of another man (in the form of a wife). We could get into many other aspects of marriage which have evolved, but you get the idea. There is also evidence that same-sex unions existed in medieval Europe, which were the legal equivalent of marriage.

Perhaps ballot initiatives aren’t the best place to hash out arguments about the definition of marriage. But I will take the entire state deciding such an important matter rather than four people overuling three.

I can understand your frustration, David. After all, I’m sure I’d be angry if the majority of voters in my state chose to legally recognize same-sex marriages, only to later see that overturned by the courts. Even so, however, I hope you can see just how frightened members of any minority group should be at having their civil rights determined by a majority vote of the populace. There was a time when the majority of Americans thought LDS members should not have the right to practice their religion (hell, some people still seem to think that). Determining the rights of a minority via majority vote is fraught with peril and abuse, and is contrary to the spirit of our U.S. Constitution.

Doug, the California Supreme Court interpreted the state constitution, and found that Prop 22 was unconstitutional by that standard. They didn’t “create” law. They interpreted and upheld the state constitution, as they had sworn to do. The fact that you disagree with their decision (have you read the decision, and the interpretation that led to it?) does not mean they “overstepped the bounds of the law.” As for “reckless disregard to [sic] the law,” I can only conclude that you mean “reckless disregard” for what you, and your fellow-believers, consider to be the law of your particular understanding of deity. Fortunately, civil judges are not expected to base their decisions on the edicts of the LDS church, or any other religious body.

Of course I have a personal “bias” on the issue, Doug. Are you suggesting that anyone in this discussion doesn’t? I’m pretty convinced we all do. As for “doctrinal relativism,” you’re quite incorrect. I don’t consider the Proclamation Against Certain Families to be a “relative” matter. Rather, I consider it to be a political statement, couched in religious rhetoric, issued primarily for the purpose of appearing arm-in-arm with other so-called “mainstream” christians.

Thanks for your response, David. I do have a few comments:

(1) Your description of the LDS church’s multi-million-dollar lobbying efforts is largely a matter of carefully-chosen semantics. At the end of the twentieth century, evangelical anti-gay groups began to experience backlash for their often harsh language. They made a shrewd marketing decision, and framed their efforts as “preserving the definition of marriage.” The LDS church has closely tracked the developments of evangelical anti-gay groups for the past ten to fifteen years, including the use of verbatim language. This shouldn’t be a big surprise, given that according to Mitt Romney, Gordon Hinckley met with Jerry Falwell on the subject, and they agreed to work together on this issue. There does seem to be a conscious effort to cooperate with so-called “mainstream” christian groups which oppose marriage equality.

That said, you speak of the definition of marriage remaining “the same as it has always been.” I’ll comment more on that in response to your #2.

You ask how it is that I consider the LDS lobbying efforts to be aimed at “limiting” or “eliminating” rights. If the LDS church works to prevent the government from recognizing one or more rights (in this case, marriage equality) for homosexuals, then the LDS church is, by simple definition, attempting to limit the rights of homosexuals. If the LDS church did not want to “limit” the rights which our government recognizes for homosexuals, there would be no point in these lobbying efforts.

As for the “eliminating” part, I brought that up specifically with regard to any potential efforts by the LDS church to promote an amendment to the California state constitution, restricting marriage to the union of a man and a woman. Since the California Supreme Court has recognized at this time that same-sex couples have a right in California to marry, the proposed constitutional amendment would eliminate an existing set of rights for homosexuals. The point here isn’t you personally agree that same-sex couples have a right to marry. Rather, the point is that a certain legal right has been recognized by duly constituted legal authority, and efforts to amend the constitution in the above-described way have a clear goal to eliminate that right.

#2:
There have, in fact, been many societies which recognized marital relationships between persons of the same biological sex. In some cases, those relationships were given the same title (in their language) as the marital relationships of opposite-sex couples. In other cases, they had a different title. For a nice introduction to this topic, you may wish to read Same-Sex Unions in Premodern Europe by John Boswell.

#3:
As you may know, the California Supreme Court presently consists of 6 republican-appointed justices, and one democrat-appointed justice. The court has been viewed as “moderately” conservative. Personally, I think concerns that they made a decision based on what was “popular” are misplaced. Of note, the chief judge of the California Supreme Court (who actually wrote the decision) commented on his experience writing this opinion. He said that this decision weighed most heavily on him out of all the decisions he has faced in his 17 years on the court. In fact, he knew the court’s decision would not be “popular” with many. “I think,” he concluded, “there are times when doing the right thing means not playing it safe.” Further, he stated that once the court took up this particular challenge, he “did not permit any consideration of political fallout.” Unless, of course, you simply determine he’s a dastardly liar, it’s hard to support that he acted out of “what was popular” on this decision. I’d encourage you to read the recent interview of the chief judge at http://www.latimes.com/news/local/la-me-gay18-2008may18,0,4272300.story . Whether you agree with the decision or not, I think you’ll see that this man was simply doing his best to do what he felt the state constitution required of him, and what he felt was right.

As a trained attorney, I would say that the court recognized existing rights in the state constitution, which had not previously been identified in California case law. You suggest that the court “fabricate[d] new rights into a constitution.” It seems that whenever a conservative source is critical of a judicial decision, the language used in their criticism becomes very predictable. Critics will speak of “fabricating new rights,” or “activits judges.” In other words, it’s yet another matter of polemical semantics.

#4 (Urging Patience):
David, I think your comments about patience are genuinely well-intended, and your point regarding Roe v. Wade is well taken. Unfortunately, passively “being patient” has rarely resulted in positive change. Would you have counselled African Americans that they would be “much better off if they [were] just patient,” rather than seeking redress from the courts for what they perceived as injustice? One could say that “the trend lines” were beginning to turn in their favor back in the 1960s, but “the majority” certainly wasn’t going to defend them at the ballot box. Even today, there are regions of this country where African Americans would suffer if their rights were subject to majority vote. One of the great reasons we have a judicial branch is to see that the minority is protected from the majority, which can sometimes be unjust.