Friday, November 07, 2008

California Rolled

In other news, Proposition 8 was passed in California, making it impossible, yet again, for gays in California to marry and have those marriages be validated by the state. Apparently, interpretation of the state constitution is now to be decided by popular vote. Mr. Sulu has to get divorced.

I’ve said before that the judiciary is not supposed to interpret the constitution based on popular opinion, but simply based in their own expert opinion. This is exactly why we have judges. So, when people push measures like Proposition 8 and say that they ‘want a strict interpretation of the Constitution and the laws’ they’re either stupid or lying: what they’re pushing for is an explicit attack on the ability of judges to make strict interpretations of the Constitution and the laws, instead turning judges into something like politicians or American Idol judges.

See, the California judges interpreted the existing laws and decided that gay marriages were only prohibited because the laws were not being correctly carried out. They weren’t creating a new law; they were better interpreting the existing laws in light of current information about homosexuality. So, there was nothing radical about what they did. What's radical is saying, "We need to amend the state constitution to force judges to submit to the current popular prejudices." This is using a vote to force a radical reinterpretation of existing law- creating a new law in order to force judges to bend to the popular will. Hey, perhaps we can open all court decisions to some sort of call-in vote. ''If you think the suspect is guilty, call 1-800-23-guilty; if he’s innocent…''

A lot of people are saying that they feel dismayed and depressed about the ruling, but I don’t know that my reaction would be the same. If the government said to me, "We’ve decided that your marriage to Claire isn’t valid. Why? Because your neighbors got together and decided that they don’t think your marriage is real because it does not correspond to their particular religious beliefs; so now they're using the power of the state to force their religious beliefs on you", to be honest, I wouldn’t be sad; I’d be so pissed off that I could hardly see straight.

That said, I differ from most "progressives" in that I think change is going to have to come from the bottom up, instead of the top down. Clearly, the people who want to force their religious beliefs on the rest of us will continue finding clever and subversive ways to do so. Therefore, if gays want their marriages to be valid in the eyes of their neighbors, they have to get out and talk to them. Convince them that their fears are unfounded and wrong. Remember that most people didn't even hear of gay marriage before a few years ago, and so they're confused and maybe a little irrational. But they're human. You don't force humans to be better people; you improve their ideas through persuasion, and also by being open to their point of view. Change their minds and their laws will follow.

And it won't take forever; after all, the arguments against gay marriage really are stupid. As someone who is married, what I find to be most "weakening" to marriage is the widespread cynicism about the institution that has metasized in the last few decades; I can’t tell you how many people my age I’ve encountered who think that marriage is naive, outdated, patriarchal, oppressive, or ridiculous. In contrast, what strengthens marriage is seeing people who are happily married and who still believe in all those sentimental, romantic ideas about marriage. If anything, gays have reminded society of how valuable marriage is as a cultural institution by their willingness to fight for it. The Mormon Church and other bigots are really attempting to weaken marriage by making it an institution based not in love and Eros, but in snobbish exclusivity and the power of the state.

In the end, they will lose because the state cannot change human beings- it cannot make us conform to other people’s religious beliefs. Social engineering is impossible and essentially totalitarian. Change will come, but only through gradual cultural change- not through the will of the state. Gays need to stop relying on the courts and get out the cultural message that romantic love should be validated in a thriving society. Write, march, discuss, and persuade. And the bigots need to realize that the culture really is changing and that trying to use laws to change culture is ultimately a doomed and totalitarian enterprise.

[Endnote- I realize that this argument is perhaps a bit too nuanced and sort of contradicts itself. I believe that the judiciary needs to be free from popular prejudice, on one hand; but that change will have to come from the culture up, on the other. Sorry if that's confusing, but what I'm getting at is that laws don't change people in a free society. Ultimately, all of the laws in the world won't validate gay marriage in the culture. However, since gay marriage really is becoming more widely accepted in American culture, the attempts to change the laws are ultimately rearguard, reactionary, and most likely doomed. I hope that helps.]


Brian Dunbar said...

When you write something like this ..

the state cannot change human beings- it cannot make us conform to other people’s religious beliefs. Social engineering is impossible and essentially totalitarian

are you sure you're really a progressive?


Rufus said...

See above. You might be sorry you asked!