Friday, April 10, 2009

Same Sex Marriage Redux

Just a little update on gay marriage and the question of whether we want change by judicial fiat or by majority vote.

I believe my earlier position has gotten some vindication by the fact that the Vermont legislature on Tuesday overrode Gov. Jim Douglas’s veto of a bill allowing gay couples to marry. That step makes Vermont the first state to allow same-sex marriage through legislative action instead of a court ruling.

Waiting in the wings, however, are New York, New Jersey, Maine and New Hampshire, where proposals to permit gay marriage have gained legislative support in recent months.

Now, the Freakonomics people report that polling guru Nate Silver has built a regression model, based on demographic and political trends, to forecast when a majority of the voting public in each of the 50 states might vote against a gay-marriage ban, or vote to repeal an existing one. His findings (Will Iowans Uphold Gay Marriage?) show that by 2016, most states will have legalized gay marriage, with Mississippi alone holding on until 2024. He predicts legalized gay marriage in Pennsylvania by 2012. If we can trust this forecasting, gay marriage may be inevitable.

There are two problems with letting the judiciary be the engine of change, rather than the rabble. The first is an abstract one: it does violence to our quaint notion that we have a government by the people. The second is more practical: judicial activism frequently results in creating the unintended consequence of a backlash from folks who might have agreed with you but just resent being told what to do.

The reason people will come around to allowing same-sex marriage is the reason James stated earlier: there is absolutely no good reason to oppose it. I happened to run across this sermon – maybe a lot of you already knew about it – from Fr. Geoffrey Farrow, a chaplain at University of California Fresno, which was delivered on October 5, 2008, opposing Prop 8. The whole thing is worth reading. See Geoffrey Farrow's last homily. I share part of it:
[In directing the faithful to vote yes on proposition 8], the bishops are asking gay and lesbian people to live their lives alone. Why? Who does this benefit? How exactly is society helped by singling out a minority and excluding them from the union of love and life, which is marriage? How is marriage protected by intimidating gay and lesbian people into loveless and lonely lives? What is accomplished by this? Worse still, is to intimidate a gay or lesbian person into a heterosexual marriage, which is doomed from its inception, and makes two victims instead of one by this hurtful “theology.” This “theology,” which is parroted by clerics in polished tones from pulpits, produces the very prejudice and hatred in our society which they claim to abhor. . . .

There is an expression in theology: “the voice of the people is the voice of God.” If your son or daughter is gay or lesbian, let them know that you love them unconditionally. Let them know that you are not ashamed or embarrassed by them. Guide them as you would your other children to finding true and abiding love. Let them know that marriage is a union of love and life and is possible for them too.
Of course, Fr. Farrow was immediately suspended as a priest.

“It is better to die excommunicated, than to violate one’s conscience.” -St. Thomas Aquinas, Quaestiones Disputatae de Veritate

1 comment:

Peter H of Lebo said...

Vindication-the justification for some act or belief. I wouldn't call the vote in Vermont vindication for your position. Your position is curtailing the voice of minorities in America's Government. Vermont was an avenue of our government being used to finally provide equal rights. You fear the Judicial Branch and yet it is the everyday laws that only the Legislative Branch can create that greatly affects us (miscegenation laws and segregation, voting requirements etc.). If you fear Judicial fiat you must also fear to a greater extent Legislative tyranny since it wields far greater power. We need courts to be a check against bad laws. I guess every time I think of your position, I think "Hey Blacks, sorry the Emancipation Proclamation was an executive order- please return to the south and slavery, wait for the majority vote to free you...I mean since it is inevitable that you will be granted rights why not wait so you don't upset society. This is democracy after all. I am sure the White southern majority will gladly grant your freedom". The Judicial Branch can either uphold a law or overturn it- a far cry from the power of the Legislate Branch which can actual legislates the individual actions to eat less trans fat, wear a seat belt, helmet. Here is vindication for your position- California passed Prop 8. Whether gays receive rights by courts, legislation or executive orders I care not, for it is why our founding fathers included those institutions- safe guard against tyranny of the majority. It's a government for the people by the people, not a government for the majority by the majority to curtail the rights of the minority A comment on Sullivan's blog-

"When you take a step back and look at the basic legal argument behind these cases, the correct answer is remarkably clear. So clear, in fact, that I'm quite certain that future generations of lawyers and law students will look at these cases and wonder why it took so long for the courts to reach such an obvious conclusion, particularly in light of the extensive (and directly analogous) case law dealing with miscegenation laws and segregation. Once you accept the premise that there is nothing wrong with being gay (a premise which, I think, the vast majority of people--especially educated people like judges--accept), it becomes nearly impossible to make a principled legal argument in defense of laws that prohibit gay people from being married. It's just such an obvious and straightforward violation of equal protection."