Friday, September 12, 2008

Proposition 8

In less than two months California voters will go to the polls for the general election, and a little after that there will be crying and screaming and much gnashing of teeth. People will rant about our inevitable doom as a country and rail against the direction America is set upon for the next four years. I wish that elections didn't evoke these kinds of reactions in people, but they seem to do so with fair consistency, so there it is. Ordinarily I try to stay above it all, especially here.

I'm going to give in a bit today, though, and direct my own small tirade against the hype surrounding Proposition 8. Proposition 8 is the constitutional amendment version of Proposition 22, which defined marriage as between a man and a woman. You may recall that the California Supreme Court held that proposition as violative of the California constitution in In Re Marriage Cases, which I posted my response to on May 19. Proposition 8 would make the following words part of the California constitution:

Only marriage between a man and a woman is valid and recognized in California.

This is the exact same text as was in Proposition 22, overturned in In Re Marriage Cases. If you will recall, In Re Marriage Cases said that the California constitution prohibits such a law. The obvious reply, for those who have a problem with that reading of the constitution, is to change the constitution.

So far, all well and good. This is exactly how our legal system is supposed to work. No chicanery yet.

The chicanery comes when the proponents and opponents of the proposition try to convince voters to see things their way. No, scratch that. To vote their way. I have no idea whether true proponents and opponents of Proposition 8 really see things the way they spin things. I sure hope not. Here are some of the things I've seen thrown around about Proposition 8 that have really ticked me off:

It's about equality. This one seems to be the big pro-8 line, and it isn't nearly as bad as many of the anti-8 lines. Is Proposition 8 about equality? Well, maybe it is and maybe it isn't. What kind of equality? It certainly isn't about equal rights. If Proposition 8 passes the state will revert to the status quo ante In Re Marriage Cases. Under that regime, the state has two parallel relationships: "marriage" (available to opposite-sex couples only) and "domestic partnership" (available to all same-sex couples and opposite-sex couples where at least one partner is over the age of 62). The two relationships are entered into in different ways, but they have the same rights. In case that was confusing I'll put it a different way: they're called different things, but they have exactly the same rights.

Of course one might think that Proposition 8 isn't about rights equality. You might think it's about social equality, and that things that are substantively equal should be called the same thing as well. If that's the kind of equality you're talking about I'm not going to call you stupid. I'm not going to call you obviously right, either, because I don't know that I think the constitution should have any business telling people what they should name something. Imagine if somebody put a constitutional amendment on the ballot that specified one and only one term that could properly be used to refer to African Americans. Legal, sure. But a good idea? I'm not so sure. Of course, the constitution won't be telling me what I have to call same-sex couples. Even if Proposition 8 passes, I could legally call them Dell laptops for all the constitution would care (doing so would probably make me a jerk, but the constitution doesn't care if I'm a jerk or not). Still, if social equality is the real issue here (and I think it is), should we be satisfied before society's terminology changes, even if the constitution's has? I doubt it. Is it a good idea to alter the constitution in hopes that people's terminology will follow? Maybe. Not so sure, myself.

It's correcting the outrageous decision of four activist Supreme Court judges. As a lawyer, this one really makes me mad. First off, it wasn't four judges on the Supreme Court who overturned Proposition 22. It was the Supreme Court. People who keep throwing the number "four" around tick me off the same way as do people who claim that only half the country elected the President. The American people elected the President, whether all the individuals comprised of that body voted for him or not. People who think otherwise need to go read Plato's Crito, preferably after being beaten about the head with it.

Second, the decision wasn't outrageous, and throwing that term around will not make it so. It was a tough case, and the legal issues presented were not obvious (nor were they the social issues people have pinned on the case. You can't crucify a justice for being "outrageous" or "activist" on the one hand and for not deciding issues that were not before the court on the other. Pick one). Give the justices some credit for trying to do their job in a difficult situation.

Third, the justices were not being "activist." The justices in Brown v Board of Education (mandating school de-segregation) were being "activist;" they ignored the legal arguments with the most merit and instead did what they thought was right. Everybody agrees about that for that case. That is judicial activism. The justices in In Re Marriage Cases were asked to say what the constitution says when it says that Californians have a "right to marry." A right to marry who? asked the litigants in that case.

Put yourself in that situation for a moment. A gay couple wants the right to claim the title "married" under California law. They claim that the constitution says they have such a right right now, and indeed has always said that, whether anybody bothered to recognize it or not. Somebody else comes along and disputes that, saying the constitution says no such thing and never has. You are empowered, under the most ancient of American legal traditions, to resolve the dispute as to what the constitution says. If you agree with the gay couple, that the constitution does indeed say that they have a right to marry and always have - and if that is your honest reading of the constitution - are you being an "acvitist?" How can you possibly get more conservative than simply telling people what the constitution says? If you agree with their opponent, that the constitution doesn't say that at all - are you being any more or less judicially conservative than in the first case? You're doing the exact same thing. It's methodology, not conclusion, that should define whether we call a justice "activist" or not.

It will restore the will of the people. This one sounds nice because Americans love to rage against elitism. But seriously. The justices said that Proposition 22 is in violation of the constitution. If the constitution is not the ultimate expression of the will of the people, what is? If 61.4% of "the people" voted for an initiative that said, "All black people shall henceforth be chattel property" would we allow it? Would we say, "13th and 14th Amendments be damned; The People Have Spoken?" Of course not. The people have indeed spoken - when they adopted the constitution.

Oh, but you didn't vote for the California constitution? Well, no, you didn't. If you think that matters, and you still in live in California, you deserve to be beaten with the Crito until you are black and blue.

It will make our children be taught that same-sex marriage and opposite-sex marriage is the same. I'm pretty sure our kids are taught in school that men and women are equal already. As far as I know they can still the difference between the two.

But look, I get this one. Truly, I do. I get the gut-wrenching feeling that your kid is in a public school being taught a legally mandated curriculum which includes a worldview that isn't yours. And I don't even have kids yet. I'm sure I'll feel that gut-wrenching feeling a million times more strongly when I do have kids.

But here's the thing: that's part of education. I went to a Catholic school, and I had my view of Catholics exploded by people like Judith Langford who were hardcore, devoted Catholics and honest-to-God born-again Christians and genuinely "good people" in the popular sense of that overused phrase. I did not come out of that school thinking that dead people can hear me when I address them, or that Mary was without sin, or with my view of the Pope's spiritual authority altered one iota. Were all of those things taught to me in the school's mandatory religious curriculum? Yeah. And yet here I am, a thoroughly non-Catholic (though not anti-Catholic) Christian.

I was force-fed something I didn't believe in in school. And instead of being brainwashed by it or rejecting it like a bigot I learned to use it to challenge my own beliefs, to better understand the people who held that belief, and to feel compassion for them as human beings. I'm going to go so far as to say that this is one of the three critical life skills that K-12 school is supposed to teach you, and by far the most important (the others being how to write an analytical essay, and how to do algebra).

So what if your kid is forced to learn something at school you don't believe in? Is that bad? Is that to be avoided? I really don't think it is, and I mean that in all seriousness. Yes, parents are supposed to reinforce their worldview in their children. I think people who think otherwise are lunatics. But school is not parents. Kids are supposed to be exposed to different worldviews in school. Many of those worldviews are going to be garbage. That's okay. It may even be helpful. Parents have a responsibility to reinforce their worldview in their children, but they also have a responsibility to do so in a way that does not turn their kids into straitjacketed bigots who can't function in any world other than their own. If you think you can do that without having your kid be exposed to other worldviews, good luck to you.