All This Fuss over One Word?

With the premises fully laid out, I will now proceed to my point: Proposition 8 does not affect religious freedom. The only thing that Proposition 8 will do is to change the word by which we call same-sex unions. If Prop 8 fails, these unions will continue to be called marriages. If Prop 8 passes, they will be called domestic partnerships. Why all of this trouble for a word?

But first, let me deal with Carolyn's arguments one by one. Carolyn's first argument is that she and a lot of legally trained people believe that same-sex marriage will hurt religious freedom. She includes quotes by a lot of people saying that this is so. But she doesn't include the parts of these quotes that explain why same-sex marriage will harm religious freedom. An argument includes a claim and a warrant--an explanation as to why the claim is true. What Carolyn has provided with these quotes are a bunch of unsupported claims. To rest your arguments on the reputation of the person saying it rather than arguments is called an appeal to authority--a logical fallacy. I'm not suggesting that Carolyn cannot show that same-sex marriage may harm religious freedom, but only that none of the quotes she uses make that argument.

Carolyn's second argument assumes without explaining that her example of parents not being able to opt out of public school curriculum somehow relates to religious freedom. This is not self-evident; in fact, I would say that controlling a child's educational development, while a freedom guaranteed by the liberty clause of the fourteenth amendment, is not a part of religious freedom. In short, the State is not telling parents what they can believe, what they can preach, what religious rituals they can do, or whether they can congregate. The decision only says that if parents choose to send their kids to public schools, they can't prevent the State from teaching their kids certain things. It does not say that the parents can't teach them conflicting principles at home, nor that the parents have to choose the state as their educator. While avoiding secular messages that challenge one's beliefs may be in a person's religious interest, it is not a principle of religious freedom.

Besides that, Carolyn does not explain how passing Prop 8 would make the decision come out any differently. As Carolyn explained in note 22 of her first post, there is no functional difference between domestic partnerships and marriages. Why, then, would a court find a difference in the importance of "promoting tolerance, including for the children (and parents) of gay marriages" and promoting tolerance, including for the children (and parents) of gay domestic partnerships, especially since the California educational code mandates that the schools teach respect for both marriage and "committed relationships."¹ Certainly if a state said that domestic partnerships were treated identically under the law as marriage, that would mean that promoting tolerance of a domestic partnership was of the same importance as promoting tolerance of a gay marriage.² Prop 8 just doesn't change anything about the case Carolyn talks about.

Carolyn's next argument is about how in re Marriage Cases violated separation of powers. Ultimately, this argument is irrelevant to the question of how prop 8 will affect religious freedom (unless Carolyn wants to show how it does). For now, I'll let it pass by with a snyde reference to Marbury v. Madison and how voter initiatives are not entitled to more deference than other duly passed statutes.

Carolyn's final argument is one that I want to spend some time with--civil rights. Carolyn states that comparison to the Civil Rights movement is spurious because there is no right to same-sex marriage. I could answer this myself, but the California Supreme Court does it so much better:

Although all parties in this proceeding agree that the right to marry constitutes a fundamental right protected by the state Constitution, there is considerable disagreement as to the scope and content of this fundamental state constitutional right. The Court of Appeal concluded that because marriage in California (and elsewhere) historically has been limited to opposite-sex couples, the constitutional right to marry under the California Constitution properly should be interpreted to afford only a right to marry a person of the opposite sex, and that the constitutional right that plaintiffs actually are asking the court to recognize is a constitutional "right to same-sex marriage."

. . . In Perez v. Sharp--this court’s 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional--the court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as "a right to interracial marriage" and did not dismiss the plaintiffs' constitutional challenge on the ground that such marriages never had been permitted in California. Instead, the Perez decision focused on the substance of the constitutional right at issue--that is, the importance to an individual of the freedom "to join in marriage with the person of one’s choice" --in determining whether the statute impinged upon the plaintiffs' fundamental constitutional right . . . .

The flaw in characterizing the constitutional right at issue as the right to same-sex marriage rather than the right to marry goes beyond mere semantics. It is important both analytically and from the standpoint of fairness to plaintiffs' argument that we recognize they are not seeking to create a new constitutional right--the right to "same-sex marriage"--or to change, modify, or (as some have suggested) "deinstitutionalize" the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits--accompanied by the same mutual responsibilities and obligations--as this constitutional right affords to opposite-sex couples. For this reason, in evaluating the constitutional issue before us, we consider it appropriate to direct our focus to the meaning and substance of the constitutional right to marry, and to avoid the potentially misleading implications inherent in analyzing the issue in terms of "same-sex marriage."³

As the court points out, the argument that there is no right to same-sex marriage is the same as the argument that prior to 1958, there was no right to interracial marriage. It is a clever bit of sophistry unworthy of a freedom-loving state; it is an argument that says that you can only have your rights protected if you were powerful enough to avoid persecution in the past. This argument sets up the Constitution as protecting the strong against the weak rather than the other way around.⁴

In the end, this debate is not about hospital visits, or the right to preach against homosexuality, or anything like that. None of that will be affected by prop 8 one way or another. As I've tried to make clear in my previous posts, this is only about whether gay unions are called marriage or domestic partnerships. It is about the meaning of one word. Let me tell you why one word is important.

If proposition 8 passes, gays will still have legally recognized unions in the state of California, with all the rights and responsibilities of marriage. They just won't be called marriage. Why? What is the motivation of a state to have one institution for opposite-sex couples and another for same-sex couples when there's no functional difference between them? People for and against prop 8 agree on one thing: the word "marriage" is a symbol of something special. The only logical motivation to reserve the word for opposite-sex couples is that including same-sex couples will somehow take away the specialness of the word. So same-sex couples are segregated out of the institution of marriage not for a functional reason, but to signal that their relationships are different, and by the same token, lesser, than opposite-sex relationships. Passing prop 8 won't protect religious freedom; the only thing it will do is to make it clear that the state believes that gay relationships are not equal in dignity to straight relationships. That is a classic violation of equal protection written into the California Constitution. Because I am against that, I am opposed to proposition 8.⁵

1. See Cal. Educ. C. § 51933(7).

2. Cal. Fam. C. § 297.5.

3. In re Marriage Cases, 183 P.3d 384 (2008).

4. Rhetorical hyperbole? You say that like it's a bad thing...

5. OK, so maybe not brief, but it's still pithy.