Thursday, November 5, 2009

As Maine Went

Yes, I am disappointed that Maine voted down keeping the marriage equality law that was passed by the state legislature and signed by the governor last May. Any time a referendum that limits the rights of people gets a majority of the vote, I’m disappointed.

Beyond the analysis of who voted for or against the measure and what part of the state they lived in, one of the questions that arises is whether or not such a question should even be put to a popular vote. Are there some rights that are so fundamental that leaving them up to the whims and the machinations of the campaign trail puts them in danger? Do you really think that the people of Kansas would have repealed state laws that allowed school segregation in 1954? What would the state of civil rights be if, in 1964 and 1965, Congress had not passed federal legislation that established fair housing and voting rights and had instead left them up to the states? Would Virginia have repealed their miscegenation laws without the ruling from the Supreme Court in 1967? Would women have the right to vote had it been left up to the states like it was in 1920 before the passage of the 19th amendment?

The response of a lot of people is that the voters should have the final say, and if they pass a referendum, that’s it. That is a noble sentiment, but that’s not the system we have. We have a representative democracy; we elect people to go to the city council, the county commission, the state house, and the United States Congress to do our business for us and to do more than just be a rubber stamp. And we have an equal part of our government in the judiciary that oversees whether or not the laws that are passed by the people or the legislature are fair or are equally applied. Just because a majority of voters cast a vote for an issue doesn’t make it right; our history is replete with unjust laws that have been voted through. Case in point, Colorado’s odious Amendment 2 that “would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action from recognizing gay citizens as a Protected class.” It took a Supreme Court ruling in 1996 to say yes, indeed, in some cases, gay citizens have the same rights as everyone else and can sue for discrimination. In short, the voters can — and have — made mistakes. They can be swayed by emotional arguments that have no bearing on the law, and as is the case of marriage equality, fear and loathing of Teh Gay isn’t far beneath the surface.

The opponents trot out the old canards such as the “slippery slope” that same-sex marriage leads to all sorts of iterations of marriage, including polygamy; except that even someone whose only legal education is watching re-runs of Law & Order knows that a contract can be legally limited to the number of people in the contract. If the state wants to say only two people can be married to each other at one time or set an age limit to the parties involved, that’s legal. What should not be legal is limiting the parties based on something that is innate such as gender identification or race.

They claim that people will be able to marry their dog. However, in order to have a valid contract, both parties have to be able to understand the terms of the contract and sign it. If you can find a dog that does understand the terms of the contract and can write his or her name, then getting married would probably not be a priority; you’d have a talking dog with opposable thumbs, and your next stop would be David Letterman.

They say that allowing same-sex marriage would require that schools teach about all the aspects of said marriage, complete with descriptions of intimate behavior. But since the contents of the public school curricula are left up to the state and local school boards and there are likely very few of them that already teach the granular aspects of heterosexual marriage to elementary school children, the chances are remote that the passage of marriage equality would require the overhauling of school curricula.

They claim that marriage equality would force churches that are doctrinally opposed to such unions to perform them or face legal action. But since churches are already free to not perform marriage ceremonies for straight couples that are not part of their congregation — for example, the Roman Catholic church can refuse to marry a man and a woman if either one of them is not Catholic — then they are perfectly within their rights to do the same for a same-sex couple. Besides, having the blessing of a religious ritual is not a prerequisite for a valid marriage. All you need is a license and witnesses. The rest is, so to speak, icing on the cake.

The most insidious argument is that somehow same-sex marriage is a perversion of “traditional marriage.” Yet they never tell you what tradition they are talking about. Marriage throughout the ages has been more of a business deal, and to read about it in the Old Testament, it was between a man and as many wives has he could afford to accumulate. In the biblical tradition, fathers sold their daughters off to their friends as a trade-off for real estate (which led to the old Henny Youngman one-liner, “I got a dog for my wife. Best trade I ever made”). Arranged marriages were the norm for all classes of people — where do you think King Henry VIII got his first wife? — and in some cultures, they still are. The idea of a marriage based on love alone is both a modern and Western invention that is out of step with history and tradition; it’s only Christian chauvinism and capitalism that makes it an inviolable tradition.

As for same-sex marriage being a “perversion,” that’s based on the theory that being gay or lesbian itself is a perversion, and that, above all, is the unspoken truth of the matter. All of the previous arguments are just excuses; a lot of people still have to overcome their own ignorance and homophobia before they can objectively look at the idea of applying all of the laws, rights, and responsibilities of citizenship including marriage to all citizens. When it comes right down to it, no one has yet put forth a valid reason for denying marriage equality — or all of the other rights that are by law denied to gays and lesbians, such as child adoption in Florida — to the LGBT community other than the arbitrary canards listed above. Not one. And yet they are able, by lung power and fear-mongering, to get voters to pass laws that do exactly that.

What the election in Maine proved is that even in a state that is known for its practicality and common sense, people can be swayed by lies, misinformation, and religious dogma. It should be obvious that the next recourse has to be through the courts and a chance to make the case for marriage equality based on the facts, not on the emotions. While same-sex marriage has an 0-31 record at the hands of the voters, it has prevailed in the courts in Vermont, New Hampshire, Connecticut, and Iowa and made into law. The opponents claim that “activist judges” are making up the law and imposing their will on the people; they should only interpret the law as it is written. Well, here is how the law is written:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If it is activism to live up to the simple precepts of the Fourteenth Amendment of the United States Constitution, then let us make the most of it.