I got home from the theatre last night just in time to hear Maggie Gallagher from the National Organization for Marriage, an anti-marriage equality group, say on CNN that the ruling yesterday by Judge Vaughn Walker in the California Prop 8 case was (paraphrasing here) “granting a whole new right” in the Constitution for gays and lesbians to get married. This voice added to the chorus of other conservatives who accused the judge of “extreme judicial activism” and “judicial tyranny” in finding that the ban on same-sex marriage in California denied gays and lesbians equal protection under the law and due process, and that the proponents of the ban could not make the case for the ban on fact.
This is the kind of reaction that I expected from the anti-gay-marriage contingent if the court had ruled the way it did. They are not responding at all to the ruling itself and the facts that were presented when both sides had their chance to make their case. The proponents of the ban were given ample opportunity to prove that same-sex marriage is bad for California or harms straight people. Beyond voicing disapproval of gay people in general and basically saying that they’re icky, the proponents could not cite a single case in which it could prove that granting marriage licenses to same-sex couples was harmful and therefore the state had the right to single them out for exclusion. Judge Walker wrote, “Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license.”
That’s the whole argument right there. Since they cannot make the case based on fact, they are going for the emotional and bigoted approach, claiming that gays and lesbians want “special rights.” Brian Brown, another spokesperson for NOM, told Kathryn Lopez of the National Review: “You know what real equality is? One man with one woman, that’s equality.” Gays and lesbians are not, in his view, equal to straight citizens under the Constitution of the United States. Therefore they are not worthy of its protection. Gays and lesbians can be singled out for discrimination in employment, in housing, in adopting children, in receiving spousal benefits, and the idea of allowing them access to such fundamental rights would disrupt the entire social fabric of America. The fact that neither Mr. Brown, Ms. Gallagher, or the proponents in the trial before Judge Walker could cite any evidence of this is irrelevant. Gays and lesbians are second class citizens. What Judge Walker found is exactly the opposite: gays and lesbians are entitled to all the same rights and responsibilities as every other citizen under the law and that fundamental rights are not subject to the whim of the electorate.
Seeing as how the gay and lesbian community has been denied equal rights in the matter of marriage, granting them the same rights as everyone else is not a “special right.” It is bringing them up to equality with everyone else.