Thursday, January 14, 2010
Propostion 8 Trial: Loving the Sparkliest Person Vs. The Needs of Society
The US District Court trial in San Francisco on the constitutionality of California's Proposition 8 is rife with emotion. Coverage in the New York Times Tuesday described Kristin Perry, co-plaintiff, answering her lawyer's query about how she fell in love with her partner, Sandra Steir: "I remember thinking that she was the sparkliest person I'd ever met."
While I hope Ms. Perry and Ms. Steir have a happy life together, I do not believe that those who find another to be the sparkliest--or the most wonderful, or the most attractive, or the most brilliant person ever--should necessarily qualify for state sanction in marriage.
Theodore B. Olson, attorney for the plaintiffs, said he will show that gays and lesbians suffer "grievous harm" because they lack state recognition as "married." It appears that a goal will be to show that for those deeply committed and in love, having all the legal rights of marriage (which same-sex couples are guaranteed by law in California) but not its moniker, is "grievously harmful."
I know teenagers smitten by admiration for rock stars who crave them so much they faint. Though I was a mere child at the time, I vividly remember seeing video of Beatles audiences where women regularly swooned, screamed, cried hysterically, and fell unconscious with adoration. One might assume these young women felt John, Paul, George and Ringo were far more than "sparkly." Depth of feeling for another person may create a relationship, but it does not constitute or necessitate marriage.
In fact, last June, Gov. Mark Sanford, who waxed poetic in a raft of emails to his "soul mate" Maria Belen Chapur that spelled the end of his presidential hopes and probably his political career, was also deeply in love. Given his wife Jenny's patient response, he should have been able to marry Maria as well. After all, he didn't want to end his 20-year marriage, as he announced when Jenny finally filed for divorce--instead he called the outcome "tragic" and "not the course [I] would choose." With a deep desire to be with the women he loved, forbidden by law to be married to both simultaneously, Gov. Sanford--and his children--must've suffered "grievous harm."
I do think it's true that California marriage law discriminates against same-sex couples. Couples where both partners are the same gender are treated differently from couples where the partners are of opposite sexes. That's called "discrimination based on sex." Which for many purposes is perfectly legal, and which advocates of gay marriage do not seek to change. For example, women are not required to register for the draft, and if there were one, women would not be required to serve. Public restrooms may be segregated by sex. Male and female convicts go to facilities separated by gender. And California marriage laws always assumed--and now specify--a bride and a groom.
Though zealous gay-marriage advocates outside the District Court trial brandish signs insisting on "the freedom to marry," at this point, none of them are willing to insist on complete freedom, though they may seek it later on. They don't plead for polygamy or polyandry; they don't march for incest; they don't claim that children, or any collection of in-love, committed people should gain state-approval as a "marriage." In other words, they seem to want all of the traditional restrictions on marriage to stand--except the most basic one, the combination of male and female.
And as for "the freedom to marry," well, anyone is free to perform a non-state-recognized wedding. Pardon my ignorance, but isn't it said that Catholic nuns are "married to the Church"? What about the hippie communes, some of which continue today, where all participants share everything, including their bodies, in a love-infused commitment? Circuit court plaintiff Perry proposed marriage to her partner in 1993, with the result that "She looked really happy" before she "looked really confused." They got married unofficially. Are happiness and confusion the makings of "grievously harmed"?
Actually, though marriage laws may assume or specify the genders of participants, neither gender is treated differently, or suffers any discrimination. Any individual is able to legally marry one of the opposite sex. That includes everyone, and excludes or discriminates against no one.
The issue here is that some people want legal recognition for marriage to someone from a legally prohibited group. Prohibited groups include children, those already married, people who are mentally incompetent, men and women who are close relatives, and those of one's same gender. As I mentioned before, gay marriage advocates want to remove one of the restrictions yet leave all the rest--does that make sense?
I do think that for many on the left, the underlying aim is to dissolve the institution of marriage altogether. A great 2006 article by Stanley Kurtz in National Review Online describes an underlying agenda, published in a document called "Beyond Same-Sex Marriage" and supported by respected people like Gloria Steinem and Rabbi Michael Lerner, to be approached one step at a time. Gay marriage is the first step. Insisting on equal honor and government support for any and all chosen relationships is the ultimate goal. Kurtz doesn't say this, but if you reduce the argument further, the desired outcome is for honor and government support not for permanent commitments, but for any and all types of sexuality.
Which is what it comes down to. Marriage has been the societally-preferred setting for the type of sexuality that produces those societies. It is not about commitment to "the one you love," but to stable families. The guys carrying the signs in front of the District Court who want "the freedom to marry" have it. But society's future depends on raising a healthy generation of children in the environment most conducive to their flourishing. That's where the state has a stake in traditional marriage.
The people of California understood this, adding to their constitution in Proposition 8 just one sentence: "Only marriage between a man and a woman is valid or recognized in California." I hope the US District Court gets it, too.