Maybe I've just been reading too many bigots lately, but what I found refreshing is that the California justices appear willing to recognize illogical thinking when it is presented to them by opponents of marriage equality.
I have heard pretty much every argument against allowing gay people to get married. And ultimately, stripped down to their core, all of the arguments rely on easily-identifiable logical fallacies. Unfortunately, laypeople, the masses, and those who are bigots are often not able to recognize this thinking for what it is. Blinded by their bigotry, they accept this faulty thinking as legitimate.
Unless judges and justices are also blinded by bigotry, legal scholars (and heck, those with even an elementary understanding of logic) are easily able to see an argument (or lack thereof) for what it is. Unfortunately, when judges recognize the illogical thought processes that form discriminatory marriage laws, the right-wing propaganda machine derides them as "activist judges" subverting the "will of the people."
Now, I know I'm not the only one who has issues with constitutional issues being decided by bigoted and misinformed masses. And really, all the "will of the people" argument is at its core is the fallacy of an appeal to the masses, or "might makes right." Just because many people believe in something, it doesn't make it right or true.
Elementary, right?
Unfortunately not, for some people.
As noted in Albuquerque's article, the justices pointed out the oft-used appeal to tradition fallacy in the following argument that the state advanced: "Marriage has always been between a man and a woman. Therefore, marriage between two people of the same sex is wrong."
Ms. Albuquerque reports:
"'But we’ve always done it this way' is, of course, not a constitutional defense and the Attorney General seemed almost embarrassed to be making this argument, especially when various justices pointed out that many illegal discriminatory practices including treating women as property in marriage, saying women were not qualified to do most jobs, permitting marital rape and prohibiting interracial marriages also had a long tradition."
Tellingly, as law professor Douglas NeJaime notes:
"The state entities were not willing to argue that the marriage restriction is reasonable to further responsible procreation, to provide an optimum environment for rearing children, or to protect or promote marriage between different-sex couples."
Arguments of the "responsible procreation" ilk would have damaged the state's case against marriage equality for at least two reasons: (1) Most people can recognize that these arguments are nothing but less lazy ways of circularly stating that two people of the same sex cannot get married because marriage isn't for people of the same sex; and (2) These arguments directly contradict the argument that "gay people already have domestic partnerships so they don't need marriage."
That the "responsible procreation" arguments would hurt the state's case didn't, of course, stop private social conservative groups from submitting their own such arguments to the court. And, it will be a humorous note of irony if these groups end up damning the state's case! NeJaime continues:
"The private entities presented arguments that even the most conservative justices found specious, including, for instance, the notion that the marriage restriction is necessary to ensure integration of the sexes. The private entities also presented a view of marriage as a universal, invaluable status and as vital to families and children. This stood in stark contrast to the state’s attempt to minimize the symbolic differences between marriage and domestic partnership. Indeed, after the Campaign for California Families’ presentation on the significance of marriage, Justice Chin, half in jest, asked the San Francisco Deputy City Attorney, 'Did he just make your argument for you?'"
On the one hand, the state essentially argued that current California laws allowing same-sex domestic partnerships are, for most intents and purposes, the same as laws that allow opposite-sex couples to marry. (That's not true, but that's another blog topic). And therefore, same-sex couples do not require marriage. And yet, private groups opposed to marriage equality went and argued the contradictory stance that marriage is a sacred status above other forms of partnerships (and it is one that only opposite-sex couples should be able to enjoy). The state's argument depended on the notion that marriage is not any more special than domestic partnerships while the private groups' arguments depended on the notion that marriage is more special.
Of course, the first part of that argument "that marriage is special" is exactly what marriage equality activists have been basing their discrimination complaints on for years. So yeah, the private groups did sort of make the marriage equality advocates' argument for them.
So, um, thanks.
To end, Ms. Albuquerque predicts that the California justices will find the marriage restriction to violate the California Constitution. At the same time, she notes:
"It is quite possible that the opinion will be unanimous because the three remaining justices are having analytical difficulty finding a conceptual rationale to uphold the opposite-sex restriction even though, from their questions, it appears that they are troubled at the prospect of striking it down." [emphasis mine]
The trouble, I suspect, will come from the inevitable anti-gay backlash and "activist judge" labeling that will occur when this law is overturned even though there is no good legal or analytical argument for upholding the discriminatory law under California precedent. As Ms. Albuquerque notes, it is a fundamental right in California for a person to be able to marry the person of his or her choice. I emphasized that last part because that qualifier does not allow for this argument: "Gay people already have an equal right to get married. They just have to marry someone of the opposite sex." To deny a gay person the right to marry the person of his or her choice is, without question, a denial of this fundamental right.
I'm looking forward to this decision and the justices' reasoning process whatever way this case turns out. It will be a case study, I think, in appeasing ignorant masses versus doing what is right, fair, and constitutional.
Many will agree that these marriage cases continue to define the role of the judiciary in our political system. Do you believe that the role of the judiciary is to merely rubber stamp the will of the masses (who may be misinformed and/or bigoted?) If so, how is that a check on tyranny of the majority? And accordingly, would it be proper to put every constitutional right up for popular vote? Why have a judiciary in such a system?
In light of constitutional principles, separation of powers, the judicial oaths of office, and equal rights, the judiciary should never exist merely to sanction the popular biases of the day. And if the masses don't like that, they can always change the rules in the middle of the game by passing constitutional amendments, thereby telling the world that Americans don't believe in equality quite as much as they say they do.
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