One L(ove)

November 12, 2008

Thoughts on Proposition 8

Filed under: Uncategorized — galileehitchhiker @ 12:34 pm
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As I walk through the halls of school, I hear a lot of conversations centered around Proposition 8. It’s not only a hot topic of debate within the walls of the law school, but also without it. Political pundits, community organizers, lawyers, academics, religious leaders, television and radio shows, and editorial sections of newspapers across the country are discussing about the approval of Proposition 8 by Californians in last week’s elections.

I first learned about the proposition the day before the elections when a friend from school, who is from California, said that Californians were voting whether gay marriage should be allowed in their state. Proposition 8 (its ballot title was Eliminates Right of Same-Sex Couple to Marry), seeks to overturn the California Supreme Court’s recent decision of recognizing same-sex marriage as a fundamental right. The proposition will amend the Californian Constitution in defining marriage solely between a woman and man. Californians (shockingly) approved the proposition (52% yes, 48% no). This has caused a public furor from the LGBT community in California and, I bet, from the LGBT communities around the whole country.

One of the things I truly admire in a person is his or her ability to make sound logical statements – that their flow of thought succeeds in a logical fashion. I believe public policy should be based on sound logical reasoning, although I do think the application of logical reasoning should be curtailed in some instances (I suggest you read Arthur Koestler’s classic book Darkness at Noon to know what I mean). In this instance, that of gay marriage, I do personally believe that policy should be determined by sound logical reasoning. Of some of the arguments that I have personally heard that are put forth to justify the passing of Proposition 8, I can’t help but think how weak they are. It’s scary to see these types of arguments put forth to justify limiting the rights of a significant portion of our society:

1. “I believe homosexuality is natural and also the right of homosexuals to marry but Proposition 8 should be passed because I don’t want my kids to learn about homosexuality in sex ed.”  Yes, ladies and gentlemen. I have personally heard this argument proposed in support of Proposition 8. What would be the logical consequences of such an argument? Wouldn’t passing Proposition 8 just so homosexuality cannot be taught in sex ed only negate the first half of the argument, i.e. homosexuality is natural and that gay marriage is also natural? Doesn’t the second half of the argument belie the first part? There’s an apparent contradiction underneath the surface. The things that are taught in sex ed only communicate to the children what is natural in society. If only sexual relationship between a man and woman are taught in sex ed and the child learns this to be the only natural type of sexual relationship between humans, isn’t it possible that when a child gets out of the classroom and sees other types of sexual relationships that he’ll or she’ll deem them to be “unnatural”? Surely, it’s plausible that the child would come to the conclusion: “Well, I didn’t learn that in school. This is an unnatural type of sexual relationship.” This will only give children an idea that homosexuality is unnatural and a deviant sort of relationship, since it is distinguishable from that which has been taught at school. Therefore, a logical consequence of this argument would only perpetuate that homosexuality is unnatural, something to be feared and hated. I’m sure that no matter what position you take on this issue (whether homosexuality is natural or unnatural), you can defintely see (I hope) that how such an argument only contradicts itself. I don’t know how a person can believe homosexuality is natural while putting forth this argument. What about a teen who feels “different” from the rest? That he or she feels differently from a person his or her gender is supposed to feel (remember gender is different from sex, the former is a social construction and the latter is biological). Certainly, there’s a lot of confusion. I personally think that such an argument proposed above would only serve to confuse such a person more.

2. “The right of gays to marry is natural but I don’t want them to show it in public.”  Yep, I first heard of this argument after the elections. What does it mean? Marriage is a social invention and a powerful institution in our society. It provides benefits that are denied to unmarried couples and single people. It carries with it a powerful status and a great sense of security. Certainly, in the eyes of the law, there are definitely more privileges and benefits conferred to those who are married than those who are not. But what does it mean when such a person would say, “I don’t want them to show their marriage in public”? How do a heterosexual married couple display their marriage in society? I don’t know. The only thing I could think of is a wedding. That’s how you know when someone is a married couple. Then arguing that gay marriage is natural but it shouldn’t be displayed in public (i.e. wedding) is only an inherent contradiction. Does it send out the message: “Both homosexuals and heterosexuals have the equal right to marry but heterosexual marriages are more equal than homosexual ones”? But does the person mean kissing, hugging, and holding hands? These are displays of affection that couples (whether married or not) generally do. These activities go on and will go on no matter if a couple (gay or straight) are married or not. Stopping these displays will only needlessly infringe upon the rights of people to do so.

3. “Allowing gay marriage will lead to a slippery slope.” Ah! The slippery slope argument. This type of argument is drilled inside the heads of every first-year law students to reflect upon what would be sound public policy. What the slippery slope is that if you basically allow something to happen, it’ll only open doors for (socially) less favorable activities to take place. Such an argument when applied to the issue of gay marriage (I’ve heard Bill O’Reilly make this argument a lot) seeks to show that allowing gay marriage will pave the way for other types of marriages such as between a human and an animal. I think this type of argument is unfair and would surely be offensive and hurtful to homosexual couples. Think about it. How can the relationship between two consenting adults who happen to be of the same sex be analagous to a relationship between a man and, let’s say, a goat (I like goats)? It must be insulting for homosexual couples, indeed. There’s such difference between a relationship between two consenting human adults of the same sex and that of a human and goat (although goats are incredibly cute, I seriously doubt they can consent, lawfully speaking, to marriage with humans). I think it’s reasonable for fair-minded proponents and opponents of gay marriage alike to see that the slippery slope argument does not logically hold.

Some things to think about:

1. An example from criminal law. Judges often tell juries to think if a person, who happens to be white, shoots and kills some black teenagers which the former thought were threatening, would the switching of the race of the killer and victims matter? If it does change, what does it mean to you? That means race and our attitude towards people of a certain race does matter in our decisions. Ask yourself: What if the elimination of the right to marriage between heterosexual couples should be taken away, does it matter? If it does, what does it say about your attitude toward sexual minorities? Do you believe that those who identify themselves differently when it comes to sexuality are more privileged than those who identify themselves totally the opposite? Is this fair and just? If not, should it be the basis of public policy? Something to think about.

2. The problematic title of Proposition 8. Rachel Maddow, a person I truly admire and who happens to be a gay American, said on election night after President-elect Obama was announced to have won the presidential election, that the ballot title of Proposition 8 is extremely problematic: “Eliminates Right of Same-Sex Couples to Marry.” In its wording, she says that the proposition realizes that there is a right of gay Californians to marry, as the Supreme Court of that state held. The aim of the proposition is to take that right away. Isn’t the wording of the proposition disturbing? Something to think about.

I do think people have a right to believe and opine about whatever they want to believe and opine about – no matter how reasonable or unreasoable those beliefs and opinions are. However, when it comes to public policy, especially when it affects the lives of a significant portion of people in our society, our public conscience needs to be free of illogical and unreasonable defects in the rails of our train of thought.

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