The Depths of Their Affection, Not the Gender of Their Beloved

California's Proposition 8 - a ballot measure amending the state constitution to define marriage solely as between one man and one woman - passed on November 4th, appearing almost as some sort of horrible karmic balance of societal regression against Barack Obama's landmark election to the presidency. With its core function to actively discriminate against same sex couples, Prop 8 was contentious, and its passage can largely be atttibuted to the enormous amount of money that poured into California from out of state. The Utah-based Church of Jesus Christ of Latter-Day Saints (LDS) and the Roman Catholic Church were both major supporters of the initiative, and the end result was that, while the United States made a significant stride in overcoming longstanding prejudice in its choice of chief executive, its most populous state ended up codifying bigotry against homosexuals.


In the wake of passage, it appears that California Governor Arnold Schwarzenegger - formerly indifferent to Proposition 8, but perhaps recognizing the horrible dichotomy in progress between the course of racial equality and gay rights - has voiced his hope that the measure will be overturned in the courts. Meanwhile, large-scale protests against Prop 8 have broken out across California, and although people like the Tony Perkins of the Family Research Council (FRC) have attempted to paint these protests as violent mobs working against the will of the people, they have been anything but.


The Mormons - suddenly under the spotlight in ways they now wish they were not - have faced demonstrations at their places of worship in both California and their home state of Utah, but apparently miss the towering irony in their complaints that intrusion into their personal religious matters is inappropriate. Catholic leadership, meanwhile, has sallied forth with a stomach-churning and transparently false claim that "Proposition 8 is not against any group in our society. Its sole focus is on preserving God's plan for people living upon this earth throughout time."

Such declarations aside, let's be perfectly clear: "will of the people" or not, Proposition 8 specifically - and discrimination against same sex couples who want to marry, in general - is unconstitutional, illogical, and immoral.

It is unconstitutional because the Fourteenth Amendment to the United States Constitution states, very clearly and with express intention of preventing descrimination against minorities, that:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Proposition 8 is illogical, because - as detailed in the famous "Open Letter to Doctor Laura" - the religious justification for banning same-sex marriage and persecuting homosexuals cherry picks one portion of the Old Testament and ignores many others. Marriage is also not nearly the immutable institution organizations like the FRC would have the public believe, and the Bible very clearly countenances polygamy as a fact of life. Further, claims that Proposition 8 is rooted in protecting the "sanctity of marriage," are obviously false; on the basis of volume alone, the divorce rate among heterosexuals is a far greater threat to matrimony than homosexual marriage is, or ever will be, and no one is working to ban divorce.

Finally, this measure is immoral, because, as Barry Eisler eloquently explains at The Heart of the Matter:

If you oppose gay marriage, try to imagine that as strongly as you feel, that's just how strongly backers of Jim Crow felt in the 1950's and 1960's. Segregationists, who are now recognized as the racists they were, felt just as strongly about blacks marrying whites as you feel about two men or two women marrying each other. They had their arguments, as you have yours. And yet, looking back, we know they were wrong. When people look back at supporters of Prop 8, they'll recognize that Prop 8 supporters were wrong, too.

Fortunately, the fight against Proposition 8 is not over. Already, seven same-sex couples - legally married in the Golden State prior to Prop 8's passage - have filed suit to overturn the measure. Further, the California Supreme Court has been petitioned to overturn Proposition 8 on the grounds that the ballot initiative process was improperly used in an effort to gut the state constitution's core commitment to equality. And perhaps best of all, businesses and individuals who financially backed Proposition 8 are being held accountable through protests and boycotts.

As big a setback as the passage of California Proposition 8 is, however, I truly believe that - no matter what the short term outcome of court cases and legal challenges - efforts like this one exist on borrowed time. Given that Arizona and Florida also enacted bans on same sex marriage, it may be that my outlook has been affected by optimism associated with Senator Obama's election, but I'm not so sure. Arizona and Florida aren't the bellwether states that California is, and it's worth noting that today, Connecticut began licensing homosexual couples for marriage. Injustice for minorities clearly still exists in the U.S., but the mere existence of a President Obama makes it much more difficult for discrimination to withstand scrutiny.

Unquestionably, Prop 8 is a defeat for those who believe that equality before the law is a fundamental American principle, and it is one that deserves an active and vigorous response. But just as we have elected a president based on the content of his character rather than the color of his skin, we will someday - in the near future - support equal marriage rights for all consenting adults based on the depth of their affection, rather than the gender of their beloved. We owe it to our fellow Americans, who have been made second class citizens by Proposition 8, and we owe it to ourselves.