Human rights and the California Supremes
Last week I watched C-Span's coverage of the California Supreme Court oral arguments In re Marriage Cases.
Perhaps I have a bias in this regard...but it seemed to me that the State Supremes' line of questioning might be indicative of the way they are likely to decide the matter. In addition to that, what was obvious to me as well, was the way the two opposing sides of attorneys came into court: at first they appeared to be all fine upstanding folks, but as time progressed, the side that favored the constitutionality of Prop 22 and gender discrimination in marriage seemed to limp into court on crutches, and toward the end they virtually had to use wheelchairs, for lack of a leg to stand on.
I would have to say that Mr. Krueger in particular, representing the State Attorney General's Office, though obviously a very likeable, pleasant kind of guy, seemed very ineffectual and was frequently at a loss for words, hemming and hawing, stammering and leaving long awkward pauses in his answers to the probing questions of a number of the Supremes.
He relied heavily on 'tradition' obviously a code word for 'religion of the Conservative Christian kind' but was at a loss when one of the Lady Supremes pointed out that 'tradition' once condoned slavery and treated wives as the property of their husbands--and furthermore that marriage has proven to be just one of the many ancient institutions marked by significant changes in the customs or mores of society.
When asked to supplement the mere argument based on tradition with a 'rational basis' that might be acceptable, the best he could come up with was that the objective in marriage--and hence the interest of the state in regulating it--was the reproduction of children. To which the obvious counter-argument of the Supremes was, of course, that then many men and women might have to be kept from marrying each other for lack of reproductive capacity or intent.
So I am hopeful that our State will see the justice of the case for gender neutral marriage legislation and throw out Proposition 22, which defined marriage as exclusively allowable between a man and a woman.
Another argument the Supremes threw at Krueger c.s. was that even Proposition 22 had only a very limited purpose:
California’s 2000 ballot initiative Proposition 22 (or Prop 22) prevents California from recognizing same-sex marriages performed outside California's jurisdiction. Voters adopted the measure on March 7, 2000 with 4,618,673 votes versus 2,909,370 against.
That seemed to indicate that when the California legislature itself would enact gender neutral marriage laws this proposition ought not to apply. But when in fact this happened, when our legislature in other words did pass gender neutral marriage legislation, not just once but twice, our mousy Governator saw fit to veto such legislation in each instance--using proposition 22 as his fig leaf. So much for homo musculus, the little mouse man aka as der Arnold.
I am not a gambling man, but I would be willing to bet that the Court is going to come down on the side of human rights in this case--unless they wiggle themselves out of the predicament by claiming that the trends are in favor of gender neutral marrigae legislation, but that the time has not yet arrived for such a decision.
I would disagree with them on that--there is no wrong time to come down on the side of human rights.
One of the attorneys on the other side made it clear that gay people have always had the constitutional right to get married, since that right is one of the human rights of every individual--that the Constitution never was in conflict with these human rights, but that society has until recent times not been aware of the proper application of these constitutional rights to all people and to every single individual.
The same could of course be said for all minority rights--it is not that at one time women, or blacks, or Jews and Catholics in our society did not have equal human rights, but that as a society we had not yet grown in our understanding, or attained the level of awareness that made this constitutional issue clear--even though our Founding Fathers wrote that 'we hold these truths to be self evident that all men are created equal'--society and indeed our Founding Fathers themselves were not at the level of awarenes to fully grasp the significance and consequences of their words at a higher level of consciousness.
We are human beings with various levels of consciousness--of course, as I stated in a previous journal entry, there is bound to be great diversity in the level of awareness in every society, as well as historical, geographical and/or cultural diversity. But when one examines the phrase "it is self-evident that all men are created equal' and removes from it any residual gender discrimination, racial discrimination and religious discrimination, then there is only one way to decide human rights cases--and the time to make the decision is not when everyone in society is at the same high level of awareness, but when those who sit on the Supreme Court of the state or the country have attained that level of awareness in order to make the right decision--and it does appear that they might have at long last.
In other words--whatever decision the California Supremes do make will be a reflection of their own level of awareness in this matter. I hope they will measure up. Anyone wants to make a bet?