E.J. Dionne seems conflicted about gay marriage. He writes:
And, as a New York Court of Appeals judge cited by the California court majority noted, fundamental rights "cannot be denied to particular groups on the ground that these groups have historically been denied those rights." If history and tradition had constrained us, equal rights for African Americans would never have become law.
But to find a constitutional right to gay marriage, the California majority chose to argue that the state's very progressive law endorsing domestic partnerships for homosexuals — it grants all the rights of marriage except the name — was itself a form of discrimination.
This is odd and potentially destructive. As Justice Carol Corrigan argued in her dissent, "to make its case for a constitutional violation, the majority distorts and diminishes the historic achievements" of the state's Domestic Partnership Act.
The court found, correctly according to Dionne, that the domestic partnership law–however historically "progressive"–amounted to discrimination. Dionne ought to know that these two laws are different things (the progressive one about domestic partnership and the one about marriage). "Progressive" legislation aimed at circumventing legal discrimination (the denial of marriage to homosexuals for whatever reason) may be nice, but it still endorses the discrimination as legal (so goes, at least, the argument of the California court). So even if the legislation is, in its proper historical context quite "progressive", that fact hardly justifies maintaining it. Imagine had equal rights been handled this way–let's not call them "rights" but "things due" or something like that. Dionne's position, it seems to me, is just the obverse–the double negative as it were–of the argument he has just rejected. That is to say, the "progressiveness" of the legislation is no more reason to maintain it than the fact that such discrimination has long been lawful.
The majority is using the right language. Notice that they say this group “has been denied those rights.” When/if rights exist, they exist for all people. Then we withhold those rights; they exist, but someone can’t exercise them. Of course, to do so, morally and legally we must defend our reasons for doing so. Some examples are restricting voting rights for felons and minors, alcohol use by same and so on. The right to marriage exists for homosexual peoples. It is being withheld by the government, and now their faulty arguments for this withholding are being exposed. They will all one day fall, for they are weak and unworthy of our nation.
“the constitutionally based right to
marry properly must be understood to encompass the core set of basic substantive
legal rights and attributes traditionally associated with marriage that are so integral
to an individual’s liberty and personal autonomy that they may not be eliminated
or abrogated by the Legislature or by the electorate through the statutory initiative
process.” This is from the California Supreme Court(CSC) on their recent decision on same-sex marriage.
Who then can make decisions on any rights? The CSC makes a tidy argument. They seem to argue that there are rights so important that the electorate( you and I) or the Legislature ( the people we vote for) are unable to decide them. In the face of our inability to decide these rights the CSC will decide them for us.
If the goal of our society is a democratic republic greater rights to all must be extended. These rights, though, must be extended from the sovereign will of the people and not from the courts. This is often a ugly process, but ultimately, I think, a more satisfying one.
Speaking of Gay Marriage court decisions, maybe you all (and jcasey in particular) can take a look into the Boston Globe’s Jeff Jacoby.
“Misunderstanding marriage in California,” Op-Ed, May 21, 2008, Boston Globe:
http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2008/05/21/misunderstanding_marriage_in_california/
I am not really a philosopher so can’t point out the specific errors, but Jacoby typically writes Op-Eds like this one that demonstrates a poor understanding of the role of the Judiciary (as well as the history of marriage).
(I think Jacoby’s columns would find a nice “home” here on The Non-Sequitur.”)
Thanks for the suggestion GA. Maybe I’ll look at that tomorrow.