Andrew Sullivan's
Dissent of the Day questions this observation from Judge
Walker:
"Race and gender restrictions shaped marriage during eras of
race and gender inequality, but such restrictions were never part
of the historical core of the institution of marriage."
This is (the writer argues) nonsense, since there were no such
eras, unless you are talking about all of recorded history up to
the late 20th Century.
That's true, but it misses the point. Here is the more salient
conclusion from the opinion:
"The evidence did not show any historical purpose for
excluding
same-sex couples from marriage, as states have never
required
spouses to have an ability or willingness to procreate in
order to
marry. Rather, the exclusion exists as an
artifact of a time when
the genders were seen as having distinct
roles in society and in
marriage. That time has passed."
The proponents of Prop. 8 want to focus exclusively on
justifying heterosexual marriage, but the court was being asked to
decide something else. Heterosexual marriage is not at issue in
this case. It will continue with or without a decision in
Perry v. Schwarzenegger, or any other case. No one is
challenging heterosexual marriage.
The relevant question is this: Are there reasons, historically
or in the present, to exclude same-sex couples from marriage? That
is both a different question from the one most people are
accustomed to asking, and a vital one for the constitutional
analysis of the issue lesbians and gay men are facing.
The U.S. Supreme Court has long held, very explicitly, that the
constitution recognizes a fundamental right to marry. But that can
be viewed in at least two ways. First, it could mean the right to
marry someone of the opposite sex. That would be a right that only
heterosexuals could exercise meaningfully. "Fundamental" in the
constitutional sense, means that the government cannot interfere
with the right's exercise except for the most compelling reasons.
If the right is exclusive to heterosexuals (because it is not just
"the right to marry," but "the right to marry someone of the
opposite sex") then voters or legislatures can exclude homosexuals
from exercising the right.
But it can also be viewed as the courts have actually stated it:
a fundamental right to marry. Period. The question is whether the
phrase, "someone of the opposite sex" is inherently included in the
right.
That was what Judge Walker's opinion was examining. Marriage
between heterosexuals has been taken for granted for all of
recorded history, not because anyone ever made a decision to
exclude homosexuals, but because no homosexuals had the visibility
or political strength or will to even try. It was not until the
late 20th Century when lesbians and gay men were able to become
visible and politically active enough to challenge even laws that
made them criminals -- the obvious first priority. And that task is
accomplished.
Now is the time to ask the marriage question -- but it needs to
be the right question. The anti-marriage forces have been
enormously successful in keeping the focus on heterosexuals, and
off of homosexuals. The political battles over same-sex marriages
are battles focusing on heterosexual grievance, anxiety and
privilege. Homosexuals do not play any role onstage in the fight
against same-sex marriage. The Prop. 8 campaign was a classic
example of an argument of, by and for heterosexuals.
Political battles can be over anything, or nothing. That is the
nature of politics. But when it comes to some rare things that are
important enough to be set out in our collective aspirations, known
as the Constitution, real and substantial justifications are
required along with a vote. Fundamental rights cannot be taken
away by majority vote. And the equal protection of the law, by
definition, cannot be abridged by a majority of any size.
Perry v. Schwarzenegger is the first opportunity in a
federal court for exploring and answering that kind of question.
No one is asking whether heterosexuals have to defend their
marriages. They don't. The question - the only question - is
whether there are reasons to exclude homosexuals from that vital
and deeply human institution.
Opponents of same-sex marriage had every opportunity to offer
any such reasons. And any one would have done. But in the end,
they continued their pathological focus only on themselves, and
failed to answer the question they were being asked.