Marriage As A Civil Right

Andrew Sullivan has a piece in the new Atlantic Monthly that takes an interesting look at and provides analysis of the import of the California Supreme Court's ruling handed down on May 15, 2008. Having read the entire opinion, it truly is a land mark ruling in many ways. Perhaps the longer lasting legacy of the decision will be the Court's treatment of sexual orientation as a protected class akin to race and national origin. It is this underlying basis for the Court's ruling that has caused the Christianists such angst. They realize that even if Proposition 8 were to pass in November, a seismic shift has occurred and that time is NOT on their side. Here are some highlights from Andrew's article:

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What’s notable here is the starting point of the discussion: an “individual.” The individual citizen posited by the court is defined as prior to his or her sexual orientation. He or she exists as a person before he or she exists as straight or gay. And the right under discussion is defined as “the opportunity of an individual” to choose another “person” to “establish a family” in which reproduction and children are not necessary. And so the distinction between gay and straight is essentially abolished. For all the debate about the law in this decision, the debate about the terms under discussion has been close to nonexistent. And yet in many ways, these terms are at the core of the decision, and are the reason why it is such a watershed.

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The premise used to be that homosexuality was an activity, that gays were people who chose to behave badly; or, if they weren’t choosing to behave badly, were nonetheless suffering from a form of sickness or, in the words of the Vatican, an “objective disorder.” And so the question of whether to permit the acts and activities of such disordered individuals was a legitimate area of legislation and regulation.

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But when gays are seen as the same as straights—as individuals; as normal, well-adjusted, human individuals—the argument changes altogether. The question becomes a matter of how we treat a minority with an involuntary, defining characteristic along the lines of gender or race. . . . The right to marry, after all, is, as the court put it, “one of the basic, inalienable civil rights guaranteed to an individual.” Its denial was necessarily an outrage—and not merely an anomaly—because the right to marry has such deep and inalienable status in American constitutional law.

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The political theorist Hannah Arendt, addressing the debate over miscegenation laws during the civil-rights movement of the 1950s, put it clearly enough: The right to marry whoever one wishes is an elementary human right . . . . Note that Arendt put the right to marry before even the right to vote. And this is how many gay people of the next generation see it. Born into straight families and reared to see homosexuality as a form of difference, not disability, they naturally wonder why they would be excluded from the integral institution of their own families’ lives and history. They see this exclusion as unimaginable—as unimaginable as straight people would if they were told that they could not legally marry someone of their choosing. . . . Once this happens, the law eventually follows. In California this spring, it did.